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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
J-S45022-15
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).
-2-
J-S45022-15
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.
-3-
J-S45022-15
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.
-4-
J-S45022-15
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
-5-
J-S45022-15
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.
-6-
J-S45022-15
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)).
-7-
J-S45022-15
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
-8-
J-S45022-15
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.
-9-
J-S45022-15
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
- 10 -
J-S45022-15
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
- 11 -
J-S45022-15
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
- 12 -
J-S45022-15
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
- 13 -
J-S45022-15
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
- 14 -
J-S45022-15
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
- 15 -