J-S60007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

DEREK BRIAN PODVOJSKY,

                         Appellee                   No. 1793 WDA 2016


                   Appeal from the Order October 21, 2016
              In the Court of Common Pleas of Cambria County
             Criminal Division at No(s): CP-11-CR-0000773-2015

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

MEMORANDUM BY OLSON, J.:                         FILED OCTOBER 13, 2017

      The Commonwealth of Pennsylvania appeals from the October 21,

2016 order granting Appellee Derek Brian Podvojsky’s suppression motion.

We affirm.

      The factual background and procedural history of this case are as

follows. On October 13, 2014, Appellee was pulled over by a member of the

Pennsylvania State Police and admitted to drinking several beers prior to

operating the vehicle.    Appellee was transported to a local hospital and

informed, by a reading of the DL-26 form, that, if he did not consent to a

blood draw, he would face increased criminal penalties.      Appellee then

agreed to the blood draw, which showed the presence of alcohol in his blood

stream.




* Retired Justice specially assigned to the Superior Court
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        On July 20, 2015, the Commonwealth charged Appellee via criminal

information with driving under the influence (“DUI”)-general impairment,1

DUI-highest rate,2 and five summary offenses.       On July 5, 2016, Appellee

moved to suppress the blood draw evidence.3         Thereafter, the trial court

held a suppression hearing regarding this case and six other cases raising

related legal issues.    On October 21, 2016, the trial court granted the

suppression motion.      The Commonwealth filed this timely interlocutory

appeal as of right.4 See Pa.R.A.P. 311(d).

        The Commonwealth presents two issues for our review:

     1. Whether the [trial] court erred by suppressing evidence that was
        seized based upon the [trooper’s] good faith reliance on
        appellate precedent[?]

     2. Whether [Appellee’s] inculpatory statements regarding his
        alcohol use render any potential coercion inert as [Appellee] was
        ready and willing to admit to his alcohol use[?]

Commonwealth’s Brief at 6.




1
    75 Pa.C.S.A. § 3802(a)(1).
2
    75 Pa.C.S.A. § 3802(c).
3
    Appellee filed an amended motion on July 15, 2016.
4
  On November 28, 2016, the trial court ordered the Commonwealth to file a
concise statement of errors complained of on appeal (“concise statement”).
See Pa.R.A.P. 1925(b). On December 19, 2016, the Commonwealth filed its
concise statement. On December 22, 2016, the trial court issued an order
stating that its reasoning for granting Appellee’s suppression motion was
included in its October 21, 2016 opinion. Both of the Commonwealth’s
issues were included in its concise statement.


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      Both of the Commonwealth’s claims challenge the trial court’s order

suppressing the results of the blood draw.      “Once a motion to suppress

evidence 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. Evans,

153 A.3d 323, 327 (Pa. Super. 2016) (citation omitted).       Our standard of

review in addressing a challenge to a trial court’s order granting a

suppression motion is whether the factual findings are supported by the

record and whether the legal conclusions drawn from those facts are correct.

See Commonwealth v. Champney, 161 A.3d 265, 271 (Pa. Super. 2017)

(en banc) (citation omitted). “[O]ur scope of review is limited to the factual

findings and legal conclusions of the [trial] court.” In re L.J., 79 A.3d 1073,

1080 (Pa. 2013) (citation omitted). “When the Commonwealth appeals from

a suppression order, we . . . consider only the evidence from the defendant’s

witnesses together with the evidence of the prosecution that, when read in

the context of the entire record, remains uncontradicted.” Commonwealth

v. Young, 162 A.3d 524, 527 (Pa. Super. 2017) (citation omitted). “Where

the [trial] court’s factual findings are supported by the record, we are bound

by these findings and may reverse only if the [trial] court’s legal conclusions

are erroneous.”    Commonwealth v. Palmer, 145 A.3d 170, 173 (Pa.

Super. 2016) (citation omitted).




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     In order to understand the issues presented in this case, it is

necessary to review the change in the law which prompted Appellee to file

his suppression motion. When Appellee was arrested and gave consent to

the blood draw, the warnings regarding increased criminal penalties for

refusing a blood draw (included in form DL-26) were legally correct. While

Appellee’s case was pending, however, the Supreme Court of the United

States decided Birchfield v. North Dakota, 136 S.Ct 2160 (2016).         In

Birchfield, the Supreme Court of the United States considered whether a

blood draw was subject to one of the limited exceptions to the Fourth

Amendment’s warrant requirement.

     “In Birchfield, the Supreme Court of the United States held that

police can compel a driver to give a breath sample without a warrant;

however, police cannot compel a driver to provide a blood sample without

first obtaining a search warrant except in certain limited circumstances.”

Commonwealth v. Giron, 155 A.3d 635, 637 n.1 (Pa. Super. 2017)

(citation omitted). Therefore, in the wake of Birchfield, the DL-26 warnings

read to Appellee were partially incorrect insofar as they advised Appellee

that he faced additional charges and/or enhanced penalties if he refused the

blood draw. Notwithstanding the issuance of Birchfield, the Commonwealth




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maintains that the results of Appellee’s blood test withstand suppression

since the good-faith exception to the exclusionary rule applies in this case.5

      It is well-settled that a blood draw is a search under the Fourth

Amendment of the United States Constitution. See Skinner v. Ry. Labor

Execs.’ Assn., 489 U.S. 602, 616–617 (1989); Schmerber v. California,

384 U.S. 757, 767–768 (1966).       The fact that a blood draw is a search,

however, does not end the inquiry. “As the text indicates and [the Supreme

Court of the United States has] repeatedly affirmed, the ultimate touchstone

of the Fourth Amendment is reasonableness.”        Heien v. North Carolina,

135 S.Ct. 530, 536 (2014) (internal quotation marks and citation omitted).

For this reason, the Supreme Court of the United States has created a

number of exceptions to the Fourth Amendment’s warrant requirement. One

such exception is if a defendant consents to a search.         See Illinois v.

5
  The Commonwealth attempts to draw a distinction between the rule set
forth in Davis v. United States, 564 U.S. 229 (2011) and Illinois v. Krull,
480 U.S. 340 (1987) and the good-faith exception to the exclusionary rule
originally announced in United States v. Leon, 468 U.S. 897 (1984).
Referred to as the Davis/Krull rule, in those two cases the Supreme Court
of the United States held that when the police conduct a search in
objectively reasonable reliance upon binding appellate precedent or statutory
authority which is later invalidated, the exclusionary rule does not apply.
Davis, 564 U.S. at 249-250; Krull, 480 U.S. at 347.

The Supreme Court of the United States made clear in both Davis and Krull
that it was merely applying the good-faith exception to the exclusionary rule
and not announcing a new exception to the exclusionary rule. See Davis,
564 U.S. at 249 (this case “comes within the good-faith exception”); Krull,
480 U.S. at 346 (internal citation omitted) (“We granted certiorari to
consider whether [the] good-faith exception to the Fourth Amendment
exclusionary rule applies” in this case.). Thus, the Davis/Krull rule is just a
specific example of the good-faith exception.


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Rodriguez, 497 U.S. 177, 183–186 (1990).          Another such exception is a

search conducted pursuant to exigent circumstances, i.e., when police have

insufficient time to seek a warrant because of an emergency. See Michigan

v. Tyler, 436 U.S. 499, 509 (1978). In Missouri v. McNeely, 569 U.S. 141

(2013), the Supreme Court of the United States held that the exigent

circumstances exception rarely applies in DUI cases.     See id. at 149-156.

Consent, on the other hand, is a factual issue.

      “To effectuate the rights guaranteed under the Fourth Amendment, in

the early part of the last century, the [Supreme Court of the United States]

adopted the exclusionary rule, which bars the use of evidence obtained

through an illegal search and seizure.” Commonwealth v. Arter, 151 A.3d

149, 153 (Pa. 2016) (citation omitted). After approximately two decades of

strict adherence to the exclusionary rule, the Supreme Court of the United

States adopted the good-faith exception to the exclusionary rule.

      Under the good-faith exception, “when the police act with an

objectively reasonable good-faith belief that their conduct is lawful, or when

their conduct involves only simple, isolated negligence, the deterrence

rationale loses much of its force, and exclusion [is not appropriate].” Davis

v. United States, 564 U.S. 229, 238 (2011) (internal quotation marks and

citations omitted).   In Davis, the Court held that when a police officer

conducts a search pursuant to binding appellate precedent, which is later

overturned, the evidence seized as a result of that search is admissible



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under the good-faith exception. Id. at 239-241. In Illinois v. Krull, 480

U.S. 340 (1987), police conducted a warrantless administrative search

pursuant to a state statute.             Later, that statute was found to be

unconstitutional. Nonetheless, the Supreme Court of the United States held

that the good-faith exception to the exclusionary rule applied because the

officer acted in an objectively reasonable manner in relying upon the

subsequently invalidated statute.        Krull, 480 U.S. at 349-351.         Therefore,

evidence that is collected pursuant to a state statute that has previously

been    upheld    by   an    appellate   court,   but   which   is   later    declared

unconstitutional, is generally admissible under the good-faith exception.

       The good-faith exception distinguishes the Fourth Amendment of the

United States Constitution from its Pennsylvania counterpart since “it is

settled that under Article I, Section 8 of the Pennsylvania [C]onstitution, a

good[-]faith     exception    to   the   exclusionary    rule   does    not     exist.”

Commonwealth v. Frederick, 124 A.3d 748, 756 (Pa. Super. 2015),

appeal denied, 138 A.3d 2 (Pa. 2016) (citations omitted); Commonwealth

v. Arnold, 932 A.2d 143, 148 (Pa. Super. 2007) (citation omitted);

Commonwealth v. Edmunds, 586 A.2d 887, 888 (Pa. 1991). Although a

concurring opinion authored by a member of this Court suggests that the

good-faith exception may apply to exclusionary claims raised under Article I,

Section 8 of the Pennsylvania Constitution in circumstances such as the ones

present in this case, see Commonwealth v. Burgos, 64 A.3d 641, 657



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(Pa. Super. 2013) (Shogan, J., concurring), appeal denied, 77 A.3d 635 (Pa.

2013), the majority in Burgos explicitly rejected this statement and noted

that “the good[-]faith exception does not exist [under] Pennsylvania [law].”

Id. at 657 n.22 (citation omitted).

         We have traced these distinctions between the Fourth Amendment of

the United States Constitution and Article I, Section 8 because the precise

legal authority Appellee cited in support of his motion has a significant

impact upon the resolution of the instant appeal.        In this case, Appellee

moved to suppress the blood draw evidence under both the Fourth

Amendment of the United States Constitution and Article I, Section 8 of the

Pennsylvania Constitution.    The trial court correctly found that there is no

good-faith exclusion under      Article   I, Section 8   of the   Constitution.

Therefore, the Commonwealth is not entitled to relief on its first claim of

error.

         In its second issue, the Commonwealth argues that Appellee’s

statements that he drank several beers prior to driving renders any coercion

“inert.” Commonwealth’s Brief at 20. In other words, the Commonwealth

argues that, notwithstanding the partially inaccurate DL-26 warnings,

Appellee’s consent was voluntary.

         When a defendant is given partially inaccurate DL-26 warnings, the

trial court must evaluate his or her “consent based on the totality of all the

circumstances and given the partial inaccuracy of the officer’s advisory.”



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Evans, 153 A.3d at 331 (internal ellipses and alterations omitted), quoting

Birchfield, 136 S.Ct. at 2186. Our Supreme Court has explained that:

      While there is no hard and fast list of factors evincing
      voluntariness, some considerations include: 1) the defendant’s
      custodial status; 2) the use of duress or coercive tactics by law
      enforcement personnel; 3) the defendant’s knowledge of his
      right to refuse to consent; 4) the defendant’s education and
      intelligence; 5) the defendant’s belief that no incriminating
      evidence will be found; and 6) the extent and level of the
      defendant’s cooperation with the law enforcement personnel.

Commonwealth v. Gillespie, 821 A.2d 1221, 1225 (Pa. 2003) (Eakin, J.,

opinion announcing the judgment of the court) (internal quotation marks

omitted), citing Commonwealth v. Cleckley, 738 A.2d 427, 433 n. 7 (Pa.

1999).

      The trial court carefully weighed these factors and determined that

Appellee’s consent to the blood draw was not voluntary. We conclude that

this determination is supported by the record and free of legal error. The

Commonwealth focuses on the sixth factor set forth in Gillespie, i.e.,

Appellee’s cooperation with law enforcement personnel. The Commonwealth

contends that Appellee’s statement to police that he drank several beers

earlier in the day indicates that he was coopering with law enforcement

personnel.   The Commonwealth, however, does not challenge the factual

finding by the trial court that Appellee began acting belligerently with police

after he made that statement.     See Trial Court Opinion, 10/21/16, at 7;

N.T., 9/15/16, at 17-18. We agree with the trial court that this belligerence,

after Appellee admitted to drinking several beers, indicates that he decided


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to stop cooperating with police well before he consented to the blood draw at

the hospital.

      The Commonwealth also doesn’t challenge the trial court’s conclusion

that other factors weighed heavily against a finding that Appellee’s consent

was voluntary. He was in custody at the time police asked him to consent to

the blood draw.    The police used coercive tactics (albeit unknowingly) by

reading the partially inaccurate DL-26 warnings. Similarly, Appellee had no

knowledge of his right to refuse the blood draw as police informed him that

he would be subject to increased criminal penalties if he refused.     When

viewed in their totality, the circumstances surrounding Appellee’s consent to

the blood draw indicate that the consent was involuntary.     Thus, the trial

court properly granted Appellee’s suppression motion.    As such, we affirm

the trial court’s order and remand for further proceedings consistent with

this memorandum.6

      Order affirmed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/13/2017


6
  The Commonwealth may still pursue the DUI-general impairment charge
against Appellee.


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