Full Opinion

[J-20-2025] [MO: Brobson, J.] IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT PUNXSUTAWNEY HUNTING CLUB, INC., : No. 23 WAP 2023 AND PITCH PINE HUNTING CLUB, INC., : : Appeal from The Order of the Appellants : Commonwealth Court entered : September 29, 2023, at No. 456 : MD 2021. v. : : ARGUED: April 9, 2025 : PENNSYLVANIA GAME COMMISSION, AND : MARK GRITZER, IN HIS OFFICIAL : CAPACITY AS AN OFFICER OF THE : PENNSYLVANIA GAME COMMISSION, : : Appellees : CONCURRING OPINION JUSTICE MUNDY DECIDED: JULY 21, 2026 In Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020), a majority of this Court overruled our prior holding in Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), rejecting the federal automobile exception to the warrant requirement. In so doing, the Court held that Article I, Section 8 of the Pennsylvania Constitution affords greater protection than the Fourth Amendment and requires both a showing of probable cause and exigent circumstances to justify a warrantless search of an automobile. Alexander, 243 A.3d at 181. I dissented from both the decision to overrule Gary and the substantive determination that Article I, Section 8 provides greater protection than, and is not coextensive with, the Fourth Amendment. As to overruling Gary, I believed the Alexander “majority decline[d] to honor the tenets of stare decisis, instead opting to impart its desired outcome in the face of a clear rule of law.” Id. at 215-16 (Mundy, J., dissenting). Substantively, I agreed with then-Chief Justice Saylor that the protections provided by the Pennsylvania and United States Constitutions “are one in the same, as evidenced by both the text of both passages, as well as this Court’s decisions.” Id. at 218. I stand by my position in Alexander. I also recognize, however, that the holding expressed in Alexander is now controlling authority. I further agree with the majority here that Alexander recognized “that Article I, Section 8 uses more expansive terminology than its federal counterpart[.]” Maj. Op. at 26. That recognition provides the Court with the justification required to revisit our holding in Commonwealth v. Russo, 934 A.2d 1199 (Pa. 2007), which adopted the federal open fields doctrine under Article I, Section 8. A justification that was not present in Alexander as there had not been an intervening change in the law that called Gary into question. Considering the post-Alexander paradigm, I join the majority’s thorough and thoughtful Edmunds analysis and agree that Article I, Section 8 “afford[s] greater protection than the Fourth Amendment in the context of open fields.” Maj. Op. at 76. This inexorably leads to the conclusion that Sections 303(c) and 901(a)(2) of the Game Code, see 34 Pa.C.S. §§ 303(c), 901(a)(2), can no longer withstand constitutional scrutiny. As such, I join the majority opinion in its entirety. I caution, however, that neither our decision in this case nor Alexander itself should be interpreted as holding that Article I, Section 8 provides greater protection than the Fourth Amendment irrespective of the circumstances. See e.g. Commonwealth v. Kurtz, 348 A.3d 133, 152-53 (Pa. 2025) (plurality) (declining to find Article I, Section 8 recognizes an expectation of privacy in unprotected internet search engine searches where the Fourth Amendment does not). Thus, every request for this Court to interpret Article I, Section 8 to provide greater protection than, and depart from, its federal counterpart [J-20-2025] [MO: Brobson, J.] - 2 continues to require the same type of individualized Edmunds analysis undertaken in this case. A finding of greater protection should never be presumed. [J-20-2025] [MO: Brobson, J.] - 3