PA can’t decide (tie vote) whether GFE permits use of product of a search where the underlying probable cause proves completely false

The Pennsylvania Supreme Court affirms on an equally divided vote whether suppression is required under the state constitution where the officer relied in good faith on an affidavit that turned out to be completely wrong. The opinion supporting affirmance notes that Pennsylvania closely guards the good faith exception and the absence of probable cause completely undermines the authority to search. Commonwealth v. Hopkins, 2017 Pa. LEXIS 1512 (June 30, 2017) affirmed equally divided court. Supporting affirmance:

In the present case, whether Detective Fetrow acted in good faith when reporting Shifflet’s misstatements in the affidavit in support of probable cause is immaterial, as his decision to sign and submit an affidavit for judicial review containing material misstatements of fact resulted, without any question, in a clear invasion of Hopkins’ right to privacy under Article 1, Section 8 of the Pennsylvania Constitution. The police entered and searched Hopkins’ home based upon a warrant issued solely on admittedly false information. Apart from Shifflet’s lies, Detective Fetrow’s affidavit contained no independent basis for a finding of probable cause. Once the suppression court made this determination, its only proper course was to grant Hopkins’ motion to suppress. The search warrant was invalid and the proper remedy under the exclusionary rule was suppression of the evidence seized.

Even assuming that Detective Fetrow acted entirely in good faith, his conduct invaded Hopkins’ privacy. As a result, contrary to the Commonwealth’s insistence, this is a good faith exception case, an Edmunds case, and a material misrepresentation case. For these reasons, the order of the Superior Court should be affirmed.

Dissenting opinion here.