Commonwealth, Aplt. v. Hopkins, L., Jr.

[J-111-2016]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 32 MAP 2016
:
Appellant : Appeal from the Order of the Superior
: Court dated 10/28/15 at No. 2074 MDA
v. : 2014 affirming the order of the York
: County Court of Common Pleas,
: Criminal Division, dated 11/6/14 at No.
LORNE BRETT HOPKINS, JR., : CP-67-CR-0004536-2014
:
Appellee :
: SUBMITTED: September 7, 2016
OPINION IN SUPPORT OF REVERSAL
CHIEF JUSTICE SAYLOR DECIDED: June 30, 2017
I respectfully differ with any extension of Commonwealth v. Edmunds, 526 Pa.
374, 586 A.2d 887 (1991), to the present circumstances, since I do not believe that a
good-faith “exception” to the exclusionary rule is implicated in this matter. Rather, the
salient issue, in my view, is whether the search warrant was valid and, thus, whether the
exclusionary rule applies in the first instance. As I would find that the warrant was
supported by probable cause as constitutionally required – and was therefore valid – I
would conclude that the evidence should not have been suppressed.
Initially, the warrant in Edmunds was invalid because it was facially inadequate to
satisfy the probable-cause standard. See Edmunds, 526 Pa. at 382, 586 A.2d at 890-
91 (“[W]e concur with the inevitable conclusion of the trial court and the Superior Court,
that probable cause did not exist on the face of the warrant.”). See generally PA.
CONST. art. I, §8 (mandating that all warrants be based on probable cause). Therefore,
the Edmunds Court’s concern was with the invasion of privacy that would ensue if the
fruits of illegal searches could be used against an accused. See Edmunds, 526 Pa. at
402, 586 A.2d at 901 (indicating that “the use of the fruits of illegal searches would only
serve to undermine the integrity of the judiciary in this Commonwealth”).
The decision in Commonwealth v. Johnson, 624 Pa. 325, 86 A.3d 182 (2014),
was to the same effect. It, too, rejected a good-faith exception to the exclusionary rule
in the context of a search undertaken pursuant to an expired – and thus invalid – arrest
warrant. The search in Johnson, like that in Edmunds, was illegal and, consequently,
the exclusionary rule applied. Thus, in Johnson a good-faith exception was rejected on
essentially the same basis that it was rejected in Edmunds: Article I, Section 8 is
intended to protect privacy and, hence, it prevents the fruits of an illegal search from
being used against a defendant regardless of whether the investigating officer
reasonably believed he or she was acting properly.
Importantly, Edmunds did not purport to overlay upon Article I, Section 8 an even
stricter regime than that which can reasonably be derived from the provision’s text –
such that evidence obtained through execution of a valid warrant supported by probable
cause must be suppressed if it is later discovered that a private actor misled the police.
A rule of this nature is untethered to the Constitution, which simply requires that
searches and seizures be reasonable and that warrants only be issued upon a showing
of probable cause. See PA. CONST. art. I, §8. Further, such a rule does little to
“insulate[ us] from dictatorial and tyrannical rule by the state,” Opinion in Support of
Affirmance (“OISA”), slip op. at 10 (quoting Edmunds, 526 Pa. at 398, 586 A.2d at 899,
in turn quoting Commonwealth v. Miller, 513 Pa. 118, 127, 518 A.2d 1187, 1191-92
(1986)), since no agent of the government, in such circumstances, has acted
improperly.
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In light of the above, the nature of the question here is materially distinct from
those which were raised in Edmunds and Johnson: it asks whether a search warrant
can be retroactively invalidated – and thus, the search undertaken pursuant to it be
deemed illegal – where probable cause appears evident based on the four corners of
the officer’s affidavit, but the facts on which the officer relied are discovered, in the post-
search timeframe, to be false. Since “[t]he linch-pin that has been developed to
determine whether it is appropriate to issue a search warrant is the test of probable
cause,” Edmunds, 526 Pa. at 398, 586 A.2d at 899, the question, as applied here, is
whether the warrant was, in fact, supported by probable cause (and thus valid)
notwithstanding that: (a) Shifflet lied to the affiant, Detective Fetrow, and (b) the
information from Shifflet which the detective included in his probable-cause affidavit is
necessary to a determination that probable cause existed. The answer to this question
depends on whether, and under what circumstances, probable cause can be present
when it is grounded on material from a third-party source that later turns out to be false.
There is no requirement that probable cause be based on facts which are true,
only on facts which an officer reasonably believes to be true. See Commonwealth v.
Jones, 605 Pa. 188, 199, 988 A.2d 649, 655 (2010) (“Probable cause exists where the
facts and circumstances within the affiant’s knowledge and of which he has reasonably
trustworthy information are sufficient in themselves to warrant a man of reasonable
caution in the belief that a search should be conducted.” (quoting Commonwealth v.
Thomas, 448 Pa. 42, 52, 292 A.2d 352, 357 (1972))). In Franks v. Delaware, 438 U.S.
154, 98 S. Ct. 2674 (1978), the Supreme Court noted that, although probable cause
should be based on truthful information,
[t]his does not mean “truthful” in the sense that every fact recited in the
warrant affidavit is necessarily correct, for probable cause may be founded
upon hearsay and upon information received from informants, as well as
[J-111-2016] - 3
upon information within the affiant’s own knowledge that sometimes must
be garnered hastily. But surely it is to be “truthful” in the sense that the
information put forth is believed or appropriately accepted by the affiant as
true.
Id. at 165, 98 S. Ct. at 2681; see also United States v. Carmichael, 489 F.2d 983, 989
(7th Cir. 1973) (“If an agent reasonably believes facts which on their face indicate that a
crime has probably been committed, then even if mistaken, he has probable cause[.]”).
Thus, the Supreme Court explained, to invalidate a warrant, the defendant must
demonstrate that the affiant included a false statement either knowingly and
intentionally, or with reckless disregard for its truth. See Franks, 438 U.S. at 155-56,
170, 98 S. Ct. at 2676, 2683.
Notably, this requirement only applies to the affiant, and not the
nongovernmental source of the information. See id. at 171, 98 S. Ct. at 2684. Thus,
the probable-cause assessment is not undermined where an officer reasonably believes
the information obtained from an informant who later turns out to have been lying. In
this respect, the Connecticut Supreme Court has explained that
[p]robable cause is determined by objectively considering what is known
to the state at the time a warrant is presented to a magistrate; it does not
require the accuracy presented by hindsight. Inherent in the concept of
probable cause is that the factual basis of a warrant may be inaccurate.
State v. Glenn, 740 A.2d 856, 862 (Conn. 1999). The court suggested that to hold law
enforcement to a more exacting standard than reasonable belief in the truth of the third-
party’s information could “result in a Catch-22 situation” where the police “would be
required to conduct virtually a complete investigation and present the magistrate with a
confirmed, absolutely true affidavit before a valid warrant could be issued, but such a
complete investigation would be nearly impossible without a warrant.” Id.Regardless of whether a “Catch-22” would result, the probable cause standard
does not encompass such high bar. As one commentator has expressed:
[J-111-2016] - 4
Even if [misinformation provided by the informant] is material, exclusion of
competent evidence seems inappropriate. It is true that the warrant will
have been issued on inaccurate data, but the fourth amendment has been
read not to proscribe “inaccurate” searches, but rather only
“unreasonable” ones. And a warrant based on information which the
affiant and the magistrate both had reasonable grounds for believing is a
reasonable one. To require agents to “know” facts that they cannot
reasonably be expected to know would not deter any searches, since the
agents must work with the reasonably believable evidence before them.
Such a rule would also allow at least some defendants to escape
otherwise certain conviction merely because the police cannot operate
with perfect knowledge in every case.
Steven M. Kipperman, Inaccurate Search Warrant Affidavits as a Ground for
Suppressing Evidence, 84 HARV. L. REV. 825, 832-33 (1971) (footnotes omitted).
Although the above remarks reference the Fourth Amendment and its deterrence
objective, the observation that only unreasonable searches – and not “inaccurate” ones
– are precluded under that constitutional provision applies equally to Article I, Section 8.
Cf. Commonwealth v. Miller, 497 Pa. 257, 260, 439 A.2d 1167, 1169 (1982) (“We have
noted the requirement of probable cause is not structured to assure certainty but rather
it is a test of probabilities dealing with the considerations of everyday life.”).
Accordingly, a finding of probable cause is predicated on what the affiant reasonably
believes to be true. It is not assessed on the actual truth of the statements so that a
later recantation by one of the affiant’s sources has the ability retroactively to vitiate
probable cause that once existed. See generally Commonwealth v. Lyons, 622 Pa. 91,
110, 79 A.3d 1053, 1064 (2013) (indicating that probable cause “exists where, based
upon a totality of the circumstances set forth in the affidavit of probable cause, including
the reliability and veracity of hearsay statements included therein, there is a fair
probability that evidence of a crime will be found in a particular place” (internal quotation
marks, ellipsis, and citation omitted)).
[J-111-2016] - 5
The OISA discounts the above and, particularly, any reliance on Franks, because
Franks was based on the Fourth Amendment and this Court departed from its holding in
Commonwealth v. Miller, 513 Pa. 118, 518 A.2d 1187 (1986). See OISA, slip op. at 17
n.10. The point on which Miller declined to follow Franks, however, did not relate to
whether probable cause can be based on false information which is reasonably believed
by an officer. It pertained to the potential for an officer’s misrepresentation of facts and
the concept that only a defendant who makes a preliminary showing of the officer’s
intentional deception (or reckless disregard for the truth) has a right to a hearing on the
question. See Miller, 513 Pa. at 130, 518 A.2d at 1193 (“What is particularly significant
for our purposes is that the defendant [in Franks] was given the burden of establishing,
at least prima facie, a material misrepresentation in the warrant’s affidavit before inquiry
would be constitutionally required by the Fourth Amendment.”). Miller explained that, as
a matter of state law, defendants in Pennsylvania courts are entitled to such a hearing
without supplying a preliminary showing. See id. at 133, 518 A.2d at 1194-95 (citing
Commonwealth v. Hall, 451 Pa. 201, 302 A.2d 342 (1973)).
Moreover, Miller was aligned with Franks on the question involved in this appeal,
as it clarified that such a hearing does not inquire into the veracity of the third-party
informant, only that of the police-officer affiant. See id. at 134, 518 A.2d at 1195(emphasizing “it is the police official, who requested the warrant, whose veracity is the
subject of the inquiry”); see also id. (“Once the affidavit is sufficient on its face the
question of the veracity of the statements contained therein is directed to the
truthfulness of the officer.”). Thus, again, only if the officer made a “material
misrepresentation” to the magistrate should the warrant be set aside. Id. at 130, 518
A.2d at 1193; see also Hall, 451 Pa. at 205, 302 A.2d at 344 (explaining the basis for
this particularized focus by noting that a magistrate cannot make an objective and
[J-111-2016] - 6
detached probable-cause determination if given “falsified averments”). Hence, the
OISA departs from the Fourth Amendment as to the constitutional meaning of probable
cause – a departure that is in tension with this Court’s past pronouncements, see, e.g.,
Commonwealth v. Glass, 562 Pa. 187, 197, 754 A.2d 655, 661 (2000) (“The standard
for evaluating whether probable cause exists for the issuance of a search warrant is the
same under both the Fourth Amendment and Article I, §8[.]”), and which is undertaken
without a supporting Edmunds analysis.
In my view, and as noted, although Article I, Section 8’s purpose of protecting
privacy has led this Court to eschew good-faith exceptions to the exclusionary rule
where probable cause is absent, it does not follow that the definition of probable cause
must be narrowed to require that the material averments in the officer’s affidavit be, not
only reasonably believed by the officer, but factually true.
Turning to the present case, at the suppression hearing Detective Fetrow
testified that he believed Shifflet’s information to be true, see N.T., Nov. 6, 2014, at 6,
and Appellee did not dispute this. The Commonwealth also explained why such belief
was reasonable: Shifflet implicated himself in the offense and, as such, he was not
solely reporting that someone else had committed a crime; Shifflet referred to Appellee
by a nickname and knew the area where he lived; and Shifflet selected Appellee from a
photo array. See id. at 17-18. See generally Miller, 497 Pa. at 260, 439 A.2d at 1169(suggesting an enhanced reliability relative to a probable-cause determination when the
declarant was involved in the events being recounted, because “[t]he personal
involvement of the declarant assures direct knowledge of the source of the
information”); Commonwealth v. Stickle, 484 Pa. 89, 97-98, 398 A.2d 957, 961-62
(1979) (same).
[J-111-2016] - 7
Finally, and perhaps most important, Appellee affirmatively conceded that the
information provided by Shifflet reasonably appeared true to both Detective Fetrow and
the magistrate, and that the detective did not misrepresent any of the information when
applying for the search warrant. Hence, Appellee clarified that his sole argument was
that the Superior Court’s decisions in Commonwealth v. Clark, 412 Pa. Super. 92, 602
A.2d 1323 (1992), and Commonwealth v. Antoszyk, 985 A.2d 975 (Pa. Super. 2009),
aff’d by an equally divided court, 614 Pa. 539, 38 A.3d 816 (2012), required suppression
on the basis that the information was, in fact, false. See N.T., Nov. 6, 2014, at 19-22.
For its part, the suppression court found as a fact that Detective Fetrow
proceeded on a good faith belief that Shifflet’s information was trustworthy and that
such information constituted probable cause so as to support a valid warrant. See id. at
29-30.1 Thus, the only reason the suppression court granted Appellee’s motion was
that it was bound by prevailing Pennsylvania law as set forth in Clark and Antoszyk.
See id. at 31-32.2
1
This comports with the standard for reckless disregard in the speech arena, which
arises when the person entertains serious doubts about the truth of the information or
acts with a high degree of awareness of its probable falsity. See Am. Future Sys., Inc.
v. Better Bus. Bureau, 592 Pa. 66, 76 n.6, 923 A.2d 389, 395 n.6 (2007) (quoting
Masson v. New Yorker Magazine, 501 U.S. 496, 510, 111 S. Ct. 2419, 2429, (1991),
and Garrison v. Louisiana, 379 U.S. 64, 74, 85 S. Ct. 209, 216 (1964)). Although that
test was fashioned for defamation controversies, it is applicable as concerns affidavits
of probable cause because neither the Supreme Court nor this Court has developed a
separate definition. Accord Wilson v. Russo, 212 F.3d 781, 787-88 (3d Cir. 2000).
2
As suggested above, the judicial finding of a good faith belief in the truthfulness of
Shifflet’s information is materially different from a good faith belief in the validity of a
warrant that, in reality, is not supported by probable cause. In the former situation, it
contributes to the actual validity of the warrant and, as such, does not implicate a good-
faith exception to any rule. In the latter, it invokes a possible good-faith exception to the
general rule that search warrants must be based on probable cause – an exception
which exists under the Fourth Amendment but not Article I, Section 8.
[J-111-2016] - 8
As I believe, for the reasons given, that those cases were wrongly decided, I
would reverse the order of the court of common pleas.
Justices Todd and Mundy join this opinion in support of reversal.
[J-111-2016] - 9