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


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  • 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
    ____________________________________
    * 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.
    ____________________________________________
    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
    ____________________________________________
    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
    ____________________________________________
    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
    - 10 -
    

Document Info

Docket Number: 244 EDA 2017

Citation Numbers: 193 A.3d 387

Judges: Dubow, Murray, Stevens

Filed Date: 7/10/2018

Precedential Status: Precedential

Modified Date: 10/19/2024