Com. v. McCleary, J. , 193 A.3d 387 ( 2018 )

J-A05005-18
2018 Pa. Super. 201
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
JOHN MCCLEARY, :
:
Appellee : No. 244 EDA 2017
Appeal from the Order Entered December 7, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0006625-2016
BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*
OPINION BY DUBOW, J.: FILED JULY 10, 2018
The Commonwealth appeals from the December 7, 2016 Order
entered in the Philadelphia County Court of Common Pleas granting the
Motion to Suppress filed by Appellee, John McCleary. After careful review,
we conclude that the suppression court erred as a matter of law when it
concluded that police officers failed to obtain valid consent to search
Appellee’s residence because they did not adhere to Philadelphia Police
Department Directives. After careful review, we reverse the suppression
court’s Order and remand for further proceedings consistent with this
Opinion.
In its Pa.R.A.P. 1925(a) Opinion, the suppression court detailed the
testimony adduced at the suppression hearing. Briefly, on February 12,
2016, Philadelphia Police Officers Lemorus Grover and Keith Baynes
responded to Appellee’s home at 5725 Florence Avenue after Appellee
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* Former Justice specially assigned to the Superior Court.
J-A05005-18
reported a burglary in progress. Officers Grover and Baynes entered
Appellee’s home through an open door and observed Appellee, Janis
Shavers, and two other officers talking in the living room. Officers Grover
and Baynes relieved the other two officers and attempted to clarify and calm
the situation.
Appellee claimed that Shavers had been trying to break in to his home
and that he had a valid Protection from Abuse Order (“PFA”)1 against her.
Shavers claimed that she had a right to be present in the home and she had
belongings in a second-floor bedroom that would prove she lived there. The
officers did not immediately verify whether Appellee had a valid PFA against
Shavers.2
When the officers asked Appellee if they could see if Shavers had any
belongings in the second-floor bedroom, Appellee responded “Yes” twice.
N.T. Motion, 12/7/16, at 21-22. Officer Baynes walked upstairs and entered
the second-floor bedroom. In the bedroom, he observed in plain view a
scale, a sandwich bag with marijuana, a box of unused drug packaging,
eleven bags of crack cocaine, and clear plastic Ziploc bags. Appellee
admitted that all the drugs belonged to him. Id. at 61-62. The officers
arrested Appellee.
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1 See 23 Pa.C.S. §§ 6101 et seq. (Protection from Abuse Act).
2At the suppression hearing, the parties stipulated that there was an active
PFA filed by Appellee against Shavers. N.T. Motion, 12/7/16, at 79.
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The Commonwealth charged Appellee with Possession of a Controlled
Substance With Intent to Deliver (“PWID”), Possession of a Controlled
Substance, and Possession of Drug Paraphernalia.3
Appellee filed a boilerplate Motion to Suppress his statements and the
physical evidence recovered from his home. On December 7, 2016, the
suppression court heard testimony on the Motion to Suppress consistent with
the above facts. At the close of the hearing, the suppression court granted
Appellee’s Motion to Suppress.
The suppression court focused the bulk of its analysis on the police
officers’ failure to comply with Philadelphia Police Department Directive 5.7,
Sections 12 through 16, which address, inter alia, the best practices for
obtaining valid consent to search property. In support of its decision to
grant Appellee’s Motion to Suppress, the court specifically found that the
officers acted “in direct contravention to their own police directive” and
concluded that “the Commonwealth has failed to prove that the officers
followed proper procedures and obtained a valid consent to search
[Appellee’s] residence.” Suppression Court Opinion, 4/26/17, at 6. The
suppression court focused on several purported violations of police
directives, including: (1) failure to obtain “signed consent;” (2) failure to
inform Appellee of his right to refuse consent; (3) failure to consult with a
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335 P.S. § 780-113(a)(30); 35 P.S. § 780-113(a)(16); and 35 P.S. § 780-
113(a)(32), respectively.
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supervisor; and (4) failure to verify Appellee’s PFA and simply arrest
Shavers. Id. at 6-8.
On January 6, 2017, the Commonwealth filed an interlocutory appeal
pursuant to Pa.R.A.P. 311(d).4 Both the Commonwealth and the
suppression court complied with Pa.R.A.P. 1925.
The Commonwealth presents one issue for our review:
Did the lower court err by suppressing contraband that officers
observed in plain view - after entering a room with [Appellee’s]
express consent - on the ground that they had failed to comply
with internal police department procedures?
Commonwealth’s Brief at 3.
Our standard of review applicable to suppression determinations is
well-settled. “When reviewing the grant of a suppression motion, we must
determine whether the record supports the trial court’s factual findings and
whether the legal conclusions drawn from those facts are correct.”
Commonwealth v. Ennels, 167 A.3d 716, 718 (Pa. Super. 2017) (citation
and quotation marks omitted). “We may only consider evidence presented
at the suppression hearing.” Id.
“In addition, because the defendant prevailed on this issue before the
suppression court, we consider only the defendant’s evidence and so much
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4 Pa.R.A.P. 311(d) provides that “the Commonwealth may take an appeal as
of right from an order that does not end the entire case where the
Commonwealth certifies in the notice of appeal that the order will terminate
or substantially handicap the prosecution.”
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of the Commonwealth’s evidence as remains uncontradicted when read in
the context of the record as a whole.” Id. at 718-19 (citation omitted). “We
may reverse only if the legal conclusions drawn from the facts are in error.”
Id. at 719.
Importantly, “[o]nce a [M]otion to [S]uppress [E]vidence has been
filed, it is the Commonwealth’s burden to prove, by a preponderance of the
evidence, that the challenged evidence was not obtained in violation of the
defendant’s rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047-
1048 (Pa. Super. 2012) (en banc) (citation omitted); see also Pa.R.Crim.P.
581(H).
The Fourth Amendment of the United States Constitution and Article 1,
Section 8 of our state Constitution protect citizens from unreasonable
searches and seizures. In re D.M., 781 A.2d 1161, 1163 (Pa. 2001). To
effectuate these protections, the exclusionary rule bars the use of illegally
obtained evidence in state prosecutions in order to deter illegal searches and
seizures. Commonwealth v. Arter, 151 A.3d 149, 153-54 (Pa. 2016).
The United States Supreme Court has held that the exclusionary rule applies
where “its remedial objectives are thought most efficaciously served” and
“its deterrence benefits outweigh its substantial social costs.” Id. at 154
(citation omitted).
Pennsylvania courts have rejected the automatic suppression of
evidence pursuant to the exclusionary rule where police fail to comply with
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specific Rules of Criminal Procedure relating to the issuance and execution of
search warrants. Commonwealth v. Ruey, 892 A.2d 802, 808 (Pa. 2006)
(OAJC). See also Commonwealth v. Mason, 490 A.2d 421, 423-25 (Pa.
1985) (rejecting automatic application of exclusionary rule for violation of
Rule of Criminal Procedure governing search warrants, and collecting cases).
This Court has similarly refused to apply the exclusionary rule for
every violation of statutes governing police authority and conduct during
investigations, searches, and seizures. See, e.g., Commonwealth v.
Hilliar, 943 A.2d 984, 989-92 (Pa. Super. 2008) (holding that violation of
Municipal Police Jurisdiction Act did not require suppression of evidence from
stop); Commonwealth v. DeGeorge, 466 A.2d 140, 141 (Pa. Super. 1983)
(holding that violation of Rule of Criminal Procedure governing inventory of
item seized did not require suppression of evidence), reversed on other
grounds by Commonwealth v. DeGeorge, 485 A.2d 1089 (Pa. 1984). This
Court’s research has not located any cases addressing the application of the
exclusionary rule as a remedy for the violation of internal police procedures,
administrative protocols, or similar policies.
“In determining the validity of a given consent, the Commonwealth
bears the burden of establishing that a consent is the product of an
essentially free and unconstrained choice—not the result of duress or
coercion, express or implied, or a will overborne—under the totality of the
circumstances.” Ennels, 167 A.3d. at 723 (citation omitted). Our Supreme
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Court has articulated the following non-exhaustive list of factors to be used
in assessing the totality of circumstances: “1) the presence or absence of
police excesses; 2) whether there was physical contact; 3) whether police
directed the citizen’s movements; 4) police demeanor and manner of
expression; 5) the location and time of the interdiction; 6) the content of the
questions and statements; 7) the existence and character of the initial
investigative detention, including its degree of coerciveness; 8) the degree
to which the transition between the traffic stop/investigative detention and
the subsequent encounter can be viewed as seamless, thus suggesting to a
citizen that his movements may remain subject to police restraint; and 9)
whether there was an express admonition to the effect that the citizen-
subject is free to depart, which is a potent, objective factor.”
Commonwealth v. Randolph, 151 A.3d 170, 177 (Pa. Super. 2016)
(citations and quotation marks omitted).
Where a defendant summons police or emergency personnel regarding
potential criminal activity in his home, he has impliedly consented to police
entry and a search of the premises that is reasonably related to an
investigation of the alleged crime. See, e.g., Commonwealth v. Witman,
750 A.2d 327, 335 (Pa. Super. 2000) (holding valid implicit consent for
police to enter home where defendant placed 911 call).
In its Rule 1925(a) Opinion, the suppression court opined as follows:
Here, the Commonwealth has failed to prove that the officers
followed proper procedures and obtained a valid consent to
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search [Appellee’s] residence. Although the police were
legitimately at [Appellee’s] residence in response to a radio call
for a burglary in progress, once they determined that it was
actually a domestic situation, and were told that [Appellee] had
a PFA against [Shavers], they failed to verify if there was an
active PFA and instead decided to conduct a search of
[Appellee’s] residence in direct contravention to their own police
directive. See attached Philadelphia Police Department Directive
5.7 section 12 through 16. Officer Baynes conceded that had
they verified the PFA, they would have arrested [Shavers] and
left the residence without incident.
* * *
Because the officers were informed that [Appellee] had a PFA
against [Shavers], they should have followed established police
procedures and verif[ied] the PFA. If that had been done, the
alleged need to search for [Shavers’] clothing would have been
eradicated. In this Commonwealth, every holder of a PFA,
regardless of gender, should be able to have confidence that the
police will verify the validity of the PFA before they create
reasons to conduct a warrantless search. While the law of
search and seizure is constantly evolving, its focus remains on
the delicate balance of protecting the right of citizens to be free
from unreasonable searches and seizures and protecting the
safety of citizens and police officers by allowing police to make
limited intrusions on citizens while investigating crime. Here,
there was no acceptable reason to conduct a search, however
limited in nature, of [Appellee’s] residence.
Suppression Court Opinion, 4/26/17, at 7-8 (some citations omitted).
As noted above, the exclusionary rule is an extreme remedy for
distinct constitutional violations. Here, the totality of the circumstances
indicates there was no violation of Appellee’s Fourth Amendment right.
Because Appellee summoned the police by calling 911 to report the alleged
burglary in progress, Appellee impliedly consented to police entry and the
subsequent limited search, which was reasonably related to their
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investigation of the alleged burglary and domestic dispute. Witman, 750
A.2d 335.
Moreover, Appellee verbally consented to the police entry and limited
search of the bedroom. Appellee responded “Yes” twice when the officers
asked him if they could search the bedroom for Shavers’ clothing. There is
no evidence of record showing that police obtained Appellee’s consent by
coercion, deceit, or misrepresentation. In light of these factors, we do not
agree that the search was improper.
Further, the suppression court cited no relevant authority to support
its proposition that application of the exclusionary rule is the appropriate
remedy for violating a police directive. See Suppression Court Opinion at 6-
8. As demonstrated by the legal principles recited above, even where police
fail to comply with specific Rules of Criminal Procedure relating to the
issuance and execution of search warrants or violate statutes governing
police authority and conduct during investigations, searches, and seizures,
the exclusionary rule is not necessarily the appropriate remedy, particularly
where an individual’s Fourth Amendment rights have not been violated. By
focusing its analysis exclusively on the police directive, the suppression court
ultimately neglected to evaluate the totality of the circumstances and failed
to apply relevant and dispositive case law.
Order reversed. Case remanded for further proceedings consistent
with this Opinion. Jurisdiction relinquished.
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President Judge Emeritus Stevens joins the Opinion.
Judge Murray files a Dissenting Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/18
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