[J-20-2014] IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT **COMMONWEALTH OF PENNSYLVANIA,**

**Appellant**

**v.**

**GERALD M. DUNNAVANT,**

**Appellee :**  **: :**  **: :**  **: :**  **: :**  **: :**  **No. 18 WAP 2013 Appeal from the Order of the Superior**  **Court entered February 27, 2013 at No. 1046 WDA 2012, affirming the Order of**  **the Court of Common Pleas of Mercer County entered June 8, 2012 at No. CP**  **43-CR-0001291-2011.**

**ARGUED: April 8, 2014**

OPINION IN SUPPORT OF AFFIRMANCE

MR. JUSTICE SAYLOR DECIDED: DECEMBER 2 9, 2014

**We would affirm the Superior Court’s order, as we wou ld find that, under this**  **Court’s precedent, Appellee was entitled to suppression o f the videotape surreptitiously** 

**created within his home. In our view, the decision by this Court that bears most**  **directly on the present case is Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 2**  **87 (1994), which granted suppression where a confidential informant secretly audio**  **taped the events inside the**

**defendant’s home. 1**  **The Justices favoring reversal interpret Brion as emph asizing the**  **impermissibility of intentional police conduct in sending a confidential informant into a**  **suspect’s home to record events that transpire inside. See Opinion in Support of** 

**1 We agree with the Justices favoring reversal that the**  **use of videotape is “obviously analogous” to the use of audiotape for present purpose**  **s. Opinion in Support of Reversal, slip op. at 17.** **[J-20-2014] - 2**

**Reversal, slip op. at 31. Although the Brion Court h ighlighted such conduct, the**  **decision’s central holding was predicated on the distinctio n between the privacy**  **inherent in one’s home and the lack of privacy attendan t to locations outside the home.**  **Indeed, it is on this basis that the Court distinguished prior decisions, explaining:** 

**Unlike both [Commonwealth v. Blystone, 519 Pa. 450, 5 49 A.2d 81**  **(1988)] and [Commonwealth v. Henlen, 522 Pa. 514, 5 64 A.2d 905**  **(1989)], the instant case involves conversations taking pla ce in the**  **sanctity of one’s home. If nowhere else, an individual must feel secure in**  **his ability to hold a private conversation within the four walls of his home.**  **For the right to privacy to mean anything, it must gu arantee privacy to an**  **individual in his own home. As then-Justice Roberts stat ed in**  **Commonwealth v. Shaw, 476 Pa. 543, 550, 383 A.2d 49 6, 499 (1978):**  **“Upon closing the door of one’s home to the outside wor ld, a person may**  **legitimately expect the highest degree of privacy know n to our society.”**  **(Citations omitted.) Brion, 539 A.2d at 260, 652 A.2d at 289 (footnote o**  **mitted). The opinion supporting reversal distinguishes the present**  **dispute from Brion on the basis that, here, the confidential informant was no**  **t sent by the police into the home, but instead was unexpectedly invited into the home. I**  **t concludes that Appellee**

**therefore “did not close the door to the outside world ,” because “the [confidential**  **informant] and the hidden camera made their way . . . into the home only as a result of**  **appellee’s invitation.” Opinion in Support of Rever sal, slip op. at 32. The opinion**  **supporting reversal indicates that this “makes all the con stitutional difference.” Id. at 31.**  **We would note, however, that, in Brion, there is no su ggestion that the informant**  **entered the residence against the will of its occupant. Thus, in that matter it may**  **equally be said that the defendant did not close the d oor to the outside world, and that**  **the informant and the recording device made their way into the residence as a result of**  **the occupant’s wish to sell drugs to the informant. Hen ce, a present holding that**  **suppression is not required, when read in conjunction wit h Brion, would signify that the** **[J-20-2014] - 3**

**determining factor of constitutional significance is, in e ffect, whether the officers**  **involved in setting up a controlled drug purchase subje ctively intend that the transaction**  **should occur inside or outside the suspect’s home. In our view, such subjective intentions on the part of t**  **he authorities are of little relevance to the constitutional analysis. Of more relev**  **ance is the occupant’s expectation of privacy in his home (along with society’s**  **recognition of the reasonableness of that expectation), and the fact that**  **the confidential informant physically entered the home to secretly videotape the tr**  **ansaction. See Brion, 539 Pa. at 262, 652 A.2d at 289; Commonwealth v. Rekasie, 566**  **Pa. 85, 101, 778 A.2d 624, 634 (2001) (Castille, J., concurring, joined by Saylor,**  **J.) (agreeing that a police wiretap did not violate Article I, Section 8, because**  “ **unlike Brion** , **the recording/seizure of the oral statements did not result from the physical entry o**  **f a government agent into the defendant’s home”). In this regard, we believe that**  **failure to require suppression in the present circumstances would establish what is tantamount**  **to a good-faith exception to Brion’s holding, whereas this Court has generally found**  **that that, due to the primacy of the privacy interests it protects, Article I, Section 8 d**  **oes not encompass exceptions based on the good faith of the police. See, e.g., Co**  **mmonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991).**  **Accordingly, we would conclude that, unless and until Bri on is overruled,**  **individuals in Appellee’s position are entitled to supp ression of secretly-made video**  **recordings capturing events transpiring within the confin es of their home, regardless of**  **whether the police originally expected and/or intende d that those events would occur** 

**outside the residence. Mr. Justice Baer and Madame Justice Todd join this opinion**  **in support of**

**affirmance.**