Tuesday, October 7, 2008

Law and Argument: Part A


In Commonwealth. v. Sanchez 716 A.2d 1221, 552 Pa. 570 (Pa., 1998), the court wrote:

In this case of first impression this Court is asked to determine whether Pennsylvania law or California law should be used to evaluate the propriety of a canine sniff search conducted in California which provided probable cause for a search warrant in Pennsylvania. For the following reasons, we affirm the order of the Superior Court and hold that the legality of the canine sniff conducted in California must be evaluated under California law Thus, the issue that this Court must address is whether Pennsylvania or California law should be used to determine whether the canine sniff in the instant case was conducted through valid and legal means.

In conflicts cases involving procedural matters, Pennsylvania will apply its own procedural laws when it is serving as the forum state. 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. Griffith v. United Air Lines 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.

Initially, we note that this case does not present a question of conflict between procedural laws as appellants assert. Appellants rely on the Superior Court’s decision Commonwealth v. Dennis 421 Pa.Super. 600, 618 A.2d 972 (1992), alloc. denied, 535 Pa. 654, 634 A.2d 218 (1993) to support their position that the issue of whether a canine sniff is a search is a matter of procedural rather than substantive law; and that accordingly, this Court should apply Pennsylvania law to evaluate the propriety of the canine sniff. We disagree. A substantive right is defined as “a right to equal enjoyment of fundamental rights, privileges and immunities; distinguished from a procedural right.” Black’s Law Dictionary 1429 (6th ed. 1990). By contrast, procedural law is “that which prescribes the methods of enforcing rights or obtaining redress for their invasion; as distinguished from the substantive law which gives or defines the right.” Id. at 1203. The issue before this Court is a strict constitutional law question involving the fundamental right to be free from unreasonable searches and seizures. Therefore, the issue is one that must be addressed under the principles of conflicts between substantive laws, which require this Court to evaluate which state has the most interest in the outcome.

Here, California possessed the greater interest in the validity of the canine sniff in question. The canine sniff took place in California and involved a package shipped by California residents. While this Commonwealth has an interest in protecting its citizens from police misconduct and searches that are not supported by probable cause, the courts of this Commonwealth have no power to control the activities of a sister state or to punish conduct occurring within that sister state. 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 The courts of California have determined that a canine sniff is not a search requiring probable cause or a warrant. We will not question that decision under the conflicting decisions of Pennsylvania because Pennsylvania has no interest in a canine sniff search conducted within California’s borders, even if the results are
later used in the Pennsylvania Courts.

We find persuasive the reasoning of the Superior Court in Commonwealth v. Bennett 245 Pa.Super. 457, 369 A.2d 493 (1976). In Bennett, the Superior Court held that evidence obtained during a drug investigation in New Jersey pursuant to a wiretap authorized by a New Jersey court on a telephone terminal located within New Jersey could be used to support a search warrant in Pennsylvania. The wiretap, which was authorized by New Jersey law, would have violated the Pennsylvania Wiretap Act. Nonetheless, the Superior Court determined that the information was competent evidence to support a Pennsylvania search warrant. The court stated:

It is, of course, obvious that the courts of this Commonwealth have absolutely no power to control the activities of a sister state or to punish conduct occurring within that sister state. The legislature of New Jersey has determined that wiretapping, in appropriate circumstances and for proper cause shown, will be permitted within its borders. Thus, the information involved in the appeal before us was obtained by the New Jersey Police under a legal authorization.... If the legislature of a sister state or foreign jurisdiction determines that wiretapping will be permitted within its borders, we will not, under the present laws of Pennsylvania, question that decision.

Id. at 460-61, 369 A.2d at 494-95; Commonwealth v. Corbo 295 Pa.Super. 42, 440 A.2d 1213 (1982) (evidence obtained through electronic telephone surveillance in New Jersey provided police with sufficient probable cause for the issuance of a search warrant in Pennsylvania despite the fact that the surveillance would have been illegal in Pennsylvania).

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. Appellate courts in several other states have addressed this issue and reached similar results. Frick v. Oklahoma 634 P.2d 738 (Okla.Crim.App.1981), the Oklahoma Court of Criminal Appeals determined that wiretap evidence legally obtained in Virginia through court authorization was admissible in an Oklahoma court even though wiretapping was unlawful in Oklahoma. The court reasoned that “in the present case, then, the authorization for disclosure should have come from the Virginia court which authorized the drug investigation during which officers overheard the conversations involving the appellant. And that court did issue such authorization, Id. 634 P.2d at 740. Similarly, the Supreme Court of Washington determined that Washington’s Privacy Act did not apply to a defendant’s statements taken by California police and recorded without defendants knowledge or consent, as permitted by California law. Washington v. Brown 132 Wash.2d 529, 940 P.2d 546 (1997), cert. denied, --- U.S. ----, 118 S.Ct. 1192, 140 L.Ed.2d 322 (1998). The court allowed the statements to be admitted in a capital murder trial in Washington despite the fact that similar action in Washington might have violated the Privacy Act. The court reasoned that there was no state interest to be advanced by suppressing the recorded statements because no Washington state officer violated the Privacy Act and no one’s statutory privacy interests were infringed. “The effect of suppression would have been to keep highly probative and lawfully obtained evidence from the jury.” Id. 940 P.2d at 577.

While it is true that the propriety of the canine sniff might be subjected to greater scrutiny if analyzed under the Pennsylvania Constitution, this fact has no effect on information properly obtained in a sister state. Therefore, because the Superior Court correctly applied the law of California, we affirm the order of the Superior Court reversing the order of the trial court and remanding the case for further proceedings consistent with its opinion.

The Commonwealth submits that Virginia law governs the legality of the Virginia Beach RICO search warrant served on Virginia residents’ property; the Defendants’ vehicles were among the items to be seized and searched pursuant to the warrant. Furthermore, the Virginia Beach Police Department stopped the Defendants in Virginia Beach and took them into custody on the Pennsylvania arrest warrant. The Virginia Beach Police Department is therefore charged with seizing the car, maintaining custody of the Defendants’ car at the Virginia Beach Police Department and inventorying the contents of the vehicle.