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 Novemb er 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 i nvoluntary civil commitments are entitled to the constitutional prot ections provided by the Fourth Amendment and Article I, Section 8, as these protections apply to all citizens, regardless of their status, when police o r other government entities are involved. Majority at 6. However, where the M ajority concludes that the warrant for Appellant’s involuntary commitment for an emergency mental health examination was invalid and the evidence sho uld therefore have been suppressed, I would hold that the § 7302 warrant wa s properly issued, and that the subsequent seizure of Appellant and search incident thereto, were constitutionally valid. Preliminarily, I would conclude that the warrant f or Appellant’s emergency commitment under § 7302 of the Mental Hea lth Procedures Act (“MHPA”) was validly issued. As we explained in Commonwealth v.J-A01017-15

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Jackson , 62 A.3d 433, 439 (Pa. Super. 2013) “our Supreme C ourt [has] held... that the standard for evaluating the validi ty of [§ 7302 warrants] is whether reasonable grounds exist to believe that a person is severely mentally disabled and in need of immediate treatmen t.” See 50 P.S. § 7301(a) (“[a] person is severely mentally disabled when, as a result of mental illness, his capacity to exercise self-contr ol, 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 vie wing the surrounding facts and circumstances, a reasonable person in the position of the applicant for a section 7302 warrant could have concluded tha t an individual was severely mentally disabled and in need of immediate treatment.” Jackson , 62 A.3d at 439 (citations and internal quotations o mitted). Here, Officer Newcomer testified that on December 1 4, 2012, Appellant’s mother appeared at the police station a nd reported that Appellant was suffering from depression and had mad e statements about “wanting to end things.” N.T., 11/15/13, at 5-6; A ffidavit of Probable Cause, 12/31/12. Appellant’s mother then showed Officer N ewcomer text messages from Appellant in which Appellant stated: “I’m goi ng 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 view ed the text messages,J-A01017-15

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that in them, Appellant unequivocally expressed a d esire to kill herself, that Appellant’s mother related to her that Appellant su ffered 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 l ight of the foregoing, that a person in Officer Newcomer’s position could have reasonably believed that Appellant was severely mentally disabled and in nee d of immediate treatment, and that in the interest of protecting h uman life, a temporary emergency examination by a physician was warranted. A section 7302 commitment is an initial emergency e xamination period under which the individual must be examined by a ph ysician 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 p erson is in fact severely mentally disabled and in need of emergency treatmen t, 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 ap pears there is no longer a need for immediate treatment, the person shall be d ischarged 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 me ntally disabled and in need of treatment; that determination is not made at the time of issuance of the warrant. Rather, at the time of is suance of the warrant, theJ-A01017-15

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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 t he doctor, not to take [the individual] to jail”, and only allows the individua l 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 f or therapeutic purposes). I would conclude that such reasonable g rounds 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 Common wealth satisfying the rigorous involuntary commitment requirements set fo rth in § 7303 of the MHPA, which require a hearing where the Commonwealt h must justify the need for involuntary commitment by clear and convic ting evidence. See In re Ryan , 784 A.2d 803, 806 (Pa. Super. 2001) (“Under secti on 7303, when a facility deems a patient to be in need of additio nal care beyond the 120 hours of emergency care authorized by section 7302, an application to extend treatment may be filed in the trial court an d an informal hearing held within 24 hours of the filing of the application [a nd] after the hearing, if the judge or mental health review officer certifies the patient as severely mentally disabled, he may authorize up to an additi onal twenty days of treatment.”); J.M , 726 A.2d 1041, 1047, n.9 (“Pennsylvania jurisprud ence has consistently noted that the legislature intende d the MHPA to create aJ-A01017-15

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treatment scheme under which a patient's procedural protections expand progressively as the deprivation of liberty gradual ly increases.”). In light of the foregoing, I would conclude that Officer Newcom er 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 alleg ed 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 duri ng 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 ar ticulated the clear and immediate intent to kill herself. Under these circ umstances, and as in Jackson , I would conclude that Officer Newcomer had reason able grounds to believe that Appellant was severely mentally dis abled and in need of immediate treatment, to satisfy the requirements fo r issuance of a valid § 7302 warrant.J-A01017-15

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Moreover, even if the warrant was technically defec tive 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 ren der the search unreasonable nor require the exclusion of evidence, whereas violations of the Rules which assume constitutional dimensions an d/or substantially prejudice the accused may require the exclusion of evidence so seized”). Neither Jackson nor the MHPA require suppression as an automatic re medy where a warrant application fails to comply with th e 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 peo ple to be secure in their persons, houses, papers, and effect s, against unreasonable searches and seizures.” The Amendment says nothing about suppressing evidence obtained in viol ation of this command. That rule—the exclusionary rule—is a pruden tial doctrine, created by this Court to compel respect f or the constitutional guaranty. Exclusion is not a person al 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 futur e Fourth Amendment violations. Our cases have thus limited the rule’s operation to situations in which this purpose is th ought most efficaciously served. Where suppression fails to y ield appreciable deterrence, exclusion is clearly ... un warranted.J-A01017-15

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In addressing Appellant’s claim that the police “vi olated her rights under the Fourth Amendment of the United States Con stitution and Article 1 § 8 of the Pennsylvania constitution,” we are requi red to examine whether Appellant’s constitutional rights were infringed up on when she was seized and subsequently searched by Officer Newcomer. App ellant’s Brief at 13-17. Because I believe the evidence (heroin and a syring e) 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 Constitut ion, which protects from unreasonable searches and seizures, “ applies to seizures in civil, as well as criminal, proceedings”, and court s have generally recognized that the Fourth Amendment protections extend to civ il 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 Fourt h Amendment, “the established remedy for illegal seizures and searche s in criminal cases is exclusion of the fruits of the illegal police condu ct.” 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 centra l question in any litigation challenging a particular search or seizure is wheth er 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 ,J-A01017-15

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496 U.S. 444, 450, 110 S.Ct. 2481, 2485, 110 L.Ed.2 d 412 (1990). “[T]he reasonableness of a search is determined by assessi ng, on the one hand, the degree to which it intrudes upon an individual’s pr ivacy, 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 b y the involuntary commitment against the government’s legitimate inte rest in providing for the emergency examination of dangerous and mentally ill individuals, I would conclude that the seizure of Appellant, who e xpressed an intent to kill herself, was reasonable. See Doby v. DeCrescenzo , 171 F.3d 858, 871 (3d Cir. 1999), (finding § 7302 seizures “reasonabl e” under the Fourth Amendment, after balancing the deprivation of liber ty caused by the involuntary commitment against the government’s leg itimate interest in providing for the involuntary examination of danger ous individuals). Accordingly, I would hold that Appellant was not su bjected to a violation of her Fourth Amendment rights. While “[t]he touchstone of the Fourth Amendment is reasonableness, not individualized suspicion,” the United States Su preme Court has nevertheless generally preferred some quantum of in dividualized suspicion (probable cause or reasonable suspicion) as a prere quisite 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.J-A01017-15

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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 conc lude that probable cause existed for the seizure. In criminal cases, the probable cause standard is d escribed as follows:
Probable cause is made out when the facts and circu mstances which are within the knowledge of the officer at th e time of the arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable cauti on in the belief that the suspect has committed or is committ ing a crime. The question we ask is not whether the officer's be lief was correct or more likely true than false. Rather, we require only a probability, and not a prima facie showing, of criminal activit y. In determining whether probable cause exists, we ap ply 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 commit ments under the MHPA, the inquiry is not whether an individual has commit ted or is committing a crime; rather, § 7302 permits a peace officer to ta ke an individual to an involuntary treatment facility if there are “reason able 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 termJ-A01017-15

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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 establ ished, “[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 prob ability, and not a prima facie showing.” Thompson, supra . “Probable cause ... is not a high bar: It requires only the kind of fair probability on wh ich 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 tha t probable cause “is a fluid concept—turning on the assessment of probabili ties 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 Appella nt’s mother appeared at the police station, showed her text mes sages from Appellant in which Appellant stated: “I’m going to kill myself” , and reported that Appellant was suffering from depression and had mad e statements about “wanting to end things”, I would conclude that prob able 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.J-A01017-15

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the belief that Appellant was severely mentally dis abled. N.T., 11/15/13, at 5-6, 14; Affidavit of Probable Cause 12/31/12. The refore, in my view, Appellant was not subjected to an illegal seizure i n 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 val id 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 sea rch 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 s earch of the person detained and the immediate area which the person oc cupies, for safety purposes, akin to a search incident to arrest. See also Commonwealth v. Shiflet , 670 A.2d 128, 132 (Pa. 1995) (recognizing the sea rch incident to arrest exception as a “reasonable intrusion for the protection of police officers [who may conduct] a search of the person a rrested 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 s earch the person and area within reach of the suspect, in the interest of pre serving the safety of those making the arrest). Accordingly, I would conclude that Officer Newcomer’sJ-A01017-15

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recovery of heroin and a syringe from Appellant occ urred 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 resu lt could be reached under Article I, Section 8 of the Pennsylvania Constituti on which affords greater individual privacy protections than the Fourth Amen dment. 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 hi gher protections under the Pennsylvania Constitution, th e Appellant must discuss the following four factors: 1) text o f the Pennsylvania constitutional provision; 2) history o f the provision, including Pennsylvania case-law; 3) related case-la w 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 protect ions under the Pennsylvania constitution, and Appellant does not a rgue that the Pennsylvania Constitution offers greater protection than the United States Constitution. Therefore, I do not engage in a sepa rate state constitutional analysis.