J-S22028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

DANIEL NELSON THOMAS

                            Appellee                  No. 1730 MDA 2016


               Appeal from the Order Entered September 23, 2016
                 In the Court of Common Pleas of Adams County
               Criminal Division at No(s): CP-01-CR-0000557-2016


BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*

MEMORANDUM BY MOULTON, J.:                       FILED SEPTEMBER 15, 2017

       The Commonwealth appeals from the September 23, 2016 order

entered in the Adams County Court of Common Pleas granting Daniel Nelson

Thomas’ motion to suppress blood test results.1 We affirm.

       In March 2016, Thomas was charged with driving under the influence

of alcohol (“DUI”)–general impairment and DUI–high rate.2          On July 18,

____________________________________________


       *
           Retired Senior Judge assigned to the Superior Court.
       1
        In its notice of appeal, the Commonwealth certified that the trial
court’s order granting Thomas’ motion to suppress terminates or
substantially handicaps the prosecution. See Pa.R.A.P. 311(d) (permitting
interlocutory appeal where Commonwealth certifies with its notice of appeal
that order terminates or substantially handicaps prosecution). Thus, the
appeal is properly before us. See Commonwealth v. Ivy, 146 A.3d 241,
244 n.2 (Pa.Super. 2016).
       2
           75 Pa.C.S. §§ 3802(a)(1) and (b), respectively.
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2016, Thomas filed a motion to suppress evidence of blood test results. In

lieu of a hearing, the parties submitted the following stipulated facts:

         1. On March 20, 2016, at approximately 1:26 a.m.,
         [Thomas] was involved in a two-vehicle accident in
         Gettysburg Borough, Adams County, Pennsylvania.

         2. Officer Michael Carricato arrived at the scene and
         determined that [Thomas] was the driver of one of the
         vehicles involved in the accident.

         3. As a result of Officer Carricato’s observations, [Thomas]
         was placed under arrest for driving under the influence.

         4. [Thomas] was transported to Gettysburg Hospital for a
         blood draw.

         5. After being read the then-existing DL-26 form,
         [Thomas] consented to have his blood drawn for testing.

         6. The form read to [Thomas] included language that
         [Thomas] could face enhanced criminal penalties if he
         refused to submit to a blood draw.

         7. [Thomas’] blood was later tested and a result of .128
         blood alcohol content was received.

Stipulated Facts, 9/21/16. On September 23, 2016, the trial court granted

the motion, finding that Thomas did not voluntarily consent to the blood

draw and that the results of the blood test were inadmissible. On October

14, 2016, the Commonwealth filed a timely notice of appeal.

      The Commonwealth raises the following issue on appeal:            “Did the

Honorable Suppression Court err in applying the exclusionary rule and

suppressing the results of [Thomas’] blood draw when a good faith exception

to the rule should have been applied?”            Cmwlth.’s Br. at 4.       The

Commonwealth does not argue that the trial court erred in finding Thomas’s



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consent to the blood draw involuntary following Birchfield v. North

Dakota, 136 S.Ct. 2160 (2016).      Rather, it argues that this Court should

recognize “a limited good faith exception [to the exclusionary rule] in the

wake of Birchfield.” Cmwlth.’s Br. at 16. The Commonwealth argues that

we should apply the good-faith exception because the exclusionary rule’s

deterrent effect is not furthered by application in this case, noting that the

implied-consent law relied on by the police officers had previously been

upheld. Id. at 9-15.

      The Pennsylvania Supreme Court has explained the exclusionary rule

and the good-faith exception to that rule as follows:

         The established remedy for illegal seizures and searches,
         in criminal cases, is exclusion of the fruits of the illegal
         police conduct—under both the Fourth Amendment and
         under Article I, Section 8. That general rule of exclusion,
         of course, is subject to numerous exceptions. The U.S.
         Supreme Court recognized a new such exception to the
         Fourth Amendment's exclusionary rule in United States v.
         Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677
         (1984). Leon held that, where a police officer conducts a
         search in objective good faith reliance upon a search
         warrant duly issued by a magistrate or judge, the Fourth
         Amendment does not require exclusion of evidence found
         pursuant to the warrant, even if it is later determined that
         there was no probable cause for the warrant to issue. 468
         U.S. at 926, 104 S.Ct. 3405. The High Court considered
         that the deterrence goal of the federal exclusionary rule
         based on the Fourth Amendment would not be served by
         applying it in circumstances where officers have properly
         relied on a subsequently invalidated search warrant. Id.

Commonwealth v. Johnson, 86 A.3d 182, 187-88 (Pa. 2014).                  The

Pennsylvania Supreme Court, however, has determined that Article I,



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Section 8 of the Pennsylvania Constitution does not contemplate a good-

faith exception to the exclusionary rule, concluding that the Pennsylvania

Constitution provides greater protection for individual privacy interests than

does the Fourth Amendment. Commonwealth v. Edmunds, 586 A.2d 887,

899, 906 (Pa. 1991); accord Commonwealth v. Myers, ___ A.3d ____,

2017 WL 3045867, at *10 n.16 (Pa. July 19, 2017) (discussing Birchfield

and decisions from other jurisdictions, and noting that “Pennsylvania law

does not recognize a good-faith exception to the exclusionary rule”);

Commonwealth v. Hopkins, ___ A.3d ____, 2017 WL 2822511, at *1, 9

(Pa. June 30, 2017) (concluding trial court properly suppressed evidence

because there is no good-faith exception to exclusionary rule in case where

“information contained in the affidavit in support of probable cause is later

determined to be demonstrably untrue, despite the absence of any showing

of police misconduct”);3 Johnson, 86 A.3d at 188 (noting that Pennsylvania

____________________________________________


       3
        Hopkins was decided by an evenly divided court. The opinion in
support of affirmance based its decision to affirm the order suppressing the
evidence “upon [the Pennsylvania Supreme Court’s] historical rejection of a
‘good faith’ exception to the exclusionary rule.” 2017 WL 2822511, at *1
(Donohue, J., joined by Baer and Dougherty, JJ.). The opinion in support of
reversal found the “good-faith ‘exception’ to the exclusionary rule” was not
implicated, concluding that:

           [T]he salient issue, in my view, is whether the search
           warrant was valid and, thus, whether the exclusionary rule
           applies in the first instance. As I would find that the
           warrant    was     supported  by   probable    cause    as
           constitutionally required—and was therefore valid—I would
(Footnote Continued Next Page)


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Supreme Court’s rejection of good-faith exception in “Edmunds turned on a

determination that, under Article I, Section 8, the exclusionary rule in

Pennsylvania serves other values besides deterrence; it also vindicates an

individual’s right to privacy”). Based on this Supreme Court precedent, we

decline the Commonwealth’s invitation to establish a good-faith exception

for post-Birchfield cases.

      Accordingly, because Pennsylvania does not recognize the good-faith

exception to the exclusionary rule, we conclude that the Commonwealth’s

claim lacks merit.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/15/2017




                       _______________________
(Footnote Continued)

          conclude that        the    evidence    should   not   have   been
          suppressed.

Id. at *9 (Pa. Jun 30, 2017) (Saylor, C.J., joined by Todd and Mundy, JJ.).



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