J-A05005-18


                              2018 PA Super 201

COMMONWEALTH OF PENNSYLVANIA,           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                  Appellant             :
                                        :
            v.                          :
                                        :
JOHN MCCLEARY,                          :
                                        :
                  Appellee              :   No. 244 EDA 2017

              Appeal from the Order Entered December 7, 2016
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No.: CP-51-CR-0006625-2016

BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*

OPINION BY DUBOW, J.:                                 FILED JULY 10, 2018

     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
____________________________________
* Former Justice specially assigned to the Superior Court.
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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”)1 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.2

        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.
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1   See 23 Pa.C.S. §§ 6101 et seq. (Protection from Abuse Act).

2At 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.



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       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.3

       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
____________________________________________


335 P.S. § 780-113(a)(30); 35 P.S. § 780-113(a)(16); and 35 P.S. § 780-
113(a)(32), respectively.



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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).4        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

____________________________________________


4 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.”



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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, 42 A.3d 1040, 1047-

1048 (Pa. Super. 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., 781 A.2d 1161, 1163 (Pa. 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, 151 A.3d 149, 153-54 (Pa. 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


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specific Rules of Criminal Procedure relating to the issuance and execution of

search warrants. Commonwealth v. Ruey, 892 A.2d 802, 808 (Pa. 2006)

(OAJC). See also Commonwealth v. Mason, 490 A.2d 421, 423-25 (Pa.

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. DeGeorge, 466 A.2d 140, 141 (Pa. Super. 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, 485 A.2d 1089 (Pa. 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


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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

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      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


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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.


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     President Judge Emeritus Stevens joins the Opinion.

     Judge Murray files a Dissenting Opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/18




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