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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

SHANNON MARIE FRANK,

                         Appellee                   No. 1716 WDA 2016


                  Appeal from the Order October 7, 2016
             In the Court of Common Pleas of Cambria County
            Criminal Division at No(s): CP-11-CR-0001171-2015

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 7, 2016

order granting Appellee Shannon Marie Frank’s suppression motion.       We

affirm.

      The factual background and procedural history of this case are as

follows. On February 1, 2015, Appellee struck the center barrier on State

Route 22.    Soon thereafter, a member of the Pennsylvania State Police

arrived. During the ensuing interaction, the trooper suspected that Appellee

was driving under the influence of a controlled substance. Upon questioning,

Appellee admitted to ingesting mood stabilizer and anti-anxiety medication.

Appellee was transported to a local hospital and informed, by a reading of

the DL-26 form, that, if she did not consent to a blood draw, she would face




* Retired Justice specially assigned to the Superior Court
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increased criminal penalties. Appellee then agreed to the blood draw, which

showed the presence of a controlled substance.

        On August 28, 2015 the Commonwealth charged Appellee via criminal

information with driving under the influence (“DUI”)-controlled substance1

and five summary offenses.           On September 1, 2016, Appellee moved to

suppress the blood draw evidence.             She argued that the evidence was

collected in violation of the Fourth Amendment of the United States

Constitution.

        Thereafter,   the   trial   court    held   a   suppression   hearing   which

encompassed this case and six other cases which raised similar legal issues.

Pursuant to the trial court’s order, Appellee filed a post-suppression hearing

brief. In that brief, Appellee, for the first time, argued that Article I, Section

8 of the Pennsylvania Constitution barred admission of the blood draw

evidence.     On October 7, 2016, the trial court granted the suppression

motion.     The Commonwealth filed this timely interlocutory appeal as of

right.2 See Pa.R.A.P. 311(d).

        The Commonwealth presents three issues for our review:

1
    75 Pa.C.S.A. §§ 3802(d)(2).
2
  On November 8, 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 November 29, 2016, the Commonwealth filed its
concise statement. On December 9, 2016, the trial court issued an order
stating that its reasoning for granting Appellee’s suppression motion was
included in its October 7, 2016 opinion. All of the Commonwealth’s issues
were included in its concise statement.



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     1. Whether the [trial court] erred by ruling that the holdings of the
        Supreme Court of the United States in Davis v. United States,
        [564 U.S. 229 (2011)] and Illinois v. Krull, [480 U.S. 340
        (1987)3] were inapplicable under Article [1,] Section 8 of the
        Pennsylvania Constitution when [Appellee] had only made a
        claim under the Fourth Amendment of the Federal Constitution
        and had implicitly waived all claims under Article [1,] Section
        8[?]

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

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

Commonwealth’s Brief at 6.4

        The Commonwealth’s first two 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.

3
  Referred to as the Davis/Krull rule, 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.
4
    We have re-numbered the issues for ease of disposition.


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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).

      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

her 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.



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     “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).   Although Birchfield, Evans, and Giron were DUI-

alcohol cases, their reasoning is equally applicable in DUI-controlled

substance cases. Commonwealth v. Ennels, 2017 WL 2954227, *3–5 (Pa.

Super. July 11, 2017).    Therefore, in the wake of Birchfield, the DL-26

warnings read to Appellee were partially incorrect insofar as they advised

Appellee that she faced additional charges and/or enhanced penalties if she

refused the blood draw.

     Notwithstanding the issuance of Birchfield, the Commonwealth

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


5
    The Commonwealth attempts to draw a distinction between the
Davis/Krull rule and the good-faith exception to the exclusionary rule
originally announced in United States v. Leon, 468 U.S. 897 (1984). 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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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.

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



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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,

564 U.S. at 238 (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 under the good-faith exception. Id.

at 239-241. In Krull, 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



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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

(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 her motion has a significant

impact upon the resolution of the instant appeal.           The Commonwealth

correctly notes that Appellee only moved to suppress the blood draw

evidence under the Fourth Amendment of the United States Constitution.

See Appellee’s Suppression Motion, 9/1/16, at 3.            Moreover, Appellee’s

counsel never mentioned the Pennsylvania Constitution at the suppression




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hearing.      We conclude, however, that Appellee preserved her state

constitutional claim in her post-suppression hearing brief.

        The Commonwealth cites Commonwealth v. Freeman, 128 A.3d

1231 (Pa. Super. 2015) in support of its argument that Appellee’s post-

suppression hearing brief was insufficient to preserve her Article I, Section 8

claim.     Freeman, however, involved a case in which waiver occurred

because the defendant failed to present the suppression issue to the trial

court either before, during, or after the suppression hearing.     See id. at

1242.      For that reason, this Court never addressed whether raising a

suppression issue in a post-suppression hearing brief was sufficient to

preserve the issue. See id.

        Although Freeman didn’t address whether raising an issue in a post-

suppression hearing brief preserved an issue, we find instructive this Court’s

recent decision in Champney.       In Champney, this Court found that the

defendant failed to preserve a suppression issue because he failed to raise it

in his motion to suppress, at the suppression hearing, or in a post-

suppression hearing brief. See id. at 285 n.25. This Court’s statement that

the defendant failed to include the issue in a post-suppression hearing brief

indicates that it is possible to preserve the issue in a post-hearing

submission.

        The requirement that a defendant raise the grounds for suppression in

his or her suppression motion ensures that the Commonwealth is put on



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notice of what evidence it must produce at the suppression hearing in order

to satisfy its burden of proving that the evidence was legally obtained. Cf.

Commonwealth v. McDonald, 881 A.2d 858, 860-861 (Pa. Super. 2005)

(internal quotation marks and citation omitted) (“[W]hen a motion to

suppress is not specific in asserting the evidence believed to have been

unlawfully obtained and/or the basis for the unlawfulness, the defendant

cannot complain if the Commonwealth fails to address the legality of the

evidence   the   defendant   wishes    to      contest.”).   In   this    case,    the

Commonwealth extensively addressed the Article I, Section 8 issue in its

brief filed prior to the suppression hearing.           Commonwealth’s Brief in

Opposition, 9/15/16, at 5-10. It also addressed the Article I, Section 8 issue

in its argument prior to the beginning of the suppression hearing.                N.T.,

9/15/16, at 5-12.    The only additional evidence that the Commonwealth

needed to offer because of Appellee’s Article I, Section 8 claim was that of

the trooper who testified at the suppression hearing.                    Finally, the

Commonwealth did not object to Appellee raising her Article I, Section 8

claim before the trial court.    Thus, the Commonwealth was not unfairly

prejudiced by Appellee’s delay in raising her Article I, Section 8 claim.

      This case is similar to Commonwealth v. Stoops, 723 A.2d 184 (Pa.

Super. 1998), appeal denied, 747 A.2d 368 (Pa. 1999).             In Stoops, the

Commonwealth argued, like it does in the case at bar, that the trial court

improperly raised a suppression issue sua sponte because it was not



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included in the defendant’s suppression motion.           This Court rejected that

argument for two reasons.         First, the necessary evidentiary record was

developed at the suppression hearing.            See id. at 188.      Second, the

defendant raised the issue in his post-suppression hearing brief and the

Commonwealth did not object.         See id.     As noted above, in this case the

necessary evidentiary record was developed at the suppression hearing and

the Commonwealth did not object to Appellee raising her Article I, Section 8

claim in his post-suppression hearing brief.         Accordingly, we conclude that

Appellee properly raised and preserved her Article I, Section 8 claim.6

      As we conclude that Appellee properly preserved her Article I, Section

8 claim, the trial court correctly found that the good-faith exception to the

exclusionary rule does not exist under Article I, Section 8. Frederick, 124

A.3d at 756 (citations omitted). As such, the fact that police acted in good-

faith reliance on appellate precedent was irrelevant when determining if the

blood draw evidence was admissible at trial. Therefore, the Commonwealth

is not entitled to relief on its first two issues.

      In its third issue, the Commonwealth argues that Appellee’s statement

that she ingested mood stabilization and anti-anxiety medication prior to

driving renders any coercion of the partially incorrect DL-26 warnings


6
  Since Appellee’s inclusion of her state constitutional claim in a post-hearing
submission allowed the trial court to consider the issue in light of the facts
developed at the suppression hearing, we do not perceive Appellee’s Article
I, Section 8 claim as one that has been raised for the first time on appeal.
See Pa.R.A.P. 302(a).


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“inert.” Commonwealth’s Brief at 21. 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.”

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 h[er]
      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).

      In this case, the trial court found that the first three factors weighed

against a finding of consent. Appellee was in custody when she consented

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

reading her the partially inaccurate DL-26 warnings. Appellee was unaware

of her knowledge of her right to refuse testing because of those partially

inaccurate warnings.   The trial court also found that Appellee cooperated


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with the trooper during the encounter.          Neither the Commonwealth nor

Appellee challenge these factual findings.

      Instead, the Commonwealth argues that the trial court’s finding that

there was no evidence that Appellee believed incriminating evidence would

be found is unsupported by the record. Appellee, on the other hand, argues

that the record supports the trial court’s finding. After careful review of the

certified record, we conclude that the trial court’s factual finding is supported

by the record.

      The trooper testified that Appellee admitted that she took a mood

stabilizer and an anti-anxiety medication. See N.T., 9/15/16, at 16. There

was no evidence presented, however, that Appellee knew that having these

substances in her system would be incriminating. As the trooper admitted at

the suppression hearing, Appellee stated she had a prescription for these

medications. See id. at 19. It was reasonable for the trial court to assume

that Appellee was unaware of the fact that having these substances in her

blood stream would be incriminating.           As such, the trial court’s factual

finding is supported by the record.

      The Commonwealth also argues that the trial court erred in weighing

the relevant factors. We disagree. The trial court reasonably found that the

coercive effect of being under custody and threatened with 72 hours

imprisonment for refusing a blood draw outweighed the fact that Appellee




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cooperated with the trooper. Accordingly, we affirm the order suppressing

the blood draw evidence.

     Order affirmed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/13/2017




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