Intro: 0:16

The Supreme Court of Pennsylvania is the highest court in the Commonwealth and the oldest appellate court in the nation, an institution that shapes our practice, our laws, and our lives. This is a podcast by attorneys and for attorneys who argue before Pennsylvania's court of final appeal. Welcome to The Standard of Review by SCOPAblog.

Corrie Woods: 0:42

Hi, and welcome to The Standard of Review by SCOPAblog. I'm your host, Corrie Woods, and I recently sat down with attorney Aaron Marcus, Chief of Appeals with the Defender Association of Philadelphia, who successfully argued the case of Commonwealth vs. Alexander, in which the court held that the Pennsylvania constitution grants motorists greater privacy rights than the Federal Constitution, requiring that any search of an automobile in Pennsylvania be supported not only by probable cause, as the Federal Constitution requires, but also by exigent circumstances that make it impracticable to obtain a warrant. The court's decision depending on your point of view, either overrules or recognizes the invalidity of its prior decision in Commonwealth vs. Gary, which held that such searches need only be supported by probable cause. In the short term the decision has resulted in the invalidation of countless searches as unconstitutional, and in the long term recalibrates the balance between individual privacy rights and the state's interest in ferreting out crime. Let's listen. Our guest today is attorney Aaron Marcus. Aaron is the Chief of the Appeals Unit with the Defender Association of Philadelphia, where he served since 2006. He's also an adjunct professor of law at the Delaware Law School, a published legal author and vice chair of Pennsylvania's criminal procedural rules committee. Prior to joining the Defender Association, Attorney Marcus served as a staff attorney for the United States Court of Appeals for the Third Circuit. Attorney Marcus is also an avid cyclist. And in 2011, made a 58-day 3900 mile self-supported bicycle trip from Philadelphia to San Francisco. Attorney Marcus, welcome to The Standard of Review.

Aaron Marcus: 2:21

Thanks so much. It's a pleasure to be here.

Corrie Woods: 2:23

I wonder if you could start out by just telling me sort of how you became a lawyer, why you became a lawyer, and how you came to your current practice.

Aaron Marcus: 2:31

So you know, I went to law school in Minnesota in 2001. But to start before that, I did not intend to be a lawyer. You know, I've always been involved as a kid and through high school and sort of political activism in some way or another, but never envisioned myself as being somebody who would pursue a sort of professional or legal career. In fact, or in college, I thought I wanted to be a geologist to pursue science, and focused pretty heavily on that throughout much of my undergrad. Until of course, I realized that some of the advanced mathematics was getting a little outside of my comfort zone. And I was not particularly enjoying that level of scrutiny that I was having to pay to, you know, address some of the tougher scientific quandaries. And, you know, my political activism drew me back in. So I ultimately decided that law school was the right approach and pretty much from the get go knew that public defense was sort of an area that I would want to pursue. So even from the start in Minnesota after my first year, I worked for the Minnesota appellate public defender office in the state. I was involved in the public interest lawyers section of the Minnesota bar and knew kind of that area was where I was going to be despite the fact that I clerked for a couple years after law school, I was pretty committed to being a career PD in that respect. So once I left the Third Circuit, I started at the Defender Association and have been here ever since. You know, it's now, I started in September of 2006. So going on 15 years at the Defender, you know, six years, the trial side, you know, last nine in appeals. So, it's been a great experience. And I love my job, you know, I love many of my clients, I love the people I work with. And I like having an opportunity to really affect the law and how it develops in a state. That's, you know, the sixth largest state in the nation. So there's a lot of people who are who can be directly impacted by really thoughtful and dedicated state activity on the legal side. So it's kind of where I've been focusing my efforts and really enjoy it.

Corrie Woods: 4:43

So you mentioned that you worked in both the trial unit and the appeals unit. Could you explain sort of how your function is kind of different and how those tasks are kind of different?

Aaron Marcus: 4:51

Yeah, absolutely. I mean, the obvious differences are clear, so I won't need to talk about that. But when you are certainly as either a public defender doing criminal defense or you know, private or frankly, trial practice in any respect is going to be a very different method of preparing and addressing a case as opposed to appellate work. So I think they're interrelated in some degree, because being a having experience on the trial side can make one a much better appellate attorney, I think as you can understand the record and the motivations and the interests of the parties below in a way that you wouldn't otherwise. You know, so as a trial practitioner, you definitely see a lot of the practical side of the law, right, like, as an appellate lawyer, a lot of it is going to be the nuance of textual and statutory interpretation, the policy questions of how particular decisions might affect the outcome, and you're going to be really parsing a lot of the nuances of prior decisions and precedent. Whereas in trial practice, while all of those things are important and relevant, oftentimes, the most important aspect of trial work might be the practical result of how the judge or the jury will interpret a particular thing or action, which can often be simply just sort of a shrug and knowing when not to present things, knowing when to present them. And really just understanding sort of the the human nature of the parties involved and trying to work sometimes your way around some of those legal realities to get a resolution that everyone can be comfortable with, even if it's not necessarily a clear straight line through legal precedent. So there's there's a lot of difference in strategy and thinking that goes into a trial side than goes into the appellate side. But often being a good trial attorney and having that experience will fundamentally shift the way you see the arguments that were made at the trial, what things were or were not important how you can understand your forum, even on appeal, because a judge who has, an appellate judge, that has trial practice experience or trial experience, meaning if they were a, you know, in federal side, that district court judge or in Pennsylvania, if they were a Common Pleas court judge, they are often going to have a very different perspective on what a particular decision meant, what a particular statement by a witness means and why it was made what is or is not harmless error. So a variety of things can impact that and understanding those details. You know, there's a legal realist in me and understanding those details can be very valuable. So having both sides of the practice, I think, is wonderful experience to be a good appellate lawyer.

Corrie Woods: 7:46

So we're here today to talk about the Court's decision in Commonwealth vs. Alexander. And in that case, the court held that unlike the well, the current interpretation of the Federal Constitution, Pennsylvania's Constitution requires that the search of an automobile must be supported not only by probable cause, but also by exigent circumstances. But the history of Alexander actually starts up a while before that, really in the 1990s, during the first wave of what would ultimately be called judicial federalism. And the court's adoption of what it actually ended up adopting in Alexander, way back when. So how did the split between the Federal Constitution and the Pennsylvania Constitution on this question, how did that begin?

Aaron Marcus: 8:30

Yeah, so you mentioned the 90s. And I'd actually like to take it back even further, frankly, you know, so, as a general matter, right, the big split did begin in the 90s with Commonwealth v. Edmonds and I believe that case was 1991, in which the Pennsylvania Supreme Court was addressing the US Supreme Court's decision in United States v. Leon, which applied a good faith exception to the Fourth Amendment's exclusionary rule. Right for those who are not particularly versed in that area. Essentially, what Leon held is that, you know, because the Fourth Amendment, the United States Constitution was not designed to protect privacy rights, per se, but designed to deter unlawful governmental action of invading protected Fourth Amendment spaces, when an officer is acting under a reasonable belief that that's what the law allows, hence, good faith, you can't deter an officer who's acting reasonably and in good faith. So therefore, there's an exception to the exclusionary rule. Pennsylvania decided that, you know, Leon really doesn't make a lot of sense and they interpreted looking under a case called Commonwealth v. Edmunds that Pennsylvania's constitution, actually historically has been interpreted more broadly, it's a different policy protection such that the right of privacy is inherent in Pennsylvania's article one section eight. So there's a different purpose to Pennsylvania's constitutional protection and because of that right to privacy, our court interpreted with respect to the good faith law that no we don't care if the officer was reasonable. What we care about is protecting individual rights to privacy and therefore, the good faith exception does not apply in Pennsylvania. With the with respect to the vehicle exception, the automobile exception, right in that aspect, I wanted to take it back even before Edmunds because, you know, you go back to the 1920s and 30s, with the prohibition in United States v. Carroll, or Carroll v. United States. What happened in that case was really a question about the police need to deal with emerging and novel technology and sort of an equilibrium adjustment in the Fourth Amendment, right. That's a term that we hear a lot in the areas of digital technology. Well, all technological changes that happen need to be considered and adjusted with, you know, a balance between citizens rights and police. And so, you know, prohibition, you've got this idea where, well, now, people, criminals, bootleggers have a real easy way to transport all sorts of illegal goods in cars that we never really had before. And police need some way to adequately address the sort of inherent mobility of cars and be able to search these vehicles when there's, especially in the 20s and 30s. There's no way they're going to get a warrant, when they come across a bootlegger trying to cross state lines, they're not going to be able to get- have enough time to do this unless they detain everybody for who knows how long to find somebody to issue a warrant. So the courts basically granted an exception, but that exception still required a probable cause plus exigency, essentially what Alexander requires today, and our federal court said, well, the exigency is sort of the general mobility of the vehicle, but it's not a per se, it's just in situations where the mobility of the vehicle would prevent time for getting a warrant, you can search a car on probable cause. There was some shifts in Pennsylvania law, though, prior to the 90s, where you start seeing, despite the Federal Constitutional interpretation in the Supreme Court, focusing on a different justification for the automobile exception, not simply the mobility of a vehicle, but then in the 70s, you start talking about privacy interests in cars, you know, you have a decision in US Supreme Court in Chambers that has not just the mobility of the vehicle, but sort of the concept of the general privacy interests at stake, that the intrusion of seizing the vehicle versus the intrusion of searching it really aren't all that different, your privacy interests really aren't that high in the car, you know, so the US Supreme Court started to diverge from this probable cause exigency requirement only for the mobility issue, really in the 70s. And then really did it in '89 in Carney, California v. Carney. The Pennsylvania Supreme Court has consistently in the 80s and 90s, kind of followed that Carroll doctrine, it did not really change that idea and consistently looked at all of these concepts about- the real issue here is the exigency and the need to get a warrant. And in I forget what year White was, I think it's 1995. The Pennsylvania Supreme Court in Commonwealth v. White says,"We are looking here now that despite the US Supreme Court's adoption of this sort of broader multi pronged assessment, that probable cause alone is going to be sufficient to search a car because of the lower expectation of privacy and because of the mobility of the car," Pennsylvania started to diverge. And White was really clear in focusing on Article One, section eight and saying that no, the Carroll understanding remains true that you need probable cause plus exigency. And even if sort of the exigencies of the situation may cover most searches, and most individual case by case assessments will find an exigency. That doesn't mean the doctrine doesn't exist. So if the officers knew what car they were going to want to search, and had that car in their possession, then they had an obligation to get a warrant, simply the fact that it was an automobile did not justify a search under Article One, section eight, I think White was pretty clear in that effect. And it became clear later too after some other cases in which the US Supreme Court overturned some Fourth Amendment decisions that the Pennsylvania Supreme Court upheld on article one section eight suppression where there was no clear exigency. And I think that's Pennsylvania v. Labron is a good example of that in 99, I think.

Corrie Woods: 14:41

And just to tie that back into the Carroll rationale-

Aaron Marcus: 14:44

Sure.

Corrie Woods: 14:44

-if you've got a bootlegger at the county line in 1920, and you fast forward that to the 1990s, we're still not at a time where there are widely available cell phones, there are still plenty of places in Pennsylvania where finding another deputy to go and get a warrant or something like that is still pretty impracticable, or at least could be impracticable in the moment. So I mean, it does make a lot of sense that Carroll kind of continues to apply there, via White anyway.

Aaron Marcus: 15:09

Yeah.

Corrie Woods: 15:11

So at this point, we've got sort of that that split between what the sort of post-Warren Court in Washington is saying about the Fourth Amendment and what it actually is meant to protect.

Aaron Marcus: 15:23

Yeah. And I think you're right, though that like, you know, and this actually gets back to what I was almost saying during our intro conversation about sort of practical outcomes, and maybe in some ways being an element of legal realism here, which is prior to our current digital age, you know, the last 10, really the last 10 years. In most instances, it was going to be impractical to get a warrant, as you were saying, not just in the 1920s and 30s, but all the way through the early 2000s. You know, police aren't anticipating stopping a car, right, they see a traffic violation and then uncover something for which they had probable cause of contraband in the vehicle. They weren't anticipating getting a warrant, they didn't have the ability to call a easily call a magistrate or transmit an affidavit of probable cause to a magistrate in any reasonable time. I mean, we didn't have an electronic transmission of an affidavit of probable cause. It's not like they could sit in their car with their computer terminal, write up a two sentence affidavit and transfer it to the magistrate at 3am. And hence swear it out over the phone and the magistrate says, "yep, signed, done. Here you go." Right. That couldn't have happened until very recently. So practically speaking, you know, even the White case, it was very rare, where courts would find, arguably that there was no, that there was no exigency to justify the search. So part of the reason I think that the law was still somewhat left unclear and undecided was these practical difficulties of defendants really raising solid claims to challenge the outcome of an exigency finding or a search below, when police were almost always going to be granted it by trial courts. So you really didn't have this strong divide, purely coming to the forefront again, until really the 2000s when when the justices started to see that there was going to be a difference in not just the protections afforded by PA's constitution, but really, in how law enforcement can operate. And what those, you know, policy results can be, despite the court and Alexander ultimately saying that, you know, policy is not the end all be all and does not determine how we make decisions, even if it does make law enforcement slightly more difficult.

Corrie Woods: 17:45

Yeah. And so for that period, between, say Labron and the case we'll talk about in a moment, Gary, really, the court is spending a lot more time just dickering on the particular application of exigency to individual circumstances. Right?

Aaron Marcus: 18:00

Yeah, to some degree, although, I think it remains confused as to in some cases that remain confused as to the actual diversion between Article One, section eight, and the Federal Constitution and the Fourth Amendment. So even if they were applying Article One, section eight prior to Gary, I think, yeah, the court was really, you know, even if they didn't say it expressly having to address what is or is not an exigency and kind of giving a lot of- giving a nod- to the fact that in most instances exigencies would be found with, I think, one exception. You know, there was, I think, Hernandez in 2007, found that this sort of generic danger to the police, while a danger to the police could be an exigency, the idea that there's this, a generic public safety, danger doesn't always justify an exigency. And therefore, if the police had the defendant in custody, the car was otherwise in their possession, they knew which vehicle they were going to stop, no exigency is established simply by asserting an a, you know, a hunch of danger, and therefore they could search this Uhaul that had, I think it was marijuana in the back of the car, even though, you know, the court at the top, at the time, was still focusing on Article One, section eight, but really didn't put a whole lot of effort into identifying sort of the reasons Article One, section eight diverged and more. So we're just focusing on the law has always been this way in Pennsylvania. And we're just applying sort of this standard, you know, exception to the warrant requirement, which is going to be pretty broad in Pennsylvania with very limited areas for defendants to win on suppression grounds. And that was like one of those limited exceptions.

Corrie Woods: 19:50

So as that sort of cleavage starts to become apparent, I guess that's the thing that changes, right? And we end up re-litigating the issue in Commonwealth vs. Gary, that's 2014 if I'm-

Aaron Marcus: 20:01

Yes.

Corrie Woods: 20:02

-that's 2014. And I guess just very broadly what happened in that case,

Aaron Marcus: 20:07

They both basically, both Gary and Alexander deal with weed basically the odor of marijuana, pulling a car over smelling weed and at the time both Gary and the case we'll talk about, Alexander, you know, dealt with police saying, Well, when I smell marijuana under the precedents of both state and federal law, right, marijuana is illegal. I therefore have this plain smell idea, it gives me probable cause that there is evidence of, of contraband marijuana in the car, and therefore I can search. So if I recall correctly in in Gary, it was a, you know, a similar they pulled over police pulled over a car for tinted windows. And when they pulled over the car, the cops asked if there's anything in the car they needed to know about. And I think Gary said,"Yeah, I got some weed in the car." And at that point, you know, that's all the cop need to know about. They searched the car, found, I believe, a gun or a lot more drugs. I don't remember what exactly they found. But it was it was a bunch of contraband. And the defendant Gary moved to suppress. And one of the questions, of course, was, you know, what was the standard by which the officers were going to be justified in searching the car? Was it applying sort of the White standard, probable cause plus exigency, or did the automobile exception under federal law really, actually apply in Pennsylvania? And simply the fact that probable cause alone was in existence? Is that enough to search the car? And you really saw in Gary, a major schism amongst the justices on the court at the time, you know, with a three justice plurality and a fourth justice Saylor, arguing in kind of wholehearted concurrence, but adopting a separate concurring opinion. So it was three judges Justice McCaffrey, I think announcing judgment for the court. And you know, just as an aside, the attorney for Gary was Alan Tauber, who is now our Chief- Acting Chief Defender, who was fighting very hard to avoid this and did an excellent job with the court convinced obviously, you know, Justice Todd, that we were very much correct when she dissented that the Edmunds analysis required, you know, applying Article One, section eight is a more broad, more protective constitutional basis. But nonetheless, you get three justices deciding that under Pennsylvania law, it's actually coextensive with the Federal Constitution, and that the automobile exception applies, and they did an Edmunds analysis and found no basis to find a broader protection and then Justice Saylor simply concurring in the result, right, explaining that he agrees with the majority, but has some hesitancy about sort of the general bright line rules for law enforcement and the aspect of imposing bright line rules as opposed to more discretionary legal determinations. And then Justice Todd writing a scathing dissent, saying this is absurd. Pennsylvania has a long history of being a broader protective Commonwealth, article one section 8, and even doing the Edmunds analysis leads us to the conclusion that the Carroll doctrine, the probable cause plus exigency, still fundamentally applies in Pennsylvania, as an adequate and independent state constitutional provision, fourth amendment be damned, you know, in that respect, and that case, then sort of changed the game in Pennsylvania. Police took that decision to give a, you know, and prosecutors a wholehearted endorsement of if police possess probable cause, there's no need to determine exigency, you can conduct a search on the street. That's that's kind of in a nutshell, I think what happened in Gary and the conclusion that was reached.

Corrie Woods: 23:52

Yep. And a couple just quick aspects that I'd kind of like to drill down upon-

Aaron Marcus: 23:56

Yeah.

Corrie Woods: 23:57

-the lead opinion sort of goes through the precedent and itself seems to acknowledge that hey, White did say this. But hey, there was no Edmunds analysis. So, we're sort of free to write on a blank slate here. One thing that was shocking to me was the lack of any meaningful discussion of stare decisis as it pertains to to White, which kind of will double back in Alexander, but I just I just wonder if you, I'm sure that you notice that. Don't you think that seems a little curious?

Aaron Marcus: 24:28

Yeah, I mean, you raise kind of two issues. One, is that, right, there's the discussion in Gary about White not engaging in an Edmunds analysis. You know, and and it's criticism of White for not engaging in Edmunds analysis is also somewhat interesting in the sense that the plurality opinion- Justice McCafferey's opinion believed that if the Supreme Court did not engage in a full Edmunds analysis that that somehow resulted in the opinion not being sufficiently precedential to justify a conclusion or a holding. It may be a point of criticism as to whether the court sufficiently addressed the question and upon review, you know, I'm going to stare decisis as to whether the decision was sufficiently addressing the issue but it doesn't undermine the conclusive or precedential importance of the particular holding, even though you may be critical of the means by which the court got to that particular outcome. And I think yeah, the fact that the plurality in Gary does not address stare decisis and say they discount White for the purpose that they did not conduct an Edmunds and for for those who don't remember know what the Edmunds analysis is, there's sort of the basic idea that if Pennsylvania's constitution is going to be broader, the party making the argument for broader protections has to look at and examine, and the court for that matter, the, you know, the text of Pennsylvania's constitutional provision, the history of decisions and things that interpret that constitutional provision, the decisions from other states regarding whether to diverge from the Federal Constitution and the decisions of sister states. And then finally, the policy aspects of whether there's any Pennsylvania specific policy that justifies diversion from the Federal Constitutional floor and create higher protections. And what Gary doesn't do then is then they just discount White without saying, well, it's discounted, but it's still precedential. They ignore that second part, which the dissent takes them to task for a little bit, and really comes to the forefront in Alexander that says Gary really ignored stare decisis in and of itself. It discounted the prior opinions and tried to alter the outcomes to some degree or weaken them. But it doesn't discount the fact that those opinions in White and Labron reached very- and Hernandez, for instance, reached very clear precedential conclusions that the article one section eight was indeed, broader and more protective. And Gary itself simply ignored that precedential value. And you know, and that was a concern to the court, the majority of the court now, in Alexander.

Corrie Woods: 27:13

And I just want to just highlight the two secondary opinions a little bit. First, Justice Saylor's concurrence, although it does say he joined the holding, it doesn't say a lot else. And it really just says, I mean, it's almost an aside, right? You have some language about, hey, we seem to be adopting bright line rules.

Aaron Marcus: 27:31

Yeah so what do you take from that right, like he takes this bright line? Yeah, he says, Look, I'm I'm kind of tired of this bright line rule practice of we like bright line rules, when they, you know, make law enforcement jobs easier, and we don't like them when it makes them harder. And I'm tired of that inconsistency, the end. Right. That's all he says. And so, you know, what, do you take from that concurrence? You know, in the sense of why not join the lead opinion, and just sign your name to the lead opinions? You have four justices in the majority, versus adopting this concurrence that really says nothing other than just expressing sort of an aside and concurring in the result?

Corrie Woods: 28:11

Something of a Cheshire Cat opinion. And-

Aaron Marcus: 28:13

Yeah.

Corrie Woods: 28:14

I can't imagine being in Justice McCaffrey's chambers, and just picking that concurring opinion up and thinking, Oh, gee, what does this mean for all this work we've just done? But so and I'd like to just highlight the dissent, which apart from doing some really good historical work, which may have been partly done by Attorney Tauber's brief, really drilled down on two issues that you had talked about earlier. Number one, the increased practicality of getting a warrant, as compared to boss hog on the county line in 1920. Right? Suddenly, we have cell phones, we have the internet, we have much more advanced communication services. And then something which I thought was particularly insightful, the expectations of privacy in a vehicle seem to be increased, as compared to 1976 when Justice Powell decides that we don't have as much to lose in an automobile, in an automobile.

Aaron Marcus: 29:12

Yeah, I mean, I think that's interesting. It's, it's, you know, a good observation, because I think the first one is, is more obvious, right? We kind of know that the technological change and the ability to get a warrant is different now than where it was, you know, even 10 years ago, let alone as your Boss Hogg example. But the, you know, I think the second point you raise is just much is more interesting to me about sort of questioning the US Supreme Court's sort-of rationale about lower expectations of privacy in vehicles. Generally speaking, people, while while we may have somewhat of a belief that things we leave on the seat of our cars, for instance, may not be as secure or private as things we have in our house. But nobody, nobody really believes that things left secreted in your car or hidden in your car, are things that you have any less of an interest in than things in your house. Right? I mean, cars in the 20s, 30s, and 40s were not particularly secure institutions. But today, you really have people cherish their vehicles, and people use them for all sorts of very intimate things. Right? Especially, you know, if you're talking about a motorhome or a van, I mean, people have sex in their cars, it's not uncommon, right? There's a lot of, and people can take pretty solid means of securing the outside of their vehicle from observation and view and can be parked legally. And these sorts of things, you know, are not generally going to be prohibited, you know, it's that people have these experiences, and people believe that they have a lot of interest in their cars. So to say that you no longer have a privacy expectation in your vehicle or a substantially reduced such that law enforcement can just jump sort of jump the gun and make sort of the independent determination of whether they have probable cause or not, without putting them to the task of an independent arbiter, I think really does undermine how Americans, you know, sort of cherish their their possessions and their cars, especially in you know, the 20th, the 21st centuries, people do believe all sorts of things in and around their vehicles. And I think to minimize that is, is concerning. And I think that Todd really picks up on that in a way that we haven't heard a lot come from from courts recently.

Corrie Woods: 31:44

And aside from noting that there's plenty of examples of spaces and- the trunk has a lock, there are the glove boxes that have- she refers to special keys- that open a glove box-

Aaron Marcus: 31:54

Right. Right.

Corrie Woods: 31:55

One thing I thought was really interesting was she sort of dug up a poll that had been administered about, hey, general population, do you think that police should be able to, you know, search your vehicle based just on probable cause, you know, the smell of marijuana or something? And I think it was a whopping almost 60% of people said, Well, you know, heck, no, we don't, we don't want that.

Aaron Marcus: 32:18

Yeah.

Corrie Woods: 32:19

You know, I don't think that I've ever seen anything like that in an appellate court opinion before and probably because, you know, the court would like to be the one to decide what's reasonable, rather than to let Gallop do it. But I thought it was a really interesting way of checking them for the underlying assumption that hey, car, you might as well be wandering on the road or something.

Aaron Marcus: 32:37

Right. And I that's not I think that's totally right. But I'm trying to remember. And it's striking me that I think Pennsylvania, Supreme Court in Pennsylvania, you know, had found sort of that PA's constitution is more broadly protective, of sort of intrusions into garbage than is the Federal Constitution, if I'm remembering correctly. And I recall that if you asked in the Supreme Court, the US Supreme Court was not moved by that idea that sort of the public wouldn't like it, right sort of concept. Like, if you asked any person on the street, if they thought it was fair, that the police could just come up to their trash and dig through it for any sort of piece of tidbit of information of their lives. They'd be like, That's absurd. You're gonna dig through my trash and put together a puzzle of my life that seems wrong based on no suspicion at all. And Pennsylvania's like, No, you know, people still people wouldn't like it. Right? There's this idea of what is within sort of the public mindset that might influence sort of the privacy interests and expectations somewhat different than the federal courts have adopted. And I feel like there's a- inherent in sort of the idea that Pennsylvania's Constitution protects privacy, like it's a personal right, not about, you know, this pure deterrence concept. I think there's something innate about thinking, what would the public want? And what would they believe, as far as their reasonable expectations and how those play out in areas that might diverge federally and state and I think she did a good job in Gary's dissent, really running through some of those things. I mean, in addition to all of this stuff, she I think she talks about, like, the data privacy that now cars contain, that could be, you know, like the black box and other things that the vehicle kind of monitors your location and can, you know, sense who's whether somebody's sitting in the seat and keeps all of that record, you know, who's in what, whether somebody is in the passenger seat or driver's seat, all that sort of sensitive information.

Corrie Woods: 34:35

Yep. So Gary's in 2014. And that year and years hence, we get a very, very different Court.

Aaron Marcus: 34:43

To say the least.

Corrie Woods: 34:45

There are justices that retire there are justices that perhaps little more forcibly retire and they're replaced by Justices Donohue, Dougherty, Wecht, and Mundy. So we've got basically a new contingent of four justices, which is to say, potentially a brand new court. So we talked a little bit about the facts of Alexander and it's basically the same kind of case. An officer gets probable cause based on marijuana, and then does the search, obviously relying on Gary in this instance. So how did your office decide, "Hey, maybe it's time to take a run at overruling Gary,"?

Aaron Marcus: 35:18

Well, I mean, frankly, we wanted to take a run at overruling Gary from the moment it came out, you know, and we thought there was good arguments to do that. Because early on even immediately after we saw that it was a it wasn't a four justice majority opinion. So there was still room. However, obviously, we recognize that the court at the time, you know, in 2014, wasn't going to change immediately. But pretty shortly after we see a different court, and as soon as we saw a different court where all three of the majority justices were no longer on the court. Right, we saw that. Well, you know, this is a perfect opportunity to take a run at Gary. So early on, we started looking for cases that had a similar issue that was going to raise a probable cause and officers searched, and we were telling our trial attorneys to preserve them, which is exactly what we did. In this case, you know, and I will throw out that one of the the attorney who primarily worked on the case, Len Sazonov, from our office, and he was lead counsel on the Alexander case, he was pushing this from the beginning, and I was more on the sidelines at the time, but our office was fully on board. I was not yet Chief of Appeals, I was still just an appellate attorney in the unit. And so we really thought this is a great opportunity. We told all of our attorneys to pursue it. And the first case that came about was Alexander. And, you know, Len Sazonov really then just kind of ran with it and pursued it preserving the the issue sufficiently by saying, look, you know, we're simply trying to overrule Gary, we don't need to say much more than that. Here is our grounds. And we'll go from there. And so the whole thing was strategic going up, because we were hoping that a changing court would would give us a potential different outcome. You know, when we have the dissenting justices remaining and brand brand new justices or three brand new justices to to try to persuade to rule the other way.

Corrie Woods: 37:16

If you bat 500, you're getting a win.

Aaron Marcus: 37:18

Yeah, that's right. Exactly!

Corrie Woods: 37:20

So okay, so what obviously you don't just say, hey, Justices, as you know, you ruled this way before. There's new justices now. How do you approach the issue of stare decisis. And how do you think that played out with the court?

Aaron Marcus: 37:34

Yeah. So I mean, I think I think Justice Donohue's opinion kind of reiterates in many ways, some of the things that were stated in Sazonov's brief, our brief, to the Court. You know, and similar with the amicus brief, really focusing on kind of two main areas, one sort of reaffirming the Edmunds analysis of Todd's dissent, but too kind of focusing- two separate things. One is you mentioned the stare decisis quality of both Gary, and frankly, the opinions before Gary, you know, you're talking White, Hernandez, Labron and these sorts of cases that establish in a broader Article One, Section 8, with majority opinions. And then, you know, looking at sort of the, the idea that the justifications that, you know, the majority in Gary looked at, and obviously some of the justices would be thinking about as to the reasons for the automobile exception really don't jive or aren't justified in a way that the the court, the US Supreme Court seemed to recognize for the vehicle exception, like, for instance, the intrusion of holding a car to get a warrant versus the search immediately are actually identical, right, knocking down that privacy aspect is something that we wanted to challenge or that sort of inherent, supposedly parallel, that they are equally intrusive, is- we think was flawed and wanted to focus on that in addition to the stare decisis question, and I can go into some of the reasons we talked about stare decisis as to why that was, I think so important to brief for the court and how it affected the outcome.

Corrie Woods: 39:17

Yeah, you know, because I think, obviously, if you're you're sitting in your office, and you know, you can almost anticipate what the dissents are going to say it's going to be you know, the ink is not dry on on Gary.

Aaron Marcus: 39:26

Right.

Corrie Woods: 39:26

And we've we've had a sea change in justices, so you know, what gives guys? And that's kind of what comes out to some degree or another in the dissents here.

Aaron Marcus: 39:34

Yeah.

Corrie Woods: 39:35

But yeah, if you could just sort of talk about how the stare decisis issue really helps to form the the court's- maybe form the majority.

Aaron Marcus: 39:44

Yeah, so one, there's like the US Supreme Court and actually, recently, right, we've been talking a lot about stare decisis in the US Supreme Court, you know, with when it's appropriate overrule a decision and when it's not, and there's a number of different considerations at issue, you know, sort of the the workability of a rule, the long term adherence to sustainability of a particular legal rule, these sorts of things. But also, you know, when when constitutional questions are at stake, there's really ultimately decision about, you know, stare decisis, especially when it's a very recent opinion. Sometimes you don't simply pursue enforcement of a larger decision that may clearly be wrong simply for the sake of, you know, consistency. If it's very clear that that decision was incorrect, but more, I think, to a sort of process point for the sanctity of precedent and law, you know, really one of the big tactics was looking at the fact that Gary itself was not faithful to stare decisis. Right? And I think that's, that is kind of key to pointing out to the court, which, you know, Justice Donohue kind of picked up on and talked about that, which is, you know, that Gary, tried to undermine these prior cases on some of their reasoning, but didn't even come to grips or grapple with the fact that, you know, overruling two decades of precedent was really what they were doing in Gary, without giving sort of the even even a, you know, a principled nod to the rule of stare decisis in Pennsylvania, which raised some serious questions as to the, you know, I guess, methodological or legal validity of that of that decision, which I think played a role in saying, look, Gary overruled these cases, but didn't even address what was the real line of precedent in Pennsylvania, and Alexander kind of came back to this decision overruling Gary is actually much more in line with Pennsylvania precedent, and being faithful to the idea of precedent and decision making in the state than Gary was. And two, Gary wasn't a precedential opinion. That's the argument, right, Justice Saylor kind of disagrees with that. But I think it's hard to quibble with the fact that Saylor very clearly does not actually sign his name to the majority. And he addresses it in the concurrence, giving the opinion announcing a judgment for the court, as opposed to simply an opinion, the majority opinion which, you know, Saylor had the ability to do so if he if he thought that it was worth solidifying that sort of rejection of prior Pennsylvania law, but he didn't, for whatever reasons, and I still come back to that being a very interesting question as to what was his mindset at the time for not joining the opinion and where those differences lie. But, you know, regardless, I think, focusing on, which we did, on that sort of question about what is truly the most consistent adherence to Pennsylvania precedent, the ruling that we asked for in Alexander, which we ultimately got, or what Gary did, and therefore adhering to that, and ultimately the conclusion fell down on no adhering to sort of a much longer line of Pennsylvania precedent is more consistent with a stare decisis practice, than adhering to Gary simply because of its recency bias.

Corrie Woods: 43:24

Yeah. And I think that's an excellent point, right? Because I think someone could definitely read Alexander in isolation and say, oh, they're responding to judicial activism with judicial activism. But I think your point that well, what we're really trying to do is, you know, when you have judicial activism, like you had in in Gary, well, how do you? How do you correct that if you if you do, and I think, to your point, the endeavor is now Well, well, what sort of holistically fits and what's an outlier? Right.

Aaron Marcus: 43:56

Yeah, I mean, I think that's I think that's exactly right. And I think that's important to think about in in sort of law. More generally, when you're interpreting decisions like it's going to be, it's always going to be a task to sort of interpret, you know, a line of precedent in Pennsylvania, especially when there's some lack of clarity and trying to see a general through line there. And you're always going to want to look at that and say, what's the direction in which Pennsylvania law traveled? And what's sort of the overarching principles that have been established by various holdings? And are those precedential? And if you have something that diverges from that, even from the Supreme Court, I think there's going to be a real question of did that decision, actually, was that decision actually faithful to the concept of stare decisis, did it examine the reasons and and sort of elaborate on those as to why it was rejecting that line of precedent, and saying it's worth rejecting that precedent? And for all these reasons, consistent with sort of the factors our courts employ in stare decisis questions, versus simply saying, you know, we think the policy is sufficiently changed, we've reached this independent conclusion. Those other cases are either distinguished or overruled, without really giving much, much weight to them, I think is, you know, there some level of disingenuousness to some of those rulings. Now, of course, right, you could have long lines of precedent that may be eroded by the, you know, essentially progress of time, you know, the long march of progress might erode a long line of precedents, I mean, separate but equal at almost 100 years of precedent, right? So like, you have this this concept that is fundamentally overruled by the progress of time. And but I think the to grapple with that is to say, you know, is to really have to be clear about what you are doing with respect to finally overturning what is inherently a wrong result, as opposed to trying to sort of puzzle your way out, or what I think the Gary majority did, which is simply tried to minimize the value of the reasoning in those prior opinions, as opposed to saying, either they're simply wrong because of some overarching clear policy concern, which is fundamentally important, or are not, you know, didn't actually decide the question at all. And this is a brand new question. And I think neither of those were present in Gary. So I think there was a little bit of ignoring that what needs to happen before you start going into thinking about overruling cases. And I think Alexander spent a lot more time being faithful to that line of those lines of concern. That said, you know, it's always going to be hard to decide what cases are worthy of overruling and what aren't? And it's going to be a tough principle to grapple with when you think a decision is fundamentally wrong. But also, you know, to adhere to sort of the basic ideas of stare decisis, you were seeing that a lot with Ramos and then I'm forgetting the case that didn't hold Ramos retro- oh, Venoy.

Corrie Woods: 47:11

Right.

Aaron Marcus: 47:12

The new recent decision in Venoy, which, you know, dealt with the idea of precedent and retroactivity, and, you know, weirdly, the throwaway line sort of overruled an aspect of TV lane, you know, is, you know, a 40 years of precedent talk that courts have routinely sort of described as a clear rule and, you know, in one or two lines sort of eliminated it and kicked it back to the dustbin of history. And so there's, there's lots of fights right now on on what it means to adhere to stare decisis. And I'm, I'm fascinated by it. And I'm no stare decisis scholar at all, and there are many people much smarter than me, who have thought much in much more detail, you know, I'm sure I'm sure Will Baude has a has a lot to say about that.

Corrie Woods: 48:02

So let me just back up. The essential reasoning of the court on the substance is, "Well, hey, you know, Justice Todd was right," and I believe they actually incorporate her dissent by by reference before, you know, offering a little more commentary. But I guess the the crux of it is that we are back to the pre-Gary rule under White and those cases, which is to say that the Carroll rule. So what are the implications of Alexander? I know, personally, it's led to a lot of dismissals in the short term where police thought they could rely on Gary. But hey, that's not happening now. But what does it mean for I guess, Article One, section eight broadly and privacy rights broadly? And then in the area of automobile searches specifically?

Aaron Marcus: 48:44

Yeah, I mean, I think I think the implications of it are going to be probably- are big right now, with respect to privacy rights, generally in Pennsylvania. I don't know if it has much more sweeping application, than the sort of the general trend of the Pennsylvania Supreme Court over the last, you know, 30 years anyway, which is really sort of looking at the independent privacy right as sufficiently broader, you know, and significantly broader than the Fourth Amendment. And it's just going to be a question of, to what things that gets applied that haven't been applied before. I mean, we already know like, the particularity requirement of the Fourth Amendment is broader in Pennsylvania. And that's at issue in cases in front of the Supreme Court right now, not simply about whether it is we know it is it's about how it gets applied in a more broader capacity. And so I don't think there's really anything that's unique about Alexander in the nature of expanding privacy protections generally, because I think we're going to continue to see the court apply those protections in various Fourth Amendment areas, and search and seizure areas in ways that we're not currently anticipating. But we'll we'll continue to sort of follow that general rubric. As far as more specifically for the implications. I think that's where you're going to see a lot, a lot bigger sort of changes and a lot of litigation that I think will result from the Alexander decision. And the changes are really two things, right? One, I think you're going to see, obviously, a lot fewer car searches, the police are going to search vehicles much less. And I think that's not just because of the law that's put into place because like, technically speaking, if the officers had probable cause in each of these instances and warrants were otherwise could be available, like officers will pursue them. But what I think Alexander is ultimately about, at least in practice, right, is the idea between who, and this applies in a bunch of areas, who gets to decide when probable cause exists, do we give the discretion to the police to make the decision? Or is it the sort of independent magistrate or arbiter who is quote, "not in the Competitive Enterprise of ferreting out crime"? Right, the concept of thinking like, who makes better decisions, the cop who wants to search the car or the the magistrate? And where I think the big shift comes in with Alexander's, we're putting the onus back on the magistrate instead of the cop, because I think, statistics and anyone who practices law, right, and frankly, anybody who's ever experienced a car stop will kind of know this intrinsically, is that the quality of a police officer's probable cause determination is likely going to

be affected by: 51:43

One, their job; Two, who the person is sitting in the driver's seat or passenger seat? Are they a kid? Are they an adult? Are they black? Or the white? Are they Hispanic? Are they a man or woman? Right? Those things are going to affect the quality of that officer's decision making either explicitly, you know, intentional racism, sexism, or just saying or implicitly, right, there's racial biases to think that something might look suspicious that a black person does that a white person wouldn't. Right? Those things are, I think, inherent in the idea of human decision making. And the officer obviously wants to conduct the search, because why not? Right, maybe they have a hunch, there's stuff in the car, and it's a lot easier to just say screw it, I'm going to search the car. So if I find something, I can justify it later and say, you know, furtive movements in the hand under the car seat, or I saw, you know, something sticking out from the passenger seat, etc. And those things are hard to prove otherwise, that they did or didn't exist, whereas the magistrate you have to already put all those facts in and the magistrate's not connected for the same purpose, and they're gonna have a easier time determining whether this is real or not. And you're going to make the cop say, am I going to go through the efforts? Because is my probable cause actually really good? And do I think I'm going to find something really criminal? Or is it really a waste of time, because I'm on a fishing expedition. So I think this really does change the officer's incentives to decide whether probable cause exists and forces them to have a better quality of probable cause. And I think that's what we're going to change, at least on the practical side, that officers are going to be much more hesitant to think about whether probable cause exists, and they're going to be much more scrutinizing about the details. The second aspect legal is the whole debate about well, what the hell is an exigency now? Right? Like, that's going to be the hard part. That's going to be the real question that I think is going to dictate much of the litigation moving forward for the next couple years, is, it's late at night. It's a small county, the magistrate's 100 miles away, you know, whatever it is, right. They might be asleep, I'm gonna have trouble reaching them. I'm a solo officer, I there's only like two other cops around I can't be delayed for hours waiting for the warrant to come back. I'm just going to search the car is that an exigency? Is the danger on pulling somebody over the side of the highway and sitting there for two hours is the danger potential injury from a car on the side of the turnpike or highway? Is that going to be sufficient to justify exigency? Will the timeframes be dependent upon exactly where the location of the car is, is the car lawfully parked/not lawfully parked, these questions are going to be litigated ad nauseum in our trial courts, I think, to determine how hard or how not hard It might be to obtain a warrant and what the timeframes are because there's not this isn't a bright line rule. Right, as the court clearly said, this is going to be case by case. So it's going to be a lot of litigation. And I think one of the biggest values of this is not so much the litigation going forward but the officers making those initial practical judgments of quote is for a really thinking like in the officer said, quote, "is it worth my time?" Right?

Corrie Woods: 54:48

Yeah. Well, that's just an excellent summary of where this is going. And I gotta tell you that ferreting out crime quote is one of my top 10 in the history of court, so-

Aaron Marcus: 54:57

Absolutely!

Corrie Woods: 54:59

Aaron, thank you so much for joining us today on The Standard of Review.

Aaron Marcus: 55:02

Yeah, it was a pleasure to be here. This was a lot of fun.

Corrie Woods: 55:07

That's all for this episode of The Standard of Review. If you'd like what you've heard and you want to hear more, you can subscribe for new episodes in your pod catcher of choice. If you'd like to reach out with a topic or a guest for a new episode, you can find us on the web at WoodsLawOffices.com or just search for Woods Law Offices on Facebook, Twitter, or LinkedIn. Thanks so much for listening, and we'll see you next time on The Standard of Review.

Outro: 55:32

Thanks for listening to The Standard of Review by SCOPAblog. This episode has been brought to you by Woods Law Offices, Raising the Bar for Pennsylvania Appeals. Check them out at www.WoodsLawOffices.com.