Com v. Shabezz: Automatic standing in Pennsylvania to challenge unconstitutional searches
Saleem Shabezz was observed by a policeman in a McDonald’s Parking Lot—a “hot zone,” known for drug deals by the police in Philadelphia (always a great place to find hot ‘zones). The officer saw Shabezz from his patrol car, 45 feet away, conducting a “hand-to-hand transaction with the driver.” This transaction was “a cupping and dropping motion to transfer small objects into the driver’s hand,” and then a subsequent exchange of “something,” which the officer assumed to be money—or at least, this is the remarkably detailed story told by the officer at the suppression hearing.
The incident reports about the exchange, on the other hand, are more generic. The reports simply said Shabezz opened the passenger door to the car, leaned inside, and conducted a brief conversation with the driver. Shabezz returned to the red Acura he had arrived in as a passenger, which attempted to exit the lot.
Whatever happened before this moment, what happened next is uncontested: the cops stopped the Acura, Shabezz the passenger fled and was apprehended, and a host of drug-dealing equipment and drugs were found in the car (including “heat-sealed” baggies, scales for weighing powders, etc).
The trial court found the dramatic enhancements of the story described in the first paragraph above to be a bit too convenient, too late, and suppressed the evidence gathered in the stop as unconstitutional under the Fourth Amendment. But the Commonwealth appealed this ruling, arguing that Shabezz did not have a “reasonable expectation of privacy” in the areas searched (because it wasn’t his car), and thus, that he had no standing to contest the search.
Majority by Wecht: Shabezz has standing to challenge the search
Justice Wecht, writing for 5 members of the unanimous Court, outlines the development of “standing” in federal constitutional law. Wecht demonstrates how the Supreme Court of the United States quickly narrowed and then abandoned the concept of standing from the “automatic standing” rule of the 1960s, preferring to require Defendants to demonstrate a privacy interest in the area searched before being permitted to challenge a search under the law.
But Pennsylvania’s Supreme Court has always afforded more protection under the Pennsylvania Constitution than the Federal Supreme Court has under the Federal Constitution, and thus, Pennsylvania still recognizes automatic standing. But while standing allows the defendant to “get his or her foot in the courtroom door,” the Defendant must also demonstrate “that he had a privacy interest in the place invaded or thing seized that society is prepared to recognize as reasonable.”
Wecht goes on to argue that the Defendant in this case need not demonstrate a personal privacy interest in this case, because, “This case is about an illegal seizure of a vehicle and its occupants. It is not a vehicle search case.” (emphasis in the original).
Quoting from closely-analogous Third Circuit caselaw, the Court concludes that a defendant in a car that was unconstitutionally stopped need not show another unconstitutional search to have the evidence gathered from the unconstitutional stop suppressed. He has standing, he may challenge the stop, and having done so, he succeeds on the merits. “We hold that the contested evidence, tainted by the initial illegality, must be suppressed, even absent a demonstrable expectation of privacy in the locations where the evidence was found.”
Concurrence by Mundy: There are no “per se” rules under the Constitution
Justice Mundy, joined by Justice Baer, reminds us that the Fourth Amendment creates few “per se” rules, and that “the Court’s decision should not be read to suggest all searches stemming from unconstitutional seizures are automatically fruit of the poisonous tree.” A case by case analysis will reveal attenuation in some cases, and reasonableness in the overall circumstances of others. “Although this case is relatively straightforward, other cases may arise where the chronology of events is more complex, which may alter the calculus.”
Conclusion: Are we still talking about the Fourth Amendment?
The question granted for appeal, the Court’s reliance on Third Circuit caselaw, and the ultimate holding all seem to be interpreting the Fourth Amendment. However, the Court’s bold reminder that the Pennsylvania Constitution affords greater protection than the Federal Constitution is thrown into the midst of everything, and it brings a curiosity about this case to the foreground. Pennsylvania’s view of standing on the Fourth Amendment, by definition, must comport with the Supreme Court of the United States’s interpretation. But this opinion seems to differ in important respects from Federal Supreme Court caselaw, not the least of which is on the point of automatic standing. Indeed, with SCOTUS’s recent expansion of the “attenuation” doctrine in Utah v. Strieff, it seems hard for SCOPA to claim this case does not represent attenuation.
Perhaps I’m wrong—but from where I sit, the Court may wish to develop its own caselaw around Pennsylvania’s constitutional provisions (in this case, Article I, § 8) to fortify against encroachment by the federal courts. Of course, SCOPA is largely bound by the arguments that the litigants bring them, and this case appears to have been certified for appeal only on Fourth Amendment grounds, not under Article I. Regardless, Pennsylvania is blessed to have a strong set of Article I rights, and I hope that SCOPA future considerations of these rights remains bold and expansive, as this opinion promises they are likely to be.