[J-42-2016][M.O. – Todd, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

KHIRI ARTER,

Appellant

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No. 63 MAP 2015

Appeal from the Order of the Superior 

Court at No. 396 MDA 2014 dated 

10/8/14 reconsideration denied 12/2/14 

affirming the judgment of sentence of 

Dauphin County Court of Common 

Pleas, Criminal Division, at No. CP-22-

CR-0001297-2012, dated 2/4/14

ARGUED: April 5, 2016

DISSENTING OPINION

CHIEF JUSTICE SAYLOR DECIDED: December 28, 2016

I respectfully dissent, since, as a predicate to application of the exclusionary rule 

in the context of parole revocation proceedings, I would require a factual determination 

concerning whether officers involved proceeded with an improper motive.

Since state courts, in the 1970s, began to ground departures from federal 

constitutional doctrine upon interpretations of their own state constitutions’ counterparts 

to provisions of the United States Constitution, this “new judicial federalism” has been 

the subject of substantial debate. A prominent line of controversy centers upon the 

imposition, by state courts, of an exclusionary rule where the United States Supreme 

Court has determined that none should apply. See, e.g., Lawrence Friedman, Reactive 

and Incompletely Theorized State Constitutional Decision-Making, 77 MISS. L.J. 265, 

300 (2007) (positing that this Court’s seminal decision in Commonwealth v. Edmunds, 
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526 Pa. 374, 586 A.2d 887 (1991), failed to supply “a coherent theory to explain how 

the exclusionary rule should be understood and applied” for purposes of state 

constitutional law).

In terms of considering when the Pennsylvania Constitution should be invoked to 

justify suppression of evidence in the search-and-seizure setting, I agree with those who 

emphasize that Article I, Section 8 of the state charter and the Fourth Amendment to the 

United States Constitution reflect what, to their respective framers, was the same 

normative protection. See Commonwealth v. Schaeffer, 370 Pa. Super. 179, 238-39 & 

nn.6-7, 536 A.2d 354, 384 & nn.6-7 (1987) (Kelly, J., concurring and dissenting)

(explaining that the terms presently reposed in Article I, Section 8 were adopted by the 

Pennsylvania General Assembly in 1790, contemporaneous with the Legislature’s 

ratification of the Fourth Amendment, and highlighting the close similarity of such 

respective provisions); accord Arthur Leavens, State Constitutionalism: State-Court 

Deference or Dissonance?, 33 W. NEW ENG. L. REV. 81, 82-83 (2011) (making the same 

point concerning the Massachusetts analogue to the Fourth Amendment). I also believe

that prominent decisions in the Pennsylvania line of the new judicial federalism have 

inordinately ignored or downplayed the nearly-200 years of history throughout which this 

Court had maintained the common law approach of refusing to impose an exclusionary

precept, over and against arguments advocating for its recognition under the 

Pennsylvania Constitution. See generally Commonwealth v. Russo, 594 Pa. 119, 134, 

934 A.2d 1199, 1208 (2007) (collecting cases and explaining that “no decision of this 

Court has squarely purported to examine and disapprove of the long and unbroken line 

of pre-Mapp [v. Ohio, 367 U.S. 643, 81 S. Ct. 1684 (1961)] decisions holding that, far 
[J-42-2016][M.O. – Todd, J.] - 3

from recognizing greater exclusionary-rule-related privacy rights, Article I, Section 8 

contained no exclusionary remedy whatsoever” (emphasis in original)).1

From my point of view, the failure to remediate the early lapses in the above 

respects -- as the new judicial federalism has matured and the Court has continued to 

selectively sanction instances of departure from federal constitutional doctrine -- has left 

the Court vulnerable to criticisms of revisionism and diminished legitimacy in this line of 

decisions. See, e.g., McCarthy, Counterfeit Interpretations, 58 SYRACUSE L. REV. at 

135-36; cf. James W. Diehm, New Federalism and Constitutional Criminal Procedure: 

Are We Repeating the Mistakes of the Past?, 55 MD. L. REV. 223, 244 (1996) (referring 

to a “perplexing melange of disparate constitutional principles” reflected in state 

constitutional law decisions); James A. Gardner, The Failed Discourse of State 

Constitutionalism, 90 MICH. L. REV. 761, 763 (1992) (characterizing various departure 

pronouncements under state constitutions as reflecting a “vast wasteland of confusing, 

conflicting, and essentially unintelligible pronouncements”). Since the exclusionary rule 

 

1

For example, the majority references Commonwealth v. Sell, 504 Pa. 46, 470 A.2d

457 (1983), for the proposition that the survival of the normative protection embodied in 

Article I, Section 8 “through over 200 years of profound change in other areas 

demonstrates that the paramount concern for privacy . . . continues to enjoy the 

mandate of the people of this Commonwealth.” Majority Opinion, slip op. at 12 (quoting 

Sell, 504 Pa. at 65, 470 A.2d at 467). As in a number of this Court’s previous decisions, 

however, this manner of presentation downplays the fact that, throughout most of this 

200-year history, this Court did not believe that such mandate should encompass any 

requirement that evidence secured in violation of constitutional rights must be 

suppressed. See Russo, 594 Pa. at 133, 934 A.2d at 1207 (“[A]ny historical survey 

respecting . . . any suppression case under the Pennsylvania charter, hits a brick wall in 

1961; there is no relevant history to support a broader state constitutional interpretation 

because there was no point in seeking such an interpretation, at least in a criminal case, 

since there was no exclusionary remedy available.” (emphasis in original)); accord

Francis Barry McCarthy, Counterfeit Interpretations of State Constitutions in Criminal 

Procedure, 58 SYRACUSE L. REV. 79, 117 (2007) (“Any claim by one of the fourteen 

states that rejected the exclusionary rule that the state has a long history of protecting 

state constitutional rights must ring hollow.”).
[J-42-2016][M.O. – Todd, J.] - 4

was imposed on Pennsylvania under federal constitutional doctrine after a prolonged 

period of Commonwealth-level rejection, see Russo, 594 Pa. at 132-34, 934 A.2d at 

1207-08, it should be apparent that, when this Court has expanded the field of 

mandatory suppression on state constitutional grounds, it has built upon a foundation 

constructed by the Supreme Court of the United States, not one solidly premised upon 

unique state sources. The Edmunds formulation notwithstanding, I submit that the 

departure cases expanding the exclusionary rule ultimately distill to policy choices on 

the part of the prevailing majorities pertaining to a non-textual, judge-made convention 

which should be administered with great restraint. See Commonwealth v. Williams, 454 

Pa. 368, 372, 312 A.2d 597, 600 (1973).

2

The Court had recently moved to a more overt cost-benefit balancing between 

the value of extending exclusion as a “remedy,”

3

and the corresponding impairment to 

the truth-determining process in the administration of justice. See Henderson, 616 Pa. 

at 289, 47 A.3d at 804 (“The greatest difficulty in the enforcement of a prophylactic rule 

intended to guard individual liberties is on account of the competing value in society’s 

 

2 Parenthetically, I observe that this Court’s Article I, Section 8 jurisprudence otherwise

seemed to have been trending toward retrenchment in recent years. See, e.g., 

Commonwealth v. Gary, 625 Pa. 183, 242, 91 A.3d 102, 138 (2014) (plurality) 

(reflecting the present culmination of decades of controversy via the adoption of the 

federal automobile exception to the warrant requirement as a matter of state 

constitutional law); Commonwealth v. Henderson, 616 Pa. 277, 289-90, 47 A.3d 797, 

804-05 (2012) (refusing to enforce an independent-source requirement under the 

Pennsylvania Constitution in the absence of police misconduct).

3 Notably, the remedial aspect of suppression is indirect, as the exclusion of evidence 

does not, “strictly speaking, remedy the privacy, dignity, and security harms that the 

relevant constitutional provisions seek to prevent.” Aziz Z. Huq, Judicial Independence 

and the Rationing of Constitutional Remedies, 65 DUKE L.J. 1, 18 (2015). Nevertheless, 

I recognize that “[e]xclusion is fairly ranked as a remedy to the extent it is sought by a 

putatively injured party, and purports to eliminate an advantage that the state as 

counterparty possesses as a consequence of the constitutional wrong.” Id.
[J-42-2016][M.O. – Todd, J.] - 5

interest in identifying and punishing wrongdoers.”). From my point of view, particularly 

given that offenders in the parole revocation setting have a lesser expectation of 

privacy, and in light of the strong societal interest in ensuring compliance with parolerelease requirements, I find that the more restrained and appropriate balance is to 

decline to award suppression in parole-revocation proceedings in the absence of a 

judicial determination that law enforcement or supervising officials acted with an 

improper motive. See, e.g., Logan v. Commonwealth, 688 S.E.2d 275, 278-79 (Va. 

2010) (implementing such an approach, while defining “bad faith” as directed to 

scenarios in which “the search was motivated by bias, personal animus, a desire to 

harass, a conscious intent to circumvent the law, or a similar improper motive”). 

Finally, I would also suggest that such an approach would have a greater 

potential for sustainability relative to a balancing assessment concerning which 

reasonable minds will always differ. Accord Henderson, 616 Pa. at 290, 47 A.3d at 805

(positing that “the ‘twin aims’ of Article I, Section 8 – namely, the safeguarding of privacy 

and enforcement of the probable-cause requirement – may be vindicated best, and 

most stably, by taking a more conservative approach to the departure this Court has 

taken from the established Fourth Amendment jurisprudence”).