*1 NIX, C.J., FLAHERTY, ZAPPALA, BEFORE: CAPPY, NIGRO, JJ. CASTILLE and
ORDER PER CURIAM: divided, being evenly
The Court the Order of the Common- is wealth Court affirmed.
NEWMAN, J., participate did not the consideration decision of this case. JJ.,
FLAHERTY, NIGRO, CASTILLE and dissent and would reverse the Order of the Court. Commonwealth A.2d 280 Pennsylvania, Appellant,
COMMONWEALTH v. PRICE, Appellee. James J.
Supreme Pennsylvania. March
Submitted 1993.
Decided Feb. *3 Colville, Robert E. Attorney, Capristo, District Claire C. Deputy Attorney, McCarthy, District Kevin F. Assistant Dis- trict Attorney, Appellant. for
Candace (court-appointed), Pittsburgh, Cain for Appellee. C.J., NIX, FLAHERTY, ZAPPALA, CAPPY, Before and CASTILLE, NEWMAN, NIGRO and JJ.
OPINION CAPPY, Justice.*
The issues in presented appeal validity involve the of an arrest for a motor vehicle violation made a law enforcement agent, arrests, albeit one authorized to make such and applicability of the to exclusionary rule evidence as a obtained result of that arrest.
The giving facts rise to the instant on matter occurred 23,1989. March On that day, Special Agent Mark Sites opinion reassigned * This to this author. (“FBI”), travelling Investigation
Federal Bureau of while Bellevue, Alleghe- Avenue in Balph FBI on unmarked vehicle being a vehicle driven ny County, Pennsylvania, observed Balph at the intersection of Appellee approaching stop sign a According Sites, who at Agent and Orchard Street. to Avenue intersection, ap- at stopped time was vehicle sign proceeded through it without proached stop and turn, swerving The then made a stopping. right vehicle wide nearly Agent into lane and Sites’ vehicle. oncoming hitting observations, for Agent Sites followed the vehicle Given his and, siren, using lights his eventu- police a short distance Appellee. Agent Ap- identified to ally stopped Sites himself FBI his Appellee badge. Upon as an and showed pellee emanating Appellee, Agent the odor of alcohol from sensing nearby a to call the requested standing Sites resident who was he police. Agent Appellee local never told Although arrest, not to and to Appellee was under he did inform move Further, remain Sites testified Agent seated his vehicle. stop Appellee employ- decision to was “based on [his] public safety.” law ment as a enforcement officer view (N.T. 12). arrived, the local p. police After 7/10/90 and, them on events that had occurred at their Sites briefed incident. local request, prepared report a written Appellee driving with under charged then arrested § pursuant of alcohol to 75 influence Pa.C.S. trial, filed a to Appellee suppress Prior motion as a This stop. evidence obtained result Sites’ trial. Appellee proceeded non-jury motion was denied and *4 Appellee ultimately guilty found of the above offense. was he subsequently post-trial His filed motions were denied and (30) (6) to to six months incarcera- thirty days was sentenced remanded, Superior tion. and appeal, On the Court reversed concluding by Agent illegal, that the arrest Sites was that the the first subsequent police arrest local was tainted arrest, illegal the rule was applicable and of the that all the evidence obtained as result required illegal The Commonwealth’s suppressed. arrest should be appeal granted by for this petition allowance reasons, appeal following For affirm followed. we Court. decision validity
This Court has addressed
individu-
arrests
resulting consequences
als other than
officers and the
prior
Corley,
three
decisions. See Commonwealth v.
507 Pa.
540,
(1985);
Galloway,
A.2d 829
Commonwealth v.
525 Pa.
(1990);
Leet,
Most
this Court in Commonwealth v.
(1994),
Our decision in Leet provides guidance, little in the instant As an FBI agent, Agent matter. not autho- Sites is rized under either state or law nor federal under common law arrest for for traffic offenses or misdemeanor crimes. Rather, as an FBI he is authorized to make warrantless only arrests he has grounds where reasonable to believe that person committing has committed or is any felony cogniza- § ble under laws States. United 18 U.S.C. our recent Accordingly, decision in Leet is to the inapposite instant matter. arrest,
Recognizing Agent authority Sites’ lack of to so Commonwealth here contends that the arrest by performed authority agent, was not under his as FBI an but rather should viewed as arrest aby private made citizen. It is the that Agent Commonwealth’s contention *5 arrest a citizen’s permissible here constituted
Sites’ conduct
by local police.1
arrest
subsequent
not taint
the
which did
.
this
length
discusses at
the Commonwealth
In its brief
Galloway,
v.
Pa.
Commonwealth
Court’s decision
(1985).
Galloway,
the
addressed the
In
Court
The decision in
Corley,
Commonwealth v.
(1985), is, however,
A.2d 829
particularly relevant
to our
in
determination
the instant matter.
In Corley,
the Court
There,
addressed the issue of what constitutes state action.
a
security guard
Strawbridge
for a
and
department
Clothier
running
store witnessed the defendant
toward
main
the
esca-
just
lator
as he heard over his radio that
had
there
been a
shooting in the store. He followed the defendant out of the
store,
street,
across the
department
into another
store.
following
guard
While
the defendant
the
observed the defen-
dant
put
gun
jacket pocket.
his
guard
The
detained the
jacket.
defendant and removed his
guard
then hand-
cuffed the defendant
him
and took
to the detention room in
Strawbridge
there,
the
and Clothier store and while
removed
gun
jacket.
the
from the defendant’s
The defendant was
ultimately
robbery,
convicted of
various weapons offenses and
convictions,
Following
assault.
he petitioned
post
for
his trial counsel was ineffective
alleging
relief
conviction
allegedly
suppression
meritorious
having
for
withdrawn
were
to be raised
the defendant
sought
motion. The issues
of a
rule
the context
exclusionary
applies
whether
and,
so,
if
whether the arrest of the defendant
citizen’s arrest
felony
was no
committed
illegal
in that case was
as there
court denied
arresting person.
The trial
presence
Superior
Court affirmed that
conviction relief and
post
Superior
then affirmed the order of the
decision. This Court
espoused by
distinct from those
grounds
Court albeit on
actions
this Court held
Specifically,
Court.
of state action
security
did
rise
the level
guard
therefore,
inapplicable.
rule was
is the
Significant
purposes
present appeal
for
*7
action
principles
examination of the
of state
Court’s detailed
majority
for the
of
by
Zappala writing
as set forth Mr. Justice
therein,
Corley.
guiding princi
As set forth
the
the Court
Supreme
are those first established
the United States
ples
Co., Inc,
922, 102
v. Edmondson Oil
457 U.S.
Lugar
(1982).
2744,
In Lugar,
Supreme
[Our]
First,
deprivation
must be caused
“fair attribution.”
created
the state
right
privilege
the exercise of some
Second,
with
must
party charged
deprivation
...
be
may fairly
who
be said to be a state actor. This
person
chargeable
... his conduct is otherwise
may
because
be
the state.
2754,
937,
at 495.
457
at
Lugar, U.S. purposes determining critical factor for of whether state individual, in private light is whether the of action is involved circumstances, regarded having must as acted as all the 548, Pa. at 491 agent Corley, “instrument” or of the state. 507 443, v. New citing Coolidge Hampshire, A.2d at U.S. (1971). 2022, 2049, 29 L.Ed.2d This 91 S.Ct. in Corley cooperation clear that mere with the Court made action.” In authorities alone does not constitute “state other words, prosecutors the mere fact that use the not, alone, results of an individual’s actions does elevate those Where, however, action. actions to the level of state person committing wrongful between the acts relationship is such that those acts can be viewed as and the State State, authority from the emanating principles in Corley finding established dictate a of state action.
Applying principles Corley, set forth it is con vincingly clear that Sites here conduct which displayed “fairly can to the and that Agent be attributable state” Sites regarded having must be as acted as an “instrument” or he stopped Appellee. Despite state when the Common contrary, Agent wealth’s assertion to the Sites’ use of the lights equipped gov and sirens which were on his unmarked vehicle, together ernment with his FBI displaying relevant, and, indeed, badge, is determinative of our conclusion that the instant case involves state action. It cannot simply be denied that Sites’ when display authority obvious stopped Appellee he imbued his actions with an official aura. such, As we cannot escape illegal the conclusion state action subsequent was here involved and that no action can erase that taint.
Having of Agent established the conduct action, constituted remedy, state we must now determine the if any, and more specifically, *8 exclusionary whether the rule is applicable. here
The Commonwealth that stop contends effected Agent in Sites did not result a violation of the Fourth Amend- proscription against ment’s searches and unreasonable sei- zures nor it any did violate other fundamental constitutional therefore, rights and that exclusionary inappli- rule is here thereof, In cable. that support Commonwealth submits “Agent since actions in stopping appellee Sitesf] would have been a traffic if stop duly valid he had been a authorized (Brief officer” stop constitutionally was not infirm. for the 20). Commonwealth, The Commonwealth further submits p. suggest is the lack of evidence to primary significance that of in any acting in manner bad faith when Sites was Appellee. he stopped however, Corley,
This Court made clear
of the individual are deemed to be
where the unlawful actions
action,
exclusionary
applies
any
rule
evidence
state
suppressed.2
of those actions must be
obtained as a result
color of
acting
faith of the individual
under
good
The
bad
is
since the
authority
simply
state
is
irrelevant.
This
so
here,
where,
a
operates
Fourth Amendment
as
there exists
Corley,
a citizen and the state.
507 Pa.
relationship between
words,
In
Appellee
at
“[t]he to a is that damaging illegal- exclude evidence defendant ity in offends our procuring concept evidence collective have made the judg- fundamental fairness. We societal culprit responsibility ment that it is better to relieve the for the act rather than condone law enforcement officers in conduct of such nature.” Galloway,
Commonwealth v.
at
413 Agent than other arrested someone lawfully been have to a determination whether inconsequential clearly is Sites of exclusion. remedy actions warrant Agent Sites’ here the Commonwealth upon relied The decisions appropriate not to reme- was deemed wherein exclusion or, indeed, of our determi- supportive dy inapposite are either remedy is the here. proper rule nation Corley instance, proposi- for the cites For the Commonwealth As set remedy not an here. appropriate tion that exclusion is found no Corley this Court previously opinion, forth thus concluded that the exclu- present action to be state where, However, here, as state sionary inapplicable. rule was Corley dictates remedy. is the exclusion present, action is Corley supports Thus, our decision here. The Commonwealth Mason, v. Commonwealth 507 Pa. upon also relies (1985), every that not A.2d 421 wherein this Court held procedure requires of a rule of criminal perceived violation decision, however, is exclusion of evidence. That automatic noted matter. As this Court has inapposite the instant Mason does before, not that exclusion holding suggest where, here, as a violation of the law appropriate is not rights. fundamental implicates constitutional concerns and/or Edmunds, See, 374, 407, Commonwealth v. n. e.g., (1991). Having determined that the 586 A.2d 903 n. action, constituted state unlawful actions of Sites here cannot the further conclusion that the exclusion escape we stop as a result of that should have been all evidence obtained suppressed.
Accordingly, we affirm the order this matter to the trial court. which reversed and remanded FLAHERTY, J., in which dissenting opinion files a NEWMAN, JJ., join. CASTILLE FLAHERTY, Justice, dissenting. acted as a federal agree plainly
I and that the arrest authority, an arrest outside his making follow, was, therefore, necessarily howev- illegal. It does er, that the evidence which was available at trial because of *10 this suppressed. arrest must be The exclusionary rule is into called effect when evidence adverse to a criminal defen- dant police is secured as a result of misconduct. The evidence suppressed is in order to deter such misconduct. case,
In the present police there is no in misconduct in sense term is used the context of the exclusionary rule. Although majority concludes that Sites’ action was state, view, to in my attributable there was no state action. It is difficult to it understand how can be said that a federal law enforcement officer who exceeds his authority, utilizing his federal police badge vehicle and his federal to effect an arrest for an act which everyone jurisdiction, concedes is outside his has become an of the Pennsylvania. Commonwealth of not, course, jurisdiction Federal is coterminous with state jurisdiction. A federal officer is not a state officer. Sites is not paid by the Commonwealth of Pennsylvania. Nor he by hired the Commonwealth. supervised Nor is he or by directed the Commonwealth. any Nor was he directed employer to arrest Price or a in person position. Price’s To hired, contrary, he is paid, supervised and directed government, federal and he is expressly limited the United Congress States to warrantless involving only. arrests felonies See 18 U.S.C. § regard state,
Since I do not an agent Sikes as I do not agree the evidence must suppressed. As Mr. concurring opinion Common- Chief Justice Nix states in his v. Galloway, wealth 12, 21, (1990), A.2d theory justifying use rule to exclude evidence to a damaging defendant is that the illegal- ity in procuring evidence offends our concept collective of fundamental fairness. We have made the societal judg- ment that it to culprit is better relieve the of responsibility for the act rather than condone law enforcement officers conduct of such nature.
Because FBI agent’s acts this case did constitute overreaching oppression, indeed there was no state all, rather, action at predicated upon but were the need act others, immediately possibility injury to avoid the of serious rule of exclusion has no applicability. I Accordingly, would reverse the order of Court. NEWMAN, JJ., join dissenting CASTILLE and opinion.
v. The ZONING BOARD OF ADJUSTMENT OF the OF CITY
PITTSBURGH, Allegheny County, Pennsylvania,
v. NUZZO, Appellants. Michael Theresa Supreme Pennsylvania. Aug.
Submitted 1995. Decided Feb. 1996. Reargument April Denied