J-A01017-15

                               2015 PA Super 81

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

SAMANTHA FLEET,

                          Appellant                  No. 29 WDA 2014


    Appeal from the Judgment of Sentence entered November 15, 2013,
             in the Court of Common Pleas of Allegheny County,
            Criminal Division at No(s): CP-02-CR-0008782-2013


BEFORE: FORD ELLIOT, P.J.E., DONOHUE, and ALLEN, JJ.

DISSENTING OPINION BY ALLEN, J.:                     FILED APRIL 16, 2015

      I agree with the Majority that persons subject to involuntary civil

commitments are entitled to the constitutional protections provided by the

Fourth Amendment and Article I, Section 8, as these protections apply to all

citizens, regardless of their status, when police or other government entities

are involved. Majority at 6. However, where the Majority concludes that the

warrant for Appellant’s involuntary commitment for an emergency mental

health examination was invalid and the evidence should therefore have been

suppressed, I would hold that the § 7302 warrant was properly issued, and

that the subsequent seizure of Appellant and search incident thereto, were

constitutionally valid.

       Preliminarily, I would conclude that the warrant for Appellant’s

emergency commitment under § 7302 of the Mental Health Procedures Act

(“MHPA”) was validly issued.          As we explained in Commonwealth v.
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Jackson, 62 A.3d 433, 439 (Pa. Super. 2013) “our Supreme Court [has]

held... that the standard for evaluating the validity of [§ 7302 warrants] is

whether reasonable grounds exist to believe that a person is severely

mentally disabled and in need of immediate treatment.”        See 50 P.S. §

7301(a) (“[a] person is severely mentally disabled when, as a result of

mental illness, his capacity to exercise self-control, judgment and discretion

in the conduct of his affairs and social relations or to care for his own

personal needs is so lessened that he poses a clear and present danger of

harm to others or to himself”).     In evaluating the validity of a § 7302

warrant, “t]he guiding inquiry is whether, when viewing the surrounding

facts and circumstances, a reasonable person in the position of the applicant

for a section 7302 warrant could have concluded that an individual was

severely mentally disabled and in need of immediate treatment.” Jackson,

62 A.3d at 439 (citations and internal quotations omitted).

      Here, Officer Newcomer testified that on December 14, 2012,

Appellant’s mother appeared at the police station and reported that

Appellant was suffering from depression and had made statements about

“wanting to end things.” N.T., 11/15/13, at 5-6; Affidavit of Probable Cause,

12/31/12. Appellant’s mother then showed Officer Newcomer text messages

from Appellant in which Appellant stated: “I’m going to kill myself.” N.T.,

11/15/13, at 5, 14; Affidavit of Probable Cause 12/31/12. Although the date

and time of the text messages was not specified at the suppression hearing,

Officer Newcomer testified that she personally viewed the text messages,


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that in them, Appellant unequivocally expressed a desire to kill herself, that

Appellant’s mother related to her that Appellant suffered from depression

and   had   made   previous   suicidal   statements,   and   that   the   officer’s

understanding was that Appellant was indicating an intent to commit suicide.

N.T., 11/15/13, at 5-6, 14. I would conclude, in light of the foregoing, that

a person in Officer Newcomer’s position could have reasonably believed that

Appellant was severely mentally disabled and in need of immediate

treatment, and that in the interest of protecting human life, a temporary

emergency examination by a physician was warranted.

      A section 7302 commitment is an initial emergency examination period

under which the individual must be examined by a physician within two

hours of arrival at the hospital in order to determine if the person is actually

severely mentally disabled and in need of immediate treatment.            50 P.S.

7302(b). If a physician then determines that the person is in fact severely

mentally disabled and in need of emergency treatment, treatment shall

begin immediately, and cannot exceed 120 hours. § 7302(b) and (d). If the

physician does not so find, or if at any time it appears there is no longer a

need for immediate treatment, the person shall be discharged and returned

to such place as he may reasonably direct. Id.

      Thus, within two hours of arrival at the hospital, the statute requires a

physician to determine whether the individual is severely mentally disabled

and in need of treatment; that determination is not made at the time of

issuance of the warrant. Rather, at the time of issuance of the warrant, the


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applicant need only demonstrate “reasonable grounds” to believe that the

person is severely mentally disabled and in need of immediate treatment.

See In Re J.M., 726 A.2d 1041, 1074 (Pa. 1999) (explaining that a § 7302

warrant is “a warrant to take [the individual] to the doctor, not to take [the

individual] to jail”, and only allows the individual to be taken into custody

and kept in custody for a maximum of two hours for the purpose of

performing an emergency mental health examination for therapeutic

purposes). I would conclude that such reasonable grounds existed here.

      Moreover, in the event a physician does ultimately determine that the

individual is severely mentally disabled, even then, the individual cannot be

committed in excess of 120 hours without the Commonwealth satisfying the

rigorous involuntary commitment requirements set forth in § 7303 of the

MHPA, which require a hearing where the Commonwealth must justify the

need for involuntary commitment by clear and convicting evidence. See In

re Ryan, 784 A.2d 803, 806 (Pa. Super. 2001) (“Under section 7303, when

a facility deems a patient to be in need of additional care beyond the 120

hours of emergency care authorized by section 7302, an application to

extend treatment may be filed in the trial court and an informal hearing held

within 24 hours of the filing of the application [and] after the hearing, if the

judge or mental health review officer certifies the patient as severely

mentally disabled, he may authorize up to an additional twenty days of

treatment.”); J.M, 726 A.2d 1041, 1047, n.9 (“Pennsylvania jurisprudence

has consistently noted that the legislature intended the MHPA to create a


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treatment scheme under which a patient's procedural protections expand

progressively as the deprivation of liberty gradually increases.”). In light of

the foregoing, I would conclude that Officer Newcomer acted reasonably in

her belief that Appellant was in need of emergency medical examination,

and that the § 7302 warrant was validly issued.

      In Jackson, on which the Majority relies, the appellant alleged that

evidence obtained during the execution of a § 7302 warrant should have

been suppressed because the application was legally insufficient. Jackson,

62 A.3d at 458.    Specifically, the appellant in Jackson asserted that the

application contained no allegations that he was a threat to himself, or that

he inflicted serious bodily injury. Id. at 439. We determined in Jackson

that the application satisfied the requirements for the issuance of a valid §

7302 warrant, and that the contraband obtained during execution of that

warrant was admissible. I would conclude that the evidence in this case was

far more compelling than that in Jackson, where the appellant threatened

to hurt the applicant, and hit her car with a baton. Here, Officer Newcomer

viewed text messages from Appellant in which she articulated the clear and

immediate intent to kill herself.    Under these circumstances, and as in

Jackson, I would conclude that Officer Newcomer had reasonable grounds

to believe that Appellant was severely mentally disabled and in need of

immediate treatment, to satisfy the requirements for issuance of a valid §

7302 warrant.




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        Moreover, even if the warrant was technically defective pursuant to

the procedural prerequisites of the MHPA, I do not believe that such defects

would    necessarily    entitle   Appellant    to   suppression   of   the   evidence.

Suppression is a remedy for violation of the Fourth Amendment guaranty.1

See e.g. Commonwealth v. Mason, 490 A.2d 421, 425 (Pa. 1985)

(explaining that “technical violations of the Rules regarding the issuance and

execution of a search warrant do not ordinarily render the search

unreasonable nor require the exclusion of evidence, whereas violations of

the Rules which assume constitutional dimensions and/or substantially

prejudice the accused may require the exclusion of evidence so seized”).

Neither Jackson nor the MHPA require suppression as an automatic remedy

where a warrant application fails to comply with the statutory requirements.


____________________________________________


1
  See Davis v. United States, 131 S. Ct. 2419, 2426-27, 180 L. Ed. 2d 285
(2011)(citations and internal quotations omitted):

        The Fourth Amendment protects the “right of the people to be
        secure in their persons, houses, papers, and effects, against
        unreasonable searches and seizures.” The Amendment says
        nothing about suppressing evidence obtained in violation of this
        command. That rule—the exclusionary rule—is a prudential
        doctrine, created by this Court to compel respect for the
        constitutional guaranty.       Exclusion is not a personal
        constitutional right, nor is it designed to redress the injury
        occasioned by an unconstitutional search.          The rule’s sole
        purpose, we have repeatedly held, is to deter future Fourth
        Amendment violations. Our cases have thus limited the rule’s
        operation to situations in which this purpose is thought most
        efficaciously served.     Where suppression fails to yield
        appreciable deterrence, exclusion is clearly ... unwarranted.



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       In addressing Appellant’s claim that the police “violated her rights

under the Fourth Amendment of the United States Constitution and Article 1

§ 8 of the Pennsylvania constitution,” we are required to examine whether

Appellant’s constitutional rights were infringed upon when she was seized

and subsequently searched by Officer Newcomer. Appellant’s Brief at 13-17.

Because I believe the evidence (heroin and a syringe) was not obtained in

the course of an illegal search or seizure, I would conclude that Appellant is

not entitled to suppression.

       The Fourth Amendment to the United States Constitution, which

protects from unreasonable searches and seizures, “applies to seizures in

civil, as well as criminal, proceedings”, and courts have generally recognized

that   the   Fourth   Amendment   protections   extend    to   civil   involuntary

commitment proceedings. Doby v. DeCrescenzo, 171 F.3d 858, 871 (3d

Cir. 1999) citing O'Connor v. Ortega, 480 U.S. 709, 714–15, 107 S.Ct.

1492, 1496, 94 L.Ed.2d 714 (1987).       Under the Fourth Amendment, “the

established remedy for illegal seizures and searches in criminal cases is

exclusion of the fruits of the illegal police conduct.”   Commonwealth v.

Johnson 86 A.3d 182, 187 (Pa. 2014).

       Because the Fourth Amendment does not proscribe all searches and

seizures, but only ‘unreasonable’ ones, “the central question in any litigation

challenging a particular search or seizure is whether that search or seizure

was constitutionally ‘reasonable.’” Commonwealth v. Beaman, 880 A.2d

578, 582-583 (Pa. 2005) citing Michigan Dep't of State Police v. Sitz,


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496 U.S. 444, 450, 110 S.Ct. 2481, 2485, 110 L.Ed.2d 412 (1990). “[T]he

reasonableness of a search is determined by assessing, on the one hand, the

degree to which it intrudes upon an individual’s privacy, and on the other,

the degree to which it is needed for the promotion of legitimate

governmental interests.” United States. v. Knights, 534 U.S. 112, 112-

13, 122 S. Ct. 587, 588, 151 L. Ed. 2d 497 (2001) (citations omitted).

Here, balancing the deprivation of liberty caused by the involuntary

commitment against the government’s legitimate interest in providing for

the emergency examination of dangerous and mentally ill individuals, I

would conclude that the seizure of Appellant, who expressed an intent to kill

herself, was reasonable.      See Doby v. DeCrescenzo, 171 F.3d 858, 871

(3d Cir. 1999), (finding § 7302 seizures “reasonable” under the Fourth

Amendment, after balancing the deprivation of liberty caused by the

involuntary commitment against the government’s legitimate interest in

providing   for   the   involuntary   examination     of   dangerous   individuals).

Accordingly, I would hold that Appellant was not subjected to a violation of

her Fourth Amendment rights.

      While “[t]he touchstone of the Fourth Amendment is reasonableness,

not individualized      suspicion,”   the   United   States Supreme     Court has

nevertheless generally preferred some quantum of individualized suspicion

(probable cause or reasonable suspicion) as a prerequisite to a constitutional

search or seizure.      Commonwealth v. Wilson, 67 A.3d 736, 748 (Pa.

2013) quoting Samson v. California, 547 U.S. 843, 855, n.4., 126 S.Ct.


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2193, 165 L.Ed.2d 250 (2006); Maryland v. King, 133 S. Ct. 1958, 1969,

186 L. Ed. 2d 1 (2013). In this case, I would conclude that probable cause

existed for the seizure.

      In criminal cases, the probable cause standard is described as follows:

      Probable cause is made out when the facts and circumstances
      which are within the knowledge of the officer at the time of the
      arrest, and of which he has reasonably trustworthy information,
      are sufficient to warrant a man of reasonable caution in the
      belief that the suspect has committed or is committing a crime.
      The question we ask is not whether the officer's belief was
      correct or more likely true than false. Rather, we require only a
      probability, and not a prima facie showing, of criminal activity.
      In determining whether probable cause exists, we apply a
      totality of the circumstances test.

Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (emphasis in

original; citations and quotation marks omitted).     Applying this probable

cause analysis in the context of involuntary commitments under the MHPA,

the inquiry is not whether an individual has committed or is committing a

crime; rather, § 7302 permits a peace officer to take an individual to an

involuntary treatment facility if there are “reasonable grounds to believe a

person is severely mentally disabled and in need of immediate treatment.”

50 P.S. § 7302(a); In re J.M., 726 A.2d at 1046; In re F.C. III, 2 A.3d

1201, 1207, n.4. (Pa. 2010) (“As defined in Section 7301(a), the term




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‘severely mentally disabled’ essentially means the person, as a result of

mental illness, poses a clear and present danger to himself or others”).2

       In assessing whether probable cause has been established, “[t]he

question we ask is not whether the officer’s belief was correct or more likely

true than false[;] [r]ather, we require only a probability, and not a prima

facie showing.” Thompson, supra. “Probable cause ... is not a high bar:

It requires only the kind of fair probability on which reasonable and prudent

people ... act.” Kaley v. United States, 134 S. Ct. 1090, 1103, 188 L. Ed.

2d 46 (2014) (citations omitted); see also Florida v. Harris, 133 S. Ct.

1050, 1056, 185 L. Ed. 2d 61 (2013) (explaining that probable cause “is a

fluid concept—turning on the assessment of probabilities in particular factual

contexts—not readily, or even usefully, reduced to a neat set of legal rules”)

(citations and internal quotations omitted).

       Here, where Officer Newcomer testified that Appellant’s mother

appeared at the police station, showed her text messages from Appellant in

which Appellant stated:          “I’m going to kill myself”, and reported that

Appellant was suffering from depression and had made statements about

“wanting to end things”, I would conclude that probable cause existed for
____________________________________________


2
  While our Supreme Court in J.M. held that “the ‘reasonable grounds’
standard set forth in section 7302 was not meant to approximate the
standards employed in the criminal warrant context” and that the reasonable
grounds standard is less exacting than the probable cause standard, the
Court in J.M. was not conducting a Fourth Amendment analysis to determine
whether an unconstitutional search and seizure had occurred. J.M., 726
A.2d at 1047-1048.


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the belief that Appellant was severely mentally disabled. N.T., 11/15/13, at

5-6, 14; Affidavit of Probable Cause 12/31/12.         Therefore, in my view,

Appellant was not subjected to an illegal seizure in violation of the Fourth

Amendment which would warrant suppression.

      Moreover, I would uphold Officer Newcomer’s search of Appellant (in

which heroin and a syringe were recovered) as a valid search incident to a

civil commitment, for safety purposes, analogous to a search incident to

arrest. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d

685 (a police officer may conduct a warrantless search incident to arrest

limited to the area within the arrestee’s immediate control, where it is

justified by the interests in officer safety or to prevent evidence destruction).

I would conclude that when effecting an involuntary commitment, police

officers are permitted to conduct an accompanying search of the person

detained and the immediate area which the person occupies, for safety

purposes, akin to a search incident to arrest. See also Commonwealth v.

Shiflet, 670 A.2d 128, 132 (Pa. 1995) (recognizing the search incident to

arrest exception as a “reasonable intrusion for the protection of police

officers [who may conduct] a search of the person arrested and the

immediate area which the person occupies during his or her custody”);

Commonwealth v. Henkel, 452 A.2d 759, 764 (Pa. Super. 1982) (in a

search incident to arrest, arresting officers may search the person and area

within reach of the suspect, in the interest of preserving the safety of those

making the arrest). Accordingly, I would conclude that Officer Newcomer’s

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recovery of heroin and a syringe from Appellant occurred during a lawful

search incident to Appellant’s commitment, for the safety and well-being of

Appellant, Officer Newcomer, and others.3

       For the foregoing reasons, I respectfully dissent.




____________________________________________


3
  There is a question as to whether a different result could be reached under
Article I, Section 8 of the Pennsylvania Constitution which affords greater
individual privacy protections than the Fourth Amendment.                See
Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991). However, in
Commonwealth v. Perez, 97 A.3d 747 (Pa. Super. 2014), we explained:

       It is axiomatic that when presenting a claim for higher
       protections under the Pennsylvania Constitution, the Appellant
       must discuss the following four factors:          1) text of the
       Pennsylvania constitutional provision; 2) history of the provision,
       including Pennsylvania case-law; 3) related case-law from other
       states; 4) policy considerations, including unique issues of state
       and local concern, and applicability within modern Pennsylvania
       jurisprudence. Commonwealth v. Edmunds, 526 Pa. 374, 586
       A.2d 887, 895 (1991).


Appellant’s brief does not include the required Edmunds analysis for us to
consider whether she is entitled to greater protections under the
Pennsylvania constitution, and Appellant does not argue that the
Pennsylvania Constitution offers greater protection than the United States
Constitution. Therefore, I do not engage in a separate state constitutional
analysis.




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