J-A05005-18

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* Former Justice specially assigned to the Superior Court.

2018 PA Super 201

COMMONWEALTH OF PENNSYLVANIA,

Appellant

v.

JOHN MCCLEARY,

Appellee

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 244 EDA 2017

Appeal from the Order Entered December 7, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No.: CP-51-CR-0006625-2016

BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*

OPINION BY DUBOW, J.: FILED JULY 10, 2018

The Commonwealth appeals from the December 7, 2016 Order 

entered in the Philadelphia County Court of Common Pleas granting the 

Motion to Suppress filed by Appellee, John McCleary. After careful review, 

we conclude that the suppression court erred as a matter of law when it 

concluded that police officers failed to obtain valid consent to search 

Appellee’s residence because they did not adhere to Philadelphia Police 

Department Directives. After careful review, we reverse the suppression

court’s Order and remand for further proceedings consistent with this 

Opinion.

In its Pa.R.A.P. 1925(a) Opinion, the suppression court detailed the 

testimony adduced at the suppression hearing. Briefly, on February 12,

2016, Philadelphia Police Officers Lemorus Grover and Keith Baynes

responded to Appellee’s home at 5725 Florence Avenue after Appellee
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reported a burglary in progress. Officers Grover and Baynes entered 

Appellee’s home through an open door and observed Appellee, Janis 

Shavers, and two other officers talking in the living room. Officers Grover 

and Baynes relieved the other two officers and attempted to clarify and calm 

the situation.

Appellee claimed that Shavers had been trying to break in to his home 

and that he had a valid Protection from Abuse Order (“PFA”)1 against her. 

Shavers claimed that she had a right to be present in the home and she had 

belongings in a second-floor bedroom that would prove she lived there. The 

officers did not immediately verify whether Appellee had a valid PFA against 

Shavers.2

When the officers asked Appellee if they could see if Shavers had any 

belongings in the second-floor bedroom, Appellee responded “Yes” twice. 

N.T. Motion, 12/7/16, at 21-22. Officer Baynes walked upstairs and entered 

the second-floor bedroom. In the bedroom, he observed in plain view a 

scale, a sandwich bag with marijuana, a box of unused drug packaging, 

eleven bags of crack cocaine, and clear plastic Ziploc bags. Appellee

admitted that all the drugs belonged to him. Id. at 61-62. The officers 

arrested Appellee.

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1 See 23 Pa.C.S. §§ 6101 et seq. (Protection from Abuse Act).

2 At the suppression hearing, the parties stipulated that there was an active 

PFA filed by Appellee against Shavers. N.T. Motion, 12/7/16, at 79.
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The Commonwealth charged Appellee with Possession of a Controlled 

Substance With Intent to Deliver (“PWID”), Possession of a Controlled 

Substance, and Possession of Drug Paraphernalia.

3

Appellee filed a boilerplate Motion to Suppress his statements and the 

physical evidence recovered from his home. On December 7, 2016, the

suppression court heard testimony on the Motion to Suppress consistent with 

the above facts. At the close of the hearing, the suppression court granted 

Appellee’s Motion to Suppress.

The suppression court focused the bulk of its analysis on the police 

officers’ failure to comply with Philadelphia Police Department Directive 5.7, 

Sections 12 through 16, which address, inter alia, the best practices for 

obtaining valid consent to search property. In support of its decision to 

grant Appellee’s Motion to Suppress, the court specifically found that the 

officers acted “in direct contravention to their own police directive” and 

concluded that “the Commonwealth has failed to prove that the officers 

followed proper procedures and obtained a valid consent to search 

[Appellee’s] residence.” Suppression Court Opinion, 4/26/17, at 6. The 

suppression court focused on several purported violations of police 

directives, including: (1) failure to obtain “signed consent;” (2) failure to 

inform Appellee of his right to refuse consent; (3) failure to consult with a 

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3 35 P.S. § 780-113(a)(30); 35 P.S. § 780-113(a)(16); and 35 P.S. § 780-

113(a)(32), respectively.
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supervisor; and (4) failure to verify Appellee’s PFA and simply arrest 

Shavers. Id. at 6-8.

On January 6, 2017, the Commonwealth filed an interlocutory appeal

pursuant to Pa.R.A.P. 311(d).4 Both the Commonwealth and the 

suppression court complied with Pa.R.A.P. 1925.

The Commonwealth presents one issue for our review:

Did the lower court err by suppressing contraband that officers 

observed in plain view - after entering a room with [Appellee’s]

express consent - on the ground that they had failed to comply 

with internal police department procedures?

Commonwealth’s Brief at 3.

Our standard of review applicable to suppression determinations is 

well-settled. “When reviewing the grant of a suppression motion, we must

determine whether the record supports the trial court’s factual findings and 

whether the legal conclusions drawn from those facts are correct.” 

Commonwealth v. Ennels, 167 A.3d 716, 718 (Pa. Super. 2017) (citation 

and quotation marks omitted). “We may only consider evidence presented 

at the suppression hearing.” Id.

“In addition, because the defendant prevailed on this issue before the 

suppression court, we consider only the defendant’s evidence and so much 

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4 Pa.R.A.P. 311(d) provides that “the Commonwealth may take an appeal as 

of right from an order that does not end the entire case where the 

Commonwealth certifies in the notice of appeal that the order will terminate 

or substantially handicap the prosecution.”
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of the Commonwealth’s evidence as remains uncontradicted when read in 

the context of the record as a whole.” Id. at 718-19 (citation omitted). “We 

may reverse only if the legal conclusions drawn from the facts are in error.” 

Id. at 719.

Importantly, “[o]nce a [M]otion to [S]uppress [E]vidence has been 

filed, it is the Commonwealth’s burden to prove, by a preponderance of the 

evidence, that the challenged evidence was not obtained in violation of the 

defendant’s rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047-

1048 (Pa. Super. 2012) (en banc) (citation omitted); see also Pa.R.Crim.P. 

581(H).

The Fourth Amendment of the United States Constitution and Article 1, 

Section 8 of our state Constitution protect citizens from unreasonable 

searches and seizures. In re D.M., 781 A.2d 1161, 1163 (Pa. 2001). To 

effectuate these protections, the exclusionary rule bars the use of illegally 

obtained evidence in state prosecutions in order to deter illegal searches and 

seizures. Commonwealth v. Arter, 151 A.3d 149, 153-54 (Pa. 2016). 

The United States Supreme Court has held that the exclusionary rule applies 

where “its remedial objectives are thought most efficaciously served” and 

“its deterrence benefits outweigh its substantial social costs.” Id. at 154

(citation omitted).

Pennsylvania courts have rejected the automatic suppression of 

evidence pursuant to the exclusionary rule where police fail to comply with 
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specific Rules of Criminal Procedure relating to the issuance and execution of 

search warrants. Commonwealth v. Ruey, 892 A.2d 802, 808 (Pa. 2006) 

(OAJC). See also Commonwealth v. Mason, 490 A.2d 421, 423-25 (Pa. 

1985) (rejecting automatic application of exclusionary rule for violation of 

Rule of Criminal Procedure governing search warrants, and collecting cases).

This Court has similarly refused to apply the exclusionary rule for 

every violation of statutes governing police authority and conduct during 

investigations, searches, and seizures. See, e.g., Commonwealth v. 

Hilliar, 943 A.2d 984, 989-92 (Pa. Super. 2008) (holding that violation of 

Municipal Police Jurisdiction Act did not require suppression of evidence from 

stop); Commonwealth v. DeGeorge, 466 A.2d 140, 141 (Pa. Super. 1983) 

(holding that violation of Rule of Criminal Procedure governing inventory of 

item seized did not require suppression of evidence), reversed on other 

grounds by Commonwealth v. DeGeorge, 485 A.2d 1089 (Pa. 1984). This 

Court’s research has not located any cases addressing the application of the 

exclusionary rule as a remedy for the violation of internal police procedures, 

administrative protocols, or similar policies.

“In determining the validity of a given consent, the Commonwealth 

bears the burden of establishing that a consent is the product of an 

essentially free and unconstrained choice—not the result of duress or 

coercion, express or implied, or a will overborne—under the totality of the 

circumstances.” Ennels, 167 A.3d. at 723 (citation omitted). Our Supreme 
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Court has articulated the following non-exhaustive list of factors to be used 

in assessing the totality of circumstances: “1) the presence or absence of 

police excesses; 2) whether there was physical contact; 3) whether police 

directed the citizen’s movements; 4) police demeanor and manner of 

expression; 5) the location and time of the interdiction; 6) the content of the 

questions and statements; 7) the existence and character of the initial 

investigative detention, including its degree of coerciveness; 8) the degree 

to which the transition between the traffic stop/investigative detention and 

the subsequent encounter can be viewed as seamless, thus suggesting to a 

citizen that his movements may remain subject to police restraint; and 9) 

whether there was an express admonition to the effect that the citizensubject is free to depart, which is a potent, objective factor.” 

Commonwealth v. Randolph, 151 A.3d 170, 177 (Pa. Super. 2016) 

(citations and quotation marks omitted).

Where a defendant summons police or emergency personnel regarding 

potential criminal activity in his home, he has impliedly consented to police 

entry and a search of the premises that is reasonably related to an 

investigation of the alleged crime. See, e.g., Commonwealth v. Witman, 

750 A.2d 327, 335 (Pa. Super. 2000) (holding valid implicit consent for 

police to enter home where defendant placed 911 call).

In its Rule 1925(a) Opinion, the suppression court opined as follows:

Here, the Commonwealth has failed to prove that the officers 

followed proper procedures and obtained a valid consent to 
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search [Appellee’s] residence. Although the police were 

legitimately at [Appellee’s] residence in response to a radio call 

for a burglary in progress, once they determined that it was 

actually a domestic situation, and were told that [Appellee] had 

a PFA against [Shavers], they failed to verify if there was an 

active PFA and instead decided to conduct a search of 

[Appellee’s] residence in direct contravention to their own police 

directive. See attached Philadelphia Police Department Directive 

5.7 section 12 through 16. Officer Baynes conceded that had 

they verified the PFA, they would have arrested [Shavers] and

left the residence without incident.

* * *

Because the officers were informed that [Appellee] had a PFA 

against [Shavers], they should have followed established police 

procedures and verif[ied] the PFA. If that had been done, the 

alleged need to search for [Shavers’] clothing would have been 

eradicated. In this Commonwealth, every holder of a PFA,

regardless of gender, should be able to have confidence that the 

police will verify the validity of the PFA before they create 

reasons to conduct a warrantless search. While the law of 

search and seizure is constantly evolving, its focus remains on 

the delicate balance of protecting the right of citizens to be free 

from unreasonable searches and seizures and protecting the 

safety of citizens and police officers by allowing police to make 

limited intrusions on citizens while investigating crime. Here, 

there was no acceptable reason to conduct a search, however 

limited in nature, of [Appellee’s] residence.

Suppression Court Opinion, 4/26/17, at 7-8 (some citations omitted).

As noted above, the exclusionary rule is an extreme remedy for 

distinct constitutional violations. Here, the totality of the circumstances 

indicates there was no violation of Appellee’s Fourth Amendment right. 

Because Appellee summoned the police by calling 911 to report the alleged 

burglary in progress, Appellee impliedly consented to police entry and the 

subsequent limited search, which was reasonably related to their 
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investigation of the alleged burglary and domestic dispute. Witman, 750 

A.2d 335.

Moreover, Appellee verbally consented to the police entry and limited 

search of the bedroom. Appellee responded “Yes” twice when the officers 

asked him if they could search the bedroom for Shavers’ clothing. There is 

no evidence of record showing that police obtained Appellee’s consent by 

coercion, deceit, or misrepresentation. In light of these factors, we do not 

agree that the search was improper.

Further, the suppression court cited no relevant authority to support 

its proposition that application of the exclusionary rule is the appropriate 

remedy for violating a police directive. See Suppression Court Opinion at 6-

8. As demonstrated by the legal principles recited above, even where police 

fail to comply with specific Rules of Criminal Procedure relating to the 

issuance and execution of search warrants or violate statutes governing 

police authority and conduct during investigations, searches, and seizures, 

the exclusionary rule is not necessarily the appropriate remedy, particularly 

where an individual’s Fourth Amendment rights have not been violated. By 

focusing its analysis exclusively on the police directive, the suppression court 

ultimately neglected to evaluate the totality of the circumstances and failed 

to apply relevant and dispositive case law.

Order reversed. Case remanded for further proceedings consistent 

with this Opinion. Jurisdiction relinquished.
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President Judge Emeritus Stevens joins the Opinion.

Judge Murray files a Dissenting Opinion.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/10/18