Commonwealth v. Hlubin, M., Aplt.

[J-71-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 56 WAP 2017
:
Appellee : Appeal from the Order of the Superior
: Court entered May 23, 2017 at No.
: 951 WDA 2015, affirming the
v. : Judgment of Sentence of the Court of
: Common Pleas of Allegheny County
: entered May 21, 2015 at No. CP-02-
MOLLY HLUBIN, : CR-0003205-2014
:
Appellant : ARGUED: October 23, 2018
Justice Donohue delivers an Opinion of the Court as to Parts
I and IV, delivers an opinion as to Parts II and III joined by
Justices Todd and Wecht, and announces the Judgment of
the Court.
OPINION
JUSTICE DONOHUE DECIDED: MAY 31, 2019
This discretionary appeal addresses the interplay between the Intergovernmental
Cooperation Act, 53 Pa.C.S. §§ 2301–2317 (the “ICA”), and the Municipal Police
Jurisdiction Act. 42 Pa.C.S. §§ 8951–8954 (“MPJA”). An en banc panel of the Superior
Court ruled that Appellant Molly Hlubin’s (“Hlubin”) stop and arrest at a sobriety
checkpoint in Robinson Township, conducted by a task force that included police officers
from a number of other municipalities operating outside of their primary jurisdictions, was
lawful. According to the Superior Court, formation of the task force did not require
compliance with the ICA, as the MPJA contains exceptions to the general limitation on
police activities outside of an officer’s primary jurisdiction. For the reasons set forth
herein, we reverse the decision of the Superior Court. The sobriety checkpoint task force
at issue required compliance with the ICA, as none of the exceptions in the MPJA
authorized the extraterritorial police activities performed here.
On September 29, 2013, at approximately 12:25 a.m., Hlubin was driving along
Steubenville Pike in Robinson Township when she was stopped and questioned at a
sobriety checkpoint. N.T., 3/13/2015, at 30-31. Sergeant Douglas Ogden (“Sergeant
Ogden”) from the Moon Township police department stopped Hlubin and requested her
driver’s license, registration, and proof of insurance. Id. at 31. He detected an odor of
alcohol and observed that her speech was slurred. Id. at 31-32. Upon questioning, Hlubin
admitted that she drank a shot and a beer that night. Id. at 32. Sergeant Ogden then
escorted Hlubin to a testing area, where Robinson Township Police Officer Dominic Sicilia
took over and directed her to perform sobriety tests. Id. at 33. Based upon her
performance and the information he learned from Sergeant Ogden, Officer Sicilia placed
Hlubin under arrest for suspicion of driving under the influence (“DUI”). Id. at 63-67.
Hlubin consented to a blood draw, which was performed by a phlebotomist stationed in a
nearby trailer on site. Id. Based upon the results of the blood testing, she was charged
with two counts of DUI.1
On March 9, 2015, Hlubin filed an omnibus pretrial motion asserting, inter alia, that
Sergeant Ogden “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
1 75 Pa.C.S. § 3802(a)(1) (general impairment) and 75 Pa.C.S. § 3802(b) (high rate of
alcohol).
[J-71-2018] - 2
conduct the stop and detention. See Omnibus PreTrial Motion, 3/9/2015, at 7.2 Hlubin
maintained that the task force did not comply with the ICA and that no exceptions set forth
in the MPJA permitted members of the task force to operate outside of their primary
jurisdiction. She sought suppression of all evidence gathered during her unauthorized
and unlawful detention and dismissal of all charges. Id. at 8-9.
At a suppression hearing on March 13, 2015, the Commonwealth presented
evidence to show both that the task force was in compliance with the statutory
requirements in the ICA and that Sergeant Ogden’s presence at the checkpoint was
authorized by certain exceptions in the MPJA permitting police actions outside of an
officer’s primary jurisdiction. The Commonwealth asserted that the task force was “set
up between the police forces themselves,” with “their chiefs themselves sign[ing] off” on
the individual checkpoints. N.T., 3/13/2015, at 102. Sergeant Ogden testified, identifying
himself as the program coordinator and project manager for the “Western PA DUI task
force,”3 a group comprised of law enforcement officers from fifteen municipal police
departments and the City of Pittsburgh. As the program coordinator and project manager,
Sergeant Ogden trains police officers in conducting the task force’s sobriety checkpoints.
2 She also asserted various issues not before us in this appeal, including that the
checkpoint was constitutionally infirm in that it did not comply with the “comprehensive
requirements” established in Commonwealth v. Worthy, 957 A.2d 720, 725 (Pa. 2008),
Commonwealth v. Tarbert, 535 A.2d 1035 (Pa. 1987) (plurality), and Commonwealth v.
Blouse, 611 A.2d 1177 (Pa. 1992). She also challenged the legality of the roadside blood
draw, claiming that it did not occur at an “approved facility” in violation of 75 Pa.C.S. §
1547(c)(2)(i). Finally, she argued that there was not probable cause to request a chemical
test.
3 In his testimony at the suppression hearing, Sergeant Ogden referred at times to the
task force as the “Western PA DUI task force” and at others, to the “West Hills DUI task
force.” N.T., 3/13/2015, at 9, 14.
[J-71-2018] - 3
Id. at 9, 14. This training adheres to procedural guidelines laid out in a manual, entitled
the “West Hills DUI task force policy and procedural guidelines,” which was entered into
evidence. Id. at 14. Sergeant Ogden also testified that he annually applies for and
administers a grant to fund the task force. Id. at 10-11.
With respect to the sobriety checkpoint on September 29, 2013, Sergeant Ogden
explained that its location on Steubenville Pike in Robinson Township was selected
because that area has been an “ongoing problem” when a nearby concert venue lets out.
Id. at 11-12. In support of this contention, he cited to statistics regarding the number of
DUI arrests, crashes and fatalities on that road dating back to 2008. Id. at 11-12. Having
selected this location, Sergeant Ogden indicated that he, along with Sergeant Joel
Hamilton of the Robinson Township police department, scheduled a checkpoint on the
night of a concert, starting at 11 p.m. on September 28, 2013 and ending at 4 a.m. the
next day. Sergeant Hamilton and Robinson Township Police Chief Dale Vietmeier (“Chief
Vietmeier”) signed a “sobriety checkpoint authorization form,” which the Commonwealth
entered into evidence, that purported to “authorize the operation of a sobriety checkpoint”
in adherence with the task force’s “standard operating procedures.” Id. at 19. Sergeant
Ogden also signed the form. Id. at 20. Following the suppression hearing, the
Commonwealth sought to reopen the record to admit into evidence a 2003 resolution
signed by the township’s manager.4 The Commonwealth argued that this resolution
4 Resolution #14-2003, signed by Robinson Township Manager Timothy Little in 2003,
stated as follows:
BE IT RESOLVED, by the authority of the Board of
Commissioners of the Township of Robinson, Allegheny
County, and it is hereby resolved by authority of the same,
that the Township Manager of said Municipality, authority be
[J-71-2018] - 4
demonstrated that the township’s board of commissioners had both authorized its police
to participate in the task force’s activities and signaled that Sergeant Ogden would be
present at all checkpoints. See Commonwealth’s Motion to Reopen the Record and
Admit New Evidence, 4/13/2015, ¶ 8.
Over Hlubin’s objection, the trial court permitted the Commonwealth to admit the
resolution into the record. N.T., 5/21/2015, at 13-15. It denied Hlubin’s suppression
motion and conducted a bench trial. Based upon the testimony from the suppression
hearing and a lab report indicating a 0.152 blood alcohol content, the trial court found
Hlubin guilty of two counts of DUI. Id. at 17-18, 23. The trial court sentenced Hlubin to
thirty days of county intermediate punishment with eligibility for educational, medical,
religious and work release, followed by six months of probation and a $750.00 fine.
Hlubin filed a notice of appeal to the Superior Court. In its written opinion pursuant
to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, the trial court
concluded that the sobriety checkpoint at issue was authorized under both the ICA and
authorized and directed to sign the attached agreement on its
behalf.
Further be resolved that the Township of Robinson
shall participate with the West Hills DUI task force for the
purpose of promoting safer highways in the Commonwealth
by educating and enforcing driving under the influence of
alcohol or drugs statutes.
I, Timothy Little, Township Manager of the Township of
Robinson do hereby certify that the foregoing is a true and
correct copy of the resolution adopted at the regular meeting
of the Board of Commissioners held the 14 of July, 2003.
N.T., 5/21/2015, 13-14.
[J-71-2018] - 5
the MPJA. Trial Court Opinion, 1/5/2016, at 3-5. With respect to the ICA, the trial court
found that, pursuant to resolution #14-2003, Robinson Township became a member of
the task force and that Robinson Township and Moon Township were amongst its fifteen
members. Id. at 6. As such, the sobriety checkpoint was a “valid exercise of a joint
governmental cooperation agreement.” Id. As for the MPJA, the trial court stated that
Sergeant Ogden was in Robinson Township solely to participate in the operation of the
checkpoint and that his presence had been specifically requested in the “sobriety
checkpoint authorization form” signed by Chief Vietmeier of Robinson Township. Id. at
3, 6. According to the trial court, “[b]y requesting and authorizing the [task force] to
operate a sobriety checkpoint, Chief Vietmeier was requesting aid or assistance from the
other participating members of the [task force] to provide the manpower and experience
necessary to operate the sobriety checkpoint.” Id. at 6. As a result, this request for aid
or assistance constituted a valid exercise of subsection 8953(a)(3) of the MPJA,5
permitting Sergeant Ogden and the other officers at the checkpoint to cross municipal
5 Pursuant to section 8953(a) of the MPJA:
(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 otherwise has
probable cause to believe that the other officer is in need of aid or
assistance.
42 Pa.C.S. § 8953(a)(3).
[J-71-2018] - 6
boundaries and conduct police-related operations outside of their primary jurisdictions.
Id. at 6-7 (citing 42 Pa.C.S. § 8953(a)(3)).
A three-judge panel of the Superior Court affirmed, with one judge dissenting.
Commonwealth v. Hlubin, 951 WDA 2015, 2016 WL 5874381 (Pa. Super. Oct. 6, 2016)
(non-precedential) (withdrawn). Hlubin filed a petition for reargument en banc, which the
Superior Court granted on December 15, 2016.
On May 23, 2017, the intermediate appellate court affirmed the trial court’s
decision. Commonwealth v. Hlubin, 165 A.3d 1 (Pa. Super. 2017) (en banc). It began
by acknowledging (and agreeing with) the Commonwealth’s concession that, contrary to
the trial court’s conclusion, the September 29, 2013 sobriety checkpoint did not comply
with the ICA. Id. at 6. The ICA requires that that every participating municipality to a joint
cooperation agreement must adopt an ordinance reflecting its entry into the agreement.
Id. (citing 53 Pa.C.S. §§ 2303, 2305). Here, none of the fifteen townships or the City of
Pittsburgh had adopted any such ordinance. Id. Therefore, according to the en banc
panel, the trial court’s reliance upon Robinson Township’s resolution #14-2003 was
misplaced, as it was not an ordinance and had not been adopted by the other task force
municipalities.6 Id.
The en banc panel also concluded that the lack of ICA compliance did not end its
“inquiry with regard to whether the checkpoint was valid.” Id. It held that the ICA and the
MPJA are “not mutually exclusive,” as they “address different circumstances that may
6Though not raised at the suppression hearing, we may take judicial notice that resolution
#14-2003 was void. In 2010, Robinson Township enacted a new municipal code which
provided that any prior actions by its governing body were nullified unless properly re-
ratified (resolution #14-2003 was not).
[J-71-2018] - 7
arise within local municipalities.” Id. It found that the ICA applies to “all local
governments,” whereas the MPJA applies to any “duly employed municipal police officer
who is within the Commonwealth, but beyond the territorial limits of his primary
jurisdiction.” Id. The Superior Court then turned its attention to the question of whether
the sobriety checkpoint was permitted pursuant to one of the MPJA exceptions.
Like the trial court, the en banc panel read subsection 8953(a)(3) of the MPJA as
authorization for the participation of Sergeant Odgen and other officers in a sobriety
checkpoint outside of their primary jurisdictions. It viewed the Robinson Township Police
Chief’s signed authorization as a request for “aid or assistance” to carry out the legitimate
purpose of reducing DUI accidents and casualties in neighboring municipalities. Id. at 9.
The court rejected Hlubin’s contention that a request for aid or assistance under
subsection (a)(3) must be contemporaneous with specific criminal activity, as it indicated
that the subsection contains no language imposing a “contemporaneous element” into
the subsection. Id. In a footnote, the court also recognized that subsection 8953(a)(4)7
might also have provided authorization for Sergeant Ogden’s participation, as the
“sobriety checkpoint authorization form” signed by Chief Vietmeier constituted “consent
to conduct official task force duties in Allegheny County.” Id. at 7 n.9.
7 Subsection 8953(a)(4) of the MPJA authorizes the performance of the functions of a
police officer outside of his or her primary jurisdiction:
(4) Where the officer has obtained the prior consent of the chief law
enforcement officer, or a person authorized by him to give consent, of the
organized law enforcement agency which provides primary police services
to a political subdivision which is beyond that officer's primary jurisdiction to
enter the other jurisdiction for the purpose of conducting official duties which
arise from official matters within his primary jurisdiction.
42 Pa.C.S. § 8953(a)(4).
[J-71-2018] - 8
Finally, the en banc panel found that even if the checkpoint was not authorized
under the MPJA, suppression was not warranted. It relied upon the test devised in
Commonwealth v. O’Shea, 567 A.2d 1023 (Pa. 1989), which considers the intrusiveness
of the police conduct, the extent of deviation from the letter and spirit of the MPJA, and
the prejudice to the accused to determine whether suppression is warranted on a case-
by-case basis. Id. at 9 (citing O’Shea, 567 A.2d at 1030). The en banc panel stated that
the police conduct was not intrusive, as the detentions generally lasted only thirty to forty-
five seconds and involved limited interactions; the checkpoint “furthered the purpose of
the MPJA” by reducing DUI accidents and casualties; and finally, drivers stopped at the
checkpoint suffered “minimal to no prejudice” from its operations. Id. The en banc panel
thus affirmed the denial of suppression and the judgment of sentence.8
This Court granted allowance of appeal to consider the following questions:
1. Did the Superior Court erroneously broaden municipal police
powers by holding that when municipal police officers leave
their primary jurisdiction for the purpose of conducting
sobriety checkpoints, it is not necessary to comply with the
[ICA], by entering into written agreements and passing an
ordinance because such actions are permitted under the
[MPJA]?
2. Did the Superior Court erroneously eliminate the longstanding
requirement that a “crime in progress” investigation must be
taking place before police officers can leave their primary
jurisdiction and enter into extraterritorial forays for the purpose
of conducting an investigation under section 8953(a)(3) of the
[MPJA]?
3. Did the Superior Court erroneously eliminate the statutory
requirement in section 8953(a)(4) of the [MPJA], that before a
police officer can enter another jurisdiction to conduct an
8 In an issue not before this Court, the en banc panel also rejected Hlubin’s challenge
that her arrest was not supported by probable cause. Hlubin, 165 A.3d at 10.
[J-71-2018] - 9
investigation, the crime being investigated must have taken
place in the officer’s primary jurisdiction?
Commonwealth v. Hlubin, 174 A.3d 576 (Pa. 2017) (per curiam).
I. The ICA and the MPJA
The questions presented for our review raise issues of statutory interpretation. As
a result, our scope of review is plenary and the standard of review is de novo.
Commonwealth v. Popielarcheck, 190 A.3d 1137, 1140 (Pa. 2018). We are guided in our
analysis by the Statutory Construction Act, which provides in relevant part as follows:
§ 1921 Legislative intent controls.
(a) The object of all interpretation and construction of statutes
is to ascertain and effectuate the intention of the General
Assembly.
* * *
(c) When the words of the statute are not explicit, the intention
of the General Assembly may be ascertained by considering,
among other matters:
* * *
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the
same or similar subjects.
(6) The consequences of a particular interpretation.
1 Pa.C.S. § 1921(a), (c).
The Pennsylvania Constitution defines a “municipality” as a “county, city, borough,
incorporated town, township or any similar general purpose unit of government which
shall hereafter be created by the General Assembly.” Pa. Const. art. IX, § 14. By acts of
its governing body, initiative, or referendum, a Pennsylvania municipality may agree, inter
[J-71-2018] - 10
alia, to cooperate with another municipality (or other governmental unit) with respect to
any of its functions, powers, or responsibilities. Article IX, Section 5 provides:
A municipality by act of its governing body may, or upon being
required by initiative and referendum in the area affected
shall, cooperate or agree in the exercise of any function,
power or responsibility with, or delegate or transfer any
function, power or responsibility to, one or more other
governmental units including other municipalities or districts,
the Federal government, any other state or its governmental
units, or any newly created governmental unit.
Pa. Const., art IX, § 5.
The General Assembly, through its passage of the ICA, 53 Pa.C.S. §§ 2301–2317,
established formal rules of compliance for intergovernmental cooperation. Section 2303
of the ICA authorizes said cooperation and provides that it shall be effectuated by joint
agreements with the other governmental entities:
§ 2303. Intergovernmental cooperation authorized
(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.
53 Pa.C.S. § 2303. Section 2305 further provides that any agreement for
intergovernmental cooperation necessitates that the governing body of the municipality
must pass an ordinance with respect to said agreement.
[J-71-2018] - 11
§ 2305. Ordinance
A local government may enter into intergovernmental
cooperation with or delegate any functions, powers or
responsibilities to another governmental unit or local
government upon the passage of an ordinance by its
governing body. If mandated by initiative and referendum in
the area affected, the local government shall adopt such an
ordinance.
53 Pa.C.S. § 2305. Any such ordinance must include seven specific items of agreement:
§ 2307. Content of ordinance
The ordinance adopted by the governing body of a local
government entering into intergovernmental cooperation or
delegating or transferring any functions, powers or
responsibilities to another local government or to a council of
governments, consortium or any other similar entity shall
specify:
(1) The conditions of agreement in the case of
cooperation with or delegation to other local
governments, the Commonwealth, other states
or the Federal Government.
(2) The duration of the term of the agreement.
(3) The purpose and objectives of the
agreement, including the powers and scope of
authority delegated in the agreement.
(4) The manner and extent of financing the
agreement.
(5) The organizational structure necessary to
implement the agreement.
(6) The manner in which real or personal
property shall be acquired, managed, licensed
or disposed of.
(7) That the entity created under this section
shall be empowered to enter into contracts for
policies of group insurance and employee
[J-71-2018] - 12
benefits, including Social Security, for its
employees.
53 Pa.C.S. § 2307. Finally, a cooperation agreement is deemed to be in force (and
enforceable) only after its adoption by ordinance by all of the cooperating governmental
units. 53 Pa.C.S. § 2315.
Turning to the other statute at issue in this appeal, in Commonwealth v. Merchant,
595 A.2d 1135 (Pa. 1991), this Court recognized that the principal object of the MPJA is
“the promotion of public safety while maintaining jurisdictional police lines.” Id. at 1138.
Section 8952 of the MPJA provides that a municipal police officer may perform the
functions of his or her office anywhere within his or her primary jurisdiction9:
§ 8952. Primary municipal police jurisdiction
Any duly employed municipal police officer shall have the
power and authority to enforce the laws of this
Commonwealth or otherwise perform the functions of that
office anywhere within his primary jurisdiction as to:
(1) Any offense which the officer views or
otherwise has probable cause to believe was
committed within his jurisdiction.
(2) Any other event that occurs within his
primary jurisdiction and which reasonably
requires action on the part of the police in order
to preserve, protect or defend persons or
property or to otherwise maintain the peace and
dignity of this Commonwealth.
42 Pa.C.S. § 8952.
9 The MPJA defines “primary jurisdiction” as “[t]he geographical area within the territorial
limits of a municipality or any lawful combination of municipalities which employs a
municipal police officer[.]” 42 Pa.C.S. § 8951.
[J-71-2018] - 13
The MPJA previously included only one exception to police action outside of an
officer’s primary jurisdiction, namely where the officer was in hot pursuit of a fleeing
suspect. Relevant to the present situation, it authorized a police officer to arrest any
person beyond the territorial limits of his primary jurisdiction only when the officer
continued in pursuit of such person after commission of a summary or other offense. 42
Pa.C.S. § 8901 (repealed).10 In apparent response to decisions by our Superior Court
that did not permit what appeared to be reasonable extraterritorial police actions outside
of an officer’s primary jurisdiction,11 in 1982 the General Assembly added five additional
exceptions. “Apparently, the General Assembly recognized that constructing
impenetrable jurisdictional walls benefited only the criminals hidden in their shadows.”
Merchant, 595 A.2d at 1139. Section 8953(a) now provides, in relevant part:
(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
10 Sometimes referred to as the “hot pursuit statute,” the provision as enacted in 1963
provided the following:
Any police officer in the employ of a county, city, borough, town or township
may arrest, with or without a warrant, any felon beyond the territorial limits
of the political subdivision employing such officer for a felony committed by
the felon within the political subdivision employing the police officer if such
officer continues in pursuit of the felon after commission of the felony.
Act of Aug. 6, 1963, P.L. 511, No. 267.
11 See Commonwealth v. Novick, 438 A.2d 974, 975-76 (Pa. Super. 1981) (officer
requested to assist in arresting burglary suspect seven blocks outside of his primary
jurisdiction had no authority under hot pursuit statute or “mutual aid pact” to engage in
extraterritorial police conduct); Commonwealth v. Bable, 385 A.2d 530, 531 (Pa. Super.
1978) (Greenville police officer responding to a radio call regarding a possible ongoing
burglary at a store in a neighboring jurisdiction was not authorized to follow burglary
suspect under hot pursuit statute because the officer had not entered Hempfield
Township in pursuit of the suspect).
[J-71-2018] - 14
those laws or performing those functions within the territorial
limits of his primary jurisdiction in the following cases:
(1) Where the officer is acting pursuant to an
order issued by a court of record or an order
issued by a district magistrate whose
magisterial district is located within the judicial
district wherein the officer's primary jurisdiction
is situated, or where the officer is otherwise
acting pursuant to the requirements of the
Pennsylvania Rules of Criminal Procedure,
except that the service of an arrest or search
warrant shall require the consent of the chief law
enforcement officer, or a person authorized by
him to give consent, of the organized law
enforcement agency which regularly provides
primary police services in the municipality
wherein the warrant is to be served.
(2) Where the officer is in hot pursuit of any
person for any offense which was committed, or
which he has probable cause to believe was
committed, within his primary jurisdiction and for
which offense the officer continues in fresh
pursuit of the person after the commission of the
offense.
(3) 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.
(4) Where the officer has obtained the prior
consent of the chief law enforcement officer, or
a person authorized by him to give consent, of
the organized law enforcement agency which
provides primary police services to a political
subdivision which is beyond that officer's
primary jurisdiction to enter the other jurisdiction
for the purpose of conducting official duties
which arise from official matters within his
primary jurisdiction.
(5) Where the officer is on official business and
views an offense, or has probable cause to
[J-71-2018] - 15
believe that an offense has been committed,
and makes a reasonable effort to identify
himself as a police officer and which offense is
a felony, misdemeanor, breach of the peace or
other act which presents an immediate clear
and present danger to persons or property.
(6) Where the officer views an offense which is
a felony, or has probable cause to believe that
an offense which is a felony has been
committed, and makes a reasonable effort to
identify himself as a police officer.
42 Pa.C.S. § 8953(a). This Court has stressed that section 8953(a) extends the authority
of police officers to exercise official police duties outside of their primary jurisdictions only
in these six specific and limited circumstances. See, e.g., Martin v. Commonwealth, Dept.
of Transp., Bureau of Licensing, 905 A.2d 438, 445-46 (Pa. 2006). In addition, these
exceptions must be interpreted consistently with the MPJA’s “ultimate goal of maintaining
police accountability to local authority.” Merchant, 595 A.2d at 1139.
As an initial matter, the Commonwealth concedes here, as it did before the
Superior Court, that no agreement exists consistent with the ICA that authorized the
activities of the task force in conducting sobriety checkpoints. Nevertheless, the Superior
Court’s en banc panel held, and the Commonwealth argues here, that “neither the [t]ask
[f]orce nor the Robinson Township Police Department should be penalized for failing to
comply with the ICA” because the MPJA, rather than the ICA, governs extraterritorial
policing. Hlubin, 165 A.3d at 6; Commonwealth’s Brief at 18. Under this view, the ICA
applies generally to agreements by local municipal governments for cooperation, but has
no application to agreements dealing with cooperation between municipal police forces,
as extraterritorial policing by municipal police officers falls under the specific dictates of
the MPJA. Id. at 19, 22 (citing Hlubin, 165 A.3d at 3). The Commonwealth insists that
[J-71-2018] - 16
section 1933 of the Statutory Construction Act compels this conclusion. Section 1933
provides that where a “general provision in a statute” irreconcilably conflicts with a specific
provision in the same or another statute, the specific provision shall be construed as an
exception to the general provision unless the general provision was enacted later in time
and reflects the manifest intention of the General Assembly that it shall prevail over the
specific provision. 1 Pa.C.S. § 1933. The Commonwealth argues that with respect to
extraterritorial policing, the ICA and the MPJA are irreconcilable and thus we must apply
the specific statute (the MPJA) rather than the general statute (the ICA), as the MPJA
was more recently amended. Commonwealth’s Brief at 21.
Hlubin, by contrast, argues that municipal police officers may only leave their
primary jurisdictions to participate in a sobriety checkpoint like the one at issue here upon
an agreement under the ICA, because the responsibility of supervising police is a basic
function of local municipal government. Hlubin’s Brief at 17. In her view, municipal
government officials, not police officers, must decide whether their municipal police
officers should be deployed in other jurisdictions to conduct cooperative activities with
other police forces, or should instead remain, to the extent possible, in their primary
jurisdiction serving their own citizens. Id. at 25. According to Hlubin, such decisions are
integral to maintaining police accountability to local authority, as they affect core functions
for local governing bodies, including expenditures, allocation of personnel and liability
issues. Id.
The Commonwealth’s view requires an interpretation that policing is not a
government function, but rather that decisions in this area are best left to police
departments to make for themselves. Absent this interpretation, no irreconcilable conflict
[J-71-2018] - 17
exists between the ICA and the MPJA with respect to extraterritorial policing. The clear
language of both statutes reflects that they apply in different circumstances. The ICA
deals with durational agreements to permit municipalities to work together on a regular
and ongoing basis over time. The 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.12 53 Pa.C.S. § 2303. 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. 53
12 One clear example of the General Assembly’s manifest intention in this context is its
2014 amendments to the Borough Code. As amended, the Borough Code requires that
a borough council establish a police department and appoint officers, 8 Pa.C.S. § 1121(a),
and further authorizes the borough council to enter into ICA agreements with other
governmental entities to provide for “mutual aid or assistance” with other governmental
entities for the provision of police services. In particular, the 2014 Borough Code
empowers a borough:
[t]o enter into agreements with other political subdivisions, in accordance
with existing laws, … in carrying into effect provisions of 53 Pa.C.S. Ch. 23
Subch. A (relating to intergovernmental cooperation), and agreements with
the proper authorities of municipal corporations, regional police or fire forces
or other public safety or governmental entities created by two or more
municipal corporations under 53 Pa.C.S. Ch. 23 Subch. A, either for mutual
aid or assistance in police and fire protection or any other public safety
services, or for the furnishing to or receiving from the municipal corporations
or governmental entities police and fire protection or any other public safety
services, and to make appropriations for public safety services.
8 Pa.C.S. § 1202(24).
[J-71-2018] - 18
Pa.C.S. § 2305. The ordinance of each municipal governing body must reflect its local
control over the precise nature of the cooperation with the other municipalities, as it must
include agreement with regard to duration, purposes and objectives, financing and the
organizational structure necessary to implement the cooperation agreement. 53 Pa.C.S.
§ 2307.
Moreover, we note that neither the ICA nor the MPJA contains any language to
demonstrate that the General Assembly considered there to be any conflict between
them. To the contrary, section 8953(e) of the MPJA specifically references “cooperative
police service agreements with another municipality.”
(e) Existing and future municipal police service agreements
preserved.--Nothing in this section shall be construed to
restrict the authority of any municipality to maintain current or
to enter into new cooperative police service agreements with
another municipality or municipalities for purposes including,
but not limited to, describing conditions of mutual aid,
assigning liability and determining appropriate costs of these
cooperative efforts.
42 Pa.C.S. § 8953(e). The Commonwealth argues that this provision does not expressly
reference the ICA, but the section as a whole clearly speaks to the authority of
municipalities to enter into cooperation agreements with other municipalities of the type
envisioned in the ICA. As described in this section, such “joint police service agreements”
must include precisely the same information required of joint agreements under section
2307 of the ICA, including the nature and conditions of the cooperative relationship and
the costs associated therewith. As such, section 8953(e) may fairly be read to indicate
that cooperative relationships between municipalities with respect to the provision of
police services require compliance with the ICA unless authorized by one of the six
exceptions in section 8953(a).
[J-71-2018] - 19
The Commonwealth does not contest that the operations of the task force at issue
here could have been authorized pursuant to an ICA agreement. The governing bodies
of the fifteen municipalities and the City of Pittsburgh could have each passed ordinances
reflecting their understanding and agreement to permit their municipal police officers to
participate in sobriety checkpoints in other (non-primary) jurisdictions. Evidence
presented at the suppression hearing demonstrated that the task force is an ongoing
entity that has been in operation for many years and conducted between five and eleven
checkpoints annually. N.T., 3/13/2015, at 57. The policies and procedures manual
entered into evidence at the suppression hearing contains most, if not all, of the specific
information required by section 2307 of the ICA, including the purposes and objectives of
the task force, its principal funding mechanism, its organizational structure and the duties
and responsibilities of each participating police officer. Id. at 17 (Commonwealth’s Exhibit
1). This manual could have been converted into a qualifying ICA agreement and
submitted to the governing bodies of each of the municipalities for adoption by ordinance.
This did not occur. Instead, counsel for the Commonwealth represented at the
suppression hearing that the task force was “set up between the police forces
themselves.” N.T., 3/13/2015, at 99.
Because the efforts of the task force that resulted in Hlubin’s arrest and conviction
were not authorized by the ICA, its participating non-Robinson Township police officers,
including in particular Sergeant Ogden, had the authority to act outside the territorial limits
of their primary jurisdictions only if an exception in the MPJA so provides. The Superior
Court relied primarily on the exception in subsection 8953(a)(3) of the MPJA, which
authorizes a municipal police officer to operate outside of his primary jurisdiction when
[J-71-2018] - 20
“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. § 8953(a)(3). Hlubin submits
that such request must be contemporaneous with some criminal activity, anchoring her
argument in the subsection’s reference to “probable cause.” By contrast, the Superior
Court and Commonwealth maintain that 8953(a)(3) authorizes a municipal police officer
to cross jurisdictional boundaries upon any request for assistance by any other police
officer without restriction. In other words, the Commonwealth would read the two clauses
in subsection 8953(a)(3) as disjunctive, with only the second clause requiring any
contemporaneous criminal activity to justify the provision of aid or assistance.
We agree 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. We disagree, however, to the extent that the Commonwealth intends to
convey that the two situations do not need to be read together to give meaning to both.
Instead, they are related to each other in that each imputes the element of probable
cause. The first situation authorizes a municipal police officer to respond across
jurisdictional lines to assist another officer who, in addressing specific ongoing criminal
activity, requests aid or assistance.13 The second situation allows extraterritorial policing
13 In Hlubin’s view, with which we agree, classic requests for aid or assistance
encompassed by the first situation in subsection 8953(a)(3) involve calls over police radio
from an officer seeking assistance in detaining a fleeing burglary or robbery suspect, such
as in Commonwealth v. Palagonia, 868 A.2d 1212 (Pa. Super. 2005) (burglary) and
Commonwealth v. Peppers, 515 A.2d 971 (Pa. Super. 1986) (robbery). Hlubin’s Brief at
27-28. We further note that it authorizes extraterritorial policing in the circumstances
involved in Novick and Bable, which, under the prior statute, were not encompassed by
the hot pursuit exception. See supra n.11.
[J-71-2018] - 21
if a municipal police officer otherwise (i.e., other than by request) has probable cause to
believe that the other officer is in need of aid or assistance in addressing a specific
criminal episode. The General Assembly’s use of the words “or otherwise” to describe
the second situation compels this interpretation. Under the Commonwealth’s preferred
interpretation, the first situation broadly refers to any request for aid or assistance by an
officer in another jurisdiction while the second situation is narrowly tailored to a
circumstance where the officer has probable cause that the other officer is in need of aid
or assistance. This interpretation, however, treats the word “otherwise” as unnecessary
surplusage without any interpretative value. Our basic statutory construction principles
forbid this practice. See, e.g., 1 Pa.C.S. § 1921(a) (“Every statute shall be construed, if
possible, to give effect to all its provisions.”); Reginelli v. Boggs, 181 A.3d 293, 305 (Pa.
2018); Burke by Burke v. Independence Blue Cross, 171 A.3d 252, 260 (Pa. 2017).
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. The reference
to “probable cause,” in turn, connotes ongoing criminal activity or a crime in progress, as
the term invokes the well-known legal standard applicable to the commission of criminal
offenses. See, e.g., Commonwealth v. Burno, 154 A.3d 764, 781 (Pa. 2017) (explaining
that probable cause exists when “the facts and circumstances within the police officer's
knowledge and of which the officer has reasonably trustworthy information are sufficient
in themselves to warrant a person of reasonable caution in the belief that an offense has
been committed by the person to be arrested.”).
[J-71-2018] - 22
We further reject the Commonwealth’s preferred interpretation of subsection
8953(a)(3) because it is entirely at odds with this Court’s repeated insistence that the
exceptions to the MPJA must not “adversely affect the ultimate goal of maintaining
police accountability to local authority.” See, e.g., Merchant, 595 A.2d at 1139
(emphasis added). The Commonwealth’s interpretation, which would permit police
officers to cross jurisdictional lines in response to any request for aid or assistance
(including those unrelated to any particular criminal activity), is so broad that it essentially
eliminates local governing bodies from the decision-making process with respect to the
deployment of the police officers that they employ. 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. Merchant and our holding in this case
recognize the limits of the specifically authorized extraterritorial policing and the place of
intergovernmental agreements to effectuate broader arrangements for cooperation in
policing functions. For these reasons, we conclude that subsection 8953(a)(3) does not
authorize police officers to cross jurisdictional lines to participate in pre-arranged sobriety
checkpoints.
The Superior Court also suggested that the exception in subsection 8953(a)(4) of
the MPJA might also have authorized Sergeant Ogden’s participation in the September
28, 2013 sobriety checkpoint at issue here. Hlubin, 165 A.3d at 7 n.9. That court
reasoned that subsection 8953(a)(4) is applicable because Police Chief Vietmeier of
[J-71-2018] - 23
Robinson Township gave Sergeant Ogden his consent to participate in the sobriety
checkpoint in Robinson Township “as a member of the Task Force executing a joint DUI
checkpoint.” Id. Pursuant to subsection 8953(a)(4), the police officer must have prior
consent to enter the other jurisdiction from the chief law enforcement officer of the political
subdivision which is beyond the police officer’s primary jurisdiction “for the purpose of
conducting official duties which arise from official matters within his primary jurisdiction.”
42 Pa.C.S. § 8953(a)(4). We need not engage in any extended interpretative analysis of
this exception, however, as it plainly cannot apply with respect to conducting sobriety
checkpoints in another jurisdiction. Sergeant Ogden did not receive permission to enter
Robinson Township to perform any “official duties” relating to any official matters arising
“within his primary jurisdiction” of Moon Township. The record contains no evidence that
Sergeant Ogden observed Hlubin driving while intoxicated in Moon Township and then
obtained Chief Vietmeier’s consent to enter into Robinson Township to effectuate her
arrest. Simply put, Sergeant Ogden was not in Robinson Township to perform any police
duties associated with any official matters that “arose in his primary jurisdiction.”
The Superior Court erred in concluding that the exceptions in subsections
8953(a)(3) and/or 8953(a)(4) authorized any police officers, including Sergeant Odgen,
to cross jurisdictional lines to participate in a sobriety checkpoint in Robinson Township.
To conduct the type of sobriety checkpoint at issue in this case, a multi-jurisdictional task
force must be authorized by a joint agreement that complies with the requirements of the
ICA. Such compliance assures that DUI checkpoints allow police to generally promote
public safety by removing intoxicated drivers from our roads, and ensures that the
[J-71-2018] - 24
governing bodies of the participating municipalities retain local control over their police
forces.
II. Remedy
Hlubin contends that suppression is the required remedy because the police
officers conducting the sobriety checkpoint, including Sergeant Ogden, acted without any
authority conferred by either an ICA agreement or the MPJA. Hlubin’s Brief at 35.
Following the rationale of the Superior Court, the Commonwealth instead argues that at
most a “technical violation” of the MPJA occurred and that, accordingly, we should apply
the three-part test set forth in O’Shea. Commonwealth’s Brief at 45-48. The
Commonwealth submits that Sergeant Ogden’s brief detention of Hlubin was “more than
reasonable” and non-prejudicial, and that as a result suppression is not warranted. Id.
In O’Shea, in the course of investigating a murder, City of Pittsburgh police
detectives went to a suspect’s home in another jurisdiction, Shaler Township. The
detectives asked questions of the suspect’s family and, with the family’s consent, entered
and searched the home. Shortly thereafter, the suspect arrived home and voluntarily
accompanied the detectives to the Pittsburgh Public Safety Building, where he confessed
to the murder. O’Shea, 567 A.2d at 1028-29. The suspect later contended that the
detectives violated the MPJA when they pursued their investigation in Shaler Township.
This Court disagreed and stated that the detectives’ unobtrusive police conduct was
“outside the scope of 8953” and thus “not illegal[.]” Id. at 1029. The Court concluded that
while the detectives’ entry into Shaler Township was not specifically authorized by any
section 8953(a) exception to the MPJA, it was also not expressly prohibited by any of
these exceptions. Id. To the contrary, the Court acknowledged that any private citizen
[J-71-2018] - 25
could do precisely what these detectives had done (go to Shaler Township to ask
questions at the residence in question and search the home with consent), and thus
indicated that “we will not prohibit police officers from doing that which a private citizen
could do.” Id. Accordingly, the O’Shea Court held that the detectives had not violated
the MPJA or otherwise committed any constitutional violation whatsoever. Id. at 1029-
30.
Having determined that the detectives did not lack statutory authority under the
MPJA to enter Shaler Township, and that their search of the residence did not violate any
provision of the Pennsylvania or United States Constitutions, the Court alternatively
addressed the suppression court’s rationale that even if the detectives had violated the
MPJA, suppression was not required. Id. at 1030. Relying principally on Commonwealth
v. Mason, 490 A.2d 421 (Pa. 1985), a case involving the extraterritorial service of an
arrest warrant in violation of the Pennsylvania Rules of Criminal Procedure, the Court
held that suppression was not required where “said violation did not implicate
fundamental, constitutional concerns, was not conducted in bad faith or did not
substantially prejudice the accused in the sense that the search would not otherwise have
occurred or would not have been as intrusive.” Id. at 1030 (citing Mason, 490 A.2d at
426). The O’Shea Court approved of a case-by-case three-factor test to determine the
remedy for violations of the MPJA which considers “all of the circumstances of the case
including the intrusiveness of the police conduct, the extent of deviation from the letter
and spirit of the [MPJA], and the prejudice to the accused.” Id.
In applying the O’Shea test in the present case, we reach a result contrary to that
of the Superior Court, as we conclude that all three factors weigh in favor of suppression.
[J-71-2018] - 26
With respect to the test’s first factor, the intrusiveness of the police conduct, O’Shea, 567
A.2d at 1030, the Superior Court pointed to Sergeant Ogden’s testimony that stops at the
task force’s checkpoints “lasted only 30 to 45 seconds in length and involved officers first
identifying themselves, asking for a driver's identifying documents (license, registration
and insurance), and posing limited follow-up questions.” Hlubin, 165 A.3d at 9 (citing
N.T., 3/13/15, at 26–27). This testimony, however, is irrelevant to the application of the
first O’Shea factor, as it describes only the level of intrusiveness (or lack thereof) of a
checkpoint stop that does not result in any additional investigative measures, i.e., the
driver is permitted to leave the checkpoint immediately after providing identifying
documents and answering limited follow-up questions. In the sobriety checkpoint context,
the first O’Shea factor must instead measure the level of intrusion of a stop that results in
an arrest, since only in this circumstance does the issue of possible suppression of
evidence arise. Here, based upon his initial questions and observations, Sergeant Ogden
removed Hlubin from her vehicle and took her to a testing area, where she was subjected
to field sobriety testing, blood testing and arrest. N.T., 3/13/15, at 33-34, 62-68. Without
question, the interaction between Sergeant Ogden and Hlubin resulted in a high level of
intrusiveness for Hlubin.
With respect to the second factor, the extent of deviation from the “letter and spirit
of the [MPJA],” O’Shea, 567 A.2d at 1030, the Superior Court again erred in its analysis.
The intermediate appellate court, citing to the task force’s policies and procedures
guidelines, stated that sobriety checkpoints “furthered the purpose of the MPJA by
‘reduc[ing] the accidental death, injury and property-damage resulting from motor vehicle
crashes involving intoxicated and chemically impaired operators ... decreas[ing] the
[J-71-2018] - 27
number of intoxicated and chemically impaired offenders on the highways of the member
communities by conducting sobriety checkpoints.’” Hlubin, 165 A.3d at 9 (citing Ex. 1 at
2. While this may be a generally accurate statement of the purpose of sobriety
checkpoints, it is not in any respect an accurate statement of the “letter and spirit of the
[MPJA].”
In Merchant, this Court held that the goals of the MPJA are “the promotion of public
safety while maintaining jurisdictional police lines” and to “expand the powers of local
police to protect the public, where such expansion would not adversely affect the ultimate
goal of maintaining police accountability to local authority.” Merchant, 595 A.2d at 1139.
The presence of municipal police officers from a large number of municipalities
converging at a single location to conduct extraterritorial policing activities without the
approval of the governing bodies of their respective townships, neither promotes the
maintenance of jurisdictional lines nor preserves accountability to local authority. The
MPJA allows extraterritorial policing only in “six specific circumstances.” Id. (emphasis
in original); see also Commonwealth v. Ebersole, 492 A.2d 436, 438 (Pa. Super. 1985)
(stating that one of the purposes of the MPJA is “to provide police officers with authority
to make arrests outside of their primary jurisdictions in limited situations.”) (emphasis
added). Where municipal police officers leave their primary jurisdictions to participate in
task force activities on a regular basis in other jurisdictions, jurisdictional lines are not
maintained but rather are obliterated. Moreover, as explained hereinabove, where this
extraterritorial activity has no advance legislative approval or legal oversight, there is
plainly no accountability to local authority.
[J-71-2018] - 28
The third factor requires consideration of the prejudice to the accused, which we
defined in O’Shea to require consideration of whether “the search would not have
otherwise occurred or would not have been as intrusive.” O’Shea, 567 A.2d at 1030. On
the current record, this factor also weighs in favor of suppression. Sergeant Ogden
testified that the sobriety checkpoint that resulted in Hlubin’s arrest required the
participation of twenty-five police officers to conduct it. N.T., 3/13/2015, at 15. He did not
indicate, however, how many extraterritorial officers were required to fill this quota on the
night in question. As a result, on this record there is no way to determine whether the
sobriety checkpoint operation at issue here could have been conducted at all without the
participation of Sergeant Ogden and other extraterritorial officers. Accordingly, absent
multiple violations of the MPJA, there may have been no sobriety checkpoint in Robinson
Township on September 29, 2013 and thus no stop of Hlubin on that occasion. Moreover,
the task force’s policies and procedures manual provides that Sergeant Ogden, as the
task force’s grant coordinator, was required to be present at every sobriety checkpoint
conducted by the task force. Commonwealth Exhibit 1 at 2 (“The Grant Coordinator shall
be present to oversee every checkpoint operation… .”), and at 3 (“The Grant Coordinator
will be present at all checkpoint operations… .”). As such, without Sergeant Ogden’s
unauthorized presence at the Robinson Township sobriety checkpoint, it could not have
taken place and Hlubin would not have been stopped. The extraterritorial efforts of
Sergeant Ogden, among others, were therefore prejudicial to Hlubin, as it is likely that
there would not have been a sobriety checkpoint in Robinson Township to stop and arrest
her, absent multiple violations of the MPJA. Thus, the analysis under the three-factor
[J-71-2018] - 29
O’Shea test leads to the suppression of the evidence derived from the illegal detention
and arrest.
III. Continued Vitality of O’Shea
We recognize that since our decision in O’Shea, the Superior Court has on several
occasions applied O’Shea’s three-factor test to determine whether evidence obtained as
a result of an MPJA violation should be suppressed. See, e.g., Commonwealth v.
Bergamasco, 197 A.3d 805, 813 (Pa. Super. 2018); Commonwealth v. Borovichka, 18
A.3d 1242, 1250 (Pa. Super. 2011); Commonwealth v. Hilliar, 943 A.2d 984, 992 (Pa.
Super. 2008); Commonwealth v. Henry, 943 A.2d 967, 973 (Pa. Super. 2008);
Commonwealth v. Peters, 915 A.2d 1213, 1222 (Pa. Super. 2007); Commonwealth v.
Chernosky, 874 A.2d 123, 129-30 (Pa. Super. 2005) (en banc); Commonwealth v.
McPeak, 708 A.2d 1263, 1267 (Pa. Super. 1998); Commonwealth v. Garnett, 613 A.2d
569, 572 (Pa. Super. 1992); Commonwealth v. Fetsick, 572 A.2d 793, 797 (Pa. Super.
1990)..
While the parties to the present appeal have not asked this Court to overrule
O’Shea and raise no arguments to suggest that it has been overruled by implication, for
the reasons that follow, however, we are unwilling to expressly condone the continued
application of its three-factor test.
First, we note that this Court has never again applied the O’Shea test in any
subsequent suppression case involving a violation of the MPJA. More pointedly, in the
one case to raise this issue since we decided O’Shea in 1989, Commonwealth v.
McCandless, 648 A.2d 309 (Pa. 1994), this Court conspicuously did not apply it. In
McCandless, after concluding that the police officer lacked any statutory authority to cross
[J-71-2018] - 30
a municipal boundary under subsection 8953(a)(2) of the MPJA to follow a driver on
suspicion (but not probable cause) of speeding, this Court summarily reversed the
Superior Court’s decision that the evidence of speeding should not have been
suppressed. Id. at 311 (“Appellant's motion to suppress was, therefore, properly granted
by the lower court. In reversing, the Superior Court erred.”). We did so without
referencing the three-factor case-by-case test adopted in O’Shea to determine whether
suppression is the appropriate remedy for violations of the MPJA. In dissent, then-Justice
Castille protested that “the majority fails even to cite to O’Shea[,]” in “disregard of its
reasoning … adopted only five years ago.” Id. at 313 (Castille, J., dissenting).
Second, in cases decided since McCandless, this Court has consistently held that
when individuals engage in criminal law enforcement activities without any statutory
authority to do so, evidentiary suppression is the remedy for any and all breaches. 14
14 Contrary to Chief Justice Saylor’s contention in his Concurring and Dissenting Opinion,
the present Opinion does not “effectively overrule” the O’Shea test. That test was
“effectively overruled” by our 1994 decision in McCandless, where, over the pointed
objection of a dissenting Justice, we did not even mention it in a circumstance where its
application would have been patently obvious if the test had any continuing vitality. We
have not applied the test on a single occasion in the twenty-five years since McCandless
was decided. Rote application of O’Shea under these circumstances would require that
we turn a blind eye to our own precedent.
The reason for the Chief Justice’s continuing attachment to the O’Shea test is not entirely
clear, particularly given his call for statutory interpretation to resolve these jurisdictional
issues. Concurring and Dissenting Op. at 2. The O’Shea test is a straightforward test of
“good faith,” measuring the degree of intrusiveness and extent of deviation from the MPJA
against the resulting prejudice. As such, it is antithetical to the notion of interpreting the
statutory language of the MPJA. Section 8952 provides municipal police officers with
extensive powers to act within their primary jurisdiction, but section 8953 makes clear that
these powers may only be exercised outside of the primary jurisdiction in circumstances
where one of the six specific exceptions in section 8953(a) applies. See infra at 34-35.
Rather than apply the unambiguous language of the MPJA, O’Shea allows courts to
ignore the clear jurisdictional lines drawn by the General Assembly.
[J-71-2018] - 31
Commonwealth v. Mathis, 173 A.3d 699, 706-07 (Pa. 2017).15 In Commonwealth v.
Marconi, 64 A.3d 1036 (Pa. 2013), for example, we held that sheriffs lack any statutory
authority under the Motor Vehicle Code (“MVC”) to conduct sobriety checkpoints, as
section 6308(b) of the MVC limits authorization to conduct such activities to “police
officers.” Id. at 1043-44. Noting that the MVC defines “police officer” as a “natural person
authorized by law to make arrests for violations of law,” 75 Pa.C.S. § 102, and concluding
that sheriffs’ common-law peacekeeping powers did not satisfy this definition, we agreed
with the Superior Court’s decision to affirm the trial court’s grant of suppression. Marconi,
64 A.3d at 1044.
In other cases, we vacated the Superior Court’s decision to deny suppression after
we rejected a sheriff's claim of authority to conduct independent investigations pursuant
to the Controlled Substance, Drug, Device and Cosmetic Act, Commonwealth v. Dobbins,
934 A.2d 1170 (Pa. 2007); we suppressed evidence obtained pursuant to a traffic arrest
conducted by a constable after concluding that constables have no statutory authority to
enforce motor vehicle laws, Commonwealth v. Roose, 710 A.2d 1129, 1130 (Pa. 1998);
and similarly suppressed evidence after concluding that FBI agents lack any statutory
authority to stop and arrest a motorist for MVC violations, Commonwealth v. Price, 672
A.2d 280 (Pa. 1996); see also Kopko v. Miller, 892 A.2d 766 (Pa. 2006) (explaining that
sheriffs do not have criminal investigative and arrest authority relative to the Wiretapping
15 In Mathis, the Court did not suppress evidence obtained pursuant to a Terry frisk of a
non-offender by a parole agent during the course of his supervisory duties with regard to
a parolee despite the lack of express authority to do so. In so doing, however, we
distinguished the situation in that case from the “lack of statutory authorization cases cited
here, on the grounds that the Terry search was conducted solely for the safety of the
agent and not for the discovery of evidence of crime or any exercise of criminal
investigative powers.” Id. at 710.
[J-71-2018] - 32
and Electronic Surveillance Control Act). We know of no principled reason why we should
treat the actions of municipal police officers lacking statutory authorized under the MPJA
any differently than statutorily unauthorized actions of sheriffs, constables or FBI agents.
This Court has also addressed the propriety of the suspension of a driver’s license
where the evidence supporting the suspension was obtained as a result of a violation of
the MPJA. ln Martin v. Commonwealth, Dept. of Transp., Bureau of Licensing, 905 A.2d
438 (Pa. 2006), a municipal police officer, without any authority to do so under the MPJA,
crossed a municipal line to follow a driver that he suspected (but lacked probable cause)
of speeding. Id. at 439. After stopping the vehicle, the officer observed signs of
intoxication and requested that the driver submit to field sobriety testing. Id. She refused
and began to walk away, at which time the officer arrested her for DUI. Id. At a booking
center, she refused to submit to chemical testing. Id. In reviewing the suspension of her
driver’s license under the Implied Consent Law, 75 Pa.C.S. § 1547, this Court agreed
with the trial court that the officer lacked authority under the MPJA to pursue and arrest
appellant in an adjoining jurisdiction. Id. at 446. Based upon this determination, we
further concluded that the officer lacked the authority to implement the Implied Consent
Law. Id. at 448. As a result, we ruled that the appropriate remedy was to reinstate the
trial court’s order invalidating the license suspension. Id.
In so ruling, we followed our prior decision in McKinley v. Commonwealth, Dep’t of
Transp., Bureau of Driver Licensing, 838 A.2d 700 (Pa. 2003), a case involving an
extraterritorial stop by a corporal of the Harrisburg International Airport of a motorist he
suspected of DUI. Upon determining that the encounter took place beyond the corporal’s
territorial jurisdiction, this Court invalidated the driver’s license suspension. Id. at 706
[J-71-2018] - 33
(holding that “as the Legislature has circumscribed their police authority,” the airport
police lack “the ability to act as a police officer in the implementation of the Implied
Consent Law outside territorial boundaries, in the absence of an express, legislative grant
of extraterritorial authority”). With respect to our decisions in both Martin and McKinley,
we recognize that suppression of evidence in the criminal context is not precisely on the
same footing as the suspension of driver’s licenses. We perceive no good explanation,
however, as to why, in circumstances in which statutory authority to act is lacking, the
lenient standard for avoiding the remedy of suppression of evidence associated with
criminal arrests under the O’Shea three-factor test (implicating the constitutional rights of
the accused) would not have also applied to civil penalties under the Implied Consent
Law if the O’Shea test had any continued vitality.
IV. Conclusion
Section 8952 of the MPJA provided Sergeant Ogden, as a municipal police officer,
with extensive powers to act within his primary jurisdiction, including to “enforce the laws
of this Commonwealth or otherwise perform the functions of that office” as to any offense
which he viewed or otherwise had probable cause to believe was committed within his
primary jurisdiction, or any other event that occurs within his primary jurisdiction to
“preserve, protect or defend persons or property or to otherwise maintain the peace and
dignity of this Commonwealth.” 42 Pa.C.S. § 8952. Section 8953(a) of the MPJA,
however, limited his exercise of these powers outside of his primary jurisdiction to
circumstances where he left his primary jurisdiction based upon one of the six specific
exceptions set forth therein. 42 Pa.C.S. § 8953(a). Section 8953(b) makes clear that the
powers described in section 8952 may be exercised outside of a municipal police officer’s
[J-71-2018] - 34
primary jurisdiction only where one of the six exceptions set forth in section 8953(a)
applies. 42 Pa.C.S. § 8953(b) (“Nothing contained in subsection (a) shall be deemed to
extend or otherwise enlarge a municipal police officer's power and authority to arrest any
person for an offense unless specifically authorized by law.”).
Based upon the clear language of these provisions of the MPJA and our conclusion
that no exception in section 8953(a) applied here to permit Sergeant Ogden to leave his
primary jurisdiction of Moon Township to participate in a sobriety checkpoint in Robinson
Township, we must conclude that he lacked any authority to exercise the powers of a
municipal police officer when he did so. On the night in question, Sergeant Ogden pulled
Hlubin over and detained her. He requested her driver’s license and questioned her. The
Commonwealth does not contest that his actions constituted a detention and played a
significant role in developing probable cause to arrest and charge her with DUI. Because
the task force in which Sergeant Ogden was participating was not authorized by a joint
agreement compliant with the ICA, and because his actions were not authorized pursuant
to an exception under MPJA, all evidence gathered at the sobriety checkpoint against
Hlubin must be suppressed.
The order of the Superior Court is hereby reversed.
Justices Todd and Wecht join the opinion in full, and Chief Justice Saylor and
Justices Baer and Dougherty join Parts I and IV.
Chief Justice Saylor files a concurring and dissenting opinion in which Justices
Baer and Dougherty join.
Justice Mundy files a dissenting opinion.
[J-71-2018] - 35