Com. v. Forsythe, T. ( 2019 )

J-A03008-17
2019 Pa. Super. 244
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
TERENCE DWIGHT FORSYTHE
Appellee No. 524 MDA 2016
Appeal from the Order Entered March 1, 2016
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001235-2015
BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.
OPINION BY LAZARUS, J.: FILED AUGUST 16, 2019
This matter is before the Court on remand from the Pennsylvania
Supreme Court for reconsideration in light of the Supreme Court's decision in
Commonwealth v. Hlubin, 208 A.3d 1032 (Pa. 2019). Upon review, we
reverse the order granting Appellee’s motion to suppress and remand for
further proceedings.
The trial court summarized the relevant trial testimony as follows:
A. Detective Al Diaz’s Testimony
Detective Al Diaz (Diaz) was a Lycoming County detective for
seven years. He was the coordinator of the Lycoming County
Narcotics Enforcement Unit (NEU). The NEU’s function is to arrest
people for drug violations in Lycoming County. There are full-time
and part-time members of the unit. Part-time members help
when the NEU requests. Municipal police officers are part-time
members of the NEU. Each police officer submits an application
to the NEU. Each application is signed by the chief of police in the
officer’s jurisdiction. Municipal police officers are paid by their
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municipalities for their work in the NEU. The municipalities are
reimbursed by the District Attorney’s Office, [which] receives
money from the Pennsylvania Attorney General’s Office.
The NEU conducts interdiction roving patrols. [During these
patrols,] law enforcement officers patrol areas where there is drug
activity and attempt to stem the flow of drugs. “All those assigned
[to a patrol] drive around looking for narcotics activity.” If a police
officer wants to stop a vehicle while on patrol, he or she has the
authority to [do so]. . . . The NEU conducts interdiction patrols
because there is “a really terrible drug problem in the county.”
On June 3, 2015, the NEU conducted an interdiction roving patrol.
In order to conduct the patrol, Diaz requested the aid of law
enforcement officers [from] other departments. Sergeant Chris
Kriner (Kriner) of the Old Lycoming Township Police Department
was among those requested to aid in the patrol, which was set up
by Detective Michael Simpler of the Lycoming County District
Attorney’s Office. The patrol included individuals from the Federal
Bureau of Investigation, the Pennsylvania State Police, the
Williamsport Bureau of Police, the Old Lycoming Township Police
Department, the Pennsylvania Board of Probation and Parole, and
the Lycoming County Probation Office. The officers were briefed
before participating in the roving patrol. They were instructed to
target certain areas. During briefings, Diaz sometimes [gave] the
officers specific individuals to target, but he did not mention the
Defendant or Cody Yearick (Yearick) during the June 3, 2015
briefing. After the June 3 briefing, “everyone went out to conduct
investigations.”
B. Sergeant Chris Kriner’s Testimony
Sergeant Kriner has been a police officer with the Old Lycoming
Township Police Department for 15 years. He has been a member
of the NEU since 2001, and he has about 15 years of experience
in conducting drug investigations. He assists members of the NEU
in conducting drug investigations.
The NEU requested Kriner’s assistance with a roving drug
interdiction patrol that it was planning for [] June 3, 2015. He
was assigned to the patrol “through the Old Lycoming Township
Police Department.” He was “made aware” of the date and time
of the patrol and the location of the briefing. The briefing was
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held on June 3, 2015 at approximately 3:00 p.m. in the conference
room of the Old Lycoming Township Police Department, and the
briefing lasted 30 to 45 minutes. Kriner was not given any specific
information about the Defendant or Yearick during the briefing.
Kriner “went out” immediately after the briefing. He was in full
uniform in an unmarked police vehicle with Chief William Solomon
(Solomon) of the Old Lycoming Township Police Department. As
part of the interdiction, Kriner is given general police powers
throughout Lycoming County. He was patrolling the Interstate[-]
180 corridor, and he was looking for indications of drug use,
buying, and dealing. Kriner’s duties took him outside of his
jurisdiction.
Shortly before 8:00 p.m. on June 3, 2015, Kriner was patrolling
the area of the Weis Market on West Third Street in Williamsport.
This area is not in the Old Lycoming Township Police Department’s
jurisdiction. Rather, it is in the jurisdiction of the Williamsport
Bureau of Police. Based on the police reports and interviews with
criminal defendants, Kriner believes the area is a high-crime area.
He has received complaints of drug use and drug trafficking in the
area. He has also made arrests for drug trafficking in the area.
As Kriner was driving through the Weis Market’s parking lot, he
saw a green Chevy Blazer parked in the lot. Two men quickly
exited the vehicle and went into the store. Kriner checked for
information on the vehicle and learned that it was registered to an
individual with an address in Mifflinburg, Union County. From his
training and experience, Kriner knows that [many] drug users go
to Williamsport to purchase drugs. While the men were in the
store, Kriner observed that the vehicle’s windows were down, its
keys were in the ignition, and cell phones were inside the vehicle.
The men exited the store several minutes after they entered.
They were looking around, and Kriner believed that they were
looking for him and Solomon.
One man sat in the Blazer’s driver seat; the other man sat in the
passenger seat. When the vehicle exited the parking lot, Kriner
began to follow it. Kriner thought it was “probable that [the men]
may have been involved in drug activity.” At the intersection of
Market Street and West Third Street in Williamsport, it was
apparent that the Blazer’s license plate light was out. Kriner does
not remember if the police car’s headlights were on.
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The Blazer . . . proceeded east on Interstate 180. Kriner followed
the vehicle into Loyalsock Township, which is not in Old Lycoming
Township Police Department’s jurisdiction. Kriner stopped the
vehicle because the registration plate light was not operating.
After the vehicle stopped, Kriner saw the passenger move around
and twist his body. Kriner talked with [Forsythe,] the vehicle’s
passenger[.] Solomon talked with the driver, [] Yearick. After
talking with [Forsythe], Kriner talked with Yearick. Based on the
interviews of [Forsythe] and Yearick, [Forsythe] was taken into
custody. There were drugs “on [Forsythe]” and “drugs on
Yearick.” Cell phones were seized from the vehicle.
Trial Court Opinion, 2/29/16, at 1-4.
Forsythe filed a motion to suppress, claiming that the stop of the vehicle
was illegal because Sergeant Kriner lacked probable cause and that the stop
violated the Municipal Police Jurisdiction Act (“MPJA”).1 Following a hearing,
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1 42 Pa.C.S.A. §§ 8951-8955. The MPJA was enacted to “[promote] public
safety while maintaining jurisdictional police lines.” Hlubin, 208 A.3d at
1040, quoting Commonwealth v. Merchant, 595 A.2d 1135, 1138 (Pa.
1991). In addition to performing the functions of his or her office anywhere
within his or her primary jurisdiction, section 8953 of the MPJA 1 provides six
exceptions under which a police officer may perform extraterritorial police
actions, one of which is relevant here:
(a) General rule.--Any duly employed municipal police officer who
is within this Commonwealth, but beyond the territorial limits of
his primary jurisdiction, shall have the power and authority to
enforce the laws of this Commonwealth or otherwise perform the
functions of that office as if enforcing those laws or performing
those functions within the territorial limits of his primary
jurisdiction in the following cases:
...
(3) Where the officer has been requested to aid or assist any local,
State or Federal law enforcement officer or park police officer or
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the court granted, in part, Forsythe’s motion to suppress.2 The
Commonwealth appealed, arguing: (1) the trial court abused its discretion in
finding a violation of the MPJA; (2) the trial court erred in suppressing the
evidence based on the alleged MPJA violation; and (3) the trial court abused
its discretion in suppressing the observations of Sergeant Kriner and Chief
Solomon.
This Court reversed the trial court’s suppression order, concluding that
Sergeant Kriner’s actions did not violate the MPJA “[b]ased upon the liberal
required reading of the MPJA and the existence of the Municipal Drug Task
Force Agreement, as well as the specific request for assistance made by
Detective Diaz[.]” Commonwealth v. Forsythe, 164 A.3d 1283, 1289 (Pa.
Super. 2017) (withdrawn).
Forsythe filed a petition for allowance of appeal to our Supreme Court.
By order dated July 2, 2019, the Court granted allowance of appeal, vacated
our previous order, and remanded the case to this Court for further
consideration in light of Hlubin.
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otherwise has probable cause to believe that the other officer is in
need of aid or assistance.
...
42 Pa.C.S.A. § 8953(a)(3).
2 The trial court ruled that the controlled substances, Forsythe’s statements,
the evidence obtained from the Blazer, and the officers’ observations made on
June 3, 2015 were to be suppressed, but ruled that the driver’s proposed
testimony could be submitted into evidence. Suppression Order, 3/1/16, at
9.
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In Hlubin, the defendant was stopped, questioned, and ultimately
arrested for suspicion of driving under the influence (“DUI”) at a sobriety
checkpoint in Robinson Township. The checkpoint was conducted by a task
force that included police officers from a number of municipalities operating
outside of their primary jurisdictions. Hlubin’s stop was itself conducted by an
officer from outside the jurisdiction.
After being charged with two counts of DUI, Hlubin filed an omnibus
pretrial motion seeking suppression of all evidence gathered during her
detention at the checkpoint. She argued that the officer who performed the
stop
“was acting outside of his primary jurisdiction when he was
operating a sobriety checkpoint in Robinson Township” and
therefore, did not have the authority to conduct the stop and
detention. Hlubin maintained that the task force did not comply
with the [Intergovernmental Cooperation Act, 53 Pa.C.S.A. §§
2301-2317 (“ICA”)3] and that no exceptions set forth in the MPJA
____________________________________________
3The ICA established formal rules for intergovernmental cooperation. Section
2303 of the ICA authorizes such cooperation and provides that it shall be
effectuated as follows:
(a) General rule.--Two or more local governments in this
Commonwealth may jointly cooperate, or any local government
may jointly cooperate with any similar entities located in any other
state, in the exercise or in the performance of their respective
governmental functions, powers or responsibilities.
(b) Joint agreements.--For the purpose of carrying the provisions
of this subchapter into effect, the local governments or other
entities so cooperating shall enter into any joint agreements as
may be deemed appropriate for those purposes.
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permitted members of the task force to operate outside of their
primary jurisdiction.
Hlubin, 208 A.3d at 1035.
The Commonwealth asserted that the task force was in compliance with
the ICA and, moreover, that the officer’s presence at the checkpoint was
authorized by certain exceptions in the MPJA that permit police actions outside
an officer’s primary jurisdiction. The trial court agreed, and denied Hlubin’s
suppression motion. She was subsequently tried and, after a bench trial, the
court convicted her of two counts of DUI.
On appeal, a three-judge panel of this court affirmed Hlubin’s judgment
of sentence. Hlubin requested and was granted reargument en banc, after
which this Court affirmed the trial court. In doing so, we held that, although
the task force was not created in compliance with the ICA, it was nonetheless
valid pursuant to section 8953(a)(3) of the MPJA, which, as then drafted,
authorized extraterritorial police action where “the officer has been requested
to aid or assist any local, State or Federal law enforcement officer or park
police officer or otherwise has probable cause to believe that the other officer
is in need of aid or assistance.” 53 Pa.C.S.A. § 8953(a)(3). We further
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53 Pa.C.S.A. § 2303. Section 2305 of the ICA requires that the governing
body of the municipality must pass an ordinance with respect to any
agreement under section 2303. Any such ordinance must include seven
specific terms of agreement. See 53 Pa.C.S.A. § 2307. Finally, a cooperation
agreement is deemed to be in force only after its adoption by ordinance by all
of the cooperating governmental units. See 53 Pa.C.S.A. § 2315.
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concluded that, even if the task force had been in technical violation of the
MPJA, suppression would not have been warranted under Commonwealth v.
O'Shea, 567 A.2d 1023 (Pa. 1990) (applying case-by-case approach
considering intrusiveness of police conduct, extent of deviation from letter and
spirit of MPJA and prejudice to accused to determine whether suppression is
warranted).
Our Supreme Court granted allowance of appeal to consider three
questions: (1) whether compliance with the ICA is necessary even when
extraterritorial action is permitted under the MPJA; (2) whether, under section
8953(a)(3), a “crime in progress” investigation is a prerequisite to police
officers leaving their primary jurisdiction to conduct an investigation; and (3)
whether, under section 8953(a)(4), the crime being investigated must have
taken place in the officer’s primary jurisdiction before he can enter another
jurisdiction to conduct an investigation.
The Court4 began by addressing the interplay between the ICA and the
MPJA as follows:
The ICA deals with durational agreements to permit municipalities
to work together on a regular and ongoing basis over time. The
____________________________________________
4 Justice Donohue delivered the Opinion of the Court as to the interpretation
of the ICA and MPJA, as well as the ultimate remedy of suppression, in which
she was joined by five of the remaining six justices. However, Chief Justice
Saylor issued an opinion concurring in part and dissenting in part, in which he
was joined by Justices Baer and Dougherty. In his dissent, Chief Justice Saylor
disagreed with Justice Donohue’s conclusion that O’Shea should effectively
be overruled. However, because the relevant portions of Justice Donohue’s
Opinion garnered the support of six of the seven justices, her disposition is
controlling as to those issues.
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MPJA, in contrast, deals with the authority of municipal police
officers to respond as necessary to a specific criminal episode or
an event that immediately threatens public safety. Any
suggestion that the ICA does not require joint agreements
between participating municipalities to permit ongoing
cooperation between their police departments ignores the reality
that one of the core “functions, powers and responsibilities” of
local municipal governments is the provision of police services to
their citizens. When two or more municipalities decide to
cooperate with each other in the provision of such services to their
respective citizenry, an ICA agreement, adopted by ordinance by
each of the member municipalities, is required.
Hlubin, 208 A.3d at 1043.
However, Justice Donohue went on to note that, where extraterritorial
police activity is not authorized by the ICA, it may still be valid if one of the
exceptions under the MPJA applies. Because this Court had relied primarily
on the exception contained in section 8953(a)(3), Justice Donohue began her
analyisis with that section. Section 8953(a)(3) authorizes extraterritorial
police action where “the officer has been requested to aid or assist any local,
State or Federal law enforcement officer or park police officer or otherwise has
probable cause to believe that the other officer is in need of aid or assistance.”
42 Pa.C.S.A. § 8953(a)(3) (emphasis added). Hlubin argued that a request
under subsection (a)(3) “must be contemporaneous with some criminal
activity, anchoring her argument in the subsection’s reference to ‘probable
cause.’” Hlubin, 208 A.3d at 1044. Conversely, the Commonwealth asserted
that the two clauses in the subsection are to be read as disjunctive, with only
the second clause requiring any contemporaneous criminal activity to justify
the provision of extraterritorial aid or assistance.
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While the Supreme Court “agree[d] with the Commonwealth that the
two situations described in subsection 8953(a)(3) are ‘disjunctive’ in the sense
that they in fact describe two different circumstances[,]” id. at 1045,
nonetheless it found that “they are related to each other in that each imputes
the element of probable cause.” Id. The Court observed:
Giving meaning to the General Assembly’s inclusion of the word
“otherwise” necessitates that the reference to “probable cause”
applies to both the first and second situations in the subsection—
and thus to instances where aid and assistance is requested or
where provided in response to a belief that another officer is in
need of the same.
Id.
The Court further concluded that the Commonwealth’s interpretation of
subsection 8953(a)(3) “is entirely at odds with [the] Court’s repeated
insistence that the exceptions to the MPJA must not ‘adversely affect the
ultimate goal of maintaining police accountability to local authority.’” Id.,
quoting Commonwealth v. Merchant, 595 A.2d 1135, 1139 (Pa. 1991)
(emphasis added in Hlubin).
If police departments may agree, without legislative approval by
their local governing bodies, to commit their police officers to
cooperative efforts with other police departments, then police
departments, rather than local governing bodies, effectively
exercise control over the municipality’s expenditures, allocation of
personnel, as well as exposing the municipality to a potential
liability that may arise from the extra-jurisdictional activity.
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Hlubin, 208 A.3d at 1046. Thus, the Court concluded that subsection
8953(a)(3) “does not authorize police officers to cross jurisdictional lines to
participate in pre-arranged sobriety checkpoints.” Id.
Just over a month after the Supreme Court issued its decision in Hlubin,
on July 2, 2019, the legislature amended, inter alia, section 8953(a)(3) of the
MJPA, authorizing extraterritorial action by police officers, to read as follows:
(3) Where the officer:
(i) has been requested to aid or assist a Federal, State or
local law enforcement officer or park police officer;
(ii) has probable cause to believe that a Federal, State or
local law enforcement officer or park police officer is in need
of aid or assistance; or
(iii) has been requested to participate in a Federal, State or
local task force and participation has been approved by the
police department of the municipality which employs the
officer.
2019, July 2, P.L. ___, No. 58, § 1.1, imd. effective. The changes contained
in this act were explicitly intended to reverse the Supreme Court’s
interpretation of the MPJA in Hlubin. The amendment to section 8953(a)(3)
applies retroactively to law enforcement conduct on or after June 15, 1982.
Accordingly, amended section 8953 controls the disposition of the instant
matter.
In amending section 8953(a)(3), the legislature created a clear
demarcation between the scenario in which aid is requested by another
jurisdiction, and the circumstances under which probable cause is required as
a condition precedent to extraterritorial police action. Applying the amended
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language to the facts of the instant matter, it is readily apparent that the
extraterritorial actions taken by Sergeant Kriner as a member of the
interdiction roving patrol were consistent with the exception contained in new
subsection 8953(a)(3)(i). Sergeant Kriner acted in direct response to a
request from Detective Simpler of the Lycoming County District Attorney’s
Office and Detective Diaz, the coordinator of the Lycoming County NEU.
Acting as a member of the NEU, Sergeant Kriner possessed general police
power within the entirety of Lycoming County, Detective Diaz’s jurisdiction.
Accordingly, because Sergeant Kriner acted in compliance with the MPJA, as
amended, the trial court erred in suppressing the evidence obtained as a result
of Sergeant Kriner’s investigation and vehicle stop.
Because we find that suppression was unwarranted, we need not reach
the Commonwealth’s remaining issues.
Order reversed. Case remanded for further proceedings consistent with
the dictates of this Opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/16/2019
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