Commonwealth v. Hlubin, M., Aplt.

Opinion

[J-71-2018] [MO: Donohue, J.] IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 56 WAP 2017 : Appellee : Appeal from the Order of the Superior : Court entered May 23, 2017 at No. : 951 WDA 2015, affirming the v. : Judgment of Sentence of the Court of : Common Pleas of Allegheny County : entered May 21, 2015 at No. CP-02- MOLLY HLUBIN, : CR-0003205-2014. : Appellant : ARGUED: October 23, 2018

DISSENTING OPINION

JUSTICE MUNDY DECIDED: MAY 31, 2019 This case presents the question of whether a police officer is authorized to assist

during a DUI checkpoint in a neighboring jurisdiction without the officer’s municipality

entering into an agreement in accordance with the Intergovernmental Cooperation Act

(ICA).1

I reiterate certain undisputed facts that inform my conclusion. Sergeant Douglas

Ogden of the Moon Township Police Department is the program coordinator and project

manager for the Western Pennsylvania DUI task force. N.T., 3/13/15, at 9. In this role,

his responsibilities include, inter alia, gathering statistics regarding the incidence and

locations of DUI accidents and offenses, as well as applying for grants, training other

officers on DUI detection, and running checkpoints himself. Id. at 9-10. Sergeant Ogden

identified Steubenville Pike in Robinson Township as an ongoing problem area with

1 53 Pa.C.S. §§2301-2317. regard to DUI occurrences. See id. at 11-14 (citing statistics from 2008-2012 of DUI

offenses on Steubenville Pike). This information was shared with Sergeant Joel Hamilton

of the Robinson Township Police Department, who was the officer in charge of the

checkpoint at issue herein. Sergeant Hamilton assisted in choosing the location on

Steubenville Pike, Robinson Township, “based on his local knowledge of the statistics”

provided by Sergeant Ogden. Id. at 15. On the night of the checkpoint, a nearby venue

held a concert. Sergeant Ogden testified that when a concert is held there, the area is

“inundated with traffic and with DUI problems and alcohol problems.” Id. at 16.

Prior to the checkpoint occurring, Sergeant Ogden sent Sergeant Hamilton a

Sobriety Checkpoint Authorization form. The form specifically identified Sergeant

Hamilton as the officer in charge, and was signed by Robinson Township Police Chief

Dale Vietmeier. Id. at 17-20. While the checkpoint was operating, Sergeant Ogden came

into contact with Appellant. At the time, he was “filling in on the road” because the “line

had become depleted of manpower[.]” Id. at 30. Once Sergeant Ogden detected indicia

of alcohol consumption, he escorted Appellant to Officer Dominic Sicilia of the Robinson

Township Police Department who conducted the field sobriety testing and arrested

Appellant. Id. at 31-33, 61-67.

Appellant posits that absent compliance with the ICA, the police were without legal

authority to conduct the sobriety checkpoint, and the traffic stop was therefore unlawful.

Appellant’s Brief at 26. The majority likewise concludes that the checkpoint in the instant

case required compliance with the ICA, and the exceptions permitting extra jurisdictional

police activity under the Municipal Police Jurisdiction Act (MPJA)2 do not apply under the

circumstances. See Majority Opinion at 2, 24. I disagree. It is undisputed that technical

2 42 Pa.C.S. §§ 8951-8954.

[J-71-2018] [MO: Donohue, J.] - 2 compliance with the ICA was not met.3 Notwithstanding this noncompliance, the facts of

this case comport with the requirements of the MPJA, which we must liberally construe in

order to effectuate its purpose. See Commonwealth v. Peters, 965 A.2d 222, 274-75 (Pa.

2009). Because Sergeant Ogden was acting under statutory authority to enforce the

laws of this Commonwealth, I dissent.

First, I note my agreement with the unanimous en banc Superior Court’s reasoning

that the ICA and MPJA “are not mutually exclusive” and may be applied concurrently.

Commonwealth v. Hlubin, 165 A.3d 1, 6 (Pa. Super. 2017) (en banc). The ICA addresses

cooperative agreements between two or more local Commonwealth governments or

similar entities in other states while the MPJA is addressed to the actions of “any duly

employed municipal police officer.” Compare 53 Pa.C.S. § 2303, with 42 Pa.C.S. §

8953(a).

The MPJA confers upon “[a]ny duly employed municipal police officer . . . the power

and authority to enforce the laws of this Commonwealth” when outside of the territorial

limits of his or her primary jurisdiction under six statutorily authorized circumstances. 42

Pa.C.S. § 8953(a). One such circumstance is “[w]here the police officer has been

requested to aid or assist any local, State or Federal law enforcement officer or park

police officer or otherwise has probable cause to believe that the other officer is in need

of aid or assistance.” 42 Pa.C.S. § 8953(a)(3).

The majority concludes that Section 8953(a)(3) requires that a police officer’s

request for aid must be contemporaneous with his or her assessment that there is

probable cause of criminal activity. See Majority Opinion at 21-23. I disagree. As noted,

3 See Commonwealth’s Brief at 17-18 (Commonwealth acknowledging that intergovernmental cooperation agreements are authorized by a municipality’s adoption of an ordinance and failure to do so renders an intergovernmental agreement void, and conceding evidence of an ordinance was lacking in the instant case); accord 53 Pa.C.S. § 2305; id. § 2315.

[J-71-2018] [MO: Donohue, J.] - 3 Section 8953(a)(3) permits an officer to act outside of his or her jurisdiction where the

officer “has been requested to aid or assist any local, State or Federal law enforcement

officer or park police officer or otherwise has probable cause to believe that the other

officer is in need of aid or assistance.” 42 Pa.C.S. § 8953(a)(3) (emphasis added). The

majority posits that the two circumstances outlined in Section 8953(a)(3) “are related to

each other in that each imputes the element of probable cause.” Majority Opinion at 21.

It finds this construction compelled by the General Assembly’s inclusion of the word

“otherwise” in the second clause, such that an officer’s request for aid must be in regard

to “addressing specific ongoing criminal activity.” Id.

A plain reading of Section 8953(a)(3) belies this forced construction. See Koken

v. Reliance Ins. Co., 893 A.2d 70, 81 (Pa. 2006) (“Generally, the best indication of

legislative intent is the plain language of the statute.” (citations omitted)). The word “or”

separates two scenarios authorized under this subsection. One circumstance is when

an officer “has been requested to aid or assist[;]” the second is when an officer “otherwise

has probable cause to believe that the other officer is in need of aid or assistance.” 42

Pa.C.S. § 8953(a)(3). The majority focuses on the probable cause language to read in a

requirement that, in either scenario under Section 8953(a)(3), the officer must be

“addressing a specific criminal episode.” Majority Opinion at 21; see Commonwealth v.

Vasquez, 753 A.2d 807, 809 (Pa. 2000) (“We are bound by the unambiguous language

of the statute and cannot read language into it that simply does not appear. 1 Pa.C.S. §

1921(b)”). I recognize that generally the familiar probable cause standard “connotes

ongoing criminal activity” and applies to an officer’s level of suspicion to believe an offense

is being committed. See Majority Opinion at 22. However, the legislature here used the

term probable cause in the context of an officer’s “probable cause to believe that the

officer is in need of aid or assistance[,]” not probable cause to believe an offense has

[J-71-2018] [MO: Donohue, J.] - 4 been or is being committed. 42 Pa.C.S. § 8953(a)(3). The focus is on whether the officer

outside of the primary jurisdiction believes that another officer is in need of aid, regardless

of whether or not a crime is currently in progress. The use of the phrase “or otherwise”

merely signals a contrast between the first circumstance where an officer has been

specifically asked to assist in another jurisdiction and has direct knowledge of the request

for aid, and the second where he or she has not been expressly requested but otherwise

has reason to suspect that an officer in another jurisdiction is in need of aid.4 Had the

legislature intended probable cause of criminal activity to be a requirement under both

circumstances addressed in Section 8953(a)(3) it easily could have said so.5

The majority justifies its deviation from the plain text by highlighting that its

construction is consistent with the underlying purpose of the statute. Again, I disagree.

One of the principal aims of the MPJA is “to promote public safety while maintaining police

accountability to local authority; it is not intended to erect impenetrable jurisdictional walls

benefitting only criminals hidden in their shadows.” Commonwealth v. Lehman, 870 A.2d

818, 820 (Pa. 2005) (citation, quotation marks, and brackets omitted). Another legislative

goal of the MPJA is “to promote a cohesive working relationship among municipal police

departments.” Commonwealth v. Ebersole, 492 A.2d 436, 437-38 (Pa. Super. 1985). Its

predecessor, however, authorized police activity outside an officer’s primary jurisdiction

only if the officer was engaged in hot pursuit. See Commonwealth v. Merchant, 595 A.2d

1135, 1138-39 (Pa. 1999). Analyzing the significance of the legislative broadening of the

scope of a police officer’s extra-jurisdictional actions we reasoned, “[t]he inclusion of

4The phrase “or otherwise” is “used to refer to something that is different from something already mentioned.” https://www.merriam-webster.com/dictionary/or%20otherwise 5See, e.g. 42 Pa.C.S. § 8953(a)(5) including in the exceptions to extra-jurisdictional police activity, where an officer “has probable cause to believe an offense has been committed[.]”

[J-71-2018] [MO: Donohue, J.] - 5 additional instances of authorization indicates that the General Assembly intended to

expand the powers of local police to protect the public, where such expansion would not

adversely affect the ultimate goal of maintaining police accountability to local authority.”

Id. at 1139.

Additionally, the MPJA “is not among those statutes which must be strictly

construed under the rules of statutory construction, but instead is subject to liberal

construction to effectuate its objectives and to promote justice.” Commonwealth v.

Eisenfelder, 664 A.2d 151, 153 (Pa. Super. 1995). This Court has observed that the focus

on police accountability to the primary jurisdiction, “fosters local control over police, and

discourages extra-territorial forays by outside law enforcement officers who are not

subject to the control of the municipality[.]” Merchant, 595 A.2d at 1138 n.7.

At the outset of its statutory construction analysis, the majority recognizes that the

General Assembly’s intent may be gleaned by considering “[t]he object to be attained[,]

the former law, if any, including other statutes upon the same or similar subjects[, and]

the consequences of a particular interpretation.” Majority Opinion at 10 (quoting 1

Pa.C.S. § 921 (numbering omitted)).

Applying these principles to Section 8953(a)(3) of the MPJA, Sergeant Ogden’s

actions were authorized. The object to be attained by the MPJA is to promote public

safety while maintaining accountability; its predecessor included a single exception to

police acting outside of a primary jurisdiction, but was considerably broadened; and the

consequences of a narrow interpretation may benefit criminals hiding in the shadows of

impenetrable jurisdictional walls. See Lehman, 870 A.2d at 820 (Pa. 2005). The

legislative intent is frustrated by the majority’s decision.

In this case, Sergeant Ogden’s aid and presence were requested as evidenced by

the authorization form signed by the Robinson Township Police Chief Vietmeier. Further,

[J-71-2018] [MO: Donohue, J.] - 6 Sergeant Ogden was working in tandem with local authority. This is not a case where his

presence outside his jurisdiction in any way usurped the authority of the local police

officers to do their job to protect their jurisdiction or rendered him unaccountable. Indeed,

the officers who were in charge of the checkpoint and who performed the field sobriety

test and arrested Appellant were members of the Robinson Township police force.

Sergeant Ogden’s presence was in response to the Robinson Township’s need for more

manpower to ensure the safety of its citizens on a roadway with a history of DUI offenses

particularly when concerts take place, as was the case here. See N.T., 3/13/15, at 11-

14, 16, 30. Sergeant Ogden’s participation and assistance, therefore, were justified under

the letter and spirit of the MPJA’s objectives to promote public safety, maintain police

accountability, and foster cohesive work relations among officers of different police

departments. This construction of the MPJA in this case is consistent with a plain reading

of the Act, promotes the public good, and does not benefit criminals hidden in the

shadows of “impenetrable jurisdictional walls.” See Lehman, 870 A.2d at 820. Further,

this Court has hinted that the list of specific scenarios that permit extra jurisdictional

policing is not strictly exhaustive. See Commonwealth v. O’Shea, 567 A.2d 1023, 1029

(Pa. 1989) (“We do not believe that these six specific circumstances are all-

encompassing of any activity that an officer may conduct outside of his primary

jurisdiction, no matter how informal or unobtrusive.”).

Under the majority’s approach, an officer responding to an earnest request for aid

in an emergency situation without an element of criminality, would not be permitted to act

outside of his or her primary jurisdiction to aid the requesting officer under the MPJA. See

Majority Opinion at 23. For example, if a sudden loss of power occurs in a jurisdiction,

requiring police officers to step in to safely direct traffic, neighboring officers would not

have authority under today’s decision to lend assistance despite the clear necessity. This

[J-71-2018] [MO: Donohue, J.] - 7 would be an absurd result under the MPJA. See Bayview Loan Servicing, LLC v. Lindsay,

185 A.3d 307, 312 (Pa. 2018) (“Governing presumptions include that the General

Assembly intended the entire statute at issue to be effective and certain, and that the

General Assembly did not intend an absurd result. 1 Pa.C.S. § 1922(1)-(2)”).

The majority also contends that “the Commonwealth’s view requires an

interpretation that policing is not a government function, but rather that decisions in this

area are best left to police departments to make for themselves.” Majority Opinion at 17.

This sweeping proposition ignores that police are statutorily endowed with the power and

authority to assist other police departments upon request or in other enumerated

circumstances under the MPJA.

Although I am of the view that police action in this case was within the confines of

the MPJA, I disagree that, had it not been so authorized, suppression is the appropriate

remedy.6 This Court outlined a three-part test for violations of the MPJA in O’Shea.

Specifically, we approved of a case-by-case approach to assess whether suppression

was warranted in light of all attendant circumstances “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. O’Shea, 567 A.2d at 1029.

Here, Sergeant Ogden testified that the checkpoint stops usually involve a 30 to

45 second encounter between an officer and a motorist. N.T., 3/13/15, at 27; see

Commonwealth v. Blouse, 611 A.2d 1177, 1179-80 (explaining that the intrusion upon a

motorist by a DUI checkpoint is “minimal” where the checkpoint is substantially compliant

with guidelines that ensure its constitutionality). Regarding the second factor, the chief

6 Because the parties do not contest the vitality of the O’Shea test, I agree that we should reserve ruling on whether it is an appropriate means to evaluate the remedy for violations of the MPJA for a case where the parties brief and develop the issue for this Court’s consideration. See Concurring and Dissenting Opinion, C.J. Saylor, at 1-2.

[J-71-2018] [MO: Donohue, J.] - 8 aims of the MPJA include encouraging cohesive relationships among police departments

and promoting public safety. See Ebersole, 492 A.2d at 437-38; Lehman, 870 A.2d at

820. Any technical violation that occurred under the circumstances cannot be deemed a

gross deviation from the letter and spirit of the Act, as those objectives were advanced by

Sergeant Ogden’s actions in this case.

Finally, I acknowledge that Appellant may not have been subject to a DUI

checkpoint had it not been for Sergeant Ogden’s presence. See Majority Opinion at 29.

However, it cannot be said that she would not have been otherwise subject to a police

detention after traveling on a busy highway while intoxicated. Further, the ultimate arrest

in this matter was made by a Robinson Township police officer within the primary

jurisdiction. Weighing application of the O’Shea factors to the circumstances herein leads

me to conclude suppression is inappropriate. Moreover, I am of the view that this brief

interaction between Sergeant Ogden and Appellant, which was in the interest of public

safety and occurred while Sergeant Ogden was aiding the officers in the primary

jurisdiction, “does not constitute the type of behavior that the legislature sought to prohibit

through enactment of the MPJA[.]” Commonwealth v. Chernosky, 874 A.2d 123, 131 (Pa.

Super. 2005) (en banc). The exclusion of evidence in this case clearly “would not

advance any of the purposes the MPJA was designed to serve.” Lehman, 870 A.2d at

821. For these reasons, I respectfully dissent.

[J-71-2018] [MO: Donohue, J.] - 9