Com. v. Rothhaar, D.

J-S47041-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

DAVID MORGAN ROTHHAAR :

:

Appellant : No. 64 EDA 2024

Appeal from the Judgment of Sentence Entered November 29, 2023

In the Court of Common Pleas of Bucks County Criminal Division at

No(s): CP-09-CR-0003675-2022

BEFORE: KUNSELMAN, J., SULLIVAN, J., and BECK, J.

CONCURRING AND DISSENTING MEMORANDUM BY BECK, J.:

FILED OCTOBER 27, 2025

I agree with the learned Majority that Rothhaar waived his claim that

the suppression court impermissibly allowed the Commonwealth to advance a

new legal theory in its motion to reconsider. See Majority Mem. at 10-12. I

depart from the Majority’s determination, however, that Rothhaar waived his

departure claim, i.e., that Article I, Section 8 of the Pennsylvania Constitution

provides greater protection than the Fourth Amendment to the United States

Constitution. See id. at 12-17. I would address the merits of this claim and

conclude that the guarantees of Article I, Section 8 render the attenuation

J-S47041-24

doctrine as set forth in Utah v. Strieff, 579 U.S. 232 (2016),1 inapplicable in

this scenario. Specifically, I would hold that when a police officer makes an

unlawful investigatory stop, discovers during the stop that the individual has

an outstanding arrest warrant, arrests the individual pursuant to that warrant,

and, during a search incident to that arrest, finds incriminating evidence, the

attenuation doctrine does not operate as an exception to the exclusionary rule

under the Pennsylvania Constitution. Accordingly, I would vacate Rothhaar’s

judgment of sentence and remand the matter for proceedings consistent with

this dissent.2 My reasoning follows.

Waiver

The Majority finds Rothhaar waived his constitutional departure claim.

Respectfully, my review of the record belies this conclusion. Of relevance to

the question of waiver, Rothhaar filed a suppression motion alleging he was

detained without reasonable suspicion in violation of the Fourth and

Fourteenth Amendments to the United States Constitution and Article I,

Section 8 of the Pennsylvania charter. At the time Rothhaar filed his

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1 As the Majority recounts, in Strieff, the United States Supreme Court held

that under the Fourth Amendment, evidence seized by a detective as part of

a search incident to Edward Strieff’s arrest was admissible because the

detective’s discovery of an outstanding arrest warrant for Strieff attenuated

the connection between the unlawful investigative stop and the seizure of

incriminating evidence from him during the search incident to that arrest.

Strieff, 579 U.S. at 243.

2 Because I would find Rothhaar’s first issue dispositive, I would not reach his

second issue relating to the trial testimony of Russell Mitchell.

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suppression motion, the Commonwealth had not advanced any defenses

thereto, including the applicability of Strieff and the attenuation doctrine.

See Commonwealth v. Chase, 960 A.2d 108, 118 (Pa. 2008) (holding that

“an investigative detention under the Fourth Amendment and Article I, § 8 is

coterminous”) (citation and quotation marks omitted). As such, there was no

reason for Rothhaar to raise a departure claim in his motion; he had no

obligation to anticipate and counter all potential defenses to the exclusionary

rule that could be raised by the Commonwealth.

It was not until after the suppression court ruled in favor of suppression

that the Commonwealth, for the first time, raised the attenuation doctrine as

a defense in its motion for reconsideration. Rothhaar did not have an

obligation to file a written response to the Commonwealth’s motion, and the

suppression court did not order one.

At the subsequent hearing on the Commonwealth’s motion, the record

reflects that Rothhaar raised several arguments in opposition to the

application of the attenuation doctrine before the suppression court. First, as

the Majority acknowledges, see Majority Mem. at 5, he argued that Strieff

did not apply based upon the greater protection afforded by the Pennsylvania

Constitution and that Strieff had not been adopted in Pennsylvania;

alternatively, he asserted that Strieff should not apply on the merits, citing

federal law in support. See N.T., 1/31/2023, at 87-91. Our Supreme Court

has held that this is sufficient for preserving a constitutional departure claim.

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See Commonwealth v. Alexander, 243 A.3d 177, 193 n.8 (Pa. 2020)

(holding Alexander “sufficiently preserved” his constitutional departure issue

where “[t]he motion to suppress used a pre-printed check box form”

challenging a warrantless search and defense counsel argued at the

suppression hearing that his motion was “based on [enumerated federal

constitutional provisions] and the broader protections of Pennsylvania

Constitution, Article One Section Eight”).3 The Majority faults Rothhaar for

failing to conduct an analysis pursuant to Commonwealth v. Edmunds, 586

A.2d 887 (Pa. 1991), before the suppression court, see Majority Mem. at 5,

13, 15, but an Edmunds analysis is not required to preserve the claim.4 See

Alexander, 243 A.3d at 193 n.8; see also Armslist LLC v. Facebook, Inc.,

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3 In my view, the Majority’s reliance on Commonwealth v. Foster, 332 A.3d

1187 (Pa. 2025) is misplaced. See Majority Mem. at 15-16. Unlike Foster,

Rothhaar raised the claim that our Constitution provides heightened protection

at the second hearing before the suppression court and he extensively briefed

his reasoning before this Court. Compare Foster, 332 A.3d at 1194 n.9.

Further, in finding Foster’s departure claim waived, our Supreme Court found

it significant that he did not raise such a claim in his petition for allowance of

appeal. Id. In other words, Foster attempted to raise his departure claim for

the first time in his brief before our Supreme Court.

4 The Majority reproaches Rothhaar for citing Hudson v. Michigan, 547 U.S.

586 (2006), instead of Edmunds and treats his mention of this case at the

hearing as the basis for its determination that he conceded Article I, Section

8 does not afford him greater protection than its federal counterpart. See

Majority Mem. at 5, 15. However, there is no record support for any such

concession by Rothhaar; the record reflects that Rothhaar cited Hudson in

support of his alternative argument that Strieff should not apply on the

merits, noting for the suppression court that Strieff cited to Hudson as a

“famous” attenuation doctrine case. N.T., 1/31/2023, at 87-88.

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335 A.3d 1, 8 n.6 (Pa. Super. 2025) (“[T]he Edmunds factors were adopted

as a guide and not a talisman, and a litigant’s failure to brief each of these

factors does not waive a departure claim.”) (citations and quotation marks

omitted).

The Majority’s contention that the suppression court did not decide

whether to depart from Strieff because of Rothhaar’s lack of argument is

likewise belied by the record. See Majority Mem. at 7, 13-14. The

suppression court’s decision recognizes that Rothhaar claimed Strieff was

inapplicable because the Pennsylvania Constitution provides greater

protection than its federal counterpart, but it chose to defer that decision to a

higher court. Findings of Fact and Conclusions of Law, 5/1/2023, ¶¶ 46, 49

(stating that no Pennsylvania appellate court had yet conducted an Edmunds

analysis to either accept or reject Strieff under Pennsylvania law and

concluding that it was “constrained to follow Strieff in the absence of any

decisions to the contrary by Pennsylvania appellate courts”).

Indeed, the reasons for issue preservation—including giving the

opposing party a fair opportunity to respond and allowing the court of original

jurisdiction to correct its mistakes—are fully met here. See Schmidt v.

Boardman Co., 11 A.3d 924, 941 (Pa. 2011); Commonwealth v. Reeves,

923 A.2d 1119, 1131 (Pa. 2007). The record reflects that the Commonwealth

understood and responded to Rothhaar’s departure argument at the hearing,

asserting that Strieff is applicable under the Pennsylvania Constitution; our

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federal and state charters are coextensive with respect to search and seizure

law; no Pennsylvania court has determined Strieff does not apply; a

determination that the Pennsylvania Constitution affords greater protection

would require the court to undertake an Edmunds analysis; and Pennsylvania

case law supports the rationale for the attenuation doctrine as applied in

Strieff. See N.T., 1/31/2023, at 91-94.

The Majority further finds waiver based upon Rothhaar’s alleged failure

to include the claim in his Rule 1925(b) statement. See Majority Mem. at 16-

17; see also Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement

and/or not raised in accordance with the provisions of this paragraph (b)(4)

are waived.”). The record reflects, however, that in his Rule 1925(b)

statement Rothhaar expressly challenges the suppression court’s failure to

suppress the evidence discovered as a result of his illegal detention without

reasonable suspicion. Rule 1925(b) Statement, 1/19/2024, ¶¶ 2-4. The sole

basis for the trial court’s denial of suppression was its conclusion that the

attenuation doctrine, as articulated in Strieff, operated here as an exception

to the exclusionary rule. See Findings of Fact and Conclusions of Law,

5/1/2023, ¶ I (“While [Rothhaar] was detained without reasonable suspicion,

pursuant to the Supreme Court of the United States’ ruling in Utah v. Strieff,

this Court is constrained to rule that the search and seizure of [Rothhaar] and

[Rothhaar]’s items will not be suppressed.”) (cleaned up; emphasis omitted);

id., ¶¶ 46, 49. Further, in its 1925(a) opinion, the suppression court

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addressed Rothhaar’s claim as to the inapplicability of Strieff, continuing to

adhere to its belief that in the absence of a Pennsylvania appellate decision or

pronouncement by our General Assembly that Pennsylvania law does not

follow Strieff, it was duty-bound to apply it under the facts of this case:

Utah v. Strieff makes it clear that, pursuant to the United States

Constitution, discovery of an arrest warrant can be a sufficient

intervening event to break the causal chain between an unlawful

stop and any contraband found. Absent any Pennsylvania statues

or case law to the contrary, th[e suppression c]ourt was

constrained to follow the ruling set forth by the United States

Supreme Court. [Rothhaar’s] claims that th[e suppression court]

erred are wholly without merit.

Suppression Court Opinion, 1/30/2024, at 16-17. Thus, I would conclude that

his Rule 1925(b) statement sufficiently preserved this issue for appeal. See

Commonwealth v. Arnold, 284 A.3d 1262, 1269 n.9 (Pa. Super. 2022)

(declining to find waiver because the trial court “was well[]aware of the nature

and scope of Appellant’s constitutional challenge”); see also

Commonwealth v. Rogers, 250 A.3d 1209, 1224 (Pa. 2021) (“the purpose

of Rule 1925 is to facilitate appellate review and to provide the parties and

the public with the legal basis for a judicial decision”) (citations omitted).

Significantly, neither the Commonwealth nor the trial court contend that

Rothhaar waived his claim that the federal attenuation doctrine is incompatible

with the broader privacy protections guaranteed by Article I, Section 8 of our

state charter. Our Supreme Court has disfavored this Court’s sua sponte

finding of waiver of an appellant’s constitutional departure claim where the

Commonwealth has not raised waiver. See Commonwealth v. Wolfel, 233

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A.3d 784, 790 (Pa. 2020); see also Sarah Reeves, Comment, Appellate

Waiver in Pennsylvania and Its Effects on Litigants’ Rights to Appeal, 25 U. PA.

J. CONST. L. 650, 656, 679-80, 685 (2023) (criticizing this Court for finding

litigants’ claims waived where neither party has advanced a waiver argument,

questioning the appropriateness of an appellate court’s sua sponte finding of

waiver, and arguing for its elimination).

Simply put, I respectfully disagree that Rothhaar waived this issue of

first impression. “A litigant’s right to appeal an unfavorable trial court decision

is critical to American jurisprudence” as explicitly guaranteed by the

Pennsylvania Constitution,” see PA. CONST. art. V, § 9; “[e]xcessive use of

appellate waiver doctrine seriously puts into question Pennsylvania’s

constitutional promise that litigants will be afforded a right to a meaningful

appeal.” Reeves, Appellate Waiver in Pennsylvania and Its Effects on Litigants’

Rights to Appeal, 25 U. PA. J. CONST. L. at 653-54; see also id. at 678-79

(noting that “the sheer volume of waivers occurring in Pennsylvania and the

number of separate grounds on which the Superior Court is finding claims

waived suggests that, in the aggregate, Pennsylvania litigants are not

enjoying a meaningful right to appeal”). I therefore proceed to review the

merits of this claim.5

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5 When reviewing the denial of a motion to suppress, this Court is bound by

the suppression court’s findings of fact that are supported by the record; its

legal conclusions, however, are not binding, and this Court reviews those

(Footnote Continued Next Page)

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Applicability of Strieff

Rothhaar’s Argument

Rothhaar argues that the suppression court erred in denying his motion

to suppress based on the attenuation doctrine and Strieff. See Rothhaar’s

Brief at 15, 22-37. He contends that the federal attenuation doctrine under

the Fourth Amendment is incompatible with the broader privacy protections

guaranteed by Article I, Section 8 of our state charter. Id. He maintains that

Strieff’s focus on the nature of the police misconduct in examining whether

the attenuation exception applies is very similar to the federal good faith

exception to the exclusionary rule, which Pennsylvania-centric jurisprudence

has rejected, making it untenable in Pennsylvania. Id. at 15, 25-28. In so

arguing, Rothhaar conducts an analysis of the four factors delineated in

Edmunds and urges this Court to conclude that “[b]ecause the interests

provided by Article I, Section 8, of the Pennsylvania Constitution have been

repeatedly held to be rooted in the right to privacy, the attenuation doctrine

cannot serve to justify the illegal detention of [Rothhaar] under Article I,

Section 8, of the Pennsylvania Constitution.” Id. at 26-37.

____________________________________________

determinations de novo. Commonwealth v. McMahon, 280 A.3d 1069,

1071 (Pa. Super. 2022). “Where, as here, the defendant is appealing the

ruling of the suppression court, we may consider only the evidence of the

Commonwealth and so much of the evidence for the defense as remains

uncontradicted.” Id. (quotation marks and citation omitted). This Court’s

scope of review is limited to the record created for suppression and excludes

evidence admitted at trial. Id.

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Exclusionary Rule and Purge of the Taint of the Unlawful Detention

An investigative detention constitutes a seizure of a person and

activates the protections of both the Fourth Amendment and Article I, Section

8. Commonwealth v. Rice, 304 A.3d 1255, 1261 (Pa. Super. 2023);

Commonwealth v. Smith, 172 A.3d 26, 32 (Pa. Super. 2017). In general,

the exclusionary rule applies to evidence that was obtained from an illegal

search or seizure under both the Fourth Amendment and under Article I,

Section 8. See Commonwealth v. Johnson, 86 A.3d 182, 187 (Pa. 2014)

(“The established remedy for illegal seizures and searches, in criminal cases,

is exclusion of the fruits of the illegal police conduct—under both the Fourth

Amendment and under Article I, Section 8.”). “Evidence constitutes fruit of

the poisonous tree, and must be suppressed, if it was obtained by exploitation

of the illegality and so long as the taint of that illegality has not been purged.”

Commonwealth v. Shabezz, 166 A.3d 278, 290 (Pa. 2017) (quotation

marks and citation omitted).

Because the suppression court concluded that police detained Rothhaar

without reasonable suspicion, it found Rothhaar’s statements to police, his

consensual DNA swab while in custody, and the evidence recovered from his

backpack were fruits of the poisonous tree.6 Thus, the issue is whether the

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6 I also respectfully disagree with Judge Sullivan’s determination that

Rothhaar’s interaction with police was a mere encounter or, alternatively, an

investigative detention supported by reasonable suspicion. See Concurring

(Footnote Continued Next Page)

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taint of Rothhaar’s illegal detention was purged to permit admission of the

evidence. See Shabezz, 166 A.3d at 290. The suppression court concluded

that the evidence at issue was admissible pursuant to the attenuation doctrine

and Strieff. See Findings of Fact and Conclusions of Law, 5/1/2023, ¶¶ 38-

49.

The Supreme Court of the United States has recognized a number of

exceptions to the exclusionary rule under the Fourth Amendment, three of

which “involve the causal relationship between the unconstitutional act and

the discovery of evidence”: the (1) independent source, (2) inevitable

discovery, and (3) attenuation doctrines.7 Strieff, 579 U.S. at 238. “[T]he

____________________________________________

Mem. at 1-10. Notably, the Commonwealth does not argue in its brief before

this Court that the stop was a mere encounter and it conceded in the

suppression court that the interaction was an investigative detention. See

Commonwealth’s Brief at 4 n.2. Regardless, I agree with the suppression

court that police detained Rothhaar without reasonable suspicion. See

Findings of Fact and Conclusions of Law, 5/1/2023, ¶ 29.

7 Our Supreme Court has suggested that these doctrines are not “exceptions”

to the exclusionary rule, but rather operate entirely outside of the rule. See

Commonwealth v. Katona, 240 A.3d 463, 479 n.14 (Pa. 2020) (“The

independent source doctrine does not involve an exclusionary rule ‘exception,’

such as the good faith exception, but a question of taint from prior illegality,

which implicates principles of independence and attenuation. It is not an

‘exception’ to the exclusionary rule to admit untainted evidence; no rational

application of an exclusionary rule would exclude untainted evidence.”)

(quoting Commonwealth v. Henderson, 47 A.3d 797, 806 n.2 (Pa. 2012)

(Castille, C.J., concurring)). However, the United States Supreme Court, and

other decisions by our High Court, have expressly recognized the independent

source, inevitable discovery, and attenuation doctrines as “exceptions” to the

exclusionary rule. See Strieff, 579 U.S. at 238; see also, e.g.,

Commonwealth v. Santiago, 209 A.3d 912, 922-23 (Pa. 2019). I therefore

likewise utilize that language.

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independent source doctrine allows trial courts to admit evidence obtained in

an unlawful search if officers independently acquired it from a separate,

independent source.” Id. (citing Murray v. United States, 487 U.S. 533,

537 (1988)).

“[T]he interest of society in deterring unlawful police conduct and

the public interest in having juries receive all probative evidence

of a crime are properly balanced by putting the police in the same,

not a worse, position that they would have been in if no police

error or misconduct had occurred. … When the challenged

evidence has an independent source, exclusion of such evidence

would put the police in a worse position than they would have

been in absent any error or violation.”

Murray, 487 U.S. at 537 (quoting Nix v. Williams, 467 U.S. 431, 443

(1984)) (emphasis omitted).

Closely related to the independent source doctrine is the inevitable

discovery doctrine, which “allows for the admission of evidence that would

have been discovered even without the unconstitutional source.” Strieff, 579

U.S. at 238 (citing Nix, 467 U.S. at 443-44). When “the evidence in question

would inevitably have been discovered without reference to the police error or

misconduct, there is no nexus sufficient to provide a taint and the evidence is

admissible.” Nix, 467 U.S. at 448.

The third such exception, known as the attenuation doctrine, provides

that “[e]vidence is admissible when the connection between unconstitutional

police conduct and the evidence is remote or has been interrupted by some

intervening circumstance, so that the interest protected by the constitutional

guarantee that has been violated would not be served by suppression of the

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evidence obtained.” Strieff, 579 U.S. at 238 (citing Hudson, 547 U.S. at

593). Beginning with the premise that not all evidence “is fruit of the

poisonous tree simply because it would not have come to light but for the

illegal actions of the police,” the Hudson Court stated that “the more apt

question” is “whether, granting establishment of the primary illegality, the

evidence to which instant objection is made has been come at by exploitation

of that illegality or instead by means sufficiently distinguishable to be purged

of the primary taint.’” Hudson, 547 U.S. at 592 (emphasis omitted) (quoting

Wong Sun v. United States, 371 U.S. 471, 487-88 (1963) (citation

omitted)). The relevant factors to consider in determining the applicability of

the attenuation doctrine include: (1) whether the suspect was provided

warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), (2) “the

temporal proximity” between the arrest and the unlawful police conduct, (3)

“the presence of intervening circumstances,” and (4) “the purpose and

flagrancy of the official misconduct.” Brown v. Illinois, 422 U.S. 590, 603-

04 (1975) (citations omitted).8

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8 The Brown Court held that Miranda warnings, standing alone, do not

always purge the taint of an illegal arrest. Brown, 422 U.S. at 605. There,

police unlawfully arrested Richard Brown in violation of the Fourth

Amendment. Id. at 591. Police provided Miranda warnings, and thereafter,

while in custody, he made two inculpatory statements. Id. The issue was

“whether the statements were to be excluded as the fruit of the illegal arrest,

or were admissible because the giving of the Miranda warnings sufficiently

attenuated the taint of the arrest.” Id. at 591-92. The High Court analyzed

the above-enumerated factors to conclude that the government failed to

(Footnote Continued Next Page)

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The Pennsylvania Supreme Court has likewise recognized independent

source and inevitable discovery exceptions to the exclusionary rule under

Article I, Section 8. Our decisions, however, do not mirror exactly Fourth

Amendment jurisprudence because of Article I, Section 8’s primary purpose

of safeguarding privacy and requiring that warrants be issued only upon

probable cause, which differs from the Fourth Amendment’s sole purpose of

deterring police misconduct. See, e.g., Katona, 240 A.3d at 473-80

(explaining the history of the independent source doctrine under Pennsylvania

law); Commonwealth v. Berkheimer, 57 A.3d 171, 181-88 (Pa. Super.

2012) (en banc) (explaining the history of evidence subject to inevitable

discovery under the independent source doctrine in Pennsylvania). 9

Further, our Supreme Court has applied the attenuation doctrine in prior

cases. See, e.g., Commonwealth v. Burno, 154 A.3d 764, 788-89 (Pa.

____________________________________________

sustain its burden of showing that Brown’s statements were admissible. Id.

at 604-05.

9 This overlap in caselaw is unavoidable because, as the United States

Supreme Court has observed, the two doctrines are intertwined:

This “inevitable discovery” doctrine obviously assumes the validity

of the independent source doctrine as applied to evidence initially

acquired unlawfully. … The inevitable discovery doctrine, with its

distinct requirements, is in reality an extrapolation from the

independent source doctrine: Since the tainted evidence would be

admissible if in fact discovered through an independent source, it

should be admissible if it inevitably would have been discovered.

Murray, 487 U.S. at 539 (emphasis omitted).

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2017); Commonwealth v. Smith, 995 A.2d 1143, 1152-53 (Pa. 2010);

Commonwealth v. Freeman, 757 A.2d 903, 909 (Pa. 2000);

Commonwealth v. Green, 581 A.2d 544, 551 (Pa. 1990); Commonwealth

v. McFeely, 502 A.2d 167, 170-71 (Pa. 1985); Commonwealth v. Bogan,

393 A.2d 424 (Pa. 1978) (plurality). As discussed below, however, every case

to which our High Court has applied the attenuation doctrine was decided

under the Fourth Amendment to the United States Constitution; none was

based on state constitutional grounds.

Attenuation Doctrine and Strieff – Fourth Amendment

The most recent pronouncement of the attenuation doctrine by the

United States Supreme Court occurred in Strieff, which arose from factual

circumstances very similar to those in the case at bar. In Strieff, a narcotics

detective was conducting surveillance of a house based on an anonymous tip

of drug activity there. Strieff, 579 U.S. at 235. He observed frequent visitors

who left the house within a few minutes of their arrival, raising his suspicion

of drug dealing at the house. Id. When one of the visitors, Strieff, exited the

house and walked toward a nearby convenience store, the detective detained

him in the store’s parking lot, identified himself, and asked what Strieff was

doing at the house. Id. The detective then asked for Strieff’s identification

and he complied. Id. The detective relayed Strieff’s information to a police

dispatcher, who reported that Strieff had an outstanding arrest warrant. Id.

The detective arrested Strieff pursuant to the warrant, searched him incident

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to arrest, and found methamphetamine and drug paraphernalia. Id. at 235-

36.

After he was charged, Strieff sought suppression of the evidence,

arguing that it was derived from an unlawful investigative detention in

violation of the Fourth Amendment. Id. at 236. At the suppression hearing,

the prosecutor conceded that the detective lacked reasonable suspicion for

the stop but argued against suppression “because the existence of a valid

arrest warrant attenuated the connection between the unlawful stop and the

discovery of the contraband.” Id. The suppression court denied the

suppression motion; the Utah appellate court affirmed but the Utah Supreme

Court reversed. Id.

The United States Supreme Court granted certiorari and reversed. It

began by examining whether the attenuation exception to the exclusionary

rule “applies when an officer makes an unconstitutional investigatory stop;

learns during that stop that the suspect is subject to a valid arrest warrant;

and proceeds to arrest the suspect and seize incriminating evidence during a

search incident to that arrest.” Id. at 235. Guided by three of the four

attenuation factors set forth in Brown,10 the Strieff Court considered

“whether the discovery of a valid arrest warrant was a sufficient intervening

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10 As the evidence in Strieff did not include statements made by the suspect

in response to police questioning, Miranda warnings were not necessary, and

this factor was not relevant to the Court’s consideration.

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event to break the causal chain between the unlawful stop and the discovery

of drug-related evidence on Strieff’s person.” Id. at 239.

In analyzing the first factor, temporal proximity, the High Court found

that it favored suppression because “only minutes” passed between the illegal

stop and discovery of the contraband. Id. The Court clarified that this factor

will weigh in favor of suppression unless “substantial time” has elapsed

between the unlawful act and when the evidence is obtained, noting that in

Brown, an interval of “less than two hours” following his unconstitutional

arrest was found to be insufficient. Id. at 239-40.

As for the second factor, the presence of intervening circumstances, the

High Court found that it “strongly” favored admitting the evidence because

the warrant for Strieff’s arrest was valid, predated the detective’s

investigation, and was “entirely unconnected with the stop.” Id. at 240. The

Court explained that the detective’s arrest of Strieff was “a ministerial act that

was independently compelled by the pre-existing warrant” and, once arrested,

the detective could lawfully search Strieff incident to his arrest for safety. Id.

at 240-41.

Lastly, the Strieff Court found that the third factor, the purpose and

flagrancy of the official misconduct, also “strongly” favored admissibility. It

reasoned that because the purpose of the exclusionary rule under the Fourth

Amendment is “to deter police misconduct,” this factor “reflects that rationale

by favoring exclusion only when the police misconduct is most in need of

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deterrence—that is, when it is purposeful or flagrant.” Id. at 241 (citation

omitted). In analyzing the facts pertinent to this consideration, the Strieff

Court explained:

[The detective] was at most negligent. In stopping Strieff, [he]

made two good-faith mistakes. First, he had not observed what

time Strieff entered the suspected drug house, so he did not know

how long Strieff had been there. [The detective] thus lacked a

sufficient basis to conclude that Strieff was a short-term visitor

who may have been consummating a drug transaction. Second,

because he lacked confirmation that Strieff was a short-term

visitor, [the detective] should have asked Strieff whether he would

speak with him, instead of demanding that Strieff do so. [The

detective’s] stated purpose was to find out what was going on in

the house. Nothing prevented him from approaching Strieff

simply to ask. See Florida v. Bostick, 501 U.S. 429, 434 …

(1991) (“[A] seizure does not occur simply because a police officer

approaches an individual and asks a few questions”). But these

errors in judgment hardly rise to a purposeful or flagrant violation

of Strieff’s Fourth Amendment rights.

Id. (quotation marks, brackets, and some citations omitted).

The High Court continued, remarking that after the initial illegal stop,

the detective’s conduct was lawful, his decision to run a warrant check was

precautionary for officer safety, and Strieff was lawfully searched incident to

arrest. Id. Further, the Strieff majority found it significant that there was

“no indication that this unlawful stop was part of any systemic or recurrent

police misconduct,” but rather the evidence suggested that “the stop was an

isolated instance of negligence that occurred in connection with a bona fide

investigation of suspected a drug house.” Id. at 242. The Court

concomitantly rejected Strieff’s arguments that (1) the detective stopped him

solely to fish for evidence of suspected wrongdoing; (2) the detective’s

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misconduct was flagrant because he detained Strieff without the necessary

level of cause; and (3) because of the prevalence of outstanding arrest

warrants, police would engage in dragnet searches if the exclusionary rule was

not applied. Id. at 242-43. In holding that the evidence was admissible

because discovery of the arrest warrant sufficiently attenuated the unlawful

stop, the Court in Strieff placed added emphasis on the third factor, stating

that it was “especially significant that there [was] no evidence that [the

detective’s] stop reflected flagrantly unlawful police misconduct.” Id.

Attenuation Doctrine – Article I, Section 8

As noted above, and discussed in detail below, the Pennsylvania

Supreme Court has applied the attenuation doctrine in prior cases, but not in

matters similar to the facts and circumstances present in this case and never

in matters decided under Article I, Section 8 of the Pennsylvania Constitution.

To the contrary, an appellate court in Pennsylvania has yet to decide this

question.11 Examining this issue of first impression, I am cognizant that our

Supreme Court “has long emphasized that, in interpreting a provision of the

Pennsylvania Constitution, we are not bound by the decisions of the United

States Supreme Court which interpret similar (yet distinct) federal

constitutional provisions.” Edmunds, 586 A.2d at 894 (citations omitted).

____________________________________________

11 Indeed, the suppression court recognized that no Pennsylvania appellate

court has “expressly accepted nor rejected the ruling in Strieff.” Findings of

Fact and Conclusions of Law, 5/1/2023, ¶ 46.

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Instead, “the federal constitution establishes certain minimum levels which

are equally applicable to the analogous state constitutional provision.

However, each state has the power to provide broader standards, and go

beyond the minimum floor which is established by the federal Constitution.”

Id. (quotation marks, brackets, and citations omitted). “Although we may

accord weight to federal decisions where they are found to be logically

persuasive and well reasoned, paying due regard to precedent and the policies

underlying specific constitutional guarantees, we are free to reject the

conclusions of the United States Supreme Court so long as we remain faithful

to the minimum guarantees established by the United States Constitution.”

Id. at 895 (quotation marks and citations omitted); see also Wolfel, 233

A.3d at 789-90 (“The Fourth Amendment rulings of the Supreme Court of the

United States … establish the baseline for the protections afforded by Article

I, Section 8 of the Pennsylvania Constitution.”) (citation omitted).

Edmunds Analysis

In determining whether the attenuation doctrine as set forth in Strieff

is compatible with Article I, Section 8, an independent analysis of that

provision, as guided by our Supreme Court’s seminal decision in Edmunds, is

required. Under Edmunds, consideration of our state’s constitutional doctrine

includes an examination of the following four factors: (1) the “text of the

Pennsylvania constitutional provision”; (2) the “history of the provision,

including Pennsylvania case-law”; (3) “related case-law from other states”;

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and (4) “policy considerations, including unique issues of state and local

concern, and applicability within modern Pennsylvania jurisprudence.”

Edmunds, 586 A.2d at 895.12

1. Text

The text of Article I, Section 8 of the Pennsylvania Constitution provides:

The people shall be secure in their persons, houses, papers and

possessions from unreasonable searches and seizures, and no

warrant to search any place or to seize any person or things shall

issue without describing them as nearly as may be, nor without

probable cause, supported by oath or affirmation subscribed to by

the affiant.

PA. CONST. art. I, § 8. The Fourth Amendment to the United States Constitution

states:

____________________________________________

12 Edmunds involved the applicability under the Pennsylvania Constitution of

the federal “good faith” exception to the warrant requirement. Louis Edmunds

was convicted of drug-related charges, after the denial of suppression of

marijuana seized at his property and his statements to police pursuant to a

search warrant. Id. at 888-90. The search warrant was later determined to

be defective as unsupported by probable cause. Id. The Commonwealth

argued that Pennsylvania should adopt the good faith exception to the

exclusionary rule set forth in United States v. Leon, 468 U.S. 897 (1984),

in which the United States Supreme Court held “the Fourth Amendment does

not mandate suppression of illegally seized evidence obtained pursuant to a

constitutionally defective warrant, so long as the police officer acted in good

faith reliance upon the warrant issued by a neutral and detached magistrate.”

Edmunds, 586 A.2d at 888, 892.

After examining the aforementioned factors (now generally known as an

“Edmunds analysis”), our Supreme Court rejected Leon under Article I,

Section 8, holding it “does not incorporate a ‘good faith’ exception to the

exclusionary rule” and such an exception would “frustrate the guarantees

embodied” in Article I, Section 8. Id. at 888, 905-06.

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The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or things to

be seized.

U.S. CONST. amend. IV. As our Supreme Court observed in Edmunds, “the

wording of the Pennsylvania Constitution is similar in language to the Fourth

Amendment of the United States Constitution, but our courts “are not bound

to interpret the two provisions as if they were mirror images, even where the

text is similar or identical.” Edmunds, 586 A.2d at 895-96 (footnotes and

citation omitted).

Our Supreme Court has regularly departed from the United States

Supreme Court’s construction of the Fourth Amendment, holding Article I,

Section 8 “generally provides greater protection than that provided by the

Fourth Amendment, because the core of its exclusionary rule is grounded in

the protection of privacy while the federal exclusionary rule is grounded in

deterring police misconduct.” Commonwealth v. Brown, 996 A.2d 473, 476

(Pa. 2010) (quotation marks and citation omitted). Accordingly, I proceed to

the second prong of Edmunds.

2. History and Pennsylvania Case Law

a. Protection under Article I, Section 8

The Edmunds Court recognized “the unique history” of Article I, Section

8, noting that “constitutional protection against unreasonable searches and

seizures existed in Pennsylvania more than a decade before the adoption of

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the federal Constitution, and fifteen years prior to the promulgation of the

Fourth Amendment.” Edmunds, 586 A.2d at 896 (quotation marks and

citation omitted). Observing that our Supreme Court has repeatedly

recognized that Article I, Section 8 “is meant to embody a strong notion of

privacy, carefully safeguarded in this Commonwealth for the past two

centuries,” the Edmunds Court concluded that its history “indicates that the

purpose underlying the exclusionary rule in this Commonwealth is quite

distinct from the purpose underlying the exclusionary rule under the 4th

Amendment.” Id. at 897.

Our High Court explained that “the sole purpose for the exclusionary

rule under the [Fourth] Amendment [is] to deter police misconduct” and that

the federal exclusionary rule operates as “a judicially created remedy designed

to safeguard Fourth Amendment rights generally through its deterrent effect,

rather than a personal constitutional right of the party aggrieved.” Id.

(emphasis in original; quotation marks and citations omitted); see also

Alexander, 243 A.3d at 203 (“[P]romoting effective law enforcement is the

driving force explaining the United States Supreme Court’s applications of the

exclusionary rule.”) (citing Herring v. U.S., 555 U.S. 135, 147-48 (2009)).

In contrast, our Supreme Court has “forge[d] its own path” and

repeatedly made clear in “a steady line of case[]law” that Article I, Section 8

of the Pennsylvania Constitution is “unshakably linked to a right of privacy in

this Commonwealth.” Edmunds, 586 A.2d at 898 (collecting cases). As our

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High Court remarked in Commonwealth v. Sell, our constitutional provision

demonstrates a paramount concern for privacy:

In construing Article I, section 8, we find it highly significant that

the language employed in that provision does not vary in any

significant respect from the words of its counterpart in our first

constitution. The text of Article I, section 8 thus provides no basis

for the conclusion that the philosophy and purpose it embodies

today differs from those which first prompted the Commonwealth

to guarantee protection from unreasonable governmental

intrusion. Rather, the survival of the language now employed in

Article I, section 8 through over 200 years of profound change in

other areas demonstrates that the paramount concern for privacy

first adopted as part of our organic law in 1776 continues to enjoy

the mandate of the people of this Commonwealth.

Commonwealth v. Sell, 470 A.2d 457, 467 (Pa. 1983). Edmunds

emphasized that Article I, Section 8 guards individual privacy rights “more

zealously” than its federal counterpart “by serving as an independent source

of supplemental rights.” Edmunds, 586 A.2d at 899 (quotation marks and

citation omitted).

[G]iven the strong right of privacy which inheres in Article I,

Section 8, as well as the clear prohibition against the issuance of

warrants without probable cause, or based upon defective

warrants, the good faith exception to the exclusionary rule would

directly clash with those rights of citizens as developed in our

Commonwealth over the past 200 years. To allow the judicial

branch to participate, directly or indirectly, in the use of the fruits

of illegal searches would only serve to undermine the integrity of

the judiciary in this Commonwealth. From the perspective of the

citizen whose rights are at stake, an invasion of privacy, in good

faith or bad, is equally as intrusive. This is true whether it occurs

through the actions of the legislative, executive or the judicial

branch of government.

Id. at 901 (internal citations omitted). Accordingly, our High Court concluded

that “the exclusionary rule in Pennsylvania has consistently served to bolster

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the twin aims of Article I, Section 8; to-wit, the safeguarding of privacy and

the fundamental requirement that warrants shall only be issued upon probable

cause,” and thus held that the exclusionary rule applies even where police rely

in good faith on a defective warrant. Id. at 899 (citations omitted).

As legions of cases from our Supreme Court have continued to artfully

detail after Edmunds, Article I, Section 8 provides greater protection against

unreasonable searches and seizures than does the Fourth Amendment. See,

e.g., Wolfel, 233 A.3d at 790 (stating that the “material distinctions in the

application of the respective federal and state charters, the relevant,

controlling difference—i.e., the expanded application of the state exclusionary

rule—is now apparent and manifest”); Alexander, 243 A.3d at 181 (rejecting

the federal automobile exception, holding that Article I, Section 8 affords

greater protection to the citizens of our Commonwealth than the Fourth

Amendment, and reaffirming its prior decisions that Article I, Section 8

requires both a showing of probable cause and exigent circumstances to justify

a warrantless search of an automobile); Commonwealth v. Arter, 151 A.3d

149, 151 (Pa. 2016) (departing from the federal approach under the Fourth

Amendment, and holding that under the greater privacy protections of Article

I, Section 8, illegally-obtained evidence suppressed during criminal

proceedings is likewise excluded during parole and probation revocation

proceedings); Commonwealth v. McCree, 924 A.2d 621, 626-27 (Pa. 2007)

(recognizing that as compared to federal courts, Pennsylvania courts “have

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given greater weight to an individual’s privacy interests when balancing the

importance of privacy against the needs of law enforcement”) (citations

omitted); Commonwealth v. Mason, 637 A.2d 251, 257 n.3 (Pa. 1993)

(“The ultimate distinction, then, between the federal and the Pennsylvania

analysis is not that the federal courts seek only to deter police misconduct and

the Pennsylvania courts seek to protect certain rights, but that the federal

courts place less importance than do we on the right of privacy.”).

b. Pennsylvania Cases Applying the Attenuation Doctrine

As the Commonwealth correctly recognizes in its brief before this Court,

our Supreme Court has analyzed the factors set forth in Brown (and relied

upon in Strieff) to apply the attenuation doctrine as an exception to the

exclusionary rule. See Commonwealth’s Brief at 22-23. My research reveals,

however, that application of the attenuation doctrine by Pennsylvania’s

appellate courts has been limited to cases decided under the Fourth

Amendment to the United States Constitution. See, e.g., Burno, 154 A.3d

at 788-89; Smith, 995 A.2d at 1152-53; Freeman, 757 A.2d at 909;13

Green, 581 A.2d at 551; McFeely, 502 A.2d at 170-71; Commonwealth v.

Harris, 421 A.2d 199, 202 (Pa. 1980); Bogan, 393 A.2d at 427-28

____________________________________________

13 Freeman argued that Article I, Section 8 afforded her greater protection

than the Fourth Amendment, but given its disposition that her consent to

search her car should have been suppressed under the Fourth Amendment,

our Supreme Court did not address the argument. Freeman, 757 A.2d at

906 n.3.

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(plurality).14 These cases do not require this Court to conclude that the

attenuation doctrine is therefore applicable under the Pennsylvania

Constitution in the circumstances presently before us. See Commonwealth

v. Morley, 681 A.2d 1254, 1257 (Pa. 1996) (recognizing that a Pennsylvania

Supreme Court decision premised on the Fifth Amendment to the United

____________________________________________

14 In Commonwealth v. Farley, 364 A.2d 299 (Pa. 1976), our Supreme

Court made a passing reference in a string of citations to Article I, Section 8

in its acknowledgment of the attenuation doctrine. See id. at 302. However,

there was no additional discussion of Article I, Section 8 in the decision, and

every case cited for both the attenuation doctrine and its holding was decided

on Fourth Amendment grounds. See id. at 302-04.

Additionally, the Farley decision and the cases upon which it relied

stated only a two-factor test for application of the attenuation doctrine:

(a) the proximity of an initial illegal custodial act to the

procurement of the confession; and

(b) the intervention of other circumstances subsequent to an illegal

arrest which provide a cause so unrelated to that initial illegality

that the acquired evidence may not reasonably be said to have

been directly derived from, and thereby tainted by, that illegal

arrest.

Id. at 303-04 (quoting In re Betrand, 303 A.2d 486, 490 (Pa. 1973)). In

re Betrand, in turn, adopted this statement of the law from a decision of the

Third Circuit Court of Appeals. See In re Betrand, 303 A.2d at 490 (quoting

Commonwealth ex rel. Craig v. Maroney, 348 F.2d 22, 29 (3d Cir. 1965)).

This was a common statement of the attenuation doctrine prior to Brown,

based upon the United States Supreme Court’s decision in Wong Sun v.

United States (discussed infra), which did not address the flagrancy (or lack

thereof) of the alleged police misconduct in finding that the confession given

was sufficiently attenuated from the illegal arrest to allow its admission at

trial. See id.; Craig, 348 F.2d at 29 (both citing Wong Sun, 371 U.S. at

491); see also, e.g., Commonwealth v. Bishop, 228 A.2d 661, 665-66 &

n.7 (Pa. 1967) (same).

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States Constitution that did not reference Article I, Section 9 of the

Pennsylvania Constitution is not binding as it relates to state constitutional

concerns).

To the contrary, statements made by members of our Supreme Court

suggest the opposite result is required. In Smith, for example, a majority of

our High Court found, weighing the Brown factors, that a confession to

murder obtained after executing what police believed to be an outstanding

warrant for an unrelated sexual assault (but was, in fact, invalid) was

admissible in court under the Fourth Amendment and the attenuation

doctrine.15 Smith, 995 A.2d at 1152. The Smith Court concluded that

although the initial arrest was illegal, he received Miranda warnings multiple

times; “only a few hours elapsed” between his arrest and confession; police

____________________________________________

15 Smith involved a claim of ineffective assistance of counsel in failing to

move to suppress a confession as the fruit of an illegal arrest. Smith, 995

A.2d at 1151. Police executed a search warrant at Wayne Smith’s home

relating to a murder investigation. Id. While there, police arrested Smith on

what they believed to be an outstanding warrant for an unrelated sexual

assault; they were unaware that the arrest warrant had already been served

and the charge dismissed because the warrant had been mistakenly left in an

active warrant bin. Id. While in custody, Smith waived his Miranda rights

and told police that he met the murder victim on the evening of the murder

but that they later parted ways. Id. When police informed Smith that they

had information to the contrary, he invoked his right to remain silent and

requested counsel. Id. Police kept Smith in custody based on the assault

warrant, but it was not until the next day that police learned that warrant was

invalid. Id. at 1151-52. Four hours after so learning, police arrested Smith

a second time—this time on the murder charge. Id. at 1152. Smith then

indicated to a detective that he was willing to waive his Miranda rights and

gave a tape-recorded confession admitting to the murder. Id. at 1152.

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stopped their interrogation as soon as he requested counsel; his “offer to talk

to police was not elicited by police conduct”; and police “mistakenly believed

the warrant was still outstanding” based on an “administrative error.” Id. at

1152-53.

Justice Saylor filed a concurring and dissenting opinion, agreeing that

Smith’s confession was admissible under Brown, but expressing doubt as to

the applicability of that test under our state charter:

In light of prevailing precedent, I support the majority’s

application of the attenuation doctrine as consistent with the

United States Supreme Court’s decision in Brown []. As a matter

of pure logic, however, it seems to me that the Brown factors

should apply differently in Pennsylvania than in the federal forum,

since the circumstances are to be considered “in light of the policy

to be served by the exclusionary rule,” Brown, 422 U.S. at 604,

… and [the Pennsylvania Supreme] Court at least previously has

maintained that the policies underlying the exclusionary rule are

substantially broader under Pennsylvania jurisprudence than

under federal Fourth Amendment law. Compare [] Edmunds,

[586 A.2d at 899]) (“[T]he exclusionary rule in Pennsylvania has

consistently served to bolster the twin aims of Article I, Section 8;

to-wit, the safeguarding of privacy and the fundamental

requirement that warrants shall only be issued upon probable

cause.”), with [] Leon, [468 U.S. at 916] (explaining that the

federal exclusionary rule serves solely a deterrent purpose).

Moreover, it seems somewhat artificial to say that the causal chain

between an illegal arrest and an ensuing subsequent confession is

“broken” and the taint “purged,” where the defendant remains

subject to the illegal detention, and in the absence of intervening

circumstances beyond the mere giving of Miranda warnings.

Certainly those knowledgeable in fields of human thinking and

behavior may hold a very different view of the impact of an

ongoing illegal detention on arrestee behavior.

Nevertheless, the United States Supreme Court has

established the prevailing test and put the matter largely into the

hands of a fact-finder, subject to deferential appellate review, and

th[e Pennsylvania Supreme] Court previously has followed this

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direction in [] McFeely, [502 A.2d 167], as the majority aptly

develops. Left to my own devices, however, I would prefer a more

open acknowledgment of the growing unwillingness at the federal

and state levels to apply the exclusionary rule in the absence of

intentional or, at least grossly negligent, police conduct.

Smith, 995 A.2d at 1175 (Saylor, J., concurring and dissenting) (footnotes

omitted).

Additionally, Justice Baer filed a concurring opinion, joining the Smith

majority but writing, in part, to express his view that the High Court must

“zealously guard the exclusionary rule to protect against the erosion of one of

our society’s most cherished of freedoms – the right to be free from

unreasonable searches and seizures.” Id. at 1174 (Baer, J., concurring). He

emphasized that Smith should not be viewed “as restricting the application of

the exclusionary rule” and that he was “opposed to any erosion of the use of

this invaluable remedial tool, when appropriate, to preserve our citizens’ right

to be free from coercive state interference into their lives and affairs.” Id.

In Johnson, the Commonwealth advocated for the applicability of

Smith and the attenuation doctrine to a case brought under Article I, Section

8 involving police reliance on an expired arrest warrant reasonably and in good

faith believed to be valid, contending that the evidence obtained as a result of

the arrest should not be suppressed. Johnson, 86 A.3d at 185-86. Our

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Supreme Court disagreed, concluding that Edmunds, not Smith, controlled

the outcome. Id. at 187.16

Noteworthy for my purposes here, the Johnson Court expressly

recognized that Smith was decided “exclusively under federal law,” id. at 190,

and that its holding had no applicability to the circumstances before it:

The attenuation and voluntariness questions at issue in Smith,

posing questions involving the application of federal law, simply

are not involved here. Instead, in this case, we must determine

whether the officer’s “good faith” belief that he was arresting

appellee on a valid warrant defeats the application of the

exclusionary remedy recognized by Edmunds, interpreting the

Pennsylvania Constitution. Smith does not remotely support,

much less command, recognition of a good faith exception under

the existing Article I, Section 8 construct.

Id. at 191.

Further, in reaffirming its decision in Edmunds, the Johnson Court

stressed that whether the mistake was made in good or bad faith was

____________________________________________

16 Johnson involved a state trooper who conducted a vehicle stop based on

a radio communication about its possible involvement in a drug transaction.

Id. at 184. Richard Allen Johnson was a passenger in the vehicle; when the

trooper ran his name through his patrol car computer, it informed him of an

active arrest warrant for Johnson. Id. The trooper arrested him and, during

a search incident to arrest, discovered heroin, cell phones, and cash on his

person. Id. While in custody and after receiving Miranda warnings, Johnson

admitted that he was a drug dealer. Id. Thereafter, the trooper learned that

he had been erroneously informed of Johnson’s arrest warrant; Johnson had

actually been served with the warrant nine days earlier and it was no longer

valid. Id. Even so, police charged him with drug-related crimes. Id. The

trial court granted his motion to suppress the contraband found during the

search incident to arrest and his incriminating statements under Article I,

Section 8, analyzing his claim under the Brown factors, and ultimately finding

suppression was warranted because there is no good faith exception to

Pennsylvania’s warrant requirement. Id. at 184-85.

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immaterial to the constitutional analysis because Edmunds “turned on a

determination that, under Article I, Section 8, the exclusionary rule in

Pennsylvania serves other values besides deterrence; it also vindicates an

individual’s right to privacy.” Id. at 188. It reiterated what it had stated in

Edmunds: “From the perspective of the citizen whose rights are at stake, an

invasion of privacy, in good faith or bad, is equally as intrusive. This is true

whether it occurs through actions of the legislative, executive or the judicial

branch of government.” Id. at 189 (quoting Edmunds, 586 A.2d at 901).

c. Other Relevant Pennsylvania Precedent

The facts underlying the instant matter also harken to Pennsylvania case

law that prohibits police from providing retroactive justification for their

unconstitutional actions. In Berkheimer, for example, an en banc panel of

this Court rejected the Commonwealth’s attempt to excuse an illegal search

by invoking the inevitable discovery doctrine, finding its use “inconsistent with

our Supreme Court’s jurisprudence and violative of the right to privacy

espoused in Article I, Section 8 of Pennsylvania’s Constitution.” Berkheimer,

57 A.3d at 181. Police conducted an unlawful warrantless entry into a

residence in the absence of exigent circumstances, but later obtained a search

warrant premised, in part, on what police observed in plain view when they

unlawfully entered the premises. After recognizing the distinct purposes of

Article I, Section 8 to safeguard privacy and require warrants only be issued

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upon probable cause, as compared to the deterrence purpose of the Fourth

Amendment, this Court stated:

[U]nlike the exclusionary rule in federal jurisprudence,

exclusion of evidence in Pennsylvania does guarantee the

substantive rights of our citizens, including the right not to be

disturbed in their homes prior to issuance of a warrant upon a

good showing of probable cause.

These guarantees and the role of the exclusionary rule in

effecting them as a guarantee of substantive rights, delimits the

inevitable discovery exception as a remedy for violations of the

warrant requirement under Article I, Section 8. The resulting

limitation is significantly more restrictive than its counterpart

under federal law. In view of the divergent purpose of Article I,

Section 8, and the distinct protections conferred by our state

constitution, our circumspection in application of the inevitable

discovery rule is imperative lest the privacy right enshrined there

be swallowed whole by an exception conceived without heed of its

existence.

Id. at 182 (citing Edmunds, 586 A.2d at 895, 899).

Further, in Commonwealth v. Perel, this Court refused to apply the

inevitable discovery doctrine to an unconstitutional search of the defendant’s

shaving kit and luggage inside his girlfriend’s apartment. Commonwealth v.

Perel, 107 A.3d 185, 197 (Pa. Super. 2014).

To hold that courts simply may make a post-hoc

determination that sufficient probable cause existed at the time of

an otherwise illegal search would be to eliminate the key

safeguard that delineates the dignity of the individual living in a

free society. Such an approach patently is at odds with the strong

notions of privacy that are carefully safeguarded by Article I,

Section 8 of the Pennsylvania Constitution.

Stated simply, the inevitable discovery doctrine is not a

substitute for the warrant requirement.

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Id. at 196 (quotation marks and brackets omitted) (citing Edmunds, 586

A.2d at 899); see also, e.g., Commonwealth v. Mackey, 177 A.3d 221,

228 (Pa. Super. 2017) (stating that “information developed after a police-

citizen encounter moves from consensual to coercive cannot be used to justify

the detention”) (emphasis in original; citations omitted); Commonwealth v.

Arnold, 932 A.2d 143, 144, 149 (Pa. Super. 2007) (concluding that police

could not retroactively justify the search of a casual visitor to an apartment

based upon a claim that the visitor lacked a reasonable expectation of privacy

in the apartment where police had unlawfully entered the apartment in the

first instance; to conclude otherwise would permit officers to “randomly invade

homes on the pretense that any person found to be a non-resident after the

fact could be searched” and “would trivialize the protections afforded by the

United States and Pennsylvania Constitutions”) (citing Commonwealth v.

Demshock, 854 A.2d 553, 556-57 (Pa. Super. 2004) (finding police must

articulate exigent circumstances at time of warrantless entry and cannot

provide retroactive justifications to demonstrate exigent circumstances));

Commonwealth v. Davis, 743 A.2d 952, 953 (Pa. Super. 1999) (reiterating

that allowing police to observe illegal activities by their own unlawful means

“emasculates the protections afforded to appellant and all citizens by the

United States and Pennsylvania Constitutions”)).

Though not decided under the attenuation doctrine, the above case law

of our Commonwealth has consistently held that under Pennsylvania law,

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police generally cannot retroactively justify evidence discovered as the result

of constitutionally infirm police conduct.17

Separately, I observe that over the course of approximately the last

decade, our Supreme Court has included the egregiousness of the officer’s

misconduct as a consideration in its application of the independent source

doctrine. In Henderson, a majority of the Court shied away from its prior

“true independence” requirement for the doctrine to apply. Henderson, 47

A.3d at 804. Relying heavily on the factual circumstances of the case before

it—that a second search warrant for DNA evidence was obtained following a

____________________________________________

17 Additionally, I observe that this Court has suppressed evidence under

factual circumstances similar to those present in this case, albeit not expressly

under Article I, Section 8 nor with reference to the attenuation doctrine. See

Commonwealth v. Peterson, 17 A.3d 935, 938-39 (Pa. Super. 2011)

(concluding that evidence must be suppressed where “there was no

intervening point” between an officer’s stop of the defendant without

reasonable suspicion and order to provide name, the discovery of an

outstanding warrant, the defendant’s arrest pursuant to that warrant, the

search incident to that arrest, and the discovery of marijuana in a plastic

baggie); Commonwealth v. Hudson, 995 A.2d 1253, 1259 (Pa. Super.

2010) (holding that the trial court erred in failing to suppress evidence where

officer stopped the defendant without reasonable suspicion, asked for

identification, discovered an outstanding warrant for the defendant, arrested

him pursuant to that warrant, searched him incident to that arrest, and

recovered drugs and a large amount of cash on his person); Commonwealth

v. Guillespie, 745 A.2d 654, 662 n.5 (Pa. Super. 2000) (concluding that

evidence seized during a search incident to arrest should have been

suppressed because, where police officers lacked reasonable suspicion to

detain the defendant to run a warrants check, “the fact of his outstanding

warrants would not have come to light and there would have been no

independent basis for his arrest and inevitable discovery of the contraband in

his search incident to such arrest had the officers acted properly”).

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second investigation by a separate team from the same police department as

the first that obtained the defective warrant—the Henderson Court held:

In the present circumstances, we are unwilling to enforce a “true

independence” rule in the absence of police misconduct and on

pain of the Commonwealth being forever barred from obtaining

non-evanescent evidence connecting Appellant with his crimes. In

answer to the specific question presented, we hold that

suppression is not required on account of Detective Evans’ status

as a member of the same police department as Detective Johnson.

Rather, in light of the factual circumstances before the Court in

both [Commonwealth v.] Melendez[, 676 A.2d 226 (Pa.

1996),] and Mason, we deem it appropriate to limit the

independent police team requirement to situations in which the

rule prevents police from exploiting the fruits of their own willful

misconduct.[FN]

[FN] See Mason, … 637 A.2d at 257 (“[W]here police seize

evidence in the absence of a warrant or exigent circumstances

by forcibly entering a dwelling place, their act constitutes a

violation of Article I, Section 8 of the Pennsylvania Constitution

and items seized pursuant to their illegal conduct may not be

introduced into evidence[.]”); Melendez, … 676 A.2d at 231

(“The Pennsylvania Constitution does not allow police

intrusions exemplified by this case and Mason. Government

agents may not enter private dwellings through the use of

battering rams as in Mason, or by effecting illegal stops and

seizures as in this case, and secure the premises by detaining

those who occupy the premises while police wait to learn

whether their application for a warrant has been approved.”).

Henderson, 47 A.3d at 804-05 (footnote in original). In so holding, the Court

observed that this approach still differentiates Pennsylvania search and

seizure jurisprudence from its federal counterpart, as under the Fourth

Amendment, Leon’s good faith exception—rejected in Edmunds—would have

operated to allow the admission of the first DNA sample. Id. at 805.

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Subsequently, in Katona, the Court’s majority held that information

relayed to police in person by a confidential informant (“the CI”) was

independent of potentially unlawfully obtained recordings of conversations

between the CI and the appellant, where only the former content was used to

obtain a search warrant. See Katona, 240 A.3d at 482-83. Relying on

Henderson, the Court stated that the police misconduct at issue was “not

remotely within striking distance of the egregious misconduct at issue in

Mason and Melendez,” applying instead the federal test for application of

the independent source doctrine. Id. at 480-81; see also Murray, 487 U.S.

at 542 (identifying the pertinent considerations in discerning “whether the

search pursuant to warrant was in fact a genuinely independent source of the

information and tangible evidence” to include (1) whether the decision to

obtain the warrant was prompted by what police saw during the initial,

unlawful entry and (2) whether “information obtained during that entry was

presented to the Magistrate and affected his decision to issue the warrant”).

It further found, pursuant to Edmunds, that “when stripped of all references

to the allegedly improper recordings,” there was ample probable cause to

support the issuance of the warrant. Id. at 483.

Notably, the Court in both Katona and Henderson stressed the

importance of considering cases on their facts, signaling its abhorrence to

prophylactic per se rules, finding experience dictates that generally, “they

cannot be sustained on their original terms.” Katona, 240 A.3d at 474;

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Henderson, 47 A.3d at 803. Our High Court further recognized that the

police, in possession of evidence or information lawfully obtained, should not

be placed at a disadvantage simply because the evidence was also previously

and separately unlawfully obtained. See Katona, 240 A.3d at 485 (“It is one

thing to say that officers shall gain no advantage from violating the individual’s

rights; it is quite another to declare that such a violation shall put him beyond

the law’s reach even if his guilt can be proved by evidence that has been

lawfully obtained.”) (citation and quotation marks omitted).

3. Case Law from Other States

A number of states have applied the Strieff attenuation framework

without any independent analysis under their state constitutions or to factual

circumstances involving independent acts of the defendant. See, e.g.,

Massey v. State, 667 S.W.3d 784, 791, 793-94 (Tex. Crim. App. 2023)

(Yeary, J., Opinion Announcing the Judgment of the Court) (stating Strieff

attenuation doctrine applied under the Fourth Amendment where Massey’s

commission of new, different offenses (resisting search and evading

detention) after police conducted an illegal pat-down search of him, which

yielded drugs, was an intervening circumstance); Barney v. State, 507 P.3d

459, 464-66 (Wyo. 2022) (holding Strieff attenuation applied under the

Fourth Amendment where, even if police committed constitutional violations

during a traffic stop, Barney’s flight in his car from the scene and commission

of new, distinct crimes broke the causal connection between the alleged police

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misconduct and discovery of drugs after he crashed his car); State v.

Mousseaux, 945 N.W.2d 548, 554-55 (S.D. 2020) (noting that Mousseaux

did not argue the state constitution provided greater protection than the

Fourth Amendment and holding the federal attenuation doctrine under Strieff

applied where, assuming Mousseaux’s detention lacked reasonable suspicion,

police discovered she had an outstanding arrest warrant, arrested and

searched her incident to arrest, and found drugs); State v. Tatro, 445 P.3d

173, 180 (Kan. 2019) (finding the court had to follow Strieff because the

defendant only raised a claim under the Fourth Amendment and made no

argument as to why a different rule would apply under the Kansas

Constitution); State v. Edwards, 452 P.3d 413, 414-15 (N.M. Ct. App. 2019)

(noting that Edwards did not argue the state constitution provided greater

protection than the Fourth Amendment and applying Strieff to conclude that

a “preexisting, independent, valid arrest warrant was an intervening cause

that attenuated any otherwise unlawful seizure of [Edwards] or evidence from

his person during a search incident to arrest”); Sizer v. State, 174 A.3d 326,

340-42 (Md. 2017) (applying Strieff to hold solely under the Fourth

Amendment that, assuming investigatory stop of defendant was unlawful, the

evidence recovered would be admissible where the discovery of a valid pre-

existing arrest warrant attenuated the connection between the stop and

evidence seized during the search incident to defendant’s arrest).

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Notably, the Supreme Court of Kansas distinguished Strieff and

suppressed evidence that was found during a search incident to arrest despite

finding that the Kansas Constitution provided the same protection from

unlawful government intrusion as does the Fourth Amendment. In State v.

Ellis, the Kansas Supreme Court was confronted with circumstances involving

a legitimate welfare stop initiated by police that transformed into an unlawful

detention, during which police discovered an outstanding warrant and arrested

the defendant. State v. Ellis, 469 P.3d 65, 74-77 (Kan. 2020). In analyzing

the second Strieff factor, intervening circumstances, the Ellis Court

remarked:

Under the State’s theory, police could approach random people on

the street, demand their identification cards, and run warrant

checks on them. If no warrant came up, then the detainee would

be released—no harm, no foul. If a warrant came up, then the

warrant would attenuate the unconstitutional stop and justify

arrests and searches incident thereto. The police could routinely

carry out criminal investigatory detentions of all citizens without

risking suppression of discovered evidence.

Id. at 75.

Additionally, one state court has declined to follow Strieff based on the

greater protections afforded by its state constitution than the Fourth

Amendment. In State v. Mayfield, the Washington Supreme Court rejected

the federal attenuation doctrine and applied a more limited version to cases

where “an unforeseeable intervening act genuinely severs the causal

connection between official misconduct and the discovery of evidence.” State

v. Mayfield, 434 P.3d 58, 74 (Wash. 2019). In reaching its decision, the

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Mayfield Court determined that application of the federal attenuation doctrine

in Strieff “clearly conflicts with [its] state exclusionary rule by admitting

illegally seized evidence and allowing the State to benefit from the

unconstitutional actions of its officers.” Id. at 72 (citation omitted). It

explained that unlike the Fourth Amendment, “the primary purpose of

Washington’s exclusionary rule is not to deter official misconduct under threat

of suppression. Deterrence is a benefit of our state exclusionary rule, but its

primary purpose is to protect the individual right to privacy and to provide a

certain remedy when that right is violated.” Id. (emphasis in original).

The Washington Supreme Court explicitly stated that its adoption of a

narrow attenuation doctrine “is entirely independent of the modern

attenuation doctrine used by the federal courts” and as such,

it is irrelevant to our state attenuation doctrine whether

suppression in one case will deter similar misconduct in the future.

It is also irrelevant whether the officer’s misconduct was merely

negligent or was instead flagrant and purposeful. The only

question is whether unforeseeable intervening actions genuinely

severed the causal connection between official misconduct and the

discovery of evidence. If not, then the attenuation doctrine does

not apply, and the evidence must be excluded in accordance with

article I, section 7[18] and our state exclusionary rule.

Id. at 74.

____________________________________________

18 Article I, Section 7 of the Washington Constitution states: “No person shall

be disturbed in his private affairs, or his home invaded, without authority of

law.” WASH. CONST. art. I, § 7.

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The case involved an officer’s illegal seizure of Mayfield across the street

from his parked truck and requested consent to search his person and truck;

the search uncovered bundled cash and drugs. Id. at 74. Applying its narrow

state attenuation doctrine, the Washington Supreme Court found there were

no intervening circumstances sufficient to satisfy the doctrine. Id. at 63, 74-

76. It examined how the federal attenuation doctrine has expanded from a

limited exception requiring a superseding cause to a broad exception focused

on deterring official misconduct. Id. at 71-72. The Washington Supreme

Court explained that the “attenuation doctrine originally served the same

function in the context of the exclusionary rule that the superseding cause

doctrine serves in the context of tort law.” Id. at 71. Citing Justice Kagan’s

dissent in Strieff, it elucidated:

Where unforeseeable intervening circumstances genuinely

severed the chain of causation between official misconduct and

the discovery of evidence, the intervening circumstances operated

as a superseding cause. In such a case, the official misconduct

was not a proximate cause of discovering the evidence, so the

evidence was not “fruit of the poisonous tree.” It was the “fruit”

of the superseding cause.

Mayfield, 434 P.3d at 71 (citing Strieff, 579 U.S. at 257-58 (Kagan, J.,

dissenting)).

It noted that the “historical version of the attenuation doctrine was most

likely to be satisfied where the intervening circumstances at issue were

unforeseeable acts of independent free will,” as highlighted by the seminal

case of Wong Sun. Mayfield, 434 P.3d at 71. In Wong Sun, the defendant

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was arrested without probable cause, released on his own recognizance after

a lawful arraignment, but voluntarily returned several days later to confess.

Id. (citing Wong Sun, 371 U.S. at 488, 491). In holding the confession

admissible, the United States Supreme Court did not apply a strict “but for”

causation test, but instead queried whether the evidence was obtained “by

exploitation of that illegality or instead by means sufficiently distinguishable

to be purged of the primary taint.” Id. (quoting Wong Sun, 371 U.S. at 488)

(quotation marks and additional citation omitted). The Mayfield Court

continued:

The defendant’s voluntary decision to return to the police

and give his confession may not have occurred but for his unlawful

arrest. Nevertheless, the defendant’s decision was an intervening

circumstance that truly severed the chain of causation. “In order

for the causal chain, between the illegal arrest and the statements

made subsequent thereto, to be broken, Wong Sun requires not

merely that the statement meet the Fifth Amendment standard of

voluntariness but that it be ‘sufficiently an act of free will to purge

the primary taint.’” Brown[, 422 U.S. at 601] (quoting Wong

Sun, 371 U.S. at 486[]).

The attenuation doctrine thus began as a narrow exception

to the exclusionary rule requiring a superseding cause for the

discovery of evidence. However, as federal courts have

increasingly focused on the exclusionary rule’s deterrent purpose,

they have adopted new exceptions and expanded existing ones,

including the attenuation doctrine. The attenuation doctrine as

applied by federal courts no longer asks only whether there was a

superseding cause. Instead, “[t]he notion of the ‘dissipation of

the taint’ attempts to mark the point at which the detrimental

consequences of illegal police action become so attenuated that

the deterrent effect of the exclusionary rule no longer justifies its

cost.” Id. at 609[] (Powell, J., concurring in part).

Mayfield, 434 P.3d at 71-72.

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Additionally, the Washington Supreme Court addressed the “purpose

and flagrancy” factor, which the Strieff Court found “particularly significant.”

Id. at 72 (quotation marks and citations omitted). It noted that this factor is

“directly related to the deterrence rationale underlying the federal attenuation

doctrine,” which, under Washington’s exclusionary rule, is “completely

incompatible” with its “requirement to suppress all illegally seized evidence,

regardless of whether officers acted reasonably, negligently, or intentionally.”

Id. (citation omitted).

The Mayfield Court observed that “[t]his evolution in the federal

attenuation doctrine has caused difficulties for Washington courts because

although the narrow historical version of the federal attenuation doctrine may

be compatible” with its state constitution, “the broad modern version is not.”

Id. at 72. It explained that the federal attenuation doctrine, in part, now “fails

to protect individual privacy,” gives police less incentive to possess the

requisite level of cause if evidence is admissible despite the constitutional

violation, and denies “a remedy to those whose privacy has been

unconstitutionally invaded.” Id. at 73 (citations omitted). At the same time,

however, it recognized that a “but for” exclusionary rule “would make it

virtually impossible to rehabilitate an investigation once misconduct has

occurred” and that the “purpose of [its] state exclusionary rule is to protect

individual privacy rights, not to permanently immunize suspects from

investigation and prosecution.” Id. Accordingly, the Washington Supreme

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Court adopted a narrow state attenuation doctrine “to be applied only where

the State proves that unforeseeable intervening circumstances truly severed

the causal connection between official misconduct and the discovery of

evidence.” Id.

As our Supreme Court remarked in Edmunds, a “mere scorecard” of

those states which have accepted and rejected Strieff “is certainly not

dispositive of the issue in Pennsylvania.” Edmunds, 586 A.2d at 900.

“However, the logic of certain of those opinions bears upon our analysis under

the Pennsylvania Constitution, particularly given the unique history of Article

I, Section 8.” Id. In this respect, I find it significant that the only jurisdiction

to interpret its state constitution similarly to Pennsylvania, providing enhanced

individual privacy protections as compared to the federal counterpart, found

the attenuation doctrine as stated in Strieff incompatible with its state

charter.

4. Policy Considerations

“[I]n analyzing any state constitutional provision, it is necessary to go

beyond the bare text and history of that provision as it was drafted 200 years

ago, and consider its application within the modern scheme of Pennsylvania

jurisprudence.” Edmunds, 586 A.2d at 901. I therefore proceed to examine

whether the application of the Strieff attenuation doctrine to the facts of this

case is consistent with the policy considerations underlying Article I, Section

8.

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At the outset, I note the difficulty in balancing the individual privacy

interest at stake—the right of the individual not to be detained without the

requisite reasonable suspicion—against society’s interest in promoting safe

and effective law enforcement by apprehending fugitives from the law and

securing criminal convictions. See Henderson, 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 interest in identifying

and punishing wrongdoers.”); Mason, 637 A.2d at 257 n.3 (stating that

federal courts place less importance on the right of privacy than Pennsylvania

courts and thus, they “balance the interests differently and reach a different

conclusion as to the relative importance of privacy as against securing criminal

convictions”). I also recognize the facial incongruity between Article I, Section

8’s protection against illegal police interactions with citizenry on the one hand,

and allowing police to provide a retroactive justification for an interaction that

was otherwise illegal at its inception on the other.

The enhanced privacy protections provided by Article I, Section 8, as

compared to the Fourth Amendment, heightens this consideration. In making

this differentiation, our Supreme Court recognized that “Edmunds itself, in

rejecting the ‘good faith’ exception to the exclusionary rule, calibrated the

interests of society in securing criminal convictions and law enforcement needs

versus privacy protections quite differently than does the United States

Supreme Court.” Alexander, 243 A.3d at 203.

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Edmunds itself mandates that we cannot reflexively cede our

citizens’ constitutional rights to privacy to the needs of law

enforcement and the concern that evidence may be suppressed.

Contrary to the view that suppressing evidence represents an

implicit hostility to police conduct, this Court in Edmunds viewed

the matter quite differently:

We have no reason to believe that police officers or

district justices in the Commonwealth of Pennsylvania

do not engage in “good faith” in carrying out their

duties. What is significant, however, is that our

Constitution has historically been interpreted to

incorporate a strong right of privacy, and an equally

strong adherence to the requirement of probable

cause under Article I, Section 8. Citizens in this

Commonwealth possess such rights, even where a

police officer in “good faith” carrying out his or her

duties inadvertently invades the privacy or

circumvents the strictures of probable cause. To

adopt a “good faith” exception to the exclusionary

rule, we believe, would virtually emasculate those

clear safeguards which have been carefully developed

under the Pennsylvania Constitution over the past 200

years.

Edmunds, 586 A.2d at 899.

Alexander, 243 A.3d at 204. The Alexander Court observed that “[i]f the

United States Constitution tips the scale towards law enforcement needs in

analyzing Fourth Amendment questions, our own charter does not when

addressing Article I, Section 8.” Id. (citation omitted).

Concern about applying the attenuation doctrine in these circumstances

plainly exists as it relates to improperly motivated police stops. As Justice

Sotomayor pointedly stated in her Strieff dissent:

This case allows the police to stop you on the street, demand your

identification, and check it for outstanding [] warrants—even if

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you are doing nothing wrong. If the officer discovers a warrant

…, courts will now excuse his illegal stop and will admit into

evidence anything he happens to find by searching you after

arresting you on the warrant.

Strieff, 579 U.S. at 244 (Sotomayor, J., dissenting). Examining the

particulars of the case, she observed:

The officer did not ask Strieff to volunteer his name only to

find out, days later, that Strieff had a warrant against him. The

officer illegally stopped Strieff and immediately ran a warrant

check. The officer’s discovery of a warrant was not some

intervening surprise that he could not have anticipated. Utah lists

over 180,000 misdemeanor warrants in its database, and at the

time of the arrest, Salt Lake County had a backlog of outstanding

warrants so large that it faced the potential for civil liability. The

officer’s violation was also calculated to procure evidence. His

sole reason for stopping Strieff, he acknowledged, was

investigative—he wanted to discover whether drug activity was

going on in the house Strieff had just exited.

The warrant check, in other words, was not an “intervening

circumstance” separating the stop from the search for drugs. It

was part and parcel of the officer’s illegal “expedition for evidence

in the hope that something might turn up.” Brown, 422 U.S.[]

at 605 …. Under our precedents, because the officer found

Strieff’s drugs by exploiting his own constitutional violation, the

drugs should be excluded.

Id. at 247 (Sotomayor, J., dissenting) (some quotation marks and citations

omitted). She continued, assessing that allowing the discovery of an

outstanding warrant to “sever[] the connection between illegal policing and

the resulting discovery of evidence” as a “remarkable proposition: The mere

existence of a warrant not only gives an officer legal cause to arrest and search

a person, it also forgives an officer who, with no knowledge of the warrant at

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all, unlawfully stops that person on a whim or hunch.” Id. at 247-48

(Sotomayor, J., dissenting).

As noted above in my discussion of Mayfield, Justice Kagan also

authored a dissent in Strieff. In analyzing the second Brown factor—

“whether any intervening circumstance broke the causal chain between the

stop and the evidence”—she cited examples of states (including Pennsylvania)

where outstanding arrest warrants number well in excess of one million to

demonstrate that their discovery is foreseeable as “the run-of-the-mill results

of police stops” and “what officers look for when they run a routine check of a

person’s identification and what they know will turn up with fair regularity.”

Id. at 258-59 (Kagan, J., dissenting). Of particular relevance to the matter

pending before this Court, Justice Kagan concluded by observing the

following:

Consider an officer who … wishes to stop someone for

investigative reasons, but does not have what a court would view

as reasonable suspicion. If the officer believes that any evidence

he discovers will be inadmissible, he is likely to think the unlawful

stop not worth making—precisely the deterrence the exclusionary

rule is meant to achieve. But when he is told of today’s decision?

Now the officer knows that the stop may well yield admissible

evidence: So long as the target is one of the many millions of

people in this country with an outstanding arrest warrant,

anything the officer finds in a search is fair game for use in a

criminal prosecution. The officer’s incentive to violate the

Constitution thus increases: From here on, he sees potential

advantage in stopping individuals without reasonable suspicion—

exactly the temptation the exclusionary rule is supposed to

remove.

Id. at 259-60 (Kagan, J., dissenting).

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The concerns raised by Justices Sotomayor and Kagan resonate strongly

with the underpinnings of Pennsylvania search and seizure jurisprudence.

Because warrant checks are routinely performed during police stops, 19 I find

it difficult to view the discovery of an outstanding warrant as somehow

“intervening” such that it breaks the causal chain between an unlawful stop

and the subsequent discovery of evidence during the search incident to arrest

pursuant to the warrant. Further, as Justice Kagan recognized, adopting the

attenuation doctrine as applied in Strieff to these factual circumstances

presents the possibility of incentivizing police to conduct unlawful stops for

the purpose of identifying individuals with outstanding warrants.

* * *

I would therefore conclude that the attenuation doctrine, as defined by

Brown and applied by Strieff, is inapplicable under Article I, Section 8 in

circumstances involving an unlawful stop that results in the discovery of an

outstanding warrant, an arrest pursuant to that warrant, a search incident to

____________________________________________

19 See Commonwealth v. Garcia, 311 A.3d 1138, 1146 (Pa. Super. 2024)

(stating that vehicle stops ordinarily include, inter alia, the officer checking a

person’s driver’s license and determining whether the driver has any

outstanding warrants) (citations omitted); see also Commonwealth v.

Cost, 224 A.3d 641, 652-53 (Pa. 2020) (holding that the defendant was

subject to an investigative detention and thus seized under the Fourth

Amendment when an officer retained his identification card to conduct a

warrants check). This should not be interpreted as a finding that the practice

of performing warrant checks as a matter of course during investigative stops

is not good policy.

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that arrest, and the discovery of incriminating evidence.20 I reach this

conclusion based upon our longstanding Article I, Section 8 jurisprudence

interpreting our constitutional provision as providing greater privacy

protections than the Fourth Amendment, the decision of the Mayfield Court—

which is based upon a strikingly similar interpretation of Washington State’s

protection against unreasonable searches and seizures—and the relevant

policy considerations.

Specifically, I cannot conclude that the discovery by law enforcement of

an outstanding warrant during an unlawful stop is an “intervening

circumstance” that attenuates the evidence seized in a search incident to

arrest from the illegal stop. Quite the opposite is true—the evidence is

discovered as a direct result of the unlawful stop and inextricably linked to the

police misconduct. The general practice of conducting a warrant check during

police encounters, coupled with the prevalence of outstanding arrest warrants,

renders the discovery of a warrant during an illegal detention entirely

foreseeable. See Strieff, 579 U.S. at 247-50 (Sotomayor, J., dissenting),

259 (Kagan, J., dissenting); Garcia, 311 A.3d at 1146.

____________________________________________

20 I would stop short of declaring that the federal attenuation doctrine can

never apply under Article I, Section 8, as that question is not presently before

this Court. As our Supreme Court made clear in its recent independent source

doctrine jurisprudence, cases must be assessed on their individual

circumstances. See Henderson, 47 A.3d at 804.

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To conclude otherwise would serve to erode the enhanced individual

privacy rights embodied in Article I, Section 8 by allowing standard police

conduct that regularly occurs during an investigative detention to bootstrap

evidence that would otherwise be inadmissible because it was obtained during

an unlawful encounter without reasonable suspicion. In other words, it would

permit police to “gain … advantage from violating the individual’s rights[.]”

See Katona, 240 A.3d at 485 (citation and quotation marks omitted).

Further, allowing the admission of evidence seized in these circumstances

could serve to entice police to engage in suspicionless stops of our

Commonwealth’s citizens, knowing the stop could very well result in

admissible evidence. See Strieff, 579 U.S. at 260 (Kagan, J., dissenting);

Ellis, 469 P.3d at 75 (voicing the concern that “[t]he police could routinely

carry out criminal investigatory detentions of all citizens without risking

suppression of discovered evidence”); see also Johnson, 86 A.3d at 190

(recognizing that Pennsylvania’s exclusionary rule “not only serve[s] the same

privacy-based function it was deemed to serve in Edmunds, but also …

serve[s] some generalized deterrence function”).

The attenuation doctrine as applied in Strieff allows police to randomly

stop citizens, request identification, and run warrant checks—all without

reasonable suspicion to support the detention, knowing that if it leads to the

discovery of an outstanding arrest warrant, any incriminating evidence found

during the search incident to arrest will be admissible in a prosecution

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unrelated to the lawful arrest. Unlike Strieff, our Commonwealth’s

jurisprudence does not “tip[] the scale towards law enforcement needs,” see

Alexander, 243 A.3d at 204, but rather, incriminating evidence found during

a search incident to arrest that resulted from an illegal stop must be

suppressed pursuant to Article I, Section 8. 21

Application to Rothhaar’s Case22

As stated above, I agree with the suppression court that Sergeant Tobie

subjected Rothhaar to an unlawful investigatory detention made without the

____________________________________________

21 I also question the applicability of the fourth Brown factor—whether the

official misconduct is purposeful and flagrant—under Article I, Section 8. As

Pennsylvania’s courts have long observed, whether an officer acted in good

faith (or otherwise) is irrelevant to the constitutional analysis under our state

charter, seemingly rendering this aspect of the federal Brown test

incompatible with Article I, Section 8 of the Pennsylvania Constitution. See

Johnson, 86 A.3d at 184, 187-91; Edmunds, 586 A.2d at 888, 895-906. As

the Strieff Court found, the purposefulness and flagrance of the police

misconduct was of special importance in its determination that the attenuation

doctrine applied. Strieff, 579 U.S. at 242-43. And this factor stems directly

from the deterrence rationale underlying the federal exclusionary rule: it

“reflects that rationale by favoring exclusion only when the police misconduct

is most in need of deterrence—that is, when it is purposeful or flagrant.” See

id. at 241.

Our High Court’s decisions in Katona and Henderson, however, give

me pause, as in those cases, majorities found that the “true independence”

requirement stated in Melendez for the application of the independent source

doctrine is only applicable in cases of “malfeasance” by law enforcement or

“willful” or “egregious misconduct.” See Katona, 240 A.3d at 479-80;

Henderson, 47 A.3d at 805. As I base my determination upon the

inapplicability of the second factor to the circumstances before this Court, I

do not resolve this question.

22Rothhaar makes no argument before this Court of inadmissibility under the

Fourth Amendment; therefore, I do not address it.

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requisite reasonable suspicion. Sergeant Tobie’s testimony further suggests

that he performed the warrant check on Rothhaar as a matter of ordinary

police practice. See N.T., 1/9/2023, at 18. If this Court were to allow

admission of incriminating evidence discovered under the circumstances of

this case, we would eviscerate the requirement that police have reasonable

suspicion prior to conducting an investigatory detention of the citizens of our

Commonwealth. See Rice, 304 A.3d at 1261. I would therefore conclude

that the exclusionary rule operates to suppress the incriminating evidence

seized incident to Rothhaar’s arrest.23

Conclusion

Based on the foregoing, I would hold that where police detain an

individual without the requisite level of suspicion, during which they discover

an outstanding warrant, resulting in the individual’s arrest and a search

incident to that arrest, revealing incriminating evidence or contraband, the

attenuation doctrine does not apply to purge the taint of the illegal detention

under Article I, Section 8 of the Pennsylvania Constitution. As Rothhaar was

searched incident to his arrest pursuant to a warrant found during the

investigative detention by police without reasonable suspicion, I would find all

____________________________________________

23 Unquestionably, notwithstanding the illegal stop, police were compelled to

arrest Rothhaar on the outstanding warrant when they discovered it. See

Katona, 240 A.3d at 485. But it does not follow that any evidence seized

during the search incident to arrest is admissible in a later prosecution of

Rothhaar for separate crimes that arise as a result of the evidence found

during that search.

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evidence that flowed from his illegal detention was subject to the exclusionary

rule. Accordingly, I would conclude that Rothhaar’s motion to suppress should

have been granted under Article I, Section 8, his judgment of sentence

vacated, and the case remanded for proceedings consistent with this dissent.

On this basis, I respectfully dissent.

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