Commonwealth v. Hopkins

• Decision Date: 30 June 2017
• Docket Number: No. 32 MAP 2016,32 MAP 2016
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Lorne Brett HOPKINS, Jr., Appellee
• Court: Pennsylvania Supreme Court

164 A.3d 1133 (Mem)

COMMONWEALTH of Pennsylvania, Appellant

v.Lorne Brett HOPKINS, Jr., Appellee

No. 32 MAP 2016

Supreme Court of Pennsylvania.

SUBMITTED: September 7, 2016

DECIDED: June 30, 2017

Thomas L. Kearney III, Esq., Stephanie Elizabeth Lombardo, Esq., York County District Attorney's Office, for Appellant.

George N. Marros, Esq., Marros Law Office, for Appellee.

Kevin Francis McCarthy, Esq., Allegheny County District Attorney's Office, for Pennsylvania District Attorneys Association, Amicus Curiae.

ORDER

PER CURIAM

AND NOW, this 30^th day of June, 2017, the Court being equally divided, the Order of the Superior Court is AFFIRMED.

Justice Donohue files an opinion in support of affirmance in which Justices Baer and Dougherty join.

Chief Justice Saylor files an opinion in support of reversal in which Justices Todd and Mundy join.

Justice Wecht did not participate in the consideration or decision of this matter.

OPINION IN SUPPORT OF AFFIRMANCE

JUSTICE DONOHUE

In this discretionary appeal, we consider whether Article 1, Section 8 of the Pennsylvania Constitution requires the suppression of evidence seized pursuant to a search warrant when the information contained in the affidavit in support of probable cause is later determined to be demonstrably untrue, despite the absence of any showing of police misconduct. Based upon this Court's historical rejection of a "good faith" exception to the exclusionary rule, e.g. , Commonwealth v. Edmunds , 526 Pa. 374, 586 A.2d 887 (1991), the trial court properly suppressed the evidence in this case.

In May 2014, Detective Anthony Fetrow of the York Police Department was investigating a recent burglary at 1039 E. Philadelphia Street. The investigation led Detective Fetrow to a suspect, Aaron Shifflet, who lived next to the burglarized residence. When Detective Fetrow spoke with Shifflet at his residence, he noticed that Shifflet had cuts on his hands and arms that were just beginning to heal. Detective Fetrow took Shifflet to the police station, where Shifflet waived his rights and admitted to committing the burglary with a man he knew only as "Radio." Shifflet gave Detective Fetrow a physical description of Radio, and he subsequently picked out a photograph of Appellee, Lorne Brett Hopkins ("Hopkins"), from a photographic line-up. Based upon the information Shifflet provided about the burglary, Detective Fetrow sought a search warrant for Hopkins' residence. In the affidavit in support of probable cause for the issuance of the warrant, he averred as follows:

[Shifflet] admitted to conspiring with another male who he knew only by the nickname of "Radio." He advised that the day prior to the burglary, he spoke with "Radio" and [Shifflet] suggested targeting the victims who reside at 1039 E. Phila. St. On the date of and time period of the burglary, "Radio" came over to [Shifflet's] address and they made sure the victims weren't home by knocking several times. They broke out the side window with a rock and knocked enough glass out to both crawl through. [Shifflet] advised that both of them got cut and were bleeding as a result. "Radio" rummaged and searched the victims' house for valuables, [Shifflet] left and went to his house to wash off the blood and then operated as a lookout from inside his front door. "Radio" tied his hooded jacket around himself to stop the bleeding. [Shifflet] was going to knock on the victims' front door if he saw anyone or the police come into the area. Appx. [sic] [fifteen] mins. later, "Radio" exited through the victims' front door carrying a dark blue duffel bag and fled on foot. [Shifflet] said that he thought the bag also came from the victims' house. "Radio" was supposed to give [Shifflet] money for helping but he never received anything.... He described "Radio" as a light skinned, biracial [b]lack male who lives in the 600 Blk. [sic] Chestnut St. He later picked "Radio" out of a photo identification line-up and was identified as [Hopkins], D.O.B., 8/17/88. Shifflet was charged in the burglary at 10[:]39 and committed to the York County Prison. On 6/2/14, I confirmed with the parole officer of [Hopkins] that his current residence is 676 Chestnut St. where he resided with his grandparents and several other relatives.

Based on the above information, I am requesting a search warrant to search the residence and curtilage of 676 Chestnut St. I also request that any occupants present at the time of the search be subject to a search to make sure that evidence, contraband and/or stolen property is not secreted on their persons or destroyed.

Application for Search Warrant, 6/2/2014, at 2–3.

When the police executed the search warrant on June 3, 2014, they found none of the items stolen from 1039 E. Philadelphia Street or any other evidence that might prove that Hopkins had participated in that burglary. The police did, however, discover evidence of unrelated crimes, including crack cocaine, marijuana and a number of firearms. Hopkins was arrested and subsequently charged with two counts of possession of a controlled substance with intent to deliver and prohibited offensive weapons.¹ In an interview with Detective Fetrow, Hopkins admitted that he was known by the nickname Radio and that he sold drugs. He further admitted that he knew Shifflet, but denied participating in the burglary at 1039 E. Philadelphia Street. During the interview, Detective Fetrow observed that Hopkins did not have cuts on his arms or hands.

On June 16, 2014, while awaiting trial for the burglary, Shifflet admitted to Detective Fetrow that he had lied and that Hopkins did not commit the burglary with him. Shifflet explained that he knew Hopkins was involved in other illegal activity and he thought that implicating Hopkins in the burglary would improve his (Shifflet's) situation with regard to the burglary charges.

Hopkins filed a motion to suppress the evidence recovered from his residence during the search and his subsequent admissions to the police, arguing that the search warrant was invalid because it was based entirely on Shifflet's admittedly false statements. See Omnibus Pre–Trial Motion, 10/1/2014. The Commonwealth opposed the motion, arguing that the exclusionary rule did not apply because Detective Fetrow did not know that Shifflet's statements were false when he included them in his affidavit in support of probable cause. Following a hearing, the suppression court granted Hopkins' motion to suppress, indicating that while a good faith exception to the exclusionary rule exists under the Fourth Amendment to the United States Constitution, this Court in Edmunds recognized that Article 1, Section 8 of the Pennsylvania Constitution provides greater protection for the privacy of individuals and thus does not contemplate a good faith exception. Trial Court Opinion, 2/2/2015, at 8 (citing Edmunds , 586 A.2d at 897–99 ). The suppression court reasoned that suppression, although perhaps severe where the police officer does not intentionally mislead the issuing authority, is the only remedy that vindicates the rights of a person whose home is searched based on false information. Id. at 9–10.²

Pursuant to Pennsylvania Rule of Criminal Procedure 311(d),³ the Commonwealth appealed the suppression court's order. In so doing, the Commonwealth did not dispute either that Shifflet's statements implicating Hopkins were false or that no independent basis existed to support a finding of probable cause. The only issue raised before the Superior Court was whether suppression was improperly granted because Detective Fetrow had acted in good faith when he set forth Shifflet's statements in the affidavit in support of probable cause, although they ultimately proved to be false. Commonwealth v. Hopkins , 2074 MDA 2014 at *2, 2015 WL 6549168 (Pa. Super. Oct. 28, 2015) (unpublished memorandum). The Superior Court affirmed, indicating that it was bound by its prior decision in Commonwealth v. Antoszyk , 985 A.2d 975 (Pa. Super. 2009) (" Antoszyk I "). Id. at *14. Based upon Antoszyk I and Edmunds , the Superior Court concluded that there "is no good faith exception to the exclusionary rule in Pennsylvania, and the detective's efforts in this case, however intentioned, cannot serve as an avenue to escape the inescapable. The evidence had to be suppressed." Id. at *15.

We granted the Commonwealth's petition for allowance of appeal to consider whether Article 1, Section 8 requires the suppression of evidence when an affiant relies on a third party's statements to establish probable cause for the issuance of a search warrant, and those statements are discovered to be false after execution of the warrant.⁴ Generally, when reviewing the propriety of a suppression ruling, we are bound by the suppression court's findings of fact, so long as they are supported by evidence of record. See, e.g. , Commonwealth v. Bomar , 573 Pa. 426, 826 A.2d 831, 842 (2003). Conversely, where, as here, the appeal of the decision of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, "whose duty it is to determine if the suppression court properly applied the law to the facts." Commonwealth v. Mistler , 590 Pa. 390, 912 A.2d 1265, 1269 (2006) (quoting Commonwealth v. Nester , 551 Pa. 157, 709 A.2d 879, 881 (1998) ). The conclusions of law of the courts below are subject to our plenary review. See, e.g. , Commonwealth v. Jones , 605 Pa. 188, 988 A.2d 649, 654 (2010).

The Fourth Amendment to the United States Constitution⁵ and Article 1, Section 8 of the Pennsylvania Constitution⁶ both protect citizens from unreasonable searches and seizures. See Commonwealth v. Brown , 606 Pa. 198, 996 A.2d 473, 476 (2010). The exclusionary rule is a judicially-created device that prohibits the use of evidence obtained in violation of these rights. See generally 27 Standard Pennsylvania Practice 2d § 135:188. Misstatements of fact will invalidate a search warrant if they are...