PA constitution prohibits warrantless taping inside a suspect’s home with a video camera planted on an informant

The state constitution prohibits warrantless taping inside a suspect’s home with a video camera planted on an informant. Commonwealth v. Dunnavant, 2013 PA Super 38, 63 A.3d 1252 (2013):

As in Kean, the question before us is whether the defendant has a privacy interest in not being videotaped secretly in his own home. Where the government conducts the video recording, the question becomes one of constitutional proportion. Both the United States Constitution and the Pennsylvania Constitution help shield citizens from improper behavior by the government. The main thrust of protection under the U.S. Constitution is to prevent police misconduct. Commonwealth v. Spencer, 2005 PA Super 381, 888 A.2d 827, 831 n.2 (Pa. Super. 2005), appeal denied, 588 Pa. 781, 906 A.2d 542 (2006). The Pennsylvania Constitution affords that protection and a heightened protection of an individual’s privacy. Id. Indeed, “[t]his Court has not hesitated to interpret the Pennsylvania Constitution as affording greater protection to defendants than the federal Constitution.” Commonwealth v. Tarbert, 517 Pa. 277, 535 A.2d 1035 (1987) (citations omitted).

Nevertheless, both the fourth amendment and article 1, section 8 were designed to serve the same vital function—to prevent government officials from unjustifiably invading the privacy of individuals. Thus, both the state and federal constitutional limitations on “unreasonable searches and seizures” apply exclusively to the conduct of persons who are acting as instruments or agents of the state.

Kean, 556 A.2d at 378. Hence, “[a] search conducted without a warrant issued upon probable cause is per se unreasonable under the Fourth and Fourteenth Amendments, subject only to a few specifically established and well-delineated exceptions.” Commonwealth v. Blair, 394 Pa. Super. 207, 575 A.2d 593, 596-597 (Pa. Super. 1990), appeal denied, 526 Pa. 646, 585 A.2d 466 (1991).

The video recording at issue was government behavior and, through the lens of a hidden, digital video camera, a warrantless search of the defendant’s residence. Thus, it is per se unreasonable. Blair, 575 A.2d at 596-597. The Commonwealth does not — and cannot — defend the video recording at issue with any of the specifically established and well-delineated exceptions to the warrant requirement. Even if the Commonwealth’s video recording inside the defendant’s living room was “inadvertent,” we hold that it was an unconstitutional invasion of the defendant’s expectation of privacy in his home. As such, the Commonwealth could not use the video recording against the defendant.