Commonwealth v. Sanchez

NIGRO, Justice,

dissenting.

Since I find that Pennsylvania, rather than California, law should apply to evaluate the legality of a California canine sniff leading to a prosecution in this Commonwealth, I must respectfully dissent. As noted by the Majority, while a canine sniff does not constitute a search under California law, this Court has found that a canine sniff is a search under the Pennsylvania Constitution. Commonwealth v. Johnston, 515 Pa. 454 , 530 A.2d 74 (1987). In Johnston , this Court held that under Article I, Section 8 of the Pennsylvania Constitution, a canine sniff may only be conducted when the police are able to articulate reasonable grounds for believing that drugs may be present in the place they seek to search. Id. at 466 , 530 A.2d at 79 . If this standard is not met, evidence derived from the canine sniff, like any other evidence obtained in violation of a defendant’s constitutional rights, is subject to suppression. Given this disparity between Pennsylvania and California law, the significance of which law our courts apply to the canine *580 sniff in the instant case is clear. In my view, Pennsylvania law should be applied.

In the first instance, I agree with the trial court that this case presents a question that is procedural in nature. The Majority, in rejecting the position that the instant matter is one of procedural law, cites Blacks Law Dictionary which defines procedural law as “that which prescribes the methods of enforcing rights or obtaining redress for their invasion.” In my view, this definition clearly encompasses the question here of whether evidence derived from a California canine sniff is admissible in a prosecution brought in the courts of this Commonwealth. As the Superior Court stated in Commonwealth v. Dennis:

It is a fundamental principal of the conflicts of laws that a court employs its own procedural rules. That is true in both civil and criminal cases, but especially in criminal cases as a sort of corollary to the local nature of substantive criminal law____ The law of evidence, including the admissibility of specifically offered evidence, has traditionally been characterized as procedural law.

Dennis, 421 Pa.Super. 600, 616 , 618 A.2d 972, 980 (1992), appeal denied, 535 Pa. 654 , 634 A.2d 218 (1993) (Pennsylvania Court would apply Pennsylvania law to determine if probable cause existed for a search warrant issued in New Jersey to search defendant’s New Jersey home and thus, whether evidence derived from search was admissible at trial in Pennsylvania).

Under these principles, Pennsylvania law is clearly applicable.

The Majority, however, finds that the issue presented by this case is a matter of substantive law. As a result, the Majority borrows the conflict of law analysis applicable to substantive questions of civil law, which essentially evaluates which state has the greater interest in the outcome of a particular litigation, and applies it to the instant matter involving a conflict of laws in the criminal context. The Majority’s approach, however, fails to consider this Court’s decision in *581 Commonwealth v. Ohle, 508 Pa. 566 , 470 A.2d 61 (1983), cert, denied, 474 U.S. 1083 , 106 S.Ct. 854 , 88 L.Ed.2d 894 (1986), which dealt with conflict of law principles specifically applicable to criminal cases. In Ohle, we stated:

It is a basic proposition of conflict of laws in criminal cases that ‘the question of jurisdiction and that of governing substantive law always receive the same answer. The governing law is always that of the forum state, if the forum court has jurisdiction.’

Id. at 578, 470 A.2d at 67 (quoting Leflar, Conflict of Laws: Choice of Law in Criminal Cases, 25 CASE WESTERN RES. L. REV. 44, 47 (1974)) (trial court committed no error in applying the law of the forum, Pennsylvania, in criminal prosecution). Since neither the Majority or the parties advance the argument that Pennsylvania lacks jurisdiction over the instant prosecution, and in light of the Majority’s conclusion that the issue must be framed as one of substantive law, it is certainly troubling that the Majority fails to harmonize its rationale and result in this case with the proposition announced in Ohle. This Court’s statement in Ohle, in my view, clearly lends support to the application of Pennsylvania law. 1

Nonetheless, even under the conflict of law analysis employed by the Majority, I must also disagree with the Majority’s sweeping conclusion that “Pennsylvania has no interest in a canine sniff search conducted in California’s borders, even if the results are later used in the Pennsylvania courts.” (empha *582 sis added). Here, the canine search, though conducted in California, served to establish probable cause for the issuance of a search warrant in Pennsylvania. The subsequent search of the package then occurred in Pennsylvania. Perhaps most significantly, the defendants were charged with violations of the Pennsylvania Crimes Code and prosecuted in the courts of Pennsylvania. Under these circumstances, I cannot agree with the Majority that Pennsylvania lacks any interest in whether California’s law, instead of its own, is applied to evaluate the propriety of the dog sniff in this case. In fact, I believe these circumstances compel the conclusion that Pennsylvania has the greater interest. 2

Certainly, the Commonwealth has a strong interest in ensuring that the authority of Pennsylvania law, especially that law which stands to safeguard individual rights, is not weakened or undermined in any way. Under the Pennsylvania Constitution as interpreted in Johnston , it is clear that had this dog sniff occurred in Pennsylvania, the evidence obtained as a result could not properly be introduced against Appel *583 lants in the courts of this Commonwealth. 3 By importing California law into this jurisdiction, the Majority empowers the Commonwealth to circumvent Pennsylvania’s Constitutional and procedural safeguards and introduce otherwise inadmissible evidence through the back door. 4 Unlike the Majority, I believe that Pennsylvania has an undeniable and unrivaled interest in preventing this from occurring.

For these reasons, I would reverse the Order of the Superi- or Court applying California law to evaluate the propriety of the canine sniff and reinstate the Order of the trial court applying Pennsylvania law and suppressing the evidence.

FLAHERTY, C.J., joins this dissenting opinion.

. Both Ohle and the Leflar article note that certain choice-influencing considerations may be relevant to deciding conflict of substantive law questions in criminal cases. They are, according to Leflar, predictability of results, interstate orderliness in the law’s administration and the advancement of the forum’s governmental interests. Ohle, 503 at 578, 470 A.2d at 67 ; Leflar, supra, at 61-65. In Ohle, however, we stated that " whatever the analysis, jurisdiction to hear the case is the fundamental question to which conflict of laws 'choice influencing’ considerations are to be applied. A finding that there is jurisdiction will result in the forum law's application since the case will not be heard unless it is proposed to apply the forum’s law to it.” Ohle, 503 Pa. at 577 , 470 A.2d at 67 . Since Ohle involves this Court's most recent discussion of substantive law conflict principles in the criminal context, I find cause for great concern that the Majority’s analysis fails to address Ohle’s role in its new analysis for conflicts between substantive laws in criminal cases.

. Under the Majority’s reasoning, as long as an activity is legal under the laws of a foreign jurisdiction, Pennsylvania, despite its status as the forum state, retains no interest in that activity or the information obtained as a result since our courts have "no power to control the activities of a sister state or to punish conduct occurring within that sister state.” I am deeply concerned with the implications of this reasoning. Take, for example, a situation where the police, in a sister state with laws which do not quantify the amount of time a confession must be obtained from a suspect after arrest and before arraignment, obtain a confession from a particular suspect 10 hours after the initiation of interrogation. In the confession, the suspect implicates himself in crimes committed in Pennsylvania. In a prosecution later brought in Pennsylvania, the Commonwealth seeks to introduce the confession. Under Pennsylvania law, of course, the admission of the confession would violate the 6 hour rule of Commonwealth v. Davenport, 471 Pa. 278 , 370 A.2d 301 (1977), and Commonwealth v. Duncan, 514 Pa. 395 , 525 A.2d 1177 (1987), and thus, would be subject to suppression. However, under the precedent created by the Majority today, it seems clear that the trial court in Pennsylvania would be forced to apply the sister state's law and allow the confession to be admitted into trial without any reference to the protections afforded by Pennsylvania law or our exclusionary rule. Unlike the Majority, I find it extremely difficult to digest the principle that our courts have no interest in the admissibility of this evidence, prohibited under Pennsylvania law, in a prosecution brought in our jurisdiction.

. Applying Pennsylvania law, the trial court found that reasonable grounds were not present when the California agent ordered a canine sniff of the package and accordingly, suppressed the evidence subsequently found in the package pursuant to the search in Pennsylvania. I agree with the trial court’s disposition. The trial court found that an ordinary looking package, delivered by two people who did nothing to arouse the suspicion of the California agent, and which carried a return business address which had no telephone listing and which was not listed in two directories, did not provide the California agent with reasonable grounds to support a canine search as required by Johnston . I agree that the facts available to the California agent were not sufficient to constitute reasonable grounds for believing that drugs were present in the package.

. By allowing Pennsylvania courts to apply criminal laws and procedures adopted by other states, which have resulted from a state's own analysis of what is required by their own state constitution, the Majority’s holding also threatens the vitality of this Court's steady line of precedent imparting a heightened expectation of privacy and broader protection under the Pennsylvania Constitution. See e.g. Commonwealth v. Jackson, 548 Pa. 484 , 698 A.2d 571 (1997); Commonwealth v. Matos, 543 Pa. 449 , 672 A.2d 769 (1996); Commonwealth v. Brion, 539 Pa. 256 , 652 A.2d 287 (1994); Commonwealth v. Edmunds, 526 Pa. 374 , 586 A.2d 887 (1991).