Commonwealth v. Blouse

*175 FLAHERTY, Justice,

dissenting.

The majority holds that a warrantless seizure without probable cause was proper under Pennsylvania law. I respectfully dissent because I believe the Pennsylvania Constitution provides greater protection from warrantless searches and seizures than the majority concedes.

I believe that Commonwealth v. Johnston, 515 Pa. 454, 463-64 , 530 A.2d 74, 78-79 (1987), controls this case. We held in Johnston that a balancing approach, weighing the competing individual and governmental interests in order to determine whether an unreasonable search or seizure had occurred, was only appropriate in a Terry situation. 1 The Johnston search— a narcotics sniff search by a trained dog — was subjected, not to a balancing test, but to a determination of probable cause. The police in Johnston had articulable facts on which they based their belief that narcotics were present in the place where they conducted the canine sniff search. We clearly held in Johnston : “[T]he present case lacks the exigencies which were so important in Terry, and for that reason, the determination of whether there was a search cannot be made by balancing the privacy interests of the individual against the law enforcement objectives of government.” Commonwealth v. Johnston, 515 Pa. at 463-64 , 530 A.2d at 79 . We intentionally rejected the Fourth Amendment analysis of the majority of the United States Supreme Court in United States v. Place, 462 U.S. 696 , 103 S.Ct. 2637 , 77 L.Ed.2d 110 (1983), and held instead that the Article I, § 8 of the Pennsylvania Constitution provides greater protection than the federal Fourth Amendment. See Commonwealth v. Sell, 504 Pa. 46 , 470 A.2d 457 (1983). Although the court conducted a balancing test to determine whether the warrantless search was constitutional, we determined that the search was permissible because “the *176 police [we]re able to articulate reasonable grounds for believing that drugs may be present in the place they” searched; Commonwealth v. Johnston, 515 Pa. at 463-64 , 530 A.2d at 79 . Although we held that the canine sniff search did not “implicate the usual warrant requirements characteristic of police searches of private areas” or “the fullblown warrant requirements of most other police searches,” id., it was essential that the warrantless search was based on probable cause to determine that the search was reasonable under the Pennsylvania Constitution, Article I, § 8.

Therefore the systematic roadblock at issue in this case was a seizure under Pennsylvania constitutional law, and Article I, § 8 requires that all searches and seizures must be based on probable cause. Commonwealth v. Johnston, 515 Pa. at 461-62 , 530 A.2d at 77 , quoting Mr. Justice Brennan, dissenting, in United States v. Place, 462 U.S. 696, 715 , 103 S.Ct. 2637, 2649 , 77 L.Ed.2d 110, 126 (1983), is the analysis adopted by this court under the Pennsylvania Constitution. Title 75 Pa.C.S. § 6308(b), permitting systematic roadblocks for the purpose of checking vehicles and drivers for registration, licensing, and equipment violations, directly traverses Article I, § 8 of the Pennsylvania Constitution, as it does not require articulable probable cause to believe that evidence of criminal activity may be found in the places to be searched.

The evidence against appellant was obtained in violation of his rights under the Pennsylvania Constitution and should have been suppressed, and his motion to dismiss should have been granted. I would reverse the order of the Superior Court.

Two additional points should be made. First, despite the majority’s protestations, Commonwealth v. Tarbert, 517 Pa. 277 , 535 A.2d 1035 (1987), does not provide “significant authority” for this case. There were indications in dicta that various members of this court would, if the issue were to arise, conclude that systematic roadblocks are constitutional; such indications are no more authoritative than a group of law review articles by the various justices predicting how they would view such a question, and have the same weight as their *177 answers to questions by a senate confirmation committee would have if the various justices had been interrogated by such a committee. The dicta in Tarbert in which several justices gratuitously expressed their views on an issue not before that court obviously have some value in predicting how this court approaches the issue, but this is not what we mean by precedential authority in our system of jurisprudence.

Finally, independent of the question of the constitutionality of Title 75 Pa.C.S. § 6308(b), permitting systematic roadblocks for the purpose of checking vehicles and drivers for registration, licensing, and equipment violations, I believe the roadblock conducted in this case was not reasonable by any standard. The intrusive nature of the search and seizure appears in the majority opinion. The nighttime roadblock consisted of two marked police cruisers with emergency lights activated, uniformed officers wearing orange vests, and emergency flares indicating traffic pull-off areas. All vehicles traveling in both directions were stopped, and police officers checked vehicle registration, drivers licenses, and obvious equipment violations. It seems obvious to me that such a roadblock, during hours of darkness, in the pastoral setting of a state park, with flashing lights and emergency flares, is highly intrusive, distracting, confusing, alarming, and unnecessary. There was no claim that more violations were likely to occur after dark than during daylight hours; the roadblock in question was needless, excessive, and unreasonable.

I would reverse the order of the Superior Court.

ZAPPALA and GAPPY, JJ., join this dissenting opinion.

. Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). Terry permitted a police officer, who had seen what he regarded as suspicious behavior which signaled the possibility of an imminent criminal act, to make a brief warrantless investigatory stop and a self-protective pat-down of the outer garments of the suspect. This procedure was justified only in those exigent circumstances where an officer’s trained observations called for immediate action which could not be subjected to the warrant procedure.