Commonwealth v. Arter

• Citation: 151 A.3d 149
• Decision Date: 28 December 2016
• Docket Number: No. 63 MAP 2015,63 MAP 2015
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Khiri ARTER, Appellant
• Court: United States State Supreme Court of Pennsylvania

151 A.3d 149

COMMONWEALTH of Pennsylvania, Appellee

v.Khiri ARTER, Appellant

No. 63 MAP 2015

Supreme Court of Pennsylvania.

ARGUED: April 5, 2016

DECIDED: December 28, 2016

David Rudovsky, Esq., Kairys, Rudovsky, Messing & Feinberg, LLP, Philadelphia, Leonard Sosnov, Esq., Harrisburg, for PA Association of Criminal Defense Lawyers, Amicus Curiae.

James Jude Karl, Esq., Colby Joseph Miller, Esq., Bradley Adam Winnick, Esq., for Arter, Khiri, Appellant.

Joseph P. Cardinale Jr., Esq., Harrisburg, Kristie M. Falbo, Esq., Dauphin County District Attorney's Office, Edward Michael Marsico Jr., Esq., Harrisburg, for Commonwealth of Pennsylvania, Appellee.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.

OPINION

JUSTICE TODD

We granted allowance of appeal in the instant case to determine whether illegally-obtained evidence which is suppressed during criminal proceedings should likewise be suppressed during parole and probation revocation proceedings pursuant to Article I, Section 8 of the Pennsylvania Constitution. We conclude that it should, and, therefore, we reverse the Superior Court's order affirming the trial court's denial of Appellant Khiri Arter's motion to suppress, vacate the order revoking Appellant's parole, and remand to the trial court for further proceedings.

I. Factual and Procedural Background

At approximately 5:30 p.m. on May 15, 2013, Harrisburg Police Officer Darin Bates and Dauphin County Adult Probation Officer ("APO") Richard Anglemeyer were traveling in an unmarked police vehicle in an area known for frequent drug activity when they observed two men conversing on a street corner; one of those men was Appellant. According to Officer Bates' testimony, APO Anglemeyer recognized Appellant as one of his parolees,¹ and asked Officer Bates to stop the vehicle. APO Anglemeyer walked toward Appellant, and then summoned Appellant to come and speak with him. APO Anglemeyer told Appellant that he was his assigned probation officer, and proceeded to give him reporting instructions. APO Anglemeyer then asked Appellant if he could search him, and Appellant declined, stating, "Come on, man. You gonna do me like that? I just got out of jail." N.T. Hearing, 11/14/13, at 16. Notwithstanding Appellant's objection, APO Anglemeyer performed a pat-down search of Appellant and felt a bulge in the right coin pocket of Appellant's pants. APO Anglemeyer reached into Appellant's pocket and retrieved what appeared to be crack cocaine. APO Anglemeyer then "turned the case over to Officer Bates," who arrested Appellant. Id. at 18. A search incident to his arrest revealed that Appellant was carrying a second bag of cocaine, a digital scale, a cell phone, and $21.

The Commonwealth charged Appellant with possession with intent to deliver a controlled substance and possession of drug paraphernalia. As a consequence of the new criminal charges, the Dauphin County Adult Probation and Parole Office issued a detainer against Appellant, asserting that he violated the terms of his parole, and requesting a revocation hearing.

At the ensuing criminal proceedings on the new drug charges, commenced in the Dauphin County Court of Common Pleas, Appellant filed a motion to suppress the evidence seized by APO Anglemeyer. The Honorable Andrew H. Dowling granted Appellant's motion to suppress, concluding the search of Appellant was not supported by reasonable suspicion, as required under 42 Pa.C.S. § 9912(d)(1)(i). As discussed further below, pursuant to Section 9912(d)(1)(i), a parole officer may conduct a personal search of an offender, inter alia , "if there is a reasonable suspicion to believe that the offender possesses contraband or other evidence of violations of the conditions of supervision." The Commonwealth did not appeal the trial court's order, and instead filed a nolle prosequi. Furthermore, in its brief to this Court, the Commonwealth does not contest the trial court's determination that APO Anglemeyer did not have reasonable suspicion to conduct a search of Appellant pursuant to Section 9912(d)(1)(i), nor does the Commonwealth dispute that the evidence was properly suppressed in the criminal proceedings.

On January 13, 2014, in anticipation of his parole revocation hearing, and recognizing that the United States Supreme Court has ruled that the exclusionary rule is not applicable to revocation proceedings under the Fourth Amendment, Appellant filed a motion to suppress the evidence seized by APO Anglemeyer under the privacy protections of Article I, Section 8 of the Pennsylvania Constitution. At his parole revocation hearing, the trial judge, the Honorable Deborah E. Curcillo, denied Appellant's suppression motion, revoked his parole, and resentenced Appellant to serve the balance of his sentence. In an opinion pursuant to Pa.R.A.P. 1925(a), the trial court relied on Commonwealth v. Lehman, 851 A.2d 941 (Pa. Super. 2004), in which the Superior Court declined to apply the exclusionary rule to parole and probation revocation proceedings under Article I, Section 8. Appellant filed a timely appeal to the Superior Court.

A three-member panel of the Superior Court, in an unpublished judgment order, affirmed the trial court's denial of Appellant's motion to suppress. In doing so, the Superior Court recognized that the United States Supreme Court, in Pa. Bd. of Probation & Parole v. Scott, 524 U.S. 357, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998), held that the exclusionary rule does not apply in revocation proceedings. Commonwealth v. Arter, 396 MDA 2014, 2014 WL 10795069, at *2 (Pa. Super. filed Oct. 8, 2014). The Superior Court also noted that this Court has held that "the Pennsylvania Constitution does not generally provide parolees with greater protection than the Fourth Amendment when it comes to searches and seizures." Id. at 1 (citing Commonwealth v. Williams, 547 Pa. 577, 692 A.2d 1031, 1039 (1997) ). Finally, the Superior Court determined that it was bound by its own decision in Lehman, in which the court stated, "absent direction from our supreme court to the contrary, no deviation from the approach of the U.S. Supreme Court in Scott, supra, is warranted." Lehman, 851 A.2d at 943, quoted in Arter, 396 MDA 2014, 2014 WL 10795069, at *2.

Appellant filed a petition for allowance of appeal, and this Court granted allocatur to consider whether the Superior Court erred in upholding the trial court's denial of Appellant's motion to suppress based on Article I, Section 8 of the Pennsylvania Constitution. Commonwealth v. Arter, 120 A.3d 299 (Pa. 2015) (order).

II. Analysis

As Appellant challenges the Superior Court's decision affirming the trial court's denial of his motion to suppress, we first note our well established standard of review of claims regarding the denial of a suppression motion:

We may consider only the Commonwealth's evidence and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. An appellate court, of course, is not bound by the suppression court's conclusions of law.

Commonwealth v. Gary, 625 Pa. 183, 91 A.3d 102, 106 (2014) (citation omitted). In reviewing questions of law, our standard of review is de novo and our scope of review is plenary. Weaver v. Lancaster Newspapers, Inc., 592 Pa. 458, 926 A.2d 899, 903 (2007).

The instant matter implicates both the Fourth Amendment to the United States Constitution, and Article I, Section 8 of the Pennsylvania Constitution. The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV.

Article I, Section 8 provides:

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

Pa. Const. art. I, § 8.

Plainly speaking, both the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution generally require that, prior to conducting a search of an individual or his or her property, the police must obtain a warrant, supported by probable cause and issued by a neutral magistrate. Commonwealth v. Petroll, 558 Pa. 565, 738 A.2d 993, 998 (1999). This rule is subject to limited exceptions, such as the existence of exigent circumstances. Id. at 999.

To effectuate the rights guaranteed under the Fourth Amendment, in the early part of the last century, the United States Supreme Court adopted the exclusionary rule, which bars the use of evidence obtained through an illegal search and seizure. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Although the rule initially applied only to federal prosecutions, in Mapp v. Ohio, the high Court expanded the scope of the exclusionary rule to state prosecutions. 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (holding "all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court").

The high Court has repeatedly explained that the purpose of the exclusionary rule is not to "cure the invasion of the defendant's rights which he has already suffered." United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (citation omitted). Rather, the rule is a "judicially created means of deterring illegal searches and seizures." Scott, 524 U.S. at 363, 118 S.Ct. 2014 (citing United States v. Calandra, 414 U.S. 338, 348, ...