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Commonwealth v. Arter

Supreme Court of Pennsylvania

December 28, 2016

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
KHIRI ARTER, Appellant

          ARGUED: April 5, 2016

         Appeal from the Order of the Superior Court dated October 8, 2014 at No. 396 MDA 2014, affirming the Judgment of Sentence of the Court of Common Pleas of Dauphin County, Criminal Division, at No. CP-22-CR-0001297-2012, dated February 4, 2014

          SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.

          OPINION

          TODD JUSTICE

         We granted allowance of appeal in the instant case to determine whether illegally-obtained evidence which is suppressed during criminal proceedings should likewise be suppressed during parole and probation revocation proceedings pursuant to Article I, Section 8 of the Pennsylvania Constitution. We conclude that it should, and, therefore, we reverse the Superior Court's order affirming the trial court's denial of Appellant Khiri Arter's motion to suppress, vacate the order revoking Appellant's parole, and remand to the trial court for further proceedings.

         I. Factual and Procedural Background

         At approximately 5:30 p.m. on May 15, 2013, Harrisburg Police Officer Darin Bates and Dauphin County Adult Probation Officer ("APO") Richard Anglemeyer were traveling in an unmarked police vehicle in an area known for frequent drug activity when they observed two men conversing on a street corner; one of those men was Appellant. According to Officer Bates' testimony, APO Anglemeyer recognized Appellant as one of his parolees, [1] and asked Officer Bates to stop the vehicle. APO Anglemeyer walked toward Appellant, and then summoned Appellant to come and speak with him. APO Anglemeyer told Appellant that he was his assigned probation officer, and proceeded to give him reporting instructions. APO Anglemeyer then asked Appellant if he could search him, and Appellant declined, stating, "Come on, man. You gonna do me like that? I just got out of jail." N.T. Hearing, 11/14/13, at 16. Notwithstanding Appellant's objection, APO Anglemeyer performed a pat-down search of Appellant and felt a bulge in the right coin pocket of Appellant's pants. APO Anglemeyer reached into Appellant's pocket and retrieved what appeared to be crack cocaine. APO Anglemeyer then "turned the case over to Officer Bates, " who arrested Appellant. Id. at 18. A search incident to his arrest revealed that Appellant was carrying a second bag of cocaine, a digital scale, a cell phone, and $21.

         The Commonwealth charged Appellant with possession with intent to deliver a controlled substance and possession of drug paraphernalia. As a consequence of the new criminal charges, the Dauphin County Adult Probation and Parole Office issued a detainer against Appellant, asserting that he violated the terms of his parole, and requesting a revocation hearing.

         At the ensuing criminal proceedings on the new drug charges, commenced in the Dauphin County Court of Common Pleas, Appellant filed a motion to suppress the evidence seized by APO Anglemeyer. The Honorable Andrew H. Dowling granted Appellant's motion to suppress, concluding the search of Appellant was not supported by reasonable suspicion, as required under 42 Pa.C.S. § 9912(d)(1)(i). As discussed further below, pursuant to Section 9912(d)(1)(i), a parole officer may conduct a personal search of an offender, inter alia, "if there is a reasonable suspicion to believe that the offender possesses contraband or other evidence of violations of the conditions of supervision." The Commonwealth did not appeal the trial court's order, and instead filed a nolle prosequi. Furthermore, in its brief to this Court, the Commonwealth does not contest the trial court's determination that APO Anglemeyer did not have reasonable suspicion to conduct a search of Appellant pursuant to Section 9912(d)(1)(i), nor does the Commonwealth dispute that the evidence was properly suppressed in the criminal proceedings.

         On January 13, 2014, in anticipation of his parole revocation hearing, and recognizing that the United States Supreme Court has ruled that the exclusionary rule is not applicable to revocation proceedings under the Fourth Amendment, Appellant filed a motion to suppress the evidence seized by APO Anglemeyer under the privacy protections of Article I, Section 8 of the Pennsylvania Constitution. At his parole revocation hearing, the trial judge, the Honorable Deborah E. Curcillo, denied Appellant's suppression motion, revoked his parole, and resentenced Appellant to serve the balance of his sentence. In an opinion pursuant to Pa.R.A.P. 1925(a), the trial court relied on Commonwealth v. Lehman, 851 A.2d 941 (Pa. Super. 2004), in which the Superior Court declined to apply the exclusionary rule to parole and probation revocation proceedings under Article I, Section 8. Appellant filed a timely appeal to the Superior Court.

         A three-member panel of the Superior Court, in an unpublished judgment order, affirmed the trial court's denial of Appellant's motion to suppress. In doing so, the Superior Court recognized that the United States Supreme Court, in Pa. Bd. of Probation & Parole v. Scott, 524 U.S. 357 (1998), held that the exclusionary rule does not apply in revocation proceedings. Commonwealth v. Arter, 396 MDA 2014, at 2 (Pa. Super. filed Oct. 8, 2014). The Superior Court also noted that this Court has held that "the Pennsylvania Constitution does not generally provide parolees with greater protection than the Fourth Amendment when it comes to searches and seizures." Id. at 1 (citing Commonwealth v. Williams, 692 A.2d 1031, 1039 (Pa. 1997)). Finally, the Superior Court determined that it was bound by its own decision in Lehman, in which the court stated, "absent direction from our supreme court to the contrary, no deviation from the approach of the U.S. Supreme Court in Scott, supra, is warranted." Lehman, 851 A.2d at 943, quoted in Arter, 396 MDA 2014, at 2.

         Appellant filed a petition for allowance of appeal, and this Court granted allocatur to consider whether the Superior Court erred in upholding the trial court's denial of Appellant's motion to suppress based on Article I, Section 8 of the Pennsylvania Constitution. Commonwealth v. Arter, 120 A.3d 299 (Pa. 2015) (order).

         II. Analysis

         As Appellant challenges the Superior Court's decision affirming the trial court's denial of his motion to suppress, we first note our well established standard of review of claims regarding the denial of a suppression motion:

We may consider only the Commonwealth's evidence and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. An appellate court, of course, is not bound by the suppression court's conclusions of law.

Commonwealth v. Gary, 91 A.3d 102, 106 (Pa. 2014) (citation omitted). In reviewing questions of law, our standard of review is de novo and our scope of review is plenary. Weaver v. Lancaster Newspapers, Inc., 926 A.2d 899, 903 (Pa. 2007).

          The instant matter implicates both the Fourth Amendment to the United States Constitution, and Article I, Section 8 of the Pennsylvania Constitution. The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV.

         Article I, Section 8 provides:

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

Pa. Const. art. I, § 8.

         Plainly speaking, both the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution generally require that, prior to conducting a search of an individual or his or her property, the police must obtain a warrant, supported by probable cause and issued by a neutral magistrate. Commonwealth v. Petroll, 738 A.2d 993, 998 (Pa. 1999). This rule is subject to limited exceptions, such as the existence of exigent circumstances. Id. at 999.

         To effectuate the rights guaranteed under the Fourth Amendment, in the early part of the last century, the United States Supreme Court adopted the exclusionary rule, which bars the use of evidence obtained through an illegal search and seizure. Weeks v. United States, 232 U.S. 383 (1914). Although the rule initially applied only to federal prosecutions, in Mapp v. Ohio, the high Court expanded the scope of the exclusionary rule to state prosecutions. 367 U.S. 643, 655 (1961) (holding "all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court").

         The high Court has repeatedly explained that the purpose of the exclusionary rule is not to "cure the invasion of the defendant's rights which he has already suffered." United States v. Leon, 468 U.S. 897, 906 (1984) (citation omitted). Rather, the rule is a "judicially created means of deterring illegal searches and seizures." Scott, 524 U.S. at 363 (citing United States v. Calandra, 414 U.S. 338, 348 (1974)). Thus, the high Court has stated that the exclusionary rule applies only "where its remedial objectives are thought most efficaciously served." Calandra, 414 U.S. at 348; see also United States v. Janis, 428 U.S. 433, 454 (1976) ("If . . . the exclusionary rule does not result in appreciable deterrence, then, clearly, its use . . . is unwarranted."); Leon, 468 U.S. at 908 (evidence seized in good faith by police pursuant to warrant duly issued by a magistrate, but which is later deemed unsupported by probable cause, need not be suppressed pursuant to Fourth Amendment because the deterrence goal of the exclusionary rule would not be served). Further, the rule applies "only where its deterrence benefits outweigh its 'substantial social costs.'" Scott, 524 U.S. at 363 (quoting Leon, 468 U.S. at 907).

         Of particular relevance to the instant case, in accordance with this balancing approach - requiring that the exclusionary rule's deterrence benefits outweigh its social costs - the United States Supreme Court consistently has declined to extend the exclusionary rule to proceedings other than criminal trials. For example, in Calandra, the high Court held that the exclusionary rule does not apply to grand jury proceedings, noting that such proceedings play a special role in the law enforcement process, and concluding that the flexible, non-adversarial nature of the proceedings would be jeopardized if the exclusionary rule were to apply. 414 U.S. at 343-46. In Janis, the Court held that the exclusionary rule did not preclude the introduction of unconstitutionally obtained evidence in a federal civil tax proceeding because the cost of excluding the relevant and reliable evidence would outweigh the marginal deterrence benefits. 428 U.S. at 448, 454. In INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984), the high Court refused to extend the exclusionary rule to civil deportation proceedings, citing the high social cost of permitting an immigrant to remain in the country illegally and the incompatibility of the rule with the administrative nature of deportation proceedings.

         Finally, and dispositive of Appellant's right to relief under the Fourth Amendment, in Scott, the high Court specifically declined to extend application of the exclusionary rule to parole revocation proceedings. In Scott, which arose out of Pennsylvania state proceedings, a condition of Scott's parole was that he refrain from owning or possessing weapons. Scott signed a parole agreement which provided:

I expressly consent to the search of my person, property and residence, without a warrant by agents of the Pennsylvania Board of Probation and Parole. Any items, in [sic] the possession of which constitutes a violation of parole/reparole shall be subject to seizure, and may be used as evidence in the parole revocation process.

524 U.S. at 360.

         Several months after he was paroled, parole officers suspected that Scott had violated several conditions of his parole, including the prohibition against possessing firearms. The parole officers arrested Scott at a local diner, whereupon Scott gave the parole officers the keys to his residence, which was owned by his mother. Without obtaining a warrant, the parole officers entered the residence, although they did not conduct a search until Scott's mother arrived. Notably, the parole officers did not request permission to conduct a search, and Scott's mother did not give permission for a search, although she did direct them to Scott's bedroom, wherein the officers found, inter alia, five firearms. At his subsequent parole violation hearing, Scott sought suppression of the evidence on the ground that the search violated his rights against unreasonable searches and seizures under the Fourth Amendment. The hearing examiner rejected Scott's challenge and admitted the evidence, and the Pennsylvania Board of Probation and Parole revoked Scott's parole.

         Scott appealed, and the Commonwealth Court reversed and remanded, holding the search of Scott's residence was conducted without the owner's consent, and, moreover, was not authorized by any state statutory or regulatory framework ensuring the reasonableness of searches by parole officers. Commonwealth v. Scott, 668 A.2d 590, 597 (Pa. Cmwlth. 1995). Additionally, the court concluded that the exclusionary rule should apply because the benefit of deterring unlawful police conduct substantially outweighed the injury resulting from exclusion of the evidence. Id. at 600. The Commonwealth appealed the Commonwealth Court's decision, and, ultimately, this Court affirmed the Commonwealth Court's holding in Scott. Commonwealth v. Scott, 698 A.2d 32 (Pa. 1997).[2] Initially, we opined that the signed parole agreement was immaterial to Scott's Fourth Amendment right against unreasonable searches and seizures. Id. at 36. We then determined that the search of Scott's residence was unreasonable because it was supported by the agents' "mere speculation, " as opposed to reasonable suspicion, of a parole violation. Id. Finally, "modify[ing]" our prior holding in Commonwealth v. Kates, 305 A.2d 701 (Pa. 1973), wherein we held that the federal exclusionary rule did not apply to parole revocation proceedings, we concluded that the exclusionary rule did apply because the officers who conducted the search knew of Scott's parole status, and application of the rule was necessary to deter illegal searches of parolees. Id. at 38-39.

         Subsequently, the United States Supreme Court granted certiorari, and reversed this Court's decision. Reiterating that the federal exclusionary rule is designed to deter illegal searches and seizures, and, thus, should only be applied where the deterrence objective can be served, and noting that it previously declined to extend the exclusionary rule to proceedings other than criminal trials, see Janis, Calandra, and Lopez-Mendoza, the high Court concluded:

Application of the exclusionary rule would both hinder the functioning of state parole systems and alter the traditionally flexible, administrative nature of parole revocation proceedings. The rule would provide only minimal deterrence benefits in this context, because application of the rule in the criminal trial context already provides significant deterrence of unconstitutional searches.

524 U.S. at 364.

         While, as a federal matter, it is undisputed that the exclusionary rule does not apply to revocation proceedings, in the case sub judice, Appellant argues that this Court should apply the exclusionary rule to probation and parole revocation proceedings pursuant to the distinct privacy protections of Article I, Section 8 of the Pennsylvania Constitution. Indeed, it is well settled that, in interpreting a provision of the Pennsylvania Constitution, this Court is not bound by decisions of the United States Supreme Court which interpret similar federal constitutional provisions. Commonwealth v. Edmunds, 586 A.2d 887, 894 (Pa. 1991). Rather, "the federal constitution establishes certain minimum levels which are 'equally applicable to the [analogous] state constitutional provision, '" and "each state has the power to provide broader standards, and go beyond the minimum floor which is established by the federal Constitution." Id. (citations omitted). Moreover, "[t]he United States Supreme Court has repeatedly affirmed that the states are not only free to, but also encouraged to engage in independent analysis in drawing meaning from their own state constitutions." Id. As we discuss below, this Court has determined that Article I, Section 8 affords broader protection than the Fourth Amendment in a variety of circumstances.

         As we further explained in Edmunds, when a litigant seeks relief based exclusively on the Pennsylvania Constitution, as does Appellant in this case, it is important that the litigant brief and analyze the following four factors: (1) the text of the Pennsylvania constitutional provision; (2) the history of the provision, including Pennsylvania case law; (3) relevant case law from other jurisdictions; and (4) policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence. Edmunds, 586 A.2d at 895; Commonwealth v. Russo, 934 A.2d 1199, 1205 (Pa. 2007). Appellant has addressed in his brief each of the four Edmunds factors. Thus, to determine whether illegally-seized evidence is subject to the exclusionary rule under Article I, Section 8, we proceed to consider these factors seriatim.

         A. Comparative text of federal and state constitutional provisions

         The first prong of an Edmunds analysis requires an examination of the text of the relevant state constitutional provisions. As set forth above, Article I, Section 8 of the Pennsylvania Constitution provides:

         Security from searches and seizures

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable ...

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