IV. Law and Argument: Pennsylvania Law Controls
The law regarding search warrants in Virginia is substantially different in both requirements and execution than the law in Pennsylvania. Therefore, the Court must decide which law applies to the analysis of the warrant in the instant case. Contrary to the Commonwealth’s position, Pennsylvania law controls.
The defendants agree that the Commonwealth has articulated the appropriate standard in its brief regarding analysis of conflict of laws. This matter presents a question of conflict between substantive and not procedural laws. See Larrison v. Larrison, 2000 Pa.Super 111, 750 A 895 (2000) (holding that a conflict question between New York and Pennsylvania wiretap statutes involved substantive law.)
“In cases where the substantive laws of Pennsylvania conflict with those of a sister state in the civil context, Pennsylvania courts take a flexible approach which permits analysis of the policies and interests underlying the particular issue before the court. See Griffith v. United Airlines, 416 Pa. 1, 203 A.2d 796, 805 (1964). This approach gives the state having the most interest in the question paramount control over the legal issues arising from a particular factual context, thereby allowing the forum to apply the policy of the jurisdiction most intimately concerned with the outcome. Id. We believe that a similar approach should be taken in the criminal context where the substantive laws of this Commonwealth conflict with those of a sister state.” Commonwealth v. Sanchez eta!, 552 Pa. 570, 576, 716 A 1221, 1224 (1998) (Emphasis supplied).
Therefore, this Court must determine which state, Virginia or Pennsylvania, has the most interest in the outcome and apply that state's law. This analysis compels the result that Pennsylvania law should apply.
The Commonwealth cites primarily to Sanchez, supra, and Commonwealth v. Bennett, 245 Pa.Super 457, 369 A.2d 493 (1976) as support for their position that Virginia law controls. The Commonwealth is wrong. The facts in the cases they cite are distinguishable from the facts in this case in determining which state has the most interest in the outcome. In addition to the cases cited by the Commonwealth, Larrison, supra, is instructive in analyzing the issue of conflict.
In Larrison, a New York resident tape recorded a phone conversation with a Pennsylvania resident which was later admitted into evidence in a custody trial against the Pennsylvania resident. Larrison, 750 A.2d at 897. In New York, a resident who receives a telephone call may tape record the conversation without violating New York’s wiretap law. ld. at 898. Such recording would be a violation of Pennsylvania’s wiretap law. ld.
The Larrison recording was made by a private individual in her own residence in New York using her own recording device, not at the behest of or supervised by another state’s law enforcement officers using a concealed electronic eavesdropping device. The purpose of the Larrison recording was not to seek evidence related to an anticipated homicide prosecution, as is the instant case. Pennsylvania was not involved in the recording. Pennsylvania only came upon the recording after it had already occurred.
These are core differences between the Larrison case and the instant case. In arriving at the conclusion that New York law applied in Larrison, the court stated that in that circumstance, Pennsylvania, “has no power to control the activities that occur within a sister state.” Larrison at 898.
In the instant case, Pennsylvania law enforcement, including but not limited to Corporal Hannon, served as informants who provided all information regarding the death of Bryan Kocis to the Virginia Beach Police which was used for the probable cause affidavit supporting the warrant. Warrant and Affidavit Exhibit 1 at section 6. Pennsylvania law enforcement solicited Virginia Beach Police Department to obtain and execute the warrant anticipating that prosecution would occur in Pennsylvania. No less than seven Pennsylvania law enforcement authorities traveled to Virginia the day the warrant was issued and the day before its execution to assist in obtaining the warrant. See Report Exhibit 2. Upon information and belief, those same seven Pennsylvania law enforcement were present for the execution of the search warrant. Eventually, the fruits of the warrant were used by Pennsylvania authorities to support the charges flied against the defendant in Pennsylvania. It is only because the defendant’s residence is in Virginia that the seizure occurred in that state.
Because Pennsylvania solicited and provided all information relative to obtaining the warrant and was present for the execution of the warrant and because the seizure supported a Pennsylvania prosecution, Pennsylvania has the greatest interest in the outcome.
The Sanchez case makes this distinction even more clear. In Sanchez, a canine sniff of a package in California which was sent to a Pennsylvania resident gave rise to the probable cause necessary for issuance of a Pennsylvania search warrant. Sanchez, 716 A.2d at 1222. The canine sniff was legal under California law but not Pennsylvania law. Id. at 1223. The Sanchez court concluded that California possessed the greater interest in the validity of the canine sniff and because the sniff complied with California law, it could be used to support probable cause in Pennsylvania. Id. at 1224.
In reaching this conclusion, the Sanchez court reasoned:
No Pennsylvania state interest would be advanced by analyzing the propriety of the canine sniff under Pennsylvania law because the canine sniff did not occur in Pennsylvania and no Pennsylvania state officer was involved in the canine sniff.
Thus we hold that if the courts of a sister state determine that a canine sniff is not a search in that state, the propriety of a sniff initiated by that state’s officers and conducted within that state’s borders must be evaluated under the laws of that state.
Id. at 1224, 1225, (Emphasis supplied).
An analysis of the cases in this context compels the result that Pennsylvania law should be applied to the instant case. If Virginia had initiated the search of its own volition, Virginia law without the involvement and presence of Pennsylvania authorities, Virginia law would apply. The involvement of Pennsylvania authorities from the planning stage of the warrant until its completion demonstrates Pennsylvania’s interest. Therefore, the conflict must be resolved in Pennsylvania’s favor.
The law regarding search warrants in Virginia is substantially different in both requirements and execution than the law in Pennsylvania. Therefore, the Court must decide which law applies to the analysis of the warrant in the instant case. Contrary to the Commonwealth’s position, Pennsylvania law controls.
The defendants agree that the Commonwealth has articulated the appropriate standard in its brief regarding analysis of conflict of laws. This matter presents a question of conflict between substantive and not procedural laws. See Larrison v. Larrison, 2000 Pa.Super 111, 750 A 895 (2000) (holding that a conflict question between New York and Pennsylvania wiretap statutes involved substantive law.)
“In cases where the substantive laws of Pennsylvania conflict with those of a sister state in the civil context, Pennsylvania courts take a flexible approach which permits analysis of the policies and interests underlying the particular issue before the court. See Griffith v. United Airlines, 416 Pa. 1, 203 A.2d 796, 805 (1964). This approach gives the state having the most interest in the question paramount control over the legal issues arising from a particular factual context, thereby allowing the forum to apply the policy of the jurisdiction most intimately concerned with the outcome. Id. We believe that a similar approach should be taken in the criminal context where the substantive laws of this Commonwealth conflict with those of a sister state.” Commonwealth v. Sanchez eta!, 552 Pa. 570, 576, 716 A 1221, 1224 (1998) (Emphasis supplied).
Therefore, this Court must determine which state, Virginia or Pennsylvania, has the most interest in the outcome and apply that state's law. This analysis compels the result that Pennsylvania law should apply.
The Commonwealth cites primarily to Sanchez, supra, and Commonwealth v. Bennett, 245 Pa.Super 457, 369 A.2d 493 (1976) as support for their position that Virginia law controls. The Commonwealth is wrong. The facts in the cases they cite are distinguishable from the facts in this case in determining which state has the most interest in the outcome. In addition to the cases cited by the Commonwealth, Larrison, supra, is instructive in analyzing the issue of conflict.
In Larrison, a New York resident tape recorded a phone conversation with a Pennsylvania resident which was later admitted into evidence in a custody trial against the Pennsylvania resident. Larrison, 750 A.2d at 897. In New York, a resident who receives a telephone call may tape record the conversation without violating New York’s wiretap law. ld. at 898. Such recording would be a violation of Pennsylvania’s wiretap law. ld.
The Larrison recording was made by a private individual in her own residence in New York using her own recording device, not at the behest of or supervised by another state’s law enforcement officers using a concealed electronic eavesdropping device. The purpose of the Larrison recording was not to seek evidence related to an anticipated homicide prosecution, as is the instant case. Pennsylvania was not involved in the recording. Pennsylvania only came upon the recording after it had already occurred.
These are core differences between the Larrison case and the instant case. In arriving at the conclusion that New York law applied in Larrison, the court stated that in that circumstance, Pennsylvania, “has no power to control the activities that occur within a sister state.” Larrison at 898.
In the instant case, Pennsylvania law enforcement, including but not limited to Corporal Hannon, served as informants who provided all information regarding the death of Bryan Kocis to the Virginia Beach Police which was used for the probable cause affidavit supporting the warrant. Warrant and Affidavit Exhibit 1 at section 6. Pennsylvania law enforcement solicited Virginia Beach Police Department to obtain and execute the warrant anticipating that prosecution would occur in Pennsylvania. No less than seven Pennsylvania law enforcement authorities traveled to Virginia the day the warrant was issued and the day before its execution to assist in obtaining the warrant. See Report Exhibit 2. Upon information and belief, those same seven Pennsylvania law enforcement were present for the execution of the search warrant. Eventually, the fruits of the warrant were used by Pennsylvania authorities to support the charges flied against the defendant in Pennsylvania. It is only because the defendant’s residence is in Virginia that the seizure occurred in that state.
Because Pennsylvania solicited and provided all information relative to obtaining the warrant and was present for the execution of the warrant and because the seizure supported a Pennsylvania prosecution, Pennsylvania has the greatest interest in the outcome.
The Sanchez case makes this distinction even more clear. In Sanchez, a canine sniff of a package in California which was sent to a Pennsylvania resident gave rise to the probable cause necessary for issuance of a Pennsylvania search warrant. Sanchez, 716 A.2d at 1222. The canine sniff was legal under California law but not Pennsylvania law. Id. at 1223. The Sanchez court concluded that California possessed the greater interest in the validity of the canine sniff and because the sniff complied with California law, it could be used to support probable cause in Pennsylvania. Id. at 1224.
In reaching this conclusion, the Sanchez court reasoned:
No Pennsylvania state interest would be advanced by analyzing the propriety of the canine sniff under Pennsylvania law because the canine sniff did not occur in Pennsylvania and no Pennsylvania state officer was involved in the canine sniff.
Thus we hold that if the courts of a sister state determine that a canine sniff is not a search in that state, the propriety of a sniff initiated by that state’s officers and conducted within that state’s borders must be evaluated under the laws of that state.
Id. at 1224, 1225, (Emphasis supplied).
An analysis of the cases in this context compels the result that Pennsylvania law should be applied to the instant case. If Virginia had initiated the search of its own volition, Virginia law without the involvement and presence of Pennsylvania authorities, Virginia law would apply. The involvement of Pennsylvania authorities from the planning stage of the warrant until its completion demonstrates Pennsylvania’s interest. Therefore, the conflict must be resolved in Pennsylvania’s favor.
