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


COMMONWEALTH OF PENNSYLVANIA,                 :   No. 32 MAP 2016
                                              :
                  Appellant                   :   Appeal from the Order of the Superior
                                              :   Court dated 10/28/15 at No. 2074 MDA
             v.                               :   2014 affirming the order of the York
                                              :   County Court of Common Pleas,
                                              :   Criminal Division, dated 11/6/14 at No.
LORNE BRETT HOPKINS, JR.,                     :   CP-67-CR-0004536-2014
                                              :
                  Appellee                    :
                                              :   SUBMITTED: September 7, 2016



                        OPINION IN SUPPORT OF REVERSAL


CHIEF JUSTICE SAYLOR                                           DECIDED: June 30, 2017

      I respectfully differ with any extension of Commonwealth v. Edmunds, 526 Pa.

374, 586 A.2d 887 (1991), to the present circumstances, since I do not believe that a

good-faith “exception” to the exclusionary rule is implicated in this matter. Rather, the

salient issue, in my view, is whether the search warrant was valid and, thus, whether the

exclusionary rule applies in the first instance. As I would find that the warrant was

supported by probable cause as constitutionally required – and was therefore valid – I

would conclude that the evidence should not have been suppressed.

      Initially, the warrant in Edmunds was invalid because it was facially inadequate to

satisfy the probable-cause standard. See Edmunds, 526 Pa. at 382, 586 A.2d at 890-

91 (“[W]e concur with the inevitable conclusion of the trial court and the Superior Court,

that probable cause did not exist on the face of the warrant.”). See generally PA.

CONST. art. I, §8 (mandating that all warrants be based on probable cause). Therefore,
the Edmunds Court’s concern was with the invasion of privacy that would ensue if the

fruits of illegal searches could be used against an accused. See Edmunds, 526 Pa. at

402, 586 A.2d at 901 (indicating that “the use of the fruits of illegal searches would only

serve to undermine the integrity of the judiciary in this Commonwealth”).

      The decision in Commonwealth v. Johnson, 624 Pa. 325, 86 A.3d 182 (2014),

was to the same effect. It, too, rejected a good-faith exception to the exclusionary rule

in the context of a search undertaken pursuant to an expired – and thus invalid – arrest

warrant. The search in Johnson, like that in Edmunds, was illegal and, consequently,

the exclusionary rule applied. Thus, in Johnson a good-faith exception was rejected on

essentially the same basis that it was rejected in Edmunds: Article I, Section 8 is

intended to protect privacy and, hence, it prevents the fruits of an illegal search from

being used against a defendant regardless of whether the investigating officer

reasonably believed he or she was acting properly.

      Importantly, Edmunds did not purport to overlay upon Article I, Section 8 an even

stricter regime than that which can reasonably be derived from the provision’s text –

such that evidence obtained through execution of a valid warrant supported by probable

cause must be suppressed if it is later discovered that a private actor misled the police.

A rule of this nature is untethered to the Constitution, which simply requires that

searches and seizures be reasonable and that warrants only be issued upon a showing

of probable cause.    See PA. CONST. art. I, §8.        Further, such a rule does little to

“insulate[ us] from dictatorial and tyrannical rule by the state,” Opinion in Support of

Affirmance (“OISA”), slip op. at 10 (quoting Edmunds, 526 Pa. at 398, 586 A.2d at 899,

in turn quoting Commonwealth v. Miller, 513 Pa. 118, 127, 518 A.2d 1187, 1191-92

(1986)), since no agent of the government, in such circumstances, has acted

improperly.


                                     [J-111-2016] - 2
       In light of the above, the nature of the question here is materially distinct from

those which were raised in Edmunds and Johnson: it asks whether a search warrant

can be retroactively invalidated – and thus, the search undertaken pursuant to it be

deemed illegal – where probable cause appears evident based on the four corners of

the officer’s affidavit, but the facts on which the officer relied are discovered, in the post-

search timeframe, to be false.       Since “[t]he linch-pin that has been developed to

determine whether it is appropriate to issue a search warrant is the test of probable

cause,” Edmunds, 526 Pa. at 398, 586 A.2d at 899, the question, as applied here, is

whether the warrant was, in fact, supported by probable cause (and thus valid)

notwithstanding that:    (a) Shifflet lied to the affiant, Detective Fetrow, and (b) the

information from Shifflet which the detective included in his probable-cause affidavit is

necessary to a determination that probable cause existed. The answer to this question

depends on whether, and under what circumstances, probable cause can be present

when it is grounded on material from a third-party source that later turns out to be false.

       There is no requirement that probable cause be based on facts which are true,

only on facts which an officer reasonably believes to be true. See Commonwealth v.

Jones, 605 Pa. 188, 199, 988 A.2d 649, 655 (2010) (“Probable 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.” (quoting Commonwealth v.

Thomas, 448 Pa. 42, 52, 292 A.2d 352, 357 (1972))). In Franks v. Delaware, 438 U.S.

154, 98 S. Ct. 2674 (1978), the Supreme Court noted that, although probable cause

should be based on truthful information,

       [t]his does not mean “truthful” in the sense that every fact recited in the
       warrant affidavit is necessarily correct, for probable cause may be founded
       upon hearsay and upon information received from informants, as well as

                                      [J-111-2016] - 3
       upon information within the affiant’s own knowledge that sometimes must
       be garnered hastily. But surely it is to be “truthful” in the sense that the
       information put forth is believed or appropriately accepted by the affiant as
       true.
Id. at 165, 98 S. Ct. at 2681; see also United States v. Carmichael, 489 F.2d 983, 989

(7th Cir. 1973) (“If an agent reasonably believes facts which on their face indicate that a

crime has probably been committed, then even if mistaken, he has probable cause[.]”).

Thus, the Supreme Court explained, to invalidate a warrant, the defendant must

demonstrate that the affiant included a false statement either knowingly and

intentionally, or with reckless disregard for its truth. See Franks, 438 U.S. at 155-56,

170, 98 S. Ct. at 2676, 2683.

       Notably,   this   requirement    only   applies    to   the   affiant,   and   not   the

nongovernmental source of the information. See id. at 171, 98 S. Ct. at 2684. Thus,

the probable-cause assessment is not undermined where an officer reasonably believes

the information obtained from an informant who later turns out to have been lying. In

this respect, the Connecticut Supreme Court has explained that

       [p]robable cause is determined by objectively considering what is known
       to the state at the time a warrant is presented to a magistrate; it does not
       require the accuracy presented by hindsight. Inherent in the concept of
       probable cause is that the factual basis of a warrant may be inaccurate.
State v. Glenn, 740 A.2d 856, 862 (Conn. 1999). The court suggested that to hold law

enforcement to a more exacting standard than reasonable belief in the truth of the third-

party’s information could “result in a Catch-22 situation” where the police “would be

required to conduct virtually a complete investigation and present the magistrate with a

confirmed, absolutely true affidavit before a valid warrant could be issued, but such a

complete investigation would be nearly impossible without a warrant.” Id.

       Regardless of whether a “Catch-22” would result, the probable cause standard

does not encompass such high bar. As one commentator has expressed:


                                       [J-111-2016] - 4
       Even if [misinformation provided by the informant] is material, exclusion of
       competent evidence seems inappropriate. It is true that the warrant will
       have been issued on inaccurate data, but the fourth amendment has been
       read not to proscribe “inaccurate” searches, but rather only
       “unreasonable” ones. And a warrant based on information which the
       affiant and the magistrate both had reasonable grounds for believing is a
       reasonable one. To require agents to “know” facts that they cannot
       reasonably be expected to know would not deter any searches, since the
       agents must work with the reasonably believable evidence before them.
       Such a rule would also allow at least some defendants to escape
       otherwise certain conviction merely because the police cannot operate
       with perfect knowledge in every case.
Steven M. Kipperman, Inaccurate Search Warrant Affidavits as a Ground for

Suppressing Evidence, 84 HARV. L. REV. 825, 832-33 (1971) (footnotes omitted).

Although the above remarks reference the Fourth Amendment and its deterrence

objective, the observation that only unreasonable searches – and not “inaccurate” ones

– are precluded under that constitutional provision applies equally to Article I, Section 8.

Cf. Commonwealth v. Miller, 497 Pa. 257, 260, 439 A.2d 1167, 1169 (1982) (“We have

noted the requirement of probable cause is not structured to assure certainty but rather

it is a test of probabilities dealing with the considerations of everyday life.”).

Accordingly, a finding of probable cause is predicated on what the affiant reasonably

believes to be true. It is not assessed on the actual truth of the statements so that a

later recantation by one of the affiant’s sources has the ability retroactively to vitiate

probable cause that once existed. See generally Commonwealth v. Lyons, 622 Pa. 91,

110, 79 A.3d 1053, 1064 (2013) (indicating that probable cause “exists where, based

upon a totality of the circumstances set forth in the affidavit of probable cause, including

the reliability and veracity of hearsay statements included therein, there is a fair

probability that evidence of a crime will be found in a particular place” (internal quotation

marks, ellipsis, and citation omitted)).



                                      [J-111-2016] - 5
       The OISA discounts the above and, particularly, any reliance on Franks, because

Franks was based on the Fourth Amendment and this Court departed from its holding in

Commonwealth v. Miller, 513 Pa. 118, 518 A.2d 1187 (1986). See OISA, slip op. at 17

n.10. The point on which Miller declined to follow Franks, however, did not relate to

whether probable cause can be based on false information which is reasonably believed

by an officer. It pertained to the potential for an officer’s misrepresentation of facts and

the concept that only a defendant who makes a preliminary showing of the officer’s

intentional deception (or reckless disregard for the truth) has a right to a hearing on the

question. See Miller, 513 Pa. at 130, 518 A.2d at 1193 (“What is particularly significant

for our purposes is that the defendant [in Franks] was given the burden of establishing,

at least prima facie, a material misrepresentation in the warrant’s affidavit before inquiry

would be constitutionally required by the Fourth Amendment.”). Miller explained that, as

a matter of state law, defendants in Pennsylvania courts are entitled to such a hearing

without supplying a preliminary showing. See id. at 133, 518 A.2d at 1194-95 (citing

Commonwealth v. Hall, 451 Pa. 201, 302 A.2d 342 (1973)).

       Moreover, Miller was aligned with Franks on the question involved in this appeal,

as it clarified that such a hearing does not inquire into the veracity of the third-party

informant, only that of the police-officer affiant.   See id. at 134, 518 A.2d at 1195

(emphasizing “it is the police official, who requested the warrant, whose veracity is the

subject of the inquiry”); see also id. (“Once the affidavit is sufficient on its face the

question of the veracity of the statements contained therein is directed to the

truthfulness of the officer.”).   Thus, again, only if the officer made a “material

misrepresentation” to the magistrate should the warrant be set aside. Id. at 130, 518

A.2d at 1193; see also Hall, 451 Pa. at 205, 302 A.2d at 344 (explaining the basis for

this particularized focus by noting that a magistrate cannot make an objective and


                                     [J-111-2016] - 6
detached probable-cause determination if given “falsified averments”).         Hence, the

OISA departs from the Fourth Amendment as to the constitutional meaning of probable

cause – a departure that is in tension with this Court’s past pronouncements, see, e.g.,

Commonwealth v. Glass, 562 Pa. 187, 197, 754 A.2d 655, 661 (2000) (“The standard

for evaluating whether probable cause exists for the issuance of a search warrant is the

same under both the Fourth Amendment and Article I, §8[.]”), and which is undertaken

without a supporting Edmunds analysis.

       In my view, and as noted, although Article I, Section 8’s purpose of protecting

privacy has led this Court to eschew good-faith exceptions to the exclusionary rule

where probable cause is absent, it does not follow that the definition of probable cause

must be narrowed to require that the material averments in the officer’s affidavit be, not

only reasonably believed by the officer, but factually true.

       Turning to the present case, at the suppression hearing Detective Fetrow

testified that he believed Shifflet’s information to be true, see N.T., Nov. 6, 2014, at 6,

and Appellee did not dispute this. The Commonwealth also explained why such belief

was reasonable: Shifflet implicated himself in the offense and, as such, he was not

solely reporting that someone else had committed a crime; Shifflet referred to Appellee

by a nickname and knew the area where he lived; and Shifflet selected Appellee from a

photo array. See id. at 17-18. See generally Miller, 497 Pa. at 260, 439 A.2d at 1169

(suggesting an enhanced reliability relative to a probable-cause determination when the

declarant was involved in the events being recounted, because “[t]he personal

involvement of the declarant assures direct knowledge of the source of the

information”); Commonwealth v. Stickle, 484 Pa. 89, 97-98, 398 A.2d 957, 961-62

(1979) (same).




                                      [J-111-2016] - 7
       Finally, and perhaps most important, Appellee affirmatively conceded that the

information provided by Shifflet reasonably appeared true to both Detective Fetrow and

the magistrate, and that the detective did not misrepresent any of the information when

applying for the search warrant. Hence, Appellee clarified that his sole argument was

that the Superior Court’s decisions in Commonwealth v. Clark, 412 Pa. Super. 92, 602

A.2d 1323 (1992), and Commonwealth v. Antoszyk, 985 A.2d 975 (Pa. Super. 2009),

aff’d by an equally divided court, 614 Pa. 539, 38 A.3d 816 (2012), required suppression

on the basis that the information was, in fact, false. See N.T., Nov. 6, 2014, at 19-22.

       For its part, the suppression court found as a fact that Detective Fetrow

proceeded on a good faith belief that Shifflet’s information was trustworthy and that

such information constituted probable cause so as to support a valid warrant. See id. at

29-30.1 Thus, the only reason the suppression court granted Appellee’s motion was

that it was bound by prevailing Pennsylvania law as set forth in Clark and Antoszyk.

See id. at 31-32.2


1
  This comports with the standard for reckless disregard in the speech arena, which
arises when the person entertains serious doubts about the truth of the information or
acts with a high degree of awareness of its probable falsity. See Am. Future Sys., Inc.
v. Better Bus. Bureau, 592 Pa. 66, 76 n.6, 923 A.2d 389, 395 n.6 (2007) (quoting
Masson v. New Yorker Magazine, 501 U.S. 496, 510, 111 S. Ct. 2419, 2429, (1991),
and Garrison v. Louisiana, 379 U.S. 64, 74, 85 S. Ct. 209, 216 (1964)). Although that
test was fashioned for defamation controversies, it is applicable as concerns affidavits
of probable cause because neither the Supreme Court nor this Court has developed a
separate definition. Accord Wilson v. Russo, 212 F.3d 781, 787-88 (3d Cir. 2000).

2
  As suggested above, the judicial finding of a good faith belief in the truthfulness of
Shifflet’s information is materially different from a good faith belief in the validity of a
warrant that, in reality, is not supported by probable cause. In the former situation, it
contributes to the actual validity of the warrant and, as such, does not implicate a good-
faith exception to any rule. In the latter, it invokes a possible good-faith exception to the
general rule that search warrants must be based on probable cause – an exception
which exists under the Fourth Amendment but not Article I, Section 8.


                                      [J-111-2016] - 8
      As I believe, for the reasons given, that those cases were wrongly decided, I

would reverse the order of the court of common pleas.


      Justices Todd and Mundy join this opinion in support of reversal.




                                   [J-111-2016] - 9
