                                  [J-111-2016]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                               MIDDLE DISTRICT

   SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


COMMONWEALTH OF PENNSYLVANIA,                :   No. 32 MAP 2016
                                             :
                    Appellant                :   Appeal from the Order of the Superior
                                             :   Court dated October 28, 2015 at No.
                                             :   2074 MDA 2014 Affirming the Order of
             v.                              :   the York County Court of Common
                                             :   Pleas, Criminal Division, dated
                                             :   November 6, 2014 at No. CP-67-CR-
LORNE BRETT HOPKINS, JR.,                    :   0004536-2014
                                             :
                    Appellee                 :   SUBMITTED: September 7, 2016


                      OPINION IN SUPPORT OF AFFIRMANCE


JUSTICE DONOHUE                                        DECIDED: June 30, 2017
      In this 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.

      In May 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


                                     [J-111-2016] - 2
               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.

        When 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.1 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.

        On June 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.

        Hopkins 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


1
    35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. § 908.



                                       [J-111-2016] - 3
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 9-10.2

      Pursuant    to   Pennsylvania    Rule    of   Criminal   Procedure   311(d),3   the

Commonwealth appealed the suppression court’s order.                 In so doing, the

Commonwealth 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


2
  The suppression court identified another basis for its decision: the fact that Detective
Fetrow “took the word of an individual he had presumably never met before” and made
no attempt to verify or corroborate Shifflet’s allegations before seeking the search
warrant. Trial Court Opinion, 2/2/2015, at 9. Although it acknowledged that
independent police corroboration may not be possible in every circumstance, the
suppression court found that when an individual who has been arrested for a crime
implicates another person in the commission of a crime, the police should undertake
some investigation before simply accepting the arrestee’s word.
3
   See Pa.R.A.P. 311(d) (permitting the Commonwealth to appeal as of right from an
order that does not end the entire case upon certification that the order substantially
handicaps or terminates its prosecution).



                                    [J-111-2016] - 4
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.

        We 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.4    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).

4
    Counsel for Hopkins declined to file a brief with this Court.



                                       [J-111-2016] - 5
         The Fourth Amendment to the United States Constitution5 and Article 1,

Section 8 of the Pennsylvania Constitution6 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. Super. 1978)).

         In 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


5
    The Fourth Amendment states:
                The right of the people to be secure in their persons, houses,
                papers, and effects, against unreasonable searches and
                seizures, shall not be violated, and no Warrants shall issue,
                but upon probable cause, supported by Oath or affirmation,
                and particularly describing the place to be searched, and the
                persons or things to be seized.
U.S. Const. amend. IV.
6
    Article I, § 8 provides:
                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 to by the affiant.
Pa. Const. art. I, § 8.



                                      [J-111-2016] - 6
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.

       The 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




                                     [J-111-2016] - 7
officer for the magistrate’s error, rather than his own, cannot logically contribute to the

deterrence of Fourth Amendment violations.”).

       In 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 plants, as well as various growing instruments, inside

the white building. The contraband was seized and Edmunds was charged with multiple

crimes relating to the possession and distribution of marijuana.

       Edmunds sought suppression of the evidence, arguing that the warrant lacked

sufficient probable cause because it did not set forth a timeframe in which the

anonymous sources had observed the marijuana.            The trial court agreed that the

warrant was deficient on its face, but granted the Commonwealth’s request for a

supplemental hearing, at which the Commonwealth could provide oral supplementation

of the facts set forth in the affidavit and warrant for the purpose of establishing the good

faith exception to the exclusionary rule as announced in Leon. At this hearing, the

issuing magistrate testified that although the trooper who sought the warrant failed to

indicate when the anonymous sources observed the marijuana growing on Edmunds’

property, she issued the warrant because she assumed, based on her history with the

trooper, that the events had transpired the previous day.          The suppression court




                                     [J-111-2016] - 8
concluded that the warrant’s failure to set forth a timeframe was a fatal defect that

rendered the warrant invalid; however, it further concluded that suppression was not

required because, per Leon, the police acted in good-faith reliance on the magistrate’s

probable cause determination. The Superior Court affirmed, ruling that the protections

under Article 1, Section 8 and the Fourth Amendment are coextensive, and therefore

the federal good faith exception to the exclusionary rule as articulated in Leon applied in

Pennsylvania as well. Commonwealth v. Edmunds, 541 A.2d 368, 372 (Pa. Super.

1988), rev’d, 586 A.2d 887 (Pa. 1991).

      On allowance of appeal, this Court reversed, concluding that permitting such an

exception would undermine the guarantees embodied in Article 1, Section 8 of the

Pennsylvania Constitution. Justice Cappy, writing for the Majority, indicated that while

in Leon, the United States Supreme Court found that a good faith exception would not

deviate from the Fourth Amendment’s purpose to deter intentional police misconduct,

no similar approach may be applied under Pennsylvania’s Article 1, Section 8

jurisprudence:

             [W]e disagree with the [United States Supreme] 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 significant,
             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.

                                   *       *      *

             Thus, the exclusionary rule in Pennsylvania has consistently
             served to bolster the twin aims of Article I, Section 8, namely
             to safeguard both the privacy of Pennsylvania’s citizens and
             the fundamental requirement that warrants shall only be


                                       [J-111-2016] - 9
             issued upon probable cause. [Commonwealth v.] Melilli,
             [555 A.2d 1254 (Pa. 1983)]. As this Court explained in
             Commonwealth v. Miller, [518 A.2d 1187 (Pa. 1986)]:

                    The linch-pin that has been developed to
                    determine whether it is appropriate to issue a
                    search warrant is the test of probable cause.
                    Commonwealth v. Chandler [477 A.2d 851 (Pa.
                    1984)]. It is designed to protect us from
                    unwarranted and even vindictive incursions
                    upon our privacy. It insulates from dictatorial
                    and tyrannical rule by the state, and preserves
                    the concept of democracy that assures the
                    freedom of its citizens. This concept is second
                    to none in its importance in delineating the
                    dignity of the individual living in a free society.
Edmunds, 586 A.2d at 899 (citing Miller, 518 A.2d at 127). Accordingly, this Court in

Edmunds emphasized that “the purpose underlying the exclusionary rule in this

Commonwealth is quite distinct from the purpose underlying the exclusionary rule under

the [Fourth] Amendment.” Id. at 897. Given this distinct difference in purpose under

Article 1, Section 8, we thus concluded in Edmunds that recognition of a good faith

exception to the exclusionary rule would “virtually emasculate those clear safeguards

which have been carefully developed under the Pennsylvania Constitution over the past

200 years.” Id. at 899.

      In Commonwealth v. Johnson, 86 A.3d 182 (Pa. 2014), this Court reaffirmed our

decision in Edmunds that no good faith exception to the exclusionary rule exists under

Pennsylvania law. In Johnson, a state trooper stopped a vehicle in response to a radio

communication about a possible drug transaction, and the appellee, Richard Johnson,

was a passenger in that vehicle.      When the trooper ran Johnson’s name, he was

informed that there was an active warrant for his arrest. The trooper placed Johnson

under arrest and performed a pat-down search, at which time he discovered thirty-

seven packets of heroin, two cellular phones, and more than $1600 in cash on his

person.   At the police barracks, Johnson admitted that he sold drugs.       After the


                                    [J-111-2016] - 10
appellee’s arrest and interrogation, the arresting state trooper was informed that the

arrest warrant notification he received had been in error. In fact, Johnson had been

served with the warrant nine days before the trooper’s interaction with him.

Nonetheless, Johnson was charged with multiple drug-related crimes. He moved to

suppress both the evidence recovered during the search incident to arrest as well as his

statements to the trooper. The trial court granted Johnson’s suppression motion and

the Superior Court affirmed.

       On appeal to this Court, the Commonwealth argued that suppression was not

required because the officer reasonably and properly relied on the information provided

to him regarding an active arrest warrant. The Commonwealth urged that our rejection

of a good faith exception under the circumstances presented in Edmunds, which

involved an erroneous ruling by the issuing magistrate, did not require the exclusion of

evidence in other circumstances, such as when a police officer acts on a genuine, but

mistaken, belief that he is lawfully authorized to arrest a person. Id. at 186.

       This Court disagreed, concluding that the case did not present “any meaningful

distinction of Edmunds in constitutional terms,” as the only difference was the source of

the mistake (in Edmunds, the judiciary (the issuing magistrate), and here the executive

branch (“the person responsible for purging executed warrants in a timely fashion”)). Id.

at 189–90. We further noted that the fact that Edmunds involved a search warrant while

this case involved an arrest warrant was equally irrelevant.        Id.   Finally, and most

importantly, we insisted that whether the mistake was made in good or bad faith was

entirely irrelevant to the constitutional analysis, reminding that our rejection of a good

faith exception in Edmunds “turned on a determination that, under Article I, Section 8,

the exclusionary rule in Pennsylvania serves other values besides deterrence; it also

vindicates an individual’s right to privacy.” Id. at 188. “From the perspective of the




                                     [J-111-2016] - 11
citizen whose rights are at stake, an invasion of privacy, in good faith or bad, is equally

as intrusive.” Id. at 189 (quoting Edmunds, 586 A.2d at 901).

       In Commonwealth v. Clark, 602 A.2d 1323 (Pa. Super. 1992), the Superior Court

decided a case raising an issue substantially similar to the one presented here, namely

whether suppression is required where the search warrant is defective because,

unbeknownst to the affiant, the affidavit in support of the warrant contained false

information provided by a third party. In Clark, the affidavit in support of probable cause

stated that a confidential informant had reported to the affiant that he had, within the

previous forty-eight hours, observed Clark take orders for cocaine sales at a housing

project, drive his Pontiac Ventura to his residence, go inside the residence and then

leave within a couple of minutes with the drugs. Id. at 1326. The warrant issued and its

execution led to the discovery of drugs and guns in Clark’s home. Id. at 1324-25. At a

hearing on his motion to suppress, Clark presented documentary and testimonial

evidence that directly contradicted the informant’s statements, including a receipt

establishing that Clark could not have driven his Pontiac Ventura within forty-eight hours

of the date listed on the affidavit in support of probable cause. Specifically, the receipt

showed that the car had been left for repairs at an auto service station three days

before the date on which the police filed the application for the warrant, and that

payment for the repairs and return of the vehicle took place the day after the issuance of

the warrant. Id. at 1325. Clark and his father both testified that Clark had not driven the

vehicle at all for the two weeks preceding the date of the issuance in the warrant. Id.

The trial court granted the motion to suppress.

       In a plurality decision, the Superior Court affirmed. The lead opinion, authored

by Judge Sydney Hoffman, reasoned that pursuant to Edmunds, Article 1, Section 8

does not permit any good faith exceptions to the exclusionary rule. Id. at 1327. Judge




                                    [J-111-2016] - 12
Hoffman determined that “Edmunds requires us to suppress the evidence seized under

the instant invalid search warrant, notwithstanding the good faith with which the officer

may have relied on the CI’s information.” Id. Judge Hoffman’s opinion, however, lacked

the force of precedent, as the two other members of the panel did not join in its

reasoning.7 Id. at 1328.

      Seventeen years later, the Superior Court addressed the same issue in

Antoszyk I. There, a confidential informant told a detective that Antoszyk was a “bulk

dealer” of marijuana, that he had observed large amounts of marijuana in Antoszyk’s

house, and that he was aware that Antoszyk had been arrested on drug charges in the

past. Id. at 976-77. Based on this information, the detective sought and was granted a

warrant to search Antoszyk’s home. Execution of the warrant led to the recovery of ten

pounds of marijuana, and Antoszyk was arrested and charged with multiple drug-related

offenses.   At a suppression hearing, the informant admitted that although he knew

Antoszyk was a user of marijuana, his statements to the detective about large-scale

drug dealing were fabrications, made up in the hopes that Antoszyk would stop

bothering him about a three-year-old drug debt that the informant owed to Antoszyk. Id.

at 977. Relying on Clark, the suppression court granted Antoszyk’s motion to suppress.

      On appeal, the Commonwealth contended that the suppression court erred in

relying on Clark, as it was not binding precedent.8         The Superior Court, while

recognizing that Clark lacked precedential value, adopted its reasoning:

7
  Judge James R. Cavanaugh filed a one-sentence concurring opinion explaining that
he would affirm the suppression court’s ruling on the grounds that the police should
have conducted an independent investigation of the confidential informant’s claims.
Judge Zoran Popovich concurred in the result.
8
  The Commonwealth argued that the Superior Court was bound by its prior decision in
Commonwealth v. Bradshaw, 434 A.2d 181 (Pa. Super. 1981), which likewise involved
the issuance of a search warrant based upon a confidential informant’s statements that
were proven to be false after the execution of the warrant. In Bradshaw, the Superior
(continued…)

                                   [J-111-2016] - 13
                 We thus hold that Judge Hoffman’s lead opinion in Clark []
                 properly reflects the law regarding material misstatements in
                 an affidavit in support of probable cause, and we reject the
                 Commonwealth’s assertion that we are limited by the federal
                 caselaw [sic] interpreting the United States Constitution.
                 Accordingly, we conclude that, after Edmunds, our courts
                 must analyze [Article 1, Section 8] issues not with the
                 purpose of deterring police misconduct, but on whether the
                 misstatements in the affidavit resulted in a violation of the
                 defendant’s privacy rights.
Id. at 982-83.

       This Court granted allowance of appeal from the Superior Court’s decision in

Antoszyk I, but we were unable to reach a consensus, resulting in an evenly divided

Court. See Commonwealth v. Antoszyk, 38 A.3d 816 (Pa. 2012) (affirmed per curiam)

(“Antoszyk II”). Justices Saylor, Baer and Todd voted to affirm the Superior Court’s

order, while Chief Justice Castille and Justices McCaffery and Eakin supported reversal.

Justice Eakin authored the only opinion. Therein, Justice Eakin argued that the facts

did not present a “good faith exception” case. Id. at 818. According to Justice Eakin,

this Court has held that “[p]robable cause exists where the facts and circumstances

within the affiant’s knowledge and of which he has reasonably trustworthy information

are sufficient in themselves to warrant a man of reasonable caution in the belief that a

search should be conducted.” Id. (quoting Commonwealth v. Jones, 988 A.2d 649, 655

(Pa. 2010)). Justice Eakin noted that the affiant had made no deliberate or knowing


(…continued)
Court held that “permitting challenges to an informant’s veracity is inconsistent with the
traditional conception of the exclusionary rule as a balance between … deterrence of
police misconduct, on one hand, and conviction of guilty persons, on the other.”
Bradshaw, 434 A.2d at 183. In Antoszyk I, the Superior Court held that its decision in
Bradshaw had been overruled by Edmunds, stating that “although the Edmunds Court
did not address [the circumstances of] Bradshaw specifically, it emphatically disclaimed
any consideration that Article 1, Section 8 … adopts the federal standard of deterring
police conduct.” Antoszyk I, 985 A.2d at 980.



                                      [J-111-2016] - 14
misstatements of fact, and, more importantly, the affidavit did not contain any untrue

statements of fact whatsoever. Id. (“The affidavit did not say the informant was in the

house at a certain time—it said the informant said he was in the house then, and gave

credible reasons why the affiant believed the informant. Whether the informant was

ever really in the house or not is immaterial—the affidavit did not misspeak.”) (emphasis

in original). Because there were no material misstatements in the affidavit, Justice

Eakin was of the view that there was no constitutional violation whatsoever, and thus no

need for a good faith exception from the exclusionary rule. Id. at 820. (“This is not a

good faith exception case.      This is not an Edmunds case.         This is not a material

misrepresentation case.”).     Justice Eakin concluded that an informant’s veracity is

simply “not in issue at a suppression hearing,” and therefore, it is immaterial if the affiant

is misled by the source of the information set forth in the affidavit. Id. at 818.

       In the present case, the Commonwealth urges this Court to reject the

constitutional analyses in Clark and Antoszyk I and to adopt instead Justice Eakin’s

approach in Antoszyk II. In its appellate brief, the Commonwealth states that this is not

a case like Edmunds, in which the magisterial district judge erroneously determines that

probable cause exists, or a common suppression case where the affiant/police officer

intentionally or recklessly misstates material facts in the affidavit in support of probable

cause. Commonwealth’s Brief at 36. As such, the Commonwealth insists that “this

case is not the ‘good faith’ exception case as envisioned by Edmunds.” Id. To the

contrary, the Commonwealth contends that because the affiant (Detective Fetrow)

accurately reported what Shifflet told him, probable cause existed here to support the

magisterial district judge’s issuance of the search warrant.              Id. at 34.     The

Commonwealth emphasizes that Detective Fetrow acted in good faith, and that his

decision to place trust in Shifflet’s allegations regarding Hopkins’ participation in the




                                      [J-111-2016] - 15
burglary was reasonable, since Shifflet was “not a paid, unknown tipster but instead an

identified eyewitness to a crime who voluntarily reported his observations to the police.”

Id. at 41. As such, the Commonwealth asserts that under Pennsylvania law, Shifflet’s

trustworthiness, as an “average citizen” offering information to the police, may be

presumed. Id. (citing Commonwealth v. Sudler, 436 A.2d 1376, 1381 (Pa. 1981)). In

conclusion, the Commonwealth repeats (albeit without attribution) Justice Eakin’s

determination that “[t]his is not a good faith exception case. This is not an Edmunds

case. This is not a material misrepresentation case.” Id. at 44.

        Inherent in the argument of the Commonwealth (and Justice Eakin’s plurality

opinion) is the premise that the officer attested in good faith. In Edmunds, this Court

made clear that a determination of whether the safeguards guaranteed by Article 1,

Section 8 of the Pennsylvania Constitution have been afforded to citizens accused of

crimes cannot be based upon a focus on whether the conduct of the affiant was in good

or bad faith. In Johnson, we reaffirmed our refusal to recognize a good faith exception

to the exclusionary rule in a case that did not involve an affiant at all (but rather an

invalid arrest warrant).9 Instead, in both Edmunds and Johnson, we have emphasized,

in the strongest possible terms, that the focus under Article 1, Section 8 must at all

times be on protecting the privacy of individuals, and that even an inadvertent violation

of a citizen’s right to privacy may require application of the exclusionary rule:
                [T]he right to be free from unreasonable searches and
                seizures contained in Article I, Section 8 of the Pennsylvania
                Constitution is tied into the implicit right to privacy.

                                    *        *     ** *

               Citizens in this Commonwealth possess such rights, even
               where a police officer in “good faith” carrying out his or her

9
    We note that the Commonwealth makes no mention of Johnson in its appellate brief.



                                        [J-111-2016] - 16
               duties inadvertently invades the privacy or circumvents the
               strictures of probable cause.
Edmunds, 586 A.2d at 898-99 (quoting Commonwealth v. DeJohn, 403 A.2d 1283,

1291 (Pa. 1979)); see also Johnson, 86 A.3d at 189 (“From the perspective of the

citizen whose rights are at stake, an invasion of privacy, in good faith or bad, is equally

as intrusive.”).10

10
    The Opinion in Support of Reversal (“OISR”) contends that this is not a good faith
exception case along the lines of Edmunds and Johnson, and it favors the application of
the standard articulated in Franks v. Delaware, 438 U.S. 154 (1978), in the present
scenario. The conclusion that the Franks standard would resolve the issue presented is
faulty precisely because of the difference between federal Fourth Amendment
jurisprudence and the law as it has developed under Article 1, Section 8.
       As explained above, Article 1, Section 8 provides greater protection than its
federal counterpart; as such, it makes little sense to structure an analysis of the issue
presented here around a federal standard. Indeed, this Court has held, contrary to the
standard announced in Franks, that as a matter of state law, a defendant is entitled to
challenge the veracity of statements in an affidavit of probable cause “without
conditioning that right upon a ‘substantial preliminary showing’ of the potential falsity of
those facts.” Commonwealth v. Miller, 518 A.2d 1187, 1194-95 (Pa. 1986). Miller
rejected the Franks test as not representative of the rights afforded citizens under the
Pennsylvania Constitution. The Franks procedures are not reflective of our Article I,
Section 8 jurisprudence and they are thus inapplicable to the case before us.
        Furthermore, contrary to the suggestion of the OISR, the decision in Miller is not
fundamentally at odds with an affirmance of the Superior Court’s decision in the present
appeal. Miller addressed an entirely different issue from the one at issue here, namely
whether the identity of a confidential informant may be revealed to test the truthfulness
of the police officer’s representations in the affidavit of probable cause supporting the
issuance of a warrant. Id. at 1195. The Court in Miller concluded that the police
officer’s veracity could be challenged at a suppression hearing, even absent a
preliminary showing of the existence of misrepresentations, but that this departure from
federal law did not necessitate the disclosure of the identity of the confidential informant
where it is established that said disclosure would jeopardize his or her safety. Id. at
1194-95. This Court acknowledged that its ruling might on occasion permit a perjured
officer’s sworn misrepresentations to go undetected, but held that this potentiality was
outweighed by the likelihood of injury flowing from the disclosure of the identity of
confidential informants (and reprisals relating thereto). Id. at 1195.
        Contrary to the OISR’s contention, this Court in Miller did not rule that a police
officer’s “good faith” mistaken reliance on a confidential informant’s veracity constituted
grounds to invade a citizen’s Article I, Section 8 privacy rights. To the extent, if any, that
(continued…)

                                     [J-111-2016] - 17
       In the present case, whether Detective Fetrow acted in good faith when reporting

Shifflet’s misstatements in the affidavit in support of probable cause is immaterial, as his

decision to sign and submit an affidavit for judicial review containing material

misstatements of fact resulted, without any question, in a clear invasion of Hopkins’ right

to privacy under Article 1, Section 8 of the Pennsylvania Constitution.          The police

entered and searched Hopkins’ home based upon a warrant issued solely on admittedly

false information. Apart from Shifflet’s lies, Detective Fetrow’s affidavit contained no

independent basis for a finding of probable cause. Once the suppression court made

this determination, its only proper course was to grant Hopkins’ motion to suppress.

The search warrant was invalid and the proper remedy under the exclusionary rule was

suppression of the evidence seized.

       Even assuming that Detective Fetrow acted entirely in good faith, his conduct

invaded Hopkins’ privacy. As a result, contrary to the Commonwealth’s insistence, this

is a good faith exception case, an Edmunds case, and a material misrepresentation

case. For these reasons, the order of the Superior Court should be affirmed.

       Justices Baer and Dougherty join this opinion in support of affirmance.




(…continued)
the decision in Miller could be so interpreted, it was implicitly overruled by our
subsequent decision in Edmunds, as explained at length herein.



                                     [J-111-2016] - 18
