Opinion
1113 WDA 2021 J-E02001-24
09-25-2024
COMMONWEALTH OF PENNSYLVANIA Appellant v. STEVEN G. EAKIN
Benjamin D. Kohler, Esq.
Appeal from the Order Entered September 8, 2021 In the Court of Common Pleas of Venango County Criminal Division at No(s): CP-61-CR-0000647-2017
Benjamin D. Kohler, Esq.
BEFORE: LAZARUS, P.J., BOWES, J., DUBOW, J., NICHOLS, J., MURRAY, J., McLAUGHLIN, J., KING, J., SULLIVAN, J., and BECK, J.
OPINION
BOWES, J.:
The Commonwealth of Pennsylvania appeals from the order granting Steven G. Eakin's suppression motion. The trial court granted the motion on the basis that the traffic stop was conducted by an officer operating outside of his primary jurisdiction, and his actions were not authorized by the Intergovernmental Cooperation Act ("ICA") or the Municipal Police Jurisdiction Act ("MPJA"). Since we conclude that suppression was not an appropriate remedy for the technical violations in this case, we reverse and remand for further proceedings.
Prior to reciting the undisputed facts of this case, we begin by briefly setting forth the framework within which Chief Edward Sharp of the Polk Borough Police Department encountered Appellee in Frenchcreek Township. In 2006, Polk Borough and Frenchcreek Township entered into a joint municipal police agreement whereby Frenchcreek paid Polk to provide law enforcement services. Those services, which had been provided from 2006 through the time of the stop at issue in this case in 2017, included Polk Borough police patrolling within Frenchcreek to enforce the Vehicle and Crimes Codes. See Joint Municipal Agreement, 4/13/06, at ¶ 2(a)(1), (2).
The version of the ICA in effect at the time of the agreement required adoption of such an agreement by ordinance. Specifically, that version provided in pertinent part as follows: "A local government may enter into intergovernmental cooperation with or delegate any functions, powers or responsibilities to another governmental unit or local government upon the passage of an ordinance by its governing body. If mandated by initiative and referendum in the area affected, the local government shall adopt such an ordinance." 53 Pa.C.S. § 2305 (effective 1996-2020). Polk Borough properly passed an ordinance adopting the 2006 agreement, but Frenchcreek Township only entered a resolution to adopt the agreement.
The legislature subsequently amended the ICA to expressly permit adoption of such an agreement by ordinance or resolution. See 53 Pa.C.S. § 2305(a).
With this background, we turn to the disputed stop. On August 11, 2017, Chief Sharp was traveling on Georgetown Road in Frenchcreek Township and observed Appellee's vehicle driving east in the westbound lane for approximately one-half mile. Chief Sharp conducted a traffic stop shortly before 9:00 p.m., and immediately recognized Appellee, his longtime friend, as the driver. The two had, among other things, worked together on the campaign for Venango County Court of Common Pleas President Judge Oliver Lobaugh. Chief Sharp observed a martini glass with two olives in the center console. When asked about the glass, Appellee "picked it up" and "threw it onto the . . . floor on the side[.]" N.T. Suppression, 8/27/21, at 48. As Chief Sharp and Appellee began to converse, Appellee stated that "Ollie's not gonna like this." Id. Chief Sharp replied, "Let's not go there[,]" but Appellee continued to say "Ollie's not gonna like this" and "[y]ou and I are friends." Id. Based on the foregoing, Chief Sharp radioed for another officer to take over the traffic stop.
Sergeant Alan Heller, also of the Polk Borough Police Department, arrived on scene to relieve Chief Sharp. After independently determining that Appellee exhibited signs of driving under the influence of alcohol ("DUI"), Sergeant Heller inquired about conducting field sobriety tests, but Appellee indicated he was unable to perform the tests. Therefore, Sergeant Heller transported Appellee for a blood draw to determine his blood alcohol content level. Since Appellee agreed to the blood draw, the sergeant did not inform him of the consequences of refusing to comply. The blood draw confirmed his blood alcohol content level as 0.16%. Based on the foregoing, Sergeant Heller decided to charge Appellee with DUI.
At the time of the hearing, Sergeant Heller had retired from Polk Borough and had become the chief of police elsewhere. See N.T. Suppression, 8/27/21, at 21-22. For ease of reference, we will refer to him within this opinion using his Polk Borough title.
Appellee, proceeding pro se, filed a suppression motion, which the court denied, and was convicted following a jury trial. On direct appeal, this Court vacated his judgment of sentence because he had not properly waived his right to counsel prior to his suppression hearing. See Commonwealth v. Eakin, 242 A.3d 387, 2020 WL 6392480 (Pa.Super. 2020) (non-precedential decision). Therefore, we remanded the matter back to the trial court for a new suppression hearing where Appellee could either proceed with counsel or validly waive his right to counsel and proceed pro se. After electing to proceed pro se, Appellee filed another motion to suppress the results of his blood draw and the evidence obtained during the traffic stop. It is the result of this second suppression motion that is the subject of this appeal.
Of relevance, Appellee challenged the validity of the extra-jurisdictional traffic stop by Polk Borough police in Frenchcreek Township. Since the version of the ICA in effect at the time of the stop required adoption of a joint municipal agreement by ordinance, and Frenchcreek had only entered a resolution, Appellee argued that the evidence from the stop should be suppressed because the Polk Borough officers were not acting pursuant to an ICA-compliant joint agreement. Similarly, he contended that while the MPJA provides six exceptions for extra-judicial police conduct, see 42 Pa.C.S. § 8953(a), none of them applied. See Omnibus Pretrial Motion, 4/23/21, at ¶¶ 16-21. Thus, he averred that the officers lacked the authority to stop him and that the evidence obtained during the traffic stop should be suppressed.
Noting that Polk Borough police had been providing policing services to Frenchcreek Township since 2006, and that "Frenchcreek clearly intended to permit Polk Borough Police Department to perform law enforcement duties within Frenchcreek[,]" the Commonwealth insisted that the legislative purposes behind the MPJA were met in this case and suppression was therefore unwarranted. See Commonwealth's Answer, 6/3/21, at ¶¶ 11-18.
The court held a suppression hearing on August 27, 2021, and heard from Sergeant Heller and Chief Sharp. The parties agreed to the admission of the 2006 Joint Municipal Agreement, the 2018 Joint Municipal Agreement, the 2018 ordinance from Polk Borough, and emails between the two jurisdictions regarding the agreement to provide police services. In summarizing the import of those documents, the parties stipulated "that the 2006 Joint Municipal Agreement was amended [after the traffic stop at issue] and fixed to cure legal deficiencies[.]" N.T. Suppression, 8/27/21, at 59-60. Those "legal deficiencies" form the crux of this appeal.
At the conclusion of the suppression hearing, the Commonwealth argued that suppression was not an appropriate remedy because, despite the improper procedure to enforce the 2006 agreement, the local governments had been operating pursuant to that agreement for over ten years. Id. at 71-72, 77. Appellee, meanwhile, contended that the agreement was a legal nullity because it did not comply with the ICA. Id. at 73. He relied upon Commonwealth v. Hlubin, 208 A.3d 1032 (Pa. 2019), wherein the High Court considered the intrusiveness of a sobriety checkpoint involving cooperation among multiple police jurisdictions, and implored the court to grant his suppression motion.
After taking the matter under advisement, the trial court granted Appellee's motion to suppress the evidence resulting from the traffic stop.The Commonwealth filed a motion for reconsideration, noting, inter alia, that the legislature had, in direct response to Hlubin, amended § 8953(a)(3), one of the MPJA exceptions, because it disagreed with the Supreme Court's interpretation. See Motion for Reconsideration, 9/9/21, at unnumbered 1-2. The trial court denied the Commonwealth's motion, finding that § 8953(a)(3) did not apply, and that because an ordinance was not passed, Chief Sharp "lacked authority to stop [Appellee]" in Frenchcreek Township. Order, 9/14/21, at 2-3.
The court denied Appellee's challenge to the blood draw because it determined that he had validly consented to it. See Order of Court, 9/8/21, at 2-3. That portion of the suppression motion is not before us.
This appeal followed, wherein the Commonwealth certified that the suppression order substantially handicapped the prosecution of Appellee in this case. The Commonwealth complied with the court's order to file a Pa.R.A.P. 1925(b) statement. In lieu of a Rule 1925(a) opinion, the trial court directed us to its September 14, 2021 order. On appeal, the Commonwealth sets forth three issues for our consideration:
1. Whether the trial court erred in granting Appellee's motion to suppress by relying only on Hlubin, where Hlubin involved a police sergeant who conducted a stop and arrest in a prearranged sobriety checkpoint located outside of his primary jurisdiction.
2. Whether the trial court erred in granting Appellee's motion to suppress, as our learned Superior Court has consistently found that suppression of evidence is not an appropriate remedy for a technical violation of the [MPJA].
3.Whether the trial court erred in granting [Appellee]'s motion to suppress, due to the Pennsylvania legislature amending [§] 8953 of the [MPJA] with the "explicit intent to reverse the Supreme Court's interpretation of the MPJA in Hlubin."Commonwealth's brief at 4 (cleaned up).
In essence, the Commonwealth seeks reversal of the trial court's conclusion that suppression was an appropriate remedy for the ICA and MPJA violations. A panel of this Court considered these issues and filed a memorandum decision affirming the trial court's order. The Commonwealth sought reargument before this Court en banc, which we granted. As a result, we withdrew our prior panel writings, permitted substituted briefing, and entertained oral argument. The matter is now ripe for our consideration.
The author of this opinion sat on that three-judge panel and submitted a dissenting memorandum.
We note that Appellee retained private counsel after we granted reargument.
We begin with our well-settled standard of review. "When reviewing an order granting a motion to suppress we are required to determine whether the record supports the suppression court's factual findings and whether the legal conclusions drawn by the suppression court from those findings are accurate." Commonwealth v. Henry, 943 A.2d 967, 969 (Pa.Super. 2008) (cleaned up). In the case sub judice, the facts are uncontroverted. Rather, this case hinges on the trial court's application of the law to those facts. In that regard, our standard of review is de novo and "[o]ur scope of review over the suppression court's legal conclusions . . . is plenary." Id. (citations omitted).
There is no dispute that the 2006 Joint Municipal Agreement was not properly enacted by an ordinance in both municipalities, as was required by the ICA at that time. Therefore, Chief Sharp's conduct in Frenchcreek
Township was not authorized by the ICA, and he was thus acting outside his primary jurisdiction when he stopped Appellee. As noted, the MPJA provides exceptions for when an officer may perform police services outside the officer's primary jurisdiction. The Commonwealth conceded in its initial brief to this Court that the MPJA had been violated, and it is evident that none of the exceptions apply. See Commonwealth's brief at 15-16. Accordingly, the only question before this Court is whether suppression was an appropriate remedy for the stop, which was conducted in violation of the ICA and MPJA.
Suppression may be deemed an appropriate remedy "depending upon all of the circumstances of the case including the intrusiveness of the police conduct, the extent of deviation from the letter and spirit of the Act, and the prejudice to the accused." Commonwealth v. O'Shea, 567 A.2d 1023, 1030 (Pa. 1989) (citations omitted). Our Supreme Court approved of this "case-by-case approach[,]" first set forth in a Superior Court case, "to the determination of the appropriateness of exclusion of evidence allegedly obtained in violation of the [MPJA]." Id. Such an approach permits "this Commonwealth's courts to tailor a remedy in situations where police intentionally have overstepped their boundaries while still affording our courts the flexibility to deny suppression when police have acted to uphold the rule of law in good faith but are in technical violation of the MPJA." Commonwealth v. Hobel, 275 A.3d 1049, 1058 (Pa.Super. 2022) (cleaned up).
The continued application of the O'Shea test was called into doubt by the plurality decision of our Supreme Court in Commonwealth v. Hlubin, 208 A.3d 1032 (Pa. 2019). As explained by this Court:
In Commonwealth v. Hlubin, 208 A.3d 1032 (Pa. 2019) (plurality), our Supreme Court addressed the continued validity of the O'Shea test. Three justices were unwilling to condone its continued application for avoiding suppression of MPJA violations. Id. at 1049-51 (Opinion of the Court) (Donohue, J., joined by Todd and Wecht, JJ). In contrast, three justices would have declined addressing the continued validity of the test because it was not raised. Id. at 1052-53 (Saylor, C.J., concurring and dissenting, joined by Baer and Dougherty, JJ). Finally, Justice Mundy supported the continued application of the three-factor test. Id. at 1057 (Mundy, J., dissenting). Thus, after Hlubin, the O'Shea test remains good law.Commonwealth v. Hobel, 275 A.3d 1049, 1058 n.5 (Pa.Super. 2022) (cleaned up). The High Court has not since revisited the O'Shea test. Accordingly, like the panel in Hobel, we continue to apply it to the matter before us.
In considering the intrusiveness of Chief Sharp's actions, we find guidance from Hlubin. Rather than considering the intrusiveness of a DUI checkpoint for an unimpaired driver, the High Court concluded that it "must instead measure the level of intrusion of a stop that results in an arrest, since only in this circumstance does the issue of possible suppression of evidence arise." Id. at 1048. In Hlubin, the officer initially questioned Hlubin for thirty to forty-five seconds and then, based upon that interaction, "removed Hlubin from her vehicle and took her to a testing area, where she was subjected to field sobriety testing, blood testing and arrest." Id. Our High Court determined that such an interaction "resulted in a high level of intrusiveness[.]" Id.
Likewise, we consider the entirety of the encounter from when Chief Sharp stopped Appellee, to when Appellee was arrested by Sergeant Heller, in order to determine the level of intrusiveness. As detailed supra, Chief Sharp conducted a stop after observing a traffic violation. Upon realizing that Appellee, a friend of Chief Sharp, was the driver, and observing a martini glass in the vehicle, Chief Sharp called for another officer to continue the traffic stop and investigation. That officer arrived and ultimately transported Appellee to a hospital for blood testing and arrest based upon suspicion of DUI. As in Hlubin, we conclude that this interaction involved a high level of intrusiveness and thus favors suppression.
Next, we consider "the extent of deviation from the letter and spirit of the [MPJA.]" O'Shea, 567 A.2d 1030 (cleaned up). The MPJA endeavors "to promote public safety while maintaining police accountability to local authority; it is not intended to erect impenetrable jurisdictional walls benefiting only criminals hidden in their shadows." Commonwealth v. Lehman, 870 A.2d 818, 820 (Pa. 2005) (cleaned up). Presently, we observe that Frenchcreek Township had no police force of its own. Thus, through the 2006 Joint Municipal Agreement, Frenchcreek Township purported to grant Polk Borough police the authority to enforce the laws of this Commonwealth within Frenchcreek. It is evident from the record that Polk Borough had been operating for over ten years as if it had authority to patrol in Frenchcreek Township pursuant to this agreement.
Within this framework, Chief Sharp observed Appellee driving his vehicle for one-half of a mile in the wrong direction on a public roadway. It is beyond peradventure that Appellee's driving presented "an immediate clear and present danger" to other vehicles and pedestrians on the roadway. See 42 Pa.C.S. § 8953(a)(5); Hobel, 275 A.3d at 1062-63 (concluding that Hobel's driving presented "an immediate clear and present danger" when he swerved back and forth across the road into the oncoming traffic lane (citation omitted)). Furthermore, but for Frenchcreek Township's misguided decision to adopt the agreement by resolution instead of ordinance, Chief Sharp's conduct would have been authorized by the ICA and the MPJA. Under these circumstances, we hold that Chief Sharp's actions conformed to the spirit of the MPJA and did not deviate far from its letter. Therefore, consideration of this factor weighs against suppression.
Finally, we assess the prejudice to Appellee. This factor requires us to consider "whether the search would not have otherwise occurred or would not have been as intrusive." Hlubin, 208 A.3d at 1048 (cleaned up).
Unquestionably, any officer observing Appellee driving on the wrong side of the road for a half mile would have pulled him over. Indeed, Appellee's attorney at oral argument conceded that any police officer who observed this conduct, including Chief Sharp, absolutely should have stopped Appellee.
Given the facts of this case, we have no difficulty determining that any officer conducting the stop would have followed the same, standard protocols for processing a suspected DUI, including stopping the vehicle, asking Appellee to perform field sobriety tests, transporting him for a blood draw if he consented to comply with that request, and arresting him for DUI. Accordingly, we cannot conclude that Appellee was prejudiced when he was pulled over by a Polk Borough police officer in Frenchcreek Township. Thus, the third factor also militates against suppression.
We note that our Supreme Court has held that "[t]he 'official duties' of a police officer at times extend outside the home jurisdiction's political boundaries, and appropriate responses to exigencies must be allowed, as the statute acknowledges. Authorizing expedient but limited responses is only common sense; they save lives and property without infringement on anyone's rights." Lehman, 870 A.2d at 821. In Lehman, Officer Robert Wagner was notified of an incapacitated driver slumped over in his vehicle in the next jurisdiction. He immediately proceeded there to check on the appellant's well-being and, upon concluding that the appellant was not having a medical emergency but was instead likely intoxicated, performed a field sobriety test and summoned the state police since the jurisdiction where the appellant had been stopped lacked a police force. In finding that one of the exceptions to the MPJA applied, our Supreme Court held:
[S]ection 8953(a)(5) of the MPJA authorizes an extrajurisdictional detention where the detaining officer is on-duty, outside his or her jurisdiction for a routine or customary reason including responding to an exigent circumstance, develops probable cause to believe an offense has been committed, and limits out-of-jurisdiction activities to maintaining the status quo, including detaining the suspect, until officers from the appropriate jurisdiction arrive.Id. Further, the High Court observed:
Officer Wagner was not engaged in an extrajurisdictional fishing expedition nor an attempt to expand his sphere of power. Had appellant in fact needed assistance, Officer Wagner was in the best position to provide it. Had appellant had a heart attack rather than been drunk, he would urge us to permit Officer Wagner to help him. Allowing officers to do their duty most effectively and beneficially to the public will sometimes put them in a position to see crimes and find drunken drivers-such would be a poor reason to limit their ability to provide the full measure of service to the public that is possible.Id.
Here, it was not established that the Polk Borough police officers had a particular routine in Frenchcreek Township related to their Polk Borough responsibilities, but rather that they operated under the belief that they had jurisdiction in Frenchcreek Township based upon the improperly adopted 2006 agreement. Thus, as noted, the exception set forth at § 8953(a)(5) does not apply. Nonetheless, we find Lehman's reasoning instructive in considering the practical realities of policing when confronted with an individual who may be in medical distress, as in Lehman, or posing an extreme danger to themselves and others by their conduct, as Appellee herein, and whether suppression is an appropriate remedy for a technical violation of the MPJA where the police are "not engaged in an extrajurisdictional fishing expedition nor an attempt to expand [their] sphere of power." Id.
In sum, we find that the case sub judice is a textbook example of Chief Sharp acting "to uphold the rule of law in good faith [while] in technical violation of the MPJA." See Hobel, 275 A.3d at 1058 (cleaned up).
Accordingly, we hold that "suppression would not be an appropriate remedy under the MPJA [in this case, as] the legislative intent of [the MPJA] is to advance public safety and not shield criminal behavior." Id. at 1064 (citation omitted). We reverse the order granting Appellee's suppression motion and remand for further proceedings.
Order reversed. Case remanded. Jurisdiction relinquished.
Judges Dubow, Nichols, Murray, King, and Beck join this Opinion.
Judge Sullivan files a Dissenting Opinion in which President Judge Lazarus and Judge McLaughlin join.
Judgment Entered.
DISSENTING OPINION
SULLIVAN, J.
The Majority thoroughly recapitulates the record and summarizes the law governing this appeal from the order granting the pre-trial motion to suppress filed by Steven G. Eakin ("Eakin"). It is uncontested that the traffic stop conducted by Polk Borough Police Department Chief Edward E. Sharp, Jr. ("Chief Sharp") in Frenchcreek Township was not authorized by the Intergovernmental Cooperation Act ("ICA"), that the Commonwealth failed to establish that any exception to the Municipal Police Jurisdiction Act ("MPJA")applied, and that the traffic stop therefore violated the MPJA. Thus, the only issue in dispute is whether the trial court's suppression was appropriate under the three-part test set forth in Commonwealth v. O'Shea, 567 A.2d 1023 (Pa. 1989).
While the Majority agrees that the traffic stop was intrusive under the first prong of O'Shea, it holds that (1) any violation of the MPJA violated only the letter of the MPJA, not its spirit, because of Chief Sharp's "textbook example" of good faith; and (2) the violation of the MPJA did not result in prejudice, and thus reverses the trial court. I am constrained to disagree with the Majority's analysis of the last two O'Shea factors and, consequently, respectfully dissent.
This Court has provided that, where there is a violation of the MPJA, courts must apply the three-prong O'Shea test on a case-by-case basis to determine whether a violation of the MPJA warrants suppression of evidence:
The factors to be considered in applying this case-by-case approach consist of all the circumstances of the case including [1] the intrusiveness of the police conduct, [2] the extent of deviation from the letter and spirit of the [MPJA], and [3] the prejudice to the accused.... The . . . spirit, or purpose of, the MPJA is to proscribe investigatory, extraterritorial forays used to acquire additional evidence where probable cause does not yet exist.
[This] unquestionably sets forth the proper standard this Court is to employ in determining whether the exclusionary rule should act to suppress evidence obtained pursuant to an MPJA violation.Commonwealth v. Hobel, 275 A.3d 1049, 1058 (Pa. Super. 2022) (quoting Commonwealth v. Henry, 943 A.2d 967, 971-72 (Pa. Super. 2008)) (internal citations omitted).
In addition to a violation of the ICA, the Commonwealth concedes there was an MPJA violation, but argues that suppression was not warranted because, under the O'Shea test, the stop and subsequent arrest was valid. Commonwealth's Brief at 15-16, 17. Accord Maj. Op. at 8 (noting the Commonwealth has conceded the MPJA was violated and "it is evident that none of the exceptions apply").
I agree with the learned Majority that in the absence of an applicable exception under the MPJA authorizing the traffic stop at issue, this Court is required to apply O'Shea to determine whether suppression was the appropriate remedy. However, I discern no error of law by the trial court in granting Eakin's suppression motion.
That said, I would be remiss not to highlight that the viability of the O' Shea test has been called into question. A plurality of our Supreme Court expressed doubt about the continued viability of the O'Shea test. See Commonwealth v. Hlubin, 208 A.3d 1032, 1049-50 (Pa. 2019) (plurality) (superseded by statute on other grounds). Indeed, in Hobel, this Court noted that several of our Supreme Court justices indicated their opposition in Hlubin to the continued application of O'Shea; however, three justices declined to address the validity of O'Shea; and one supported its application. See Hobel, 275 A.3d at 1058 n.5. Accordingly, O'Shea "remains good law." Id.
The first prong of the O'Shea test concerns the intrusiveness of the police conduct. We must consider the "level of intrusion of a stop that results in an arrest, since only in this circumstance does the issue of possible suppression of evidence arise." Hlubin, 208 A.3d at 1048 (plurality). We need not belabor this point, however, because the Majority concludes the stop was unquestionably intrusive, and therefore militates in favor of suppression. See Maj. Op. at 10 (applying Hlubin and concluding the stop "involved a high level of intrusiveness"). Here, Chief Sharp's stop of Eakin resulted in a subsequent call to another officer, i.e., Sergeant Heller, another Polk borough officer, who, after arriving, transported Eakin to the hospital for blood testing and a subsequent arrest. As in Hlubin, the level of intrusiveness resulting from this stop was high. Accordingly, the first prong of the O'Shea test favors Eakin and suppression. Accord Maj. Op. at 1 (similarly concluding the first prong favors suppression).
The second prong of the O'Shea test requires consideration of "the extent of deviation from the letter and spirit of the MPJA." Hlubin, 208 A.3d at 1048 (plurality). Our Supreme Court has observed that when officers regularly leave their primary jurisdiction to police in other jurisdictions, "jurisdictional lines are not maintained but rather are obliterated. Moreover . . . where this extraterritorial activity has no advance legislative approval or legal oversight, there is plainly no accountability to local authority." Id. Putting the validity of O'Shea aside, in Hlubin, the majority of our Supreme Court held that the MPJA is specifically limited to six enumerated exceptions when an officer exercises police power outside of his primary jurisdiction. Id. at 1052 (majority) (emphasis in original). The Court held, "[b]ased upon the clear language of these provisions of the MPJA and our conclusion that no exception . . . applied here," suppression was the appropriate remedy. Id. (emphasis added).
Here, the Majority relies heavily on Commonwealth v. Lehman, 870 A.2d 818, 820 (Pa. 2005). Lehman, however, is completely distinguishable from this case. First and foremost, in Lehman, the Court's analysis was based solely on the Commonwealth's argument that exception (a)(5) of the MPJA (Footnote Continued Next Page)
Our Supreme Court has recently reiterated that it is this Court's "main function" to "maintain and effectuate the decisional law of this Court as faithfully as possible." N.W.M. Through J.M. v. Langenbach, 316 A.3d 7, 22 (Pa. 2024) (internal quotations and footnote omitted).
Here, as in Hlubin, the MPJA's six exceptions did not apply for purposes of our review. Yet the Majority, in applying and analyzing the second O'Shea factor-applied only where the MPJA is violated-cites to section (a)(5) of the MPJA in its analysis. It is beyond cavil that where there is extraterritorial policing without an ICA in place, this Court looks to the MPJA to determine whether an exception applies. If an exception to the MPJA does not apply, then this Court proceeds to an O'Shea analysis. The learned Majority concedes no MPJA exceptions apply, applies O'Shea, and then frames the analysis based on an MPJA exception that the Commonwealth never asserted. See Maj. Op. at 11. This Court should acknowledge that no MPJA exceptions apply, and, therefore, notwithstanding Chief Sharp's good faith belief, Polk applied. Here, an MPJA violation was conceded, and no exception thereto was argued or analyzed. Maj. Op. at 8. Also, nowhere in the Lehman opinion is there a reliance, application or even mention of the O'Shea test; the opinion is conspicuously devoid of any mention of O'Shea. Here, the application of O'Shea is the sole issue. Finally, in Lehman there is no argument made regarding the existence of an ICA agreement between the departments, an issue that features prominently in this matter.
Police Department's routine provision of police services outside of its primary jurisdiction, i.e., in Frenchcreek Township, was unauthorized at the time under the ICA, and without an applicable MPJA exception.
This is of course not to say that every MPJA violation requires this Court to conclude that the second prong of the O'Shea test militates in favor of suppression. See, e.g., Commonwealth v. Kitcey, 305 A.3d 974 (Pa. Super. 2023) (unpublished memorandum at *7) (concluding that while the MPJA authorized the police conduct at issue, even if there were no applicable MPJA exceptions, the second O'Shea factor would militate against suppression because the officer "obtained probable cause in his jurisdiction, and pursued [the defendant] based on . . . evidence [obtained in his primary jurisdiction]; and he therefore did not travel outside of his jurisdiction to acquire additional evidence"). See also Hobel, 275 A.3d at 1062-64 (in which this Court concluded that the MPJA's (a)(5) exception applied, but even if it did not, the second O'Shea factor did not favor suppression because the officer while in his primary jurisdiction observed a vehicle fitting a BOLO description and followed it into a neighboring jurisdiction, after which, on his return to his primary jurisdiction, he observed the defendant's vehicle back out of an abandoned road, drive through a stop sign, and accelerate away while swerving back and forth across the road). In contrast, here, Chief Sharp was not in his primary jurisdiction nor performing functions related to his official business in his primary jurisdiction when grounds to stop Eakin arose. Therefore, the second O'Shea factor favors Eakin. See Hlubin, 208 A.3d at 1052.
See Pa.R.A.P. 126(b) (permitting citation to non-precedential decisions of this Court filed after May 1, 2019)
The final O'Shea factor concerns the prejudice to the accused, i.e., consideration of "whether the search would not have otherwise occurred or would not have been as intrusive" absent the violation. Id. (quoting O'Shea, 567 A.2d at 1030). Where the record contains no evidence upon which this Court can determine whether the stop would have occurred at all absent the extraterritorial policing, this factor weighs in favor of suppression. See Hlubin, 208 A.3d at 1049. Even in Hobel, the suppression court concluded, and this Court found its analysis persuasive that, assuming arguendo an MPJA violation, the third factor weighed in favor of Hobel where "[t]here is no evidence this search was inevitable, and [Hobel] may have gone for a longer period without discovery had [the officer] not been present outside his primary jurisdiction." 275 A.3d at 1064 (emphasis added; some brackets in original). But cf. Kitcey, 305 A.3d 974 (unpublished memorandum at *7) (concluding the final O'Shea factor weighed against suppression because the officer, who witnessed a traffic violation in his primary jurisdiction, "called for backup and informed dispatch" of the extraterritorial stop as he activated his lights, and right after he conducted the stop, an officer from the primary jurisdiction arrived).
In Hobel, a second officer joined a dragnet and "was not the first or sole pursuer," and other police departments were "monitoring the status of the pursuit," and, therefore, regarding that specific officer, the third O'Shea factor weighed against suppression because, based on the evidence of record, Hobel would have been stopped by other departments involved in the pursuit.
Here, Chief Sharp testified that he stopped Eakin following his observation of Eakin traveling for a half mile on the wrong side of the road. See N.T., 8/27/21, at 45. The record is devoid of evidence that, absent Chief Sharp's unauthorized presence, this stop would have occurred, and, accordingly, no indication that Eakin would have been stopped. The third O'Shea prong thus favors Eakin. See Hlubin, 208 A.3d at 1049; Hobel, 275 A.3d at 1064; Kitcey, 305 A.3d 974 (unpublished memorandum at *7). While the Majority speculates that any officer conducting the stop would have followed the same procedure as Chief Sharp, the Majority overlooks the fact that there is no evidence of record that a legal stop was likely to occur absent Chief Sharp's unauthorized stop. See Maj. Op. at 12. The only officers involved in this stop were from Polk Borough, and there was no testimony that a citizen/civilian witnessed the driving at issue. Speculation about the procedures of a hypothetical stop, without any additional evidence that the stop would have even likely occurred or been similarly intrusive shows ample prejudice under the third O'Shea factor and favors Eakin.
Accordingly, following application of O'Shea, I would conclude that all three factors militate in favor of suppression, and, thus, that the trial court committed no error in suppressing the evidence derived from the stop.
For the foregoing reasons, I respectfully dissent.
President Judge Lazarus and Judge McLaughlin join this dissenting opinion.