Opposition Brief — Pennsylvania v. Gindlesperger

—

AS Supreme Court, U.S.

FILED

ABRS-fonny

No. 99-1553

IN THE

Supreme Court of the United Storey

COMMONWEALTH OF PENNSYLVANIA,

Petitioner,

v.

GREGORY GINDLESPERGER,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA

RESPONDENT?’S BRIEF IN OPPOSITION

cama wore cence

ELuioT J. SEGEL

Counsel of Record

SEGEL & SOLYMOSI

Attorneys for Respondent

818 State Street

Erie, Pennsylvania 16501

(814) 454-1500

159278 @] Counsel! Press LLC

(800) 274-3321 + (800) 359-6859

1

RESTATEMENT OF

QUESTION PRESENTED FOR REVIEW —

Whether the United States Supreme Court lacks

jurisdiction to review this case because the decision of the

Pennsylvania Supreme Court rested on adequate and

independent state constitutional grounds, namely the

Respondent’s protection from unreasonable searches and

seizures pursuant to Article I, Section 8 of the Pennsylvania

Constitution.

il

TABLE OF CONTENTS

Page

Restatement Of Question Presented For Review .

sob as0bs4a0e cakes pean ene Seas 1

Tebte: cf COMME .« 0in.cuducuies eee li

Talhe of Cate® AMID ona ccdncseeivievences ill

Orders And Opinions Below .................. 1

Statement Of No Jurisdiction .................. 1

Constitutional Provision Involved .............. 2

Statement OF Fave COGS okc dics ccc eiak lace tka 3

Reasons For Denying The Writ ................ 4

CHOMORAOIOE 66 oc cs i ckek eee 6

lil

TABLE OF CITED AUTHORITIES

Page

Cases:

Commonwealth of Pennsylvania v. Edmunds,

526 Pa. 374, 586 A.2d 887 (1991) ............ y Ae ee

Michigan v. Long, 463 U.S. 1032 (1983) ...... fa Ap

Ohio v. Robinette, 519 U. S. 33 (1996) .......... 5, 6

United States v. Kyllo, 190 F.3d 1041 (9" Cir. 1999)

TE AE epighneO ee E S hee aay arent Me ee 6

Pennsylvania Constitution:

per bere reer eee rere passim

United States Constitution:

ce eae oie ree ore passim

cinadieitsiiee La a aes maa EC Ln pala s ae sehen Ten eh Sec sast att EPCS ta iat pees Mee

1

ORDERS AND OPINIONS BELOW

Petitioner’s Appendix correctly includes the December

22, 1999 Opinion of the Supreme Court of Pennsylvania,

and the February 14, 1997 Opinion of the Superior Court of

Pennsylvania. It attaches, however, the wrong opinion from

the trial court. The trial court opinion attached at App. 56a

of Petitioner’s Petition is the April 28, 1995 opinion which

decided a number of issues other than the constitutionality

of law enforcement’s warrantless use of a thermal imaging

device to scan the Respondent’s home. This precise issue,

which triggers the question presented to this Court, was

discussed and decided in the trial court’s January 27, 1995

Opinion and Order, a copy of which is enclosed herewith as

a Lodging Appendix.

STATEMENT OF NO JURISDICTION

Michigan v. Long, 463 U.S. 1032 (1983), holds that

where a state court opinion is based upon federal law grounds,

but also indicates clearly and expressly that it is alternatively

based on bona fide, separate, adequate and independent state

law, the United States Supreme Court lacks jurisdiction to

review the decision. 463 U.S. at 1041. The Petitioner’s

Statement of Jurisdiction, citing only a portion of one

sentence of a footnote in the Pennsylvania Supreme Court’s

opinion, asserts that the decision of that court “relied solely

on Fourth Amendment grounds”. A reading of that entire

footnote’ demonstrates the clear error of this assertion. The

1. We note that Appellee also asserted a state constitutional

challenge to law enforcement’s warrantless use of the WASP devise

to scan his residence before the Superior Court. However, given that

the court concluded such use violated the Fourth Amendment, it did

not address Appellee’s Article I, Section 8 claim, Gindlesperger,

706 A.2d at 1224. Appellee, likewise, preserves his state

constitutional claim in his brief to this Court. However, given that

(Cont'd)

2

entire passage, including the state court’s statement that in

addition to violating the Fourth Amendment, “‘it is clear that

this conduct likewise violates Article I, Section 8” (of the

Pennsylvania Constitution) constitutes a plain statement that

the decision below rested on adequate and independent state

grounds, thus depriving this Court of jurisdiction pursuant

to Long.

CONSTITUTIONAL PROVISION INVOLVED

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.

Pennsylvania Constitution, Article I, Section 8.

(Cont'd)

the appeal before us was taken by the Commonwealth regarding the

Superior Court’s disposition, and given that we agree with the

Superior Court, we too need not address Appellee’s state

constitutional challenge since this Court has held that embodied in

Article I, Section 8 is a strong notion of privacy which is greater

than that of the Fourth Amendment. See Commonwealth v. Edmunds,

526 Pa. 374, 586 A.2d 887, 897-898 (“Article I, Section 8 may be

employed to guard individual privacy rights against unreasonable

searches and seizures more zealously than the federal government

...’). Thus, given our conclusion that the within conduct violates

the Fourth Amendment, it is clear that this conduct likewise violates

Article I, Section 8. Commonwealth v. Gindlesperger, 1999 WL

1242606, at 2, n.3.

3

STATEMENT OF THE CASE

The Petitioner seeks review in this Court of the

Pennsylvania Supreme Couri’s affirmance of the order of

_the intermediate court of appeals in Pennsylvania — the

Superior Court — which suppressed the seizure of marijuana

plants taken from the Respondent’s home and reversed the

Respondent’s conviction. In its Statement of the Case, the

Petitioner omits several significant facts that bear upon the

issue of this Court’s jurisdiction to review this case. Those

matters show that this Court lacks such jurisdiction. The

Respondent offers the following as a supplement to the

Petitioner’s Statement of the Case.

The Respondent filed in the trial court a number of pre-

trial motions including one to suppress evidence based upon

- his claim that the Petitioner’s warrantless use of a thermal

imagining (WASP) device to detect evidence from inside

the underground basement of his home constituted a search

in violation of both the Fourth Amendment of the

U.S. Constitution and Article I, Section 8 of the Pennsylvania

Constitution. Considering the aforementioned federal and

state constitutional grounds separately, the trial court denied

this suppression motion.

Upon his direct appeal the Respondent challenged

this warrantless use of the WASP on both of these federal

and state constitutional grounds. Commonwealth v.

Gindlesperger, 706 A.2d 1216, 1218 (Pa. Super. 1997). The

intermediate appellate court reversed the trial court, holding

that the warrantless use of the WASP violated the Fourth

Amendment and that law enforcement’s use of the results of

the device to obtain a search warrant for the Respondent’s

home “was invalid and not a proper basis for issuance of the

warrant.” Id., 706 A.2d at 1218. That court went on to state:

4

“Because we have found the thermal imaging

search was violative of the Fourth Amendment, it

is not necessary for us to specifically address

[Respondent’s] contention that the search violated

the Pennsylvania Constitution. However, it is

well-established that the Pennsylvania

Constitution has been held to provide greater

privacy protection than the Fourth Amendment.”

(citations omitted)

Id., 706 A.2d at 1224.

The Petitioner then appealed to the Pennsylvania

Supreme Court, and the Respondent preserved there his state

constitutional argument. Commonwealth v. Gindlesperger,

1999 WL 1242606, at 2 n.3. The Pennsylvania Supreme

Court affirmed the Superior Court, specifically holding that

the warrantless use of the WASP violated the Fourth

Amendment. /d. at 20. Accordingly, that court acknowledged

that it did not need to address the Respondent’s state

constitutional claim, but did so anyway by virtue of a clear

statement that the Pennsylvania Constitution provided

alternative and independent grounds for the same result.

Id., at3n.3.(“. . . itis clear that this conduct likewise violates

Article I, Section 8”.)

REASONS FOR DENYING THE WRIT

The Petitioner’s argue that this Court should take

jurisdiction so that it can consider the application of the

Fourth Amendment to law enforcement’s use of a thermal

imaging device to obtain evidence from a home. This

argument is unavailing, however, because contrary to the

Petitioner’s claim that the decision of the Pennsylvania

Supreme Court relied solely on Fourth Amendment grounds,

that court’s opinion clearly declares that Article I, Section 8

of the Pennsylvania State Constitution provides an

5

alternative, independent and adequate basis for its decision.

Accordingly, this Court lacks jurisdiction to review this case.

Michigan v. Long, supra.

Long holds that when a state court opinion is based upon

federal law grounds, but also indicates clearly that it is

alternatively based on separate, adequate and independent

state law, the United States Supreme Court lacks jurisdiction

to review the decision. Long, 463 U.S. at 1041. The issue is

clearly jurisdictional in nature. Further, such an expression

of alternative and independent state law grounds need only

be made clear on the face of the opinion sought to be

reviewed. Finally, in the face of such an expression, respect

for the independence of state courts as well as the avoidance

of rendering merely advisory opinions prevents the United

States Supreme Court from undertaking review. Jd. at 1039-

1041; see also Ohio v. Robinette, 519 U.S. 33, 44 (1996).

Here, the Pennsylvania Supreme Court’s Opinion

contains a clear expression of adequate state law grounds

independent from its interpretation of the Fourth Amendment,

namely the well-settled recognition in Pennsylvania law that

Article I, Sectiom 8 of the Pennsylvania Constitution

embodies a specific and strong notion of privacy not found

within the Fourth Amendment. At the aforecited footnote 3

of its Opinion, the Pennsylvania Supreme Court noted that

it need not address the Respondent’s state constitutional

challenge but chose to do so anyway, first, by enunciating

the strong notion of privacy embodied in Article I, Section

8, which is greater than that provided for by the Fourth

Amendment. In support of this portion of that Court’s

declaration, it cited Commonwealth v. Edmunds, 526 Pa. 374,

586 A.2d 887 (1991). Edmunds contains a thorough

discussion of the unique history of Article I, Section 8 and

the differences between that provision and the Fourth

Amendment, demonstrating that long-standing Pennsylvania

law has made it clear that Article I, Section 8 is unshakably

6

linked to a right of privacy guaranteed in Pennsylvania,

notwithstanding federal cases to the contrary. Jd., 586 at 896-

899. :

The Pennsylvania Supreme Court then clearly declared

its independent and separate state law grounds, stating:

“Thus, given our conclusion that the within conduct violates

the Fourth Amendment, it is clear that this conduct likewise

violates Article I, Section 8.” This brief but clear explanation

on the face of the opinion in question meets this Court’s

threshold established in Long and makes clear that any review

conducted by this Court could amount to nothing more than

an advisory opinion? which is prohibited by Long. Id., 463

at 1042; Robinette, 519 U.S. at 423-424. Accordingly, this

Court lacks jurisdiction to undertake review of this case.

CONCLUSION

This Court lacks jurisdiction to review this case. For the

foregoing reasons, the Petition should be denied.

Respectfully submitted,

ELuiot J. SEGEL

Counsel of Record

SEGEL & SOLYMOSI

Attorneys for Respondent

818 State Street

Erie, Pennsylvania 16501

(814) 454-1500

2. This Court does have an opportunity to squarely address

and determine the Fourth Amendment issue Petitioner herein wants

reviewed. The case, United States v. Kyllo, 190 F.3d 1041 (9" Cir.

1999), which raises this issue from a federal court venue and solely

on federal grounds, is pending before this Court via a Petition for

Writ of Certiorari at docket No. 99-8508.