Supreme Court Ties Again, Leaves Superior Court Decision on Warrantless Videorecordings in the Home Intact

Filed under: Criminal Law, Drug Crimes by Contributor @ January 22, 2015

In Commonwealth v. Dunnavant, 2014 Pa. LEXIS 3457, a 3-3 tie (due to the resignation of former Justice McCaffery) resulted in the per curiam affirmance of the Superior Court’s opinion that a videotape recorded by a confidential informant wearing a covert digital camera during a staged drug-buy within the defendant’s home must be suppressed as the consequence of a warrantless search.  This decision is not binding precedent on future courts.

In September, 2010, a veteran narcotics agent with the Office of the Attorney General arranged for a confidential informant to arrange a purchase of crack cocaine from Dunnavant.  The arrangement was that the defendant meet the informant at a specific street corner.   The agent placed a covert digital camera on the front of the confidential informant’s shirt, that was capable of recording black and white video without sound.  Soon thereafter, the defendant arrived in his car and picked up the informant, whereafter he unexpectedly drove to his personal residence.   The two were together in the defendant’s home for about five minutes.  The video recording captured what occurred inside the home, namely that the defendant gave the confidential informant two plastic bags containing 25.2 grams of cocaine.

The three justices in support of affirmance focused on the sanctity of the internal spaces of one’s home, where the law grants an individual the greatest expectation of privacy.  These members of the Court did not believe that the invitation into the home of the confidential informant relieved the Commonwealth of the constitutional protections guaranteed by  the requirement that police, absent exigent circumstances, to first secure a warrant before entering one’s home.

The three justices supporting reversal would have distinguished prior case law addressing a similar issue by emphasizing that under these facts, the confidential informant was unexpectedly invited into the home and the investigators did not subjectively intend for the informant to undertake his mission in that space.

While reasonable people could disagree, the Court’s per curiam affirmance of the Superior Court is probably the right conclusion here. Those Justices who would have reversed the Superior Court favor a result that  would end up being tantamount to a “good faith exception” to state constitutional violations, which Pennsylvania law does not presently provide.  Pennsylvania legal precedent affords greater protections under the aegis of the Pennsylvania State Constitution than the 4th Amendment of the United States Constitution provides.  An individual’s home is his or her most sacred space, and obtaining a warrant from a neutral magistrate is not a difficult task to assure that individual rights are protected.   To speak to a Fairlie & Lippy attorney regarding your case, contact us today for a free consultation.



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