
    COMMONWEALTH of Pennsylvania, Appellant v. John MCCLEARY, Appellee
    No. 244 EDA 2017
    Superior Court of Pennsylvania.
    Submitted February 27, 2018 Filed July 10, 2018
    Lawrence J. Goode, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Karl Baker, Public Defender, Philadelphia, for appellee.
    BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.
    
      
      Former Justice specially assigned to the Superior Court.
    
   OPINION BY DUBOW, J.:

The Commonwealth appeals from the December 7, 2016 Order entered in the Philadelphia County Court of Common Pleas granting the Motion to Suppress filed by Appellee, John McCleary. After careful review, we conclude that the suppression court erred as a matter of law when it concluded that police officers failed to obtain valid consent to search Appellee's residence because they did not adhere to Philadelphia Police Department Directives. After careful review, we reverse the suppression court's Order and remand for further proceedings consistent with this Opinion.

In its Pa.R.A.P. 1925(a) Opinion, the suppression court detailed the testimony adduced at the suppression hearing. Briefly, on February 12, 2016, Philadelphia Police Officers Lemorus Grover and Keith Baynes responded to Appellee's home at 5725 Florence Avenue after Appellee reported a burglary in progress. Officers Grover and Baynes entered Appellee's home through an open door and observed Appellee, Janis Shavers, and two other officers talking in the living room. Officers Grover and Baynes relieved the other two officers and attempted to clarify and calm the situation.

Appellee claimed that Shavers had been trying to break in to his home and that he had a valid Protection from Abuse Order ("PFA") against her. Shavers claimed that she had a right to be present in the home and she had belongings in a second-floor bedroom that would prove she lived there. The officers did not immediately verify whether Appellee had a valid PFA against Shavers.

When the officers asked Appellee if they could see if Shavers had any belongings in the second-floor bedroom, Appellee responded "Yes" twice. N.T. Motion, 12/7/16, at 21-22. Officer Baynes walked upstairs and entered the second-floor bedroom. In the bedroom, he observed in plain view a scale, a sandwich bag with marijuana, a box of unused drug packaging, eleven bags of crack cocaine, and clear plastic Ziploc bags. Appellee admitted that all the drugs belonged to him. Id. at 61-62. The officers arrested Appellee.

The Commonwealth charged Appellee with Possession of a Controlled Substance With Intent to Deliver ("PWID"), Possession of a Controlled Substance, and Possession of Drug Paraphernalia.

Appellee filed a boilerplate Motion to Suppress his statements and the physical evidence recovered from his home. On December 7, 2016, the suppression court heard testimony on the Motion to Suppress consistent with the above facts. At the close of the hearing, the suppression court granted Appellee's Motion to Suppress.

The suppression court focused the bulk of its analysis on the police officers' failure to comply with Philadelphia Police Department Directive 5.7, Sections 12 through 16, which address, inter alia , the best practices for obtaining valid consent to search property. In support of its decision to grant Appellee's Motion to Suppress, the court specifically found that the officers acted "in direct contravention to their own police directive" and concluded that "the Commonwealth has failed to prove that the officers followed proper procedures and obtained a valid consent to search [Appellee's] residence." Suppression Court Opinion, 4/26/17, at 6. The suppression court focused on several purported violations of police directives, including: (1) failure to obtain "signed consent;" (2) failure to inform Appellee of his right to refuse consent; (3) failure to consult with a supervisor; and (4) failure to verify Appellee's PFA and simply arrest Shavers. Id. at 6-8.

On January 6, 2017, the Commonwealth filed an interlocutory appeal pursuant to Pa.R.A.P. 311(d). Both the Commonwealth and the suppression court complied with Pa.R.A.P. 1925.

The Commonwealth presents one issue for our review:

Did the lower court err by suppressing contraband that officers observed in plain view-after entering a room with [Appellee's] express consent-on the ground that they had failed to comply with internal police department procedures?

Commonwealth's Brief at 3.

Our standard of review applicable to suppression determinations is well-settled. "When reviewing the grant of a suppression motion, we must determine whether the record supports the trial court's factual findings and whether the legal conclusions drawn from those facts are correct." Commonwealth v. Ennels , 167 A.3d 716, 718 (Pa. Super. 2017) (citation and quotation marks omitted). "We may only consider evidence presented at the suppression hearing." Id.

"In addition, because the defendant prevailed on this issue before the suppression court, we consider only the defendant's evidence and so much of the Commonwealth's evidence as remains uncontradicted when read in the context of the record as a whole." Id. at 718-19 (citation omitted). "We may reverse only if the legal conclusions drawn from the facts are in error." Id. at 719.

Importantly, "[o]nce a [M]otion to [S]uppress [E]vidence has been filed, it is the Commonwealth's burden to prove, by a preponderance of the evidence, that the challenged evidence was not obtained in violation of the defendant's rights." Commonwealth v. Wallace , 615 Pa. 395, 42 A.3d 1040, 1047-1048 (2012) (en banc ) (citation omitted); see also Pa.R.Crim.P. 581(H).

The Fourth Amendment of the United States Constitution and Article 1, Section 8 of our state Constitution protect citizens from unreasonable searches and seizures. In re D.M. , 566 Pa. 445, 781 A.2d 1161, 1163 (2001). To effectuate these protections, the exclusionary rule bars the use of illegally obtained evidence in state prosecutions in order to deter illegal searches and seizures. Commonwealth v. Arter , 637 Pa. 541, 151 A.3d 149, 153-54 (2016). The United States Supreme Court has held that the exclusionary rule applies where "its remedial objectives are thought most efficaciously served" and "its deterrence benefits outweigh its substantial social costs." Id. at 154 (citation omitted).

Pennsylvania courts have rejected the automatic suppression of evidence pursuant to the exclusionary rule where police fail to comply with specific Rules of Criminal Procedure relating to the issuance and execution of search warrants. Commonwealth v. Ruey , 586 Pa. 230, 892 A.2d 802, 808 (2006) (OAJC). See also Commonwealth v. Mason , 507 Pa. 396, 490 A.2d 421, 423-25 (1985) (rejecting automatic application of exclusionary rule for violation of Rule of Criminal Procedure governing search warrants, and collecting cases).

This Court has similarly refused to apply the exclusionary rule for every violation of statutes governing police authority and conduct during investigations, searches, and seizures. See , e.g. , Commonwealth v. Hilliar , 943 A.2d 984, 989-92 (Pa. Super. 2008) (holding that violation of Municipal Police Jurisdiction Act did not require suppression of evidence from stop); Commonwealth v. De George , 319 Pa.Super. 244, 466 A.2d 140, 141 (1983) (holding that violation of Rule of Criminal Procedure governing inventory of item seized did not require suppression of evidence), reversed on other grounds by Commonwealth v. DeGeorge , 506 Pa. 445, 485 A.2d 1089 (1984). This Court's research has not located any cases addressing the application of the exclusionary rule as a remedy for the violation of internal police procedures, administrative protocols, or similar policies.

"In determining the validity of a given consent, the Commonwealth bears the burden of establishing that a consent is the product of an essentially free and unconstrained choice-not the result of duress or coercion, express or implied, or a will overborne-under the totality of the circumstances." Ennels , 167 A.3d at 723 (citation omitted). Our Supreme Court has articulated the following non-exhaustive list of factors to be used in assessing the totality of circumstances: "1) the presence or absence of police excesses; 2) whether there was physical contact; 3) whether police directed the citizen's movements; 4) police demeanor and manner of expression; 5) the location and time of the interdiction; 6) the content of the questions and statements; 7) the existence and character of the initial investigative detention, including its degree of coerciveness; 8) the degree to which the transition between the traffic stop/investigative detention and the subsequent encounter can be viewed as seamless, thus suggesting to a citizen that his movements may remain subject to police restraint; and 9) whether there was an express admonition to the effect that the citizen-subject is free to depart, which is a potent, objective factor." Commonwealth v. Randolph , 151 A.3d 170, 177 (Pa. Super. 2016) (citations and quotation marks omitted).

Where a defendant summons police or emergency personnel regarding potential criminal activity in his home, he has impliedly consented to police entry and a search of the premises that is reasonably related to an investigation of the alleged crime. See , e.g. , Commonwealth v. Witman , 750 A.2d 327, 335 (Pa. Super. 2000) (holding valid implicit consent for police to enter home where defendant placed 911 call).

In its Rule 1925(a) Opinion, the suppression court opined as follows:

Here, the Commonwealth has failed to prove that the officers followed proper procedures and obtained a valid consent to search [Appellee's] residence. Although the police were legitimately at [Appellee's] residence in response to a radio call for a burglary in progress, once they determined that it was actually a domestic situation, and were told that [Appellee] had a PFA against [Shavers], they failed to verify if there was an active PFA and instead decided to conduct a search of [Appellee's] residence in direct contravention to their own police directive. See attached Philadelphia Police Department Directive 5.7 section 12 through 16. Officer Baynes conceded that had they verified the PFA, they would have arrested [Shavers] and left the residence without incident.
* * *
Because the officers were informed that [Appellee] had a PFA against [Shavers], they should have followed established police procedures and verif[ied] the PFA. If that had been done, the alleged need to search for [Shavers'] clothing would have been eradicated. In this Commonwealth, every holder of a PFA, regardless of gender, should be able to have confidence that the police will verify the validity of the PFA before they create reasons to conduct a warrantless search. While the law of search and seizure is constantly evolving, its focus remains on the delicate balance of protecting the right of citizens to be free from unreasonable searches and seizures and protecting the safety of citizens and police officers by allowing police to make limited intrusions on citizens while investigating crime. Here, there was no acceptable reason to conduct a search, however limited in nature, of [Appellee's] residence.

Suppression Court Opinion, 4/26/17, at 7-8 (some citations omitted).

As noted above, the exclusionary rule is an extreme remedy for distinct constitutional violations. Here, the totality of the circumstances indicates there was no violation of Appellee's Fourth Amendment right. Because Appellee summoned the police by calling 911 to report the alleged burglary in progress, Appellee impliedly consented to police entry and the subsequent limited search, which was reasonably related to their investigation of the alleged burglary and domestic dispute. Witman , 750 A.2d 335.

Moreover, Appellee verbally consented to the police entry and limited search of the bedroom. Appellee responded "Yes" twice when the officers asked him if they could search the bedroom for Shavers' clothing. There is no evidence of record showing that police obtained Appellee's consent by coercion, deceit, or misrepresentation. In light of these factors, we do not agree that the search was improper.

Further, the suppression court cited no relevant authority to support its proposition that application of the exclusionary rule is the appropriate remedy for violating a police directive. See Suppression Court Opinion at 6-8. As demonstrated by the legal principles recited above, even where police fail to comply with specific Rules of Criminal Procedure relating to the issuance and execution of search warrants or violate statutes governing police authority and conduct during investigations, searches, and seizures, the exclusionary rule is not necessarily the appropriate remedy, particularly where an individual's Fourth Amendment rights have not been violated. By focusing its analysis exclusively on the police directive, the suppression court ultimately neglected to evaluate the totality of the circumstances and failed to apply relevant and dispositive case law.

Order reversed. Case remanded for further proceedings consistent with this Opinion. Jurisdiction relinquished.

President Judge Emeritus Stevens joins the Opinion.

Judge Murray files a Dissenting Opinion.

I would hold that the Commonwealth failed to meet its burden of proving that the evidence was obtained lawfully from Appellee. Thus, because I would affirm the order of the trial court granting suppression, I respectfully dissent.

Our Supreme Court has stated:

When the Commonwealth appeals from a suppression order, we follow a clearly defined standard of review and consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. The suppression court's findings of fact bind an appellate court if the record supports those findings. The suppression court's conclusions of law, however, 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. Nester , 551 Pa. 157, 709 A.2d 879, 880-81 (1998) (citations omitted). "Moreover as factfinder, it is within the suppression court's sole province to pass on the credibility of witnesses and the weight to be accorded their testimony. The factfinder is free to believe all, some, or none of the evidence presented." Commonwealth v. Griffin , 785 A.2d 501, 505 (Pa. Super. 2001) (citation omitted). The voluntariness of a consent to search "is a question of fact to be determined from the totality of the circumstances and while knowledge of the right to refuse consent is a factor to consider in determining whether consent to search was voluntarily and knowingly given, it is not dispositive." Commonwealth v. Witman , 750 A.2d 327, 338 (Pa. Super. 2000).

Here, the trial court concluded that under the totality of the circumstances, Appellee's consent to search was coerced. The trial court considered that the two officers asked Appellee multiple times whether they could search the upstairs bedroom, that Officer Grover told Appellee after the search that he "could have said no," and the officers did not advise Appellee before the search that he had a right to withhold consent, that anything found could be used against him, and that he could consult an attorney or withdraw consent. Trial Court Opinion, 4/26/17, at 3. The court also found that Officers Grover and Baynes failed to follow Philadelphia Police Directives (Directives), which required them to notify a supervisor and obtain signed consent before conducting a search, and to verify the existence of a protection from abuse (PFA) order if, during a domestic dispute, one party avers that he has one against the other. The court additionally emphasized that had the officers properly verified the PFA, they would have known that Shavers should not have been there and would have immediately removed her from the house, and it would have been unnecessary to search the upstairs bedroom. Id. at 6-7; N.T. Suppression Hearing, 12/7/16, at 94-95. Finally, the trial court recognized that "[i]t is not uncommon for someone who has a PFA against them to have clothing in the place where they were removed from," and specifically found, after observing the officers' testimony firsthand, that their reason for searching the upstairs bedroom was "illusory." N.T., 12/7/16, at 94.

Accordingly, I would hold, under the totality of the circumstances, that the trial court did not err in finding that Appellee's verbal consent was coerced. Although the original police radio call was for a burglary in process, Officers Grover and Baynes both testified that they determined, based on Appellee and Shavers' competing statements, that the dispute was whether Shavers had a right to be at the house. While the officers' stated reason for their search was to verify whether Shavers indeed lived there, neither the absence nor presence of women's clothing or items in a bedroom, in itself, would verify whether she had permission or a legal right to live at the house. In any event, even if Shavers did technically live there, her right to be at the house would be secondary to, as Appellee told the officers, the existence of a PFA order against her. It was the trial court's sole province to pass on the officers' credibility and the weight to be accorded their testimony, and the court was free to believe all, some, or none of the evidence presented. See Griffin , 785 A.2d at 505.

Furthermore, while the majority relies on, inter alia , Commonwealth v. Ruey , 586 Pa. 230, 892 A.2d 802 (2006) (OAJC), and Witman , supra , I believe those cases may be distinguished on the facts. In Ruey , there was a defect in the affidavit of probable for a search warrant-the affiant failed to indicate the credibility of his source or the reliability of the information received. Ruey , 892 A.2d at 811. A plurality of our Supreme Court held that the defendant was not prejudiced by these "technical violations," and thus the evidence was admissible. Id. at 814. In my estimation, the police violations in this case-the failure to advise Appellee of any of his rights before obtaining consent to search his home and the failure to follow the Directive to verify the existence of a PFA-were not mere technical violations.

Additionally, in Witman , the defendant placed a 911 call for emergency assistance for his minor brother, who was attacked and killed in their home. Witman , 750 A.2d at 330. The police established the home as a crime scene, the parents told police to do what they could to find their son's killer, and the police collected evidence from and around the house to investigate the homicide. Id. at 332-33. After discovering some evidence, the defendant was charged with killing his brother. Id. at 333-34. On appeal, this Court affirmed the admission of the evidence, holding that "where a defendant has summoned police and set the tone for the initial investigation," he has impliedly consented to a search of his home, and thus a search warrant is not required. Id. at 335. The defendant in Whitman called the police to report an attack on his brother and thus a search of the home was necessary to investigate the homicide. In this case, Appellee requested police assistance in removing Shavers from his home and then told Officers Grover and Baynes that he had a PFA order against her. The trial court found, as discussed above, that had the officers properly followed the Directives and verified that Appellee had an active PFA order, a search would not have been necessary. Under the totality of these circumstances, I agree with the trial court that Appellee did not provide valid consent to a search of his home. See Witman , 750 A.2d at 338.

For these reasons, I would affirm the order of the trial court granting Appellee's motion to suppress. Accordingly, I respectfully dissent. 
      
      See 23 Pa.C.S. §§ 6101 et seq. (Protection from Abuse Act).
     
      
      At the suppression hearing, the parties stipulated that there was an active PFA filed by Appellee against Shavers. N.T. Motion, 12/7/16, at 79.
     
      
      35 P.S. § 780-113(a)(30) ; 35 P.S. § 780-113(a)(16) ; and 35 P.S. § 780-113(a)(32), respectively.
     
      
      Pa.R.A.P. 311(d) provides that "the Commonwealth may take an appeal as of right from an order that does not end the entire case where the Commonwealth certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution."
     
      
      The Commonwealth states that it does not challenge the suppression of Appellant's statements that the suspected marijuana and crack cocaine were his, based on a violation of Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Commonwealth's Brief at 7 n.2.
     
      
      Officers Grover and Baynes each asked Appellee twice if they could search the bedroom. N.T., 12/7/16, at 22, 37, 66.
     
      
      At the suppression hearing, Officer Grover, a 10-year veteran of the force, and Officer Baynes, a 9-year veteran, both denied familiarity with the Directives. Furthermore, while Officer Baynes testified that he called a supervisor and the supervisor arrived after Officer Baynes searched the upstairs bedroom, Officer Grover testified that he did not consult a supervisor. Id. at 39, 69.
     
      
      Justice Newman wrote the opinion announcing the judgment of the court, which was joined by Justice Baer. Justice Castille filed a concurring opinion, which was joined by Justices Saylor and Eakin. Justice Saylor filed a concurring opinion, which was joined by Justice Castille. Chief Justice Cappy issued a dissenting opinion. Former Justice Nigro did not participate.
     
      
      After the detectives initially discovered some evidence, they obtained a search warrant and then obtained additional evidence. Witman , 750 A.2d at 334.
     