SUBMITTED: September 7, 2016
from the Order of the Superior Court dated October 28, 2015
at No. 2074 MDA 2014 Affirming the Order of the York County
Court of Common Pleas, Criminal Division, dated November 6,
2014 at No. CP-67-CR-0004536-2014
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY,
OPINION IN SUPPORT OF AFFIRMANCE
discretionary appeal, we consider whether Article 1, Section
8 of the Pennsylvania Constitution requires the suppression
of evidence seized pursuant to a search warrant when the
information contained in the affidavit in support of probable
cause is later determined to be demonstrably untrue, despite
the absence of any showing of police misconduct. Based upon
this Court's historical rejection of a "good
faith" exception to the exclusionary rule, e.g.,
Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), the
trial court properly suppressed the evidence in this case.
2014, Detective Anthony Fetrow of the York Police Department
was investigating a recent burglary at 1039 E. Philadelphia
Street. The investigation led Detective Fetrow to a suspect,
Aaron Shifflet, who lived next to the burglarized residence.
When Detective Fetrow spoke with Shifflet at his residence,
he noticed that Shifflet had cuts on his hands and arms that
were just beginning to heal. Detective Fetrow took Shifflet
to the police station, where Shifflet waived his rights and
admitted to committing the burglary with a man he knew only
as "Radio." Shifflet gave Detective Fetrow a
physical description of Radio, and he subsequently picked out
a photograph of Appellee, Lorne Brett Hopkins
("Hopkins"), from a photographic line-up. Based
upon the information Shifflet provided about the burglary,
Detective Fetrow sought a search warrant for Hopkins'
residence. In the affidavit in support of probable cause for
the issuance of the warrant, he averred as follows:
[Shifflet] admitted to conspiring with another male who he
knew only by the nickname of "Radio." He advised
that the day prior to the burglary, he spoke with
"Radio" and [Shifflet] suggested targeting the
victims who reside at 1039 E. Phila. St. On the date of and
time period of the burglary, "Radio" came over to
[Shifflet's] address and they made sure the victims
weren't home by knocking several times. They broke out
the side window with a rock and knocked enough glass out to
both crawl through. [Shifflet] advised that both of them got
cut and were bleeding as a result. "Radio" rummaged
and searched the victims' house for valuables, [Shifflet]
left and went to his house to wash off the blood and then
operated as a lookout from inside his front door.
"Radio" tied his hooded jacket around himself to
stop the bleeding. [Shifflet] was going to knock on the
victims' front door if he saw anyone or the police come
into the area. Appx. [sic] [fifteen] mins. later,
"Radio" exited through the victims' front door
carrying a dark blue duffel bag and fled on foot. [Shifflet]
said that he thought the bag also came from the victims'
house. "Radio" was supposed to give [Shifflet]
money for helping but he never received anything. … He
described "Radio" as a light skinned, biracial
[b]lack male who lives in the 600 Blk. [sic] Chestnut St. He
later picked "Radio" out of a photo identification
line-up and was identified as [Hopkins], D.O.B., 8/17/88.
Shifflet was charged in the burglary at 10[:]39 and committed
to the York County Prison. On 6/2/14, I confirmed with the
parole officer of [Hopkins] that his current residence is 676
Chestnut St. where he resided with his grandparents and
several other relatives.
Based on the above information, I am requesting a search
warrant to search the residence and curtilage of 676 Chestnut
St. I also request that any occupants present at the time of
the search be subject to a search to make sure that evidence,
contraband and/or stolen property is not secreted on their
persons or destroyed.
Application for Search Warrant, 6/2/2014, at 2-3.
the police executed the search warrant on June 3, 2014, they
found none of the items stolen from 1039 E. Philadelphia
Street or any other evidence that might prove that Hopkins
had participated in that burglary. The police did, however,
discover evidence of unrelated crimes, including crack
cocaine, marijuana and a number of firearms. Hopkins was
arrested and subsequently charged with two counts of
possession of a controlled substance with intent to deliver
and prohibited offensive weapons. In an interview with
Detective Fetrow, Hopkins admitted that he was known by the
nickname Radio and that he sold drugs. He further admitted
that he knew Shifflet, but denied participating in the
burglary at 1039 E. Philadelphia Street. During the
interview, Detective Fetrow observed that Hopkins did not
have cuts on his arms or hands.
16, 2014, while awaiting trial for the burglary, Shifflet
admitted to Detective Fetrow that he had lied and that
Hopkins did not commit the burglary with him. Shifflet
explained that he knew Hopkins was involved in other illegal
activity and he thought that implicating Hopkins in the
burglary would improve his (Shifflet's) situation with
regard to the burglary charges.
filed a motion to suppress the evidence recovered from his
residence during the search and his subsequent admissions to
the police, arguing that the search warrant was invalid
because it was based entirely on Shifflet's admittedly
false statements. See Omnibus Pre-Trial Motion,
10/1/2014. The Commonwealth opposed the motion, arguing that
the exclusionary rule did not apply because Detective Fetrow
did not know that Shifflet's statements were false when
he included them in his affidavit in support of probable
cause. Following a hearing, the suppression court granted
Hopkins' motion to suppress, indicating that while a good
faith exception to the exclusionary rule exists under the
Fourth Amendment to the United States Constitution, this
Court in Edmunds recognized that Article 1, Section
8 of the Pennsylvania Constitution provides greater
protection for the privacy of individuals and thus does not
contemplate a good faith exception. Trial Court Opinion,
2/2/2015, at 8 (citing Edmunds, 586 A.2d at 897-99).
The suppression court reasoned that suppression, although
perhaps severe where the police officer does not
intentionally mislead the issuing authority, is the only
remedy that vindicates the rights of a person whose home is
searched based on false information. Id. at
to Pennsylvania Rule of Criminal Procedure 311(d),
Commonwealth appealed the suppression court's order. In
so doing, the
did not dispute either that Shifflet's statements
implicating Hopkins were false or that no independent basis
existed to support a finding of probable cause. The only
issue raised before the Superior Court was whether
suppression was improperly granted because Detective Fetrow
had acted in good faith when he set forth Shifflet's
statements in the affidavit in support of probable cause,
although they ultimately proved to be false. Commonwealth
v. Hopkins, 2074 MDA 2014 at *2 (Pa. Super. Oct. 28,
2015) (unpublished memorandum). The Superior Court affirmed,
indicating that it was bound by its prior decision in
Commonwealth v. Antoszyk, 985 A.2d 975 (Pa. Super.
2009) ("Antoszyk I"). Id. at *14. Based
upon Antoszyk I and Edmunds, the Superior
Court concluded that there "is no good faith exception
to the exclusionary rule in Pennsylvania, and the
detective's efforts in this case, however intentioned,
cannot serve as an avenue to escape the inescapable. The
evidence had to be suppressed." Id. at *15.
granted the Commonwealth's petition for allowance of
appeal to consider whether Article 1, Section 8 requires the
suppression of evidence when an affiant relies on a third
party's statements to establish probable cause for the
issuance of a search warrant, and those statements are
discovered to be false after execution of the
warrant. Generally, when reviewing the propriety of
a suppression ruling, we are bound by the suppression
court's findings of fact, so long as they are supported
by evidence of record. See, e.g., Commonwealth v.
Bomar, 826 A.2d 831, 842 (Pa. 2003). Conversely, where,
as here, the appeal of the decision of the suppression court
turns on allegations of legal error, the suppression
court's legal conclusions are not binding on an appellate
court, "whose duty it is to determine if the suppression
court properly applied the law to the facts."
Commonwealth v. Mistler, 912 A.2d 1265, 1269 (Pa.
2006) (quoting Commonwealth v. Nester, 709 A.2d 879,
881 (Pa. 1998)). The conclusions of law of the courts below
are subject to our plenary review. See, e.g.,
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010).
Fourth Amendment to the United States
Constitution and Article 1, Section 8 of the
Pennsylvania Constitution both protect citizens from unreasonable
searches and seizures. See Commonwealth v. Brown,
996 A.2d 473, 476 (Pa. 2010). The exclusionary rule is a
judicially-created device that prohibits the use of evidence
obtained in violation of these rights. See generally
27 Standard Pennsylvania Practice 2d § 135:188.
Misstatements of fact will invalidate a search warrant if
they are deliberate and material. See, e.g.,
Commonwealth v. Baker, 24 A.3d 1006, 1017 (Pa.
Super. 2011), aff'd, 78 A.3d 1044 (Pa. 2013).
"A material fact is one without which probable cause to
search would not exist." Id. (quoting
Commonwealth v. Tucker, 384 A.2d 938, 941 (Pa.
United States v. Leon, 468 U.S. 897 (1984), the
United States Supreme Court announced a "good
faith" exception to the exclusionary rule. In
Leon, information received from a confidential
informant led officers to conduct a drug-trafficking
investigation, which included surveillance of the multiple
defendants' activities over the course of a month. In
affidavits of probable cause in support of the search warrant
requests, the officers relied upon the informant's
statements and information gathered from this surveillance.
The subsequent searches yielded large quantities of drugs as
well as evidence of other criminal activity. The trial court,
however, ruled that the officers' affidavits failed to
establish probable cause and suppressed the evidence. A
divided Ninth Circuit agreed, concluding, with regard to
defendant Leon, that the relevant affidavits failed to
provide a basis for the informant's allegations
concerning his criminal activities and further lacked
information establishing the informant's reliability. In
so doing, the Ninth Circuit rejected the prosecution's
argument that the exclusionary rule should not apply when
officers rely, in good faith, on a magistrate's mistaken
determination that probable cause exists to support the
issuance of a search warrant.
United States Supreme Court, however, ruled that a good faith
exception to the exclusionary rule is appropriate in the
absence of police misconduct. Weighing the costs and benefits
involved in preventing the prosecution from using evidence
obtained in reliance on a warrant ultimately found to be
defective, the Court reasoned that when law enforcement
officers have acted in objective good faith, the benefit
afforded a defendant by the application of the exclusionary
rule is disproportionately high and "offends basic
concepts of the criminal justice system." Id.
at 909. As such, it concluded that "[a]s with any
remedial device, the application of the [exclusionary] rule
has been restricted to those areas where its remedial
objectives are thought most efficaciously served."
Id. According to the Supreme Court in Leon,
the purpose of the exclusionary rule under the Fourth
Amendment is to deter police misconduct, and this purpose is
not served in the absence of police misconduct. Id.
at 921 ("Penalizing the officer for the magistrate's
error, rather than his own, cannot logically contribute to
the deterrence of Fourth Amendment violations.").
Edmunds, this Court rejected a Leon-esque
good faith exception under Article 1, Section 8 of the
Pennsylvania Constitution. Edmunds involved a search
warrant for a white building and the curtilage thereto on
Edmunds' property for the presence of marijuana. In the
affidavit in support of probable cause, the affiant, a
Pennsylvania State Trooper, stated that he received telephone
calls from two anonymous males indicating that while scouting
hunting areas, they came across what looked like marijuana
growing in a clearing and in a white corrugated building
located off of Route 31. The men indicated that Edmunds owned
the property in question and provided a physical description
of Edmunds. The police obtained and executed a search
warrant, discovering seventeen marijuana ...