J-S45022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

LORNE BRETT HOPKINS, JR.

                            Appellee                 No. 2074 MDA 2014


             Appeal from the Order Entered on November 6, 2014
                In the Court of Common Pleas of York County
              Criminal Division at No.: CP-67-CR-0004536-2014


BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.:                          FILED OCTOBER 28, 2015

       The Commonwealth appeals the trial court’s November 6, 2014 order

granting Lorne Hopkins, Jr’s motion to suppress evidence that was seized by

police following the execution of a search warrant on Hopkins’ residence.

We affirm.

       The trial court summarized the relevant factual history of this case as

follows:

       Detective Anthony Fetrow was investigating a burglary that
       occurred at 1039 E. Philadelphia Street in the City of York.
       During that investigation, an individual by the name of Aaron
       Shifflet became a suspect because he lived next door to the
       victims. On May 30, 2014, Detective Fetrow made contact with
       Mr. Shifflet. The Affidavit of Probable Cause [attached to the
       search warrant application] states that Detective Fetrow
       observed “fresh healing cuts” on Mr. Shifflet’s hands and arms.
____________________________________________


*
       Former Justice specially assigned to the Superior Court.
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       Mr. Shifflet was taken to the police station where he was [given
       his Miranda1 warnings.] He subsequently waived his rights and
       agreed to speak with the detective.

       Mr. Shifflet stated that he did commit the burglary, but that he
       was not alone. He stated that a person known to him as “Radio”
       was also present during the commission of the crime. According
       to Mr. Shifflet, the two men knocked on the victim’s door several
       times to make sure they were not home. Using a rock to break
       the window, both men crawled through the broken glass to enter
       the residence, which resulted in both men being cut. Mr. Shifflet
       then stated he went back to his house to wash off the blood and
       that he then acted as a lookout while Radio rummaged through
       the belongings at 1039 E. Philadelphia Street. Radio emerged
       from the residence approximately 15 minutes later carrying a
       blue duffel bag. Mr. Shifflet told Detective Fetrow that Radio
       was supposed to give him money for helping commit the
       burglary, but Radio had yet to pay up.

       Mr. Shifflet did not know Radio’s real name, but he did provide
       police with a description. He was later able to pick [Hopkins] out
       of a photo lineup. Based on the information provided by Mr.
       Shifflet, Detective Fetrow applied for a search warrant for
       [Hopkins’] home located at 676 Chestnut Street. During a
       search of [Hopkins’] residence, Detective Fetrow was unable to
       find any of the items stolen from 1039 E. Philadelphia Street.
       However, officers did find [cocaine, marijuana, and a shotgun],
       which had no connection to the burglary. [Hopkins] was taken
       into custody on drug charges and agreed to speak with Detective
       Fetrow. At the suppression hearing, Detective Fetrow stated
       that he did not observe any cuts on [Hopkins’] hands or arms.
       Sometime after [Hopkins’] arrest[,] Mr. Shifflet admitted that he
       had lied about [Hopkins’] involvement in the burglary.

Trial Court Opinion (“T.C.O.”), 2/2/2015, at 1-2 (references to notes of

testimony omitted; footnote omitted).




____________________________________________


1
       Miranda v. Arizona, 384 U.S. 436 (1966).



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       Based upon these events, Hopkins was charged with possession of a

controlled substance with intent to deliver—cocaine, possession of a

controlled substance with intent to deliver—marijuana, and prohibited

offensive weapons.2 On October 1, 2014, Hopkins filed a motion to suppress

the evidence obtained through the execution of the search warrant.                   On

November 6, 2014, the trial court held a hearing on Hopkins’ motion, which

yielded the factual history of this case that is summarized above.

       In both his motion and at the evidentiary hearing, Hopkins maintained

that the search warrant was not supported by the necessary probable cause

because the only evidence linking Hopkins to the alleged burglary was the

statement by Shifflet.       However, Shifflet later admitted that his assertion

implicating Hopkins was fabricated.              Hence, according to Hopkins, the

affidavit of probable cause contained a material misstatement, without

which, probable cause did not exist. Moreover, Hopkins argued that no good

faith exception existed that would permit the Commonwealth to use the

seized evidence against Hopkins at trial. At the conclusion of the hearing on

Hopkins’ motion, the trial court agreed with Hopkins, and granted his

motion.




____________________________________________


2
     35 P.S.       §    780-113(a)(30)         (two   counts);   18   Pa.C.S.   §   908,
respectively.




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       On December 5, 2014, the Commonwealth filed a notice of appeal,

wherein the Commonwealth certified that the trial court’s order substantially

handicapped or terminated its prosecution pursuant to Pa.R.A.P. 311(d).

The trial court directed the Commonwealth to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).      However,

the court’s order apparently got lost within the interoffice workings of the

District Attorney’s Office, and counsel for the Commonwealth did not receive

it. The Commonwealth filed a petition seeking permission to file a concise

statement nunc pro tunc, in which it candidly explained the inadvertent

misplacement of the order. The trial court granted the order, and permitted

the Commonwealth to file its concise statement nunc pro tunc.3            On

February 2, 2015, the trial court issued an opinion pursuant to P.A.R.A.P.

1925(a).

       The Commonwealth presents the following question for our review:

“Did the lower court err in granting [Hopkins’] suppression motion where the

police officer acted in good faith in seeking a search warrant based on

information provided to him by an alleged co-defendant that ultimately

proved false?” Brief for the Commonwealth at 4.

       We begin with our well-established standard of review:



____________________________________________


3
    Hopkins does not contest the trial court’s decision to permit the
Commonwealth to file a concise statement nunc pro tunc.



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     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 facts 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 is to
     determine if the suppression court properly applied the law to
     the facts.

Commonwealth v. Scott, 916 A.2d 695, 696 (Pa. Super. 2007) (quotation

omitted).

     In this case, a detective secured a search warrant purportedly

supported by probable cause. The probable cause was based upon Shifflet’s

statement to the detective that Hopkins was involved in a burglary.      The

detective, relying upon Shifflet’s accusation in good faith, executed the

search warrant, leading to the seizure of drugs and a weapon from Hopkins’

residence. However, the problem arose later when Shifflet conceded that his

statement implicating Hopkins entirely was untrue.      The Commonwealth

contends that, because the detective had relied upon Shifflet’s assertion in

good faith, the evidence secured via the execution of the search warrant

should not be suppressed.      Hopkins, on the other hand, argues that,

because the Pennsylvania Constitution does not support a good faith

exception to Article I, Section 8, the evidence must be suppressed. The trial




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court agreed with Hopkins, albeit reluctantly.4 We agree with Hopkins and

the trial court.

       As a general rule, “if a search warrant is based on an affidavit

containing deliberate or knowing misstatements of material fact, the search

warrant is invalid.” Commonwealth v. Murphy, 795 A.2d 997, 1006 (Pa.

Super. 2002) (quoting Commonwealth v. Clark, 602 A.2d 1323, 1325 (Pa.

Super. 1992) (plurality)).             Furthermore, “misstatements of fact will

invalidate a search warrant and require suppression of the fruits of the

search only if the misstatements of fact are deliberate and material.”

Commonwealth v. Baker, 24 A.3d 1006, 1017 (Pa. Super. 2011), aff'd, 78

A.3d 1044 (Pa. 2013) (citations omitted).           “A material fact is one without

which probable cause to search would not exist.”              Commonwealth v.

Tucker, 384 A.2d 938, 941 (Pa. Super. 1978).              The Commonwealth does

not   dispute      that   Shifflet’s   allegation   was   untrue,   nor   does   the

Commonwealth contend that probable cause existed sans the Shifflet


____________________________________________


4
      At the conclusion of the suppression hearing, the trial court ruled as
follows:

       Accordingly, we will grant [Hopkins’] request. We will suppress
       the items seized in this case. We are not confident that our
       decision will withstand appellate appeal, but we are confident
       that presently it is in accord with the current law as we see it
       and we are bound to apply it given the facts and circumstances
       of this particular case.

Notes of Testimony, 11/6/2014, at 32.



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allegation.       Thus,      we   need   only     consider    whether,   under    these

circumstances, Hopkins was entitled to suppression, or whether an approach

similar    to   the   good    faith   exception    should    apply   because,    as   the

Commonwealth notes, the police officers in this case did not intentionally or

recklessly deceive the issuing magistrate.          For the reasons that follow, we

hold that Hopkins is entitled to suppression, and that no good-faith

exception applies.

      Article I, Section 8 of the Pennsylvania Constitution provides as

follows:

      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 by the affiant.

Pa. Const. art. I, § 8. Although similar in language and purpose, Article I,

Section 8 and the Fourth Amendment to the United States Constitution differ

in at least one significant way that is essential to our resolution of this case.

See Commonwealth v. Edmunds, 586 A.2d 887, 895-96 (Pa. 1991).

Analysis of, and remedies for, violations of Article I, Section 8 focus upon the

privacy of the individual, while those under the Fourth Amendment focus

primarily upon deterring police misconduct.                  See Commonwealth v.

Antoszyk, 985 A.2d 975, 983 (Pa. Super. 2009) (Antoszyk I) (citing

United States v. Calandra, 414 U.S. 338, 347 (1974)).




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      Accordingly, in Edmunds, our Supreme Court rejected the United

States Supreme Court’s promulgation of a good-faith exception to the

exclusionary rule in United States v. Leon, 468 U.S. 897 (1984), as

follows:

      given the strong right of privacy which inheres in Article 1,
      Section 8, as well as the clear prohibition against the issuance of
      warrants without probable cause, or based upon defective
      warrants, the good faith exception to the exclusionary rule would
      directly clash with those rights of citizens as developed in our
      Commonwealth over the past 200 years.

Edmunds, 586 A.2d at 901. The Court explained:

      [W]e disagree with the Court’s suggestion in Leon that we in
      Pennsylvania have been employing the exclusionary rule all
      these years to deter police corruption. We flatly reject this
      notion. We have no reason to believe that police officers or
      district justices in the Commonwealth of Pennsylvania do not
      engage in “good faith” in carrying out their duties. What is
      signification, however, is that our Constitution has historically
      been interpreted to incorporate a strong right of privacy, and an
      equally strong adherence to the requirement of probable cause
      under Article 1, Section 8. Citizens in this Commonwealth
      possess such rights, even where a police officer in “good
      faith” carrying out his or her duties inadvertently invades
      the privacy or circumvents the strictures of probable cause. To
      adopt a “good faith” exception to the exclusionary rule, we
      believe, would virtually emasculate those clear safeguards which
      have been carefully developed under the Pennsylvania
      Constitution over the past 200 years.

Id. at 899 (emphasis added).

      We now turn to the cases which have applied Edmunds and

recognized that no good faith exception exists in similar situations to the

case at bar, beginning with Clark. In Clark, a police officer applied for a


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search warrant to search Clark’s residence based largely upon statements

and observations made by a confidential informant. 602 A.2d at 1326. In

the affidavit of probable cause, the officer stated that the informant was

reliable, and that the officer had spoken with him frequently in the weeks

leading up to the execution of the warrant. The informant told the officer

that he had observed Clark deliver cocaine in a housing project on several

occasions. Furthermore, the informant stated that Clark would take orders

from buyers while in his vehicle, a dark gray Pontiac, and then return to his

residence in the vehicle.   Clark would then retrieve the cocaine from the

residence, return to his vehicle, and then deliver the cocaine to the buyer.

The informant told the officer that he had observed cocaine in Clark’s hands

within the 48 hours prior to the application for the search warrant.      Id.

The warrant issued, and the police executed it. The search revealed drugs

and guns in the home.

     Prior to trial, Clark filed a motion to suppress all of the evidence that

was seized from his house during the execution of the warrant.         At the

hearing on the motion, among other evidence, Clark produced a receipt from

an auto service that demonstrated definitively that his vehicle, the Pontiac

that the informant alleged had been used during the drug sales that he

allegedly had observed, was in an automotive repair shop.         The receipt

showed that the vehicle was taken to the shop and kept there approximately

three days before the informant purportedly saw Clark use it for drug sales,

and was picked up by his father one day after those alleged observations.

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The trial court granted Clark’s suppression motion based upon the factually

inaccurate representations within the affidavit of probable cause.     The

Commonwealth then appealed to this Court. Id. at 1325.

     We first noted that a valid search warrant must include the time frame

during which relevant and material observations were made. Id. at 1326.

We held that, because the information regarding the time frame was

rendered inaccurate by the receipt from the automobile service station, the

affidavit was incomplete and probable cause was lacking.   There, as here,

the Commonwealth argued that the good faith exception should save the

evidence from suppression. Relying exclusively upon our Supreme Court’s

proclamation in Edmunds, which had been decided only one year prior, the

Court rejected the Commonwealth’s analysis, and affirmed the trial court’s

suppression award. Id. at 1327-28.

     Unfortunately, the lead opinion in Clark, written by Judge Hoffman,

was not joined by any other judges. Judge Cavanaugh only concurred in the

result. Judge Popovich, in a one-sentence concurring opinion, agreed with

the lead opinion that suppression was justified, but would have done so

based upon the trial court’s reasoning that the police should have

undertaken an independent investigation of Clark after the informant had

provided them with the (inaccurate) information.    Id. at 1328.    Hence,

Clark is a plurality opinion, and amounts to persuasive, but not binding,

authority. See Commonwealth v. Scott, 420 A.2d 717, 719 (Pa. Super.

1980) (“It is true that plurality opinions do not automatically have

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precedential authority.”). Thus, we would not be bound by Clark, had no

other subsequent events taken place. However, a later panel of this Court

adopted the lead opinion in Clark in Antoszyk I.

      In Antoszyk I, a detective spoke with a reliable informant, who

previously had provided police with information that led to the arrests of two

drug dealers.   Antoszyk I, 985 A.2d at 976.          The informant told the

detective that Antoszyk was a large-scale dealer of marijuana, and that he

had observed large quantities of marijuana in Antoszyk’s home. Based upon

this information, the detective prepared an affidavit of probable cause and

applied for a search warrant. In the affidavit, the detective reported that the

informant had told him, among other incriminating information, that he had

been in Antoszyk’s home within the forty-eight hours leading up to the

application for the warrant, and had, within that time period, observed a

substantial quantity of marijuana for sale.       Id. at 977.     Due to the

informant’s previous reliable information, the detective took no further

investigative actions, and applied for the warrant. The warrant issued, and

the police executed the warrant on Antoszyk’s home, which uncovered ten

pounds of marijuana.

      At a subsequent suppression hearing, the informant testified that he

had lied to the detective. Specifically, the informant admitted that he had

not been in Antoszyk’s home for at least six weeks prior to talking to the

detective.   The informant had observed Antoszyk with small amounts of

marijuana for personal use, but had not seen him with the large quantities

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that he had originally suggested.            Any information regarding Antoszyk’s

large-scale drug dealings were just rumors that he had overheard.                     The

informant testified that he lied to the police in an effort to get them to arrest

Antoszyk, who had been pestering the informant about a three-year-old

drug debt. Id.

         Crediting the informant’s testimony, the trial court suppressed the

evidence seized pursuant to the execution of the search warrant.                      The

Commonwealth appealed.           In a published opinion, we affirmed the trial

court.       After   distinguishing       some      inapposite   cases   cited   by   the

Commonwealth, we held that Edmunds’ holding that there is no good faith

exception in Pennsylvania and the lead opinion in Clark compelled the

conclusion that the trial court correctly suppressed the evidence. Antoszyk

I, 985 A.2d at 983-84. Specifically, we held that:

         The [informant] admitted that he lied when he said he was at
         [Antoszyk’s] house recently and witnessed bulk quantities of
         marijuana for sale there, although the affidavit accurately
         reflected what he told the detective. . . . The affidavit relies only
         on the [informant’s] averments, citing no other independent
         source to verify the [informant’s] observations other than a
         search of [Antoszyk’s] prior criminal record. There can be no
         dispute,    therefore,    that   the     [informant’s]    deliberate
         misstatements were the sole basis for the finding of probable
         cause, and the Commonwealth does not assert otherwise.
         Accordingly, once the trial court determined that the [informant]
         was credible in testifying that he did not personally witness the
         drug activity at [Antoszyk’s] home as stated in the affidavit of
         probable cause, the search warrant became invalid.

                                      *      *        *

         Article I, Section 8 of the Pennsylvania Constitution protects the
         citizens of this Commonwealth from material misstatements

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      made deliberately or knowingly in an affidavit of probable cause.
      The remedy for such a violation, if there is no other independent
      basis for a finding of probable cause, is invalidation of the search
      warrant. Accordingly, the trial court properly invalidated the
      warrant and suppressed the evidence obtained as a result of the
      warrant.

Id. (citations and footnote omitted).

      Notably, the Pennsylvania Supreme Court granted allocatur following

Antoszyk I, but could not reach a majority decision. See Commonwealth

v. Antoszyk, 38 A.3d 816 (Pa. 2012) (Antoszyk II). Justices Saylor (now

Chief Justice), Baer, and Todd, would have affirmed this Court’s opinion.

None of those three Justices authored an opinion. Chief Justice Castille, and

Justices Eakin and McCaffery would have reversed the opinion. Justice Eakin

authored an opinion in support of reversal that was joined by Chief Justice

Castille and Justice McCaffery.

      The Commonwealth urges us to reject Edmunds, Clark, and

Antoszyk I, and adopt Justice Eakin’s proposed analysis in Antoszyk I.

Justice Eakin would have held that the Antoszyk I panel, as a preliminary

matter, incorrectly relied upon Edmonds and incorrectly adopted Clark,

because this case is not a good-faith exception case, at all. Antoszyk II,

38 A.3d at 818.        Additionally, Justice Eakin would have held that

Pennsylvania decisions on material misstatements in affidavits of probable

cause are limited to representations that are made to issuing magistrates,

not to the police. Id. at 819.     In support, Justice Eakin noted that the

warrant in Antoszyk II was “valid because the process was valid and


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probable cause existed.” Id. (emphasis added). Additionally, Justice Eakin

maintained that there were no misstatements in the affidavit at all. In the

affidavit, the detective did not report to the magistrate that the informant

actually was in Antoszyk’s home, but only that the informant said he was in

the home. Whether the informant ever was in the home was irrelevant to

Justice Eakin, because no one had misled the magistrate in such a way. The

magistrate was informed only that the informant said he was there. Hence,

in Justice Eakin’s view, there was no misstatement in the affidavit.

      Because Antoszyk I was affirmed by an equally divided Supreme

Court, Antoszyk I is binding precedent, and nothing from the per curiam

affirmance, including the opinion in support of reversal, binds this Court in

any way. See Commonwealth v. Mosley, 114 A.3d 1072, 1082 n.11 (Pa.

2015) (citation omitted). We do not opine on the merits of Justice Eakin’s

pronouncements because, simply put, we are required to apply binding

precedent, i.e. Antoszyk I, and cannot trump that precedent with non-

binding opinions, i.e., Justice Eakin’s opinion in support of reversal in

Antoszyk I.        We decline the Commonwealth’s invitation to ignore the

binding case and apply the non-binding one.

      Consequently, the above-quoted analysis from Antoszyk I applies

with full force here. As in that case, a detective executed a warrant based

upon Shifflet’s knowingly fraudulent statement.        The detective accurately

reported what Shifflet had told him.          There was no other independent

information   to    support   probable   cause    in   the   affidavit,   and   the

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Commonwealth does not argue otherwise. Once the trial court learned that

Shifflet had lied to the police, the trial court correctly determined that the

warrant was invalid, and that the evidence had to be suppressed.

      Finally, we note that the record supports the Commonwealth’s

argument that the detective in this case did not intentionally or recklessly

mislead the magistrate. That may be true. But, it is also irrelevant. There

is   no   doubt   that   Edmunds   remains   controlling   precedent   in   this

Commonwealth. See Commonwealth v. Johnson, 86 A.3d 182, 187 (Pa.

2014).     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.

      Order affirmed. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/28/2015




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