Commonwealth v. Kohl

PAPADAKOS, Justice,

dissenting.

I dissent from the majority on the two grounds considered below.

I. Federal Law and the Public Safety Exception.

The extension of Skinner v. Railway Labor Executives Association, 489 U.S. 602 , 109 S.Ct. 1402 , 103 L.Ed.2d 639 (1989), to the facts of the instant case is fully warranted. Driving an automobile in any jurisdiction automatically triggers regulatory concerns, in addition to possible criminal prosecution. The state has created an elaborate administrative system designed to promote public safety on the roads. Drivers are licensed and may be required to wear lenses and even pass subsequent driver’s tests or undergo schooling because of age or gravity of violations; the state builds roads and polices them with elaborate schemes and outlays of public funds; and the state promulgates extensive regulations for automobiles and trucks. Most of this scheme is preventive by nature in the same way that administrative searches aim at forestalling events which will harm the public. While I remain sensitive to traditional requirements of probable cause in search and seizure cases, I fail to comprehend the majority’s refusal to recognize the same “special governmental needs” that also have been woven into federal constitutional precedents. Camara v. Superior Court, 387 U.S. 523 , 87 S.Ct. 1727 , 18 L.Ed.2d 930 (1967); See v. City of Seattle, 387 U.S. 541 , 87 S.Ct. 1737 , 18 L.Ed.2d 943 (1967).

Post See cases, in fact, have gone further in holding that warrantless, non-exigent, and non-consensual administrative searches of closely regulated businesses are permitted where the regulations further a substantial interest (protection of the health and safety of workers) and are necessary to further the regulatory scheme. New York v. Burger, 482 U.S. 691 , 107 *175 S.Ct. 2636 , 96 L.Ed.2d 601 (1987). Of course these cases deal with commercial enterprises; but the underlying principle in their holdings is the necessity of protecting the public’s health and safety pursuant to a regulatory system of prevention. Moreover, although such searches implicate the Fourth Amendment by intruding on privacy and by leading to the discovery of evidence that can be used in a criminal prosecution, the United States Supreme Court, nevertheless, has permitted a relaxed applicability of the warrant requirement in this context.

Suggestions to the contrary that traditional doctrine somehow allows of no exception where criminal prosecution could occur misreads federal case law. In United States v. Biswell, 406 U.S. 311 , 92 S.Ct. 1593 , 32 L.Ed.2d 87 (1972), for example, warrantless inspections of gun dealers were permissible because illegal weapons could be removed quickly, even though the errant dealer also could be subjected to criminal sanctions based on the evidence of illegal weapons seized in his shop. Unless the majority is prepared to deal with such a challenge to the very heart of their opinion, the proposed holding will remain unsatisfactory.

It is equally unconvincing to conjure up scary visions of sabotaging the conventional law of warrants. I call only for a sensible, reasonable and quite limited extension of a warrant-less search in the context of a legislatively-enacted scheme designed to protect the public on the Commonwealth’s roads and nothing more.

II. Independent State Grounds Argument

I am dismayed also at the form of analysis of the Pennsylvania Constitution employed by the majority. It has been my impression for the past year that we had set forth a dramatically new way of assessing state constitutional issues, especially Article I, section 8 cases predicated on independent state grounds. Commonwealth v. Edmunds, 526 Pa. 374 , 586 A.2d 887 (1991). I take the central message of Edmunds to be that mere assertions of independent state constitutional grounds are not acceptable: no longer can the state constitution be viewed as an all-purpose surrogate for informed analysis, to be *176 taken from the shelf and opened like a can of beans to feed those who periodically hunger for answers in that document. Instead, Edmunds mandated a structured analytical form to be used in applicable cases. I remind my brethren of the clear language of that case:

The recent focus on the “New Federalism” has emphasized the importance of state constitutions with respect to individual rights and criminal procedure. As such, we find it important to set forth certain factors to be briefed and analyzed by litigants in each case hereafter implicating a provision of the Pennsylvania constitution. The decision of the United States Supreme Court in Michigan v. Long, 463 U.S. 1032 , 103 S.Ct. 3469 , 77 L.Ed.2d 1201 (1983), now requires us to make a “plain statement” of the adequate and independent state grounds upon which we rely, in order to avoid any doubt that we have rested our decision squarely upon Pennsylvania jurisprudence. Accordingly, as a general rule it is important that litigants brief and analyze at least the following four factors:

1) text of the Pennsylvania constitutional provision;

2) history of the provision, including Pennsylvania case-law;

3) related case-law from other states;

4) policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.

Depending upon the particular issue presented, an examination of related federal precedent may be useful as part of the state constitutional analysis, not as binding authority, but as one form of guidance. However, it is essential that courts in Pennsylvania undertake an independent analysis under the Pennsylvania Constitution.

526 Pa. at 390-391 , 586 A.2d 887 (footnotes omitted).

While it may be pardonable to omit specific reference to Edmunds , there is insufficient reason to ignore its substance. The majority opinion does cite a few of our cases on general constitutional issues involving statutory interpretation, but I find little beyond conclusory text on the specific issue posed *177 by this case. Certainly, no plain reading of the majority’s argument relating to independent state grounds brings it within the orbit of Edmunds . Additionally, I perceive such a close interplay between federal law and state law in the opinion that I cannot believe Michigan v. Long itself could be satisfied to accomplish the very purpose of the majority opinion. Contrary to the teaching of Edmunds , it appears that the federal law is much more than “one form of guidance.”

I believe I am quite correct in stating that we decided Edmunds in order to guard against precisely this kind of opinion. Even assuming arguendo that the majority could make its case on independent state grounds (which I do not believe), there is no evidence they have done so here. I take very little comfort in the fact that although we adopted a significant and path-breaking analysis one year ago, neither the courts below nor the majority opinion herein have shown any recognition of its existence as precedent. And still we wonder why our courts often are criticized for being like little puppies who chase their own tails rather than run forward.