J-A30029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    KEVIN ROBERT KRESS                         :   No. 1099 WDA 2017


                     Appeal from the Order, June 29, 2017,
              in the Court of Common Pleas of Allegheny County,
             Criminal Division at No(s): CP-02-CR-0000369-2017.


BEFORE:      SHOGAN, J., KUNSELMAN, J., and STRASSBURGER*, J.

MEMORANDUM BY KUNSELMAN, J.:                            FILED MARCH 19, 2019

       The Commonwealth appeals from the suppression court’s order

suppressing the evidence of Kevin Kress’ blood results.1 After careful review,

we reverse.

       The pertinent facts, as gleaned from the certified record, are as follows:

Shortly after nine o’clock on the evening of September 17, 2016, Kress was

involved in a two-car accident in which he was injured. While driving in the

westbound lane on Business Loop 376, George Kruth, and his wife, Victoria

Kruth (“the Kruths”), noticed a vehicle traveling off the ramp from I-376 East


____________________________________________


1 Along with its notice of appeal, the Commonwealth has certified that the
granting of Kress’ pre-trial motion substantially handicaps and/or effectively
terminates prosecution on the charges specified infra. See generally,
Commonwealth v. Dugger, 486 A.2d 382 (1985).


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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at approximately 80 to 90 miles per hour. The vehicle rear ended the Kruths’

automobile, and then struck the Jersey barrier.

      Officer James Kazmierczak of the Moon Township Police Department

responded to the accident.     Officer Kazmierczak did not speak directly to

Kress. At the scene, Officer Kazmierczak spoke to a passerby, James Hebert,

who informed him that the driver was bleeding from his face and may have

been drinking. Additionally, Corporal Gallagher, another responding officer,

informed Officer Kazmierczak that he spoke with Kress, and that Kress

admitted to both him and Hebert that he had been drinking. Medics arrived

and transported Kress to Allegheny General Hospital where his blood sample

was drawn at 10:05 p.m.       See Criminal Complaint, 10/8/16, Affidavit of

Probable Cause.

      On September 26, 2016, Officer Kazmierczak applied for a warrant to

obtain the toxicology reports for Kress, which a magisterial district judge

ultimately issued. “The records indicate[d] a blood level of .306 based on

plasma/serum” which a member of the Allegheny County Crime Lab converted

“to whole blood which results in a .260 BAC.         See id.   Thereafter, the

Commonwealth charged Kress with driving under the influence of alcohol or

controlled substance (highest rate), driving under the influence of alcohol

(accident involving bodily injury, serious bodily injury, or death, or damage to




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a vehicle or other property), driving under the influence of alcohol (DUI

general impairment), and careless driving.2

        On June 13, 2017, Kress filed an omnibus pre-trial motion which sought

the suppression of his toxicology report. Kress contended that the facts put

forth within the “four corners” of the affidavit of probable cause were

insufficient. On June 29, 2017, after a hearing on the motion at which the

parties made only argument, the trial court agreed, and, therefore, granted

Kress’ motion to suppress.

        This timely appeal follows. Both the Commonwealth and the trial court

have complied with Pa.R.A.P. 1925. The Commonwealth raises one issue on

appeal:


          I.     Given that probable cause is based on the finding of
                 only a probability of criminal activity, and given that
                 when evaluating a warrant for probable cause the
                 determination of the issuing authority should be
                 afforded great deference, did the trial court err in
                 ruling that the facts as set forth in the affidavit of
                 probable cause did not establish that Kress had been
                 involved in an incident of driving under the influence
                 of alcohol such that the search warrant for his blood-
                 alcohol results was justified?

See Commonwealth’s Brief at 4.

        Our well-settled standard of review in an appeal from an order granting

a motion to suppress is as follows:

          When reviewing an Order granting a motion to suppress we
          are required to determine whether the record supports that
____________________________________________


2   See 75 Pa.C.S.A. §§ 3802(c), 3802(a)(1), 3804(b)(2), and 3714(a).

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          suppression court’s factual findings and whether the legal
          conclusions drawn by the suppression court from those
          findings are accurate. In conducting our review, we may
          only examine the evidence introduced by the appellee along
          with any evidence introduced by the Commonwealth that
          remains uncontradicted. Our scope of review over the
          suppression court’s factual findings is limited in that if these
          findings are supported by the record we are bound by them.
          Our scope of review over the suppression court’s legal
          conclusions, however, is plenary.

Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012)

(citation omitted).3

       In Pennsylvania, “the Fourth Amendment to the United States

Constitution and Article I, Section 8 of the Pennsylvania Constitution protects

citizens from unreasonable searches and seizures.”           Commonwealth v.

Clemens, 66 A.3d 373, 378 (Pa. Super. 2013) (internal alteration and

quotation marks omitted). “Where there exists a reasonable expectation of

privacy, Article I, Section 8 and the Fourth Amendment generally require

police to obtain a warrant, issued by a neutral and detached magistrate and

founded upon probable cause, prior to conducting a search or seizure of a

person and/or a person’s property, unless one of the few well delineated

exceptions apply.” Commonwealth v. Loughnane, 173 A.3d 733, 741 (Pa.

2017).




____________________________________________


3We note that, in this case, the trial court did not place its factual finding and
conclusions of law on the record before granting Kress’ suppression motion.


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        Pennsylvania’s Rule of Criminal Procedure 203 provides, in relevant

part:

          Rule 203. Requirements for Issuance.

                                      ***

          (B) No search warrant shall issue but upon probable cause
          supported by one or more affidavits sworn to before the
          issuing authority. . . The issuing authority, in determining
          whether probable cause has been established, may not
          consider any evidence outside the affidavits.

                                      ***

          (D) At any hearing on a motion for the . . . suppression of
          evidence, or for suppression of the fruits of evidence,
          obtained pursuant to a search warrant, no evidence shall be
          admissible to establish probable cause other than the
          affidavits provided for in paragraph (B).

Pa.R.Crim.P. 203. These provisions are known generally as the “four corners”

rule.    See generally, Commonwealth v. Edmunds, 586 A.2d 887 (Pa.

1991).

        As noted above, Kress asserted that the facts within the “four corners”

of the affidavit of probable cause were insufficient to justify the issuance of a

search warrant. “The standard for evaluating whether probable cause exists

for the issuance of a search warrant is the ‘totality of the circumstances’ test

as set forth” in Illinois v. Gates, 462 U.S. 213 (1983), and adopted by the

Pennsylvania Supreme Court in Commonwealth v. Gray, 503 A.2d 921, 925

(1985).    Commonwealth v. Jones, 668 A.2d 114, 116 (Pa. 1995).               “A

magistrate is to make a "practical, common-sense decision whether, given

all the circumstances set forth in the affidavit before him [or her] , including

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the 'veracity' and 'basis of knowledge' of persons supplying hearsay

information, there is a fair probability that contraband or evidence of a crime

will be found in a particular place." Jones, 668 A.2d at 116-117 (emphasis

added).

      “The duty of a court reviewing the decision is to ensure that the

magistrate had a substantial basis for concluding that probable cause existed.”

Id. It is the Commonwealth’s burden to provide this basis. Commonwealth

v. Leed, 186 A.3d 405, 413 (Pa. 2018). “[A] magistrate’s probable cause

determination should receive deference from the reviewing courts.”          Leed,

186 A.3d at 413 (citing Gates, 462 U.S. at 236). “In keeping with the Fourth

Amendment’s strong preference for warrants, ‘courts should not invalidate . .

. warrants by interpreting affidavits in a hyper[-]technical, rather than a

[common sense] manner.’” Id.



      The affidavit in support of the warrant reads as follows:

           Your Honor, your affiant is Officer James Kazmierczak of
          the Moon Township Police Department. I have been a police
          officer since 1997, and I have been with the Moon Township
          Police Department since 2000. I am currently assigned to
          the patrol division.

           All of the information contained in this affidavit was learned
          directly by your affiant or related to me by other persons
          involved in the investigation.       All witnesses providing
          information will be available to testify at any and all court
          proceedings arising from the issuance of this process.

           On Saturday, 9-17-16, at 9:10 PM, I responded to a motor
          vehicle crash on Business Loop 376 West near Ewing Road.
          On arrival, I located one of the vehicles involved. They were

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         on the berm of the road just before the off ramp. I spoke
         to George Kruth and his wife Victoria. George complained
         of neck pain and Victoria complained of shoulder pain but
         neither wanted to be seen by medics. George was the driver
         and Victoria had been in the front passenger seat. They
         stated that they were travelling westbound in the right lane
         when the other vehicle came off the ramp from I-376 E at
         80-90 MPH and rear ended them and then struck the jersey
         barrier. I could see the other vehicle involved was still in
         the left lane approximately 200 feet away. A passerby
         advised me that the driver of that vehicle was bleeding
         heavily from his face and may have been drinking. I advised
         Cpl Gallagher who responded to that vehicle.

          On his arrival, he spoke with the driver, who was identified
         as Kevin Kress. He was bleeding about his face. Kress
         admitted drinking to Cpl Gallagher and to witness James
         Hebert. Medics arrived and subsequently transported Kress
         to Allegheny General Hospital. Because Kress was involved
         in a crash where a person required treatment at a hospital
         and because he admitted to drinking, a blood sample was
         sought as per the implied consent law. Cpl Gallagher went
         to Allegheny General and attempted to obtain the blood
         sample but Kress refused.

         Your affiant believes that the medical records contain
         evidence and as such, are subject to search.

         Your affiant asserts that there is probable cause to issue
         process, namely a search warrant, for the requested item.

Application for Search Warrant, 9/26/16, at 2.

      As noted above, the trial court did not make factual findings or

conclusions of law. See n. 3. In its Rule 1925(a) opinion, the trial court gave

the following rationale for suppressing the blood test results:

            The affiant, Officer James Kazmierczak of Moon Township
         police department, related that he was a police officer since
         1997, yet relayed no information relative to his experience
         in either accident or DUI investigation. Further, it appears
         he had no first hand contact with [Kress] in this case. Mr.
         and Mrs. George Kruth told Officer Kazmierczak they were

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          struck from behind by [Kress’] vehicle at the off ramp of
          376, and they estimated the speed of [Kress’] vehicle at 80-
          90 mph.

             There is no explanation as to how the [Kruths] observed
          [Kress’] vehicle from behind, nor how they estimated the
          speed of [Kress’] vehicle. There is no evidence that the
          [Kruths] were injured by this accident.        There is no
          indication of the extent of damage to [Kruths’] vehicle.

             An unknown, unidentified passerby advised Officer
          Kazmierczak that [Kress] was bleeding from his knee and
          that [Kress] had been drinking, without any explanation as
          to how he/she reached that conclusion.

             Officer Kazmierczak summoned other units to assist and
          Officer Gallagher arrived.

              There is no indication that Officer Kazmierczak, the
          affiant, had any interaction whatsoever, with [Kress]. No
          field sobriety tests were administered by the affiant or
          Officer Gallagher.

            For these reasons, the court granted [Kress’] Motion to
          Suppress.

Trial Court Opinion, at 2-3.4

       In response, the Commonwealth asserts “that all of [the trial court’s]

stated reasons for granting suppression are either belied by the record or

irrelevant for purposes of suppression or both.” Commonwealth’s Brief at 14.

The Commonwealth further argues:

              For example, contrary to the trial court opinion, the
          affidavit clearly states that the witness to whom Kress
          admitted to drinking was named James [Hebert]. More
          importantly, Kress also admitted his drinking to a Corporal
          Gallagher, who was on scene along with Officer
          Kazmierczak; thus, any lack of personal interaction between
____________________________________________


4It is undisputed that Kress was observed bleeding about his face and not his
knee.


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        Officer Kazmierczak and Kress is of no moment, as it is well
        settled that observations made by fellow officers engaged in
        a common investigation are indeed a reliable basis for
        information contained in a warrant.         Furthermore, the
        affidavit stated that both Mr. and Mrs. [Kruth]complained of
        pain as a result of the impact with Kress’ vehicle and that
        they had earlier been able to observe that vehicle enter the
        highway from an off-ramp at a high rate of speed. As for
        the trial court’s problem with the fact that the affidavit
        offered no explanation as to how the [Kruths] were able to
        estimate that Kress was traveling t 80-90 miles per hour,
        the Commonwealth would assert that a motorist, obviously
        knowing his own speed while operating a vehicle, would
        certainly be able to offer a fairly reasonable estimate of the
        speed at which the vehicle behind him was traveling when
        it smashed into the back of his car.

            The Commonwealth would further state that the fact that
        there were no field-sobriety tests (the affidavit indicated
        that Kress was transported to the hospital for treatment—
        as mentioned above, he was bleeding from his face—which
        would explain why such tests were not administered) no
        listed damage to the Kruths’ vehicle, and no mention of
        Officer Kazmierczak’s experience with accident/DUI
        investigations [is], similar to the lack of interaction between
        the officer and Kress, irrelevant to the question of whether
        the court erred in granting Kress’ suppression motion. As
        made clear above, the affidavit established that the vehicle
        that Kress was operating at a high rate of speed crashed
        into the back of the [Kruths’] car at a time when Kress
        had been consuming alcohol. The Commonwealth does
        not believe that the circumstances, viewed together, lead to
        only “a mere suspicion” that evidence of Kress’ intoxication
        would be found in his toxicology reports, but, rather, “a fair
        probability” that such would be found there, which is all that
        is required under the law. Magisterial District [Judge]
        Murray concluded as much, and, given that that conclusion
        was entitled to deference from the reviewing court, the
        Commonwealth submits that the granting of Kress’ motion
        to suppress must be reversed.

Commonwealth’s Brief at 15-16 (citations omitted).




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      Our review of the affidavit of probable cause, in conjunction with the

relevant case law cited above, supports the Commonwealth’s contention that

Judge Murray had a substantial basis upon which to conclude that probable

cause existed for the issuance of the search warrant in this case.

      As emphasized above, “probable cause” involves only probabilities.

“Probable cause exists where the officer has knowledge of sufficient facts and

circumstances to warrant a prudent person to believe that a driver has been

driving   under   the   influence   of    alcohol   or   a   controlled   substance.”

Commonwealth v. Hilliar, 943 A.2d 984, 994 (Pa. Super. 2008).

Furthermore, “probable cause does not involve certainties, but rather the

factual and practical considerations of everyday life on which reasonable and

prudent men act.” Commonwealth v. Dommel, 885 A.2d 998, 1002 (Pa.

Super. 2005) (citation omitted). The Pennsylvania Supreme Court has stated

that ‘[i]t must … be remembered that probable cause is based on a finding of

the probability, not a prima facie showing, of criminal activity, and that

deference is to be accorded a magistrate’s finding of probable cause.”

Commonwealth v. Baker, 615 A.2d 23, 25 (Pa. 1992).

      In deciding to grant Kress’s suppression motion, the trial court focused

on factors that were not within the affidavit, rather than evaluating the

evidence it did contain.    So too, the additional arguments Kress makes to

support the trial court’s determination put forth a hyper-technical approach to

the contents of the affidavit of probable cause, rather than applying a

common-sense approach, considering the totality of the circumstances. See

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Kress’ Brief at 9-19. For example, Kress cites Commonwealth v. Kohl, 576

A.2d 1049 (Pa. Super. 1990) to support his argument that the mere

occurrence of an accident and an allegation of speeding does not establish

alcohol impairment. As noted above, we do not take the facts in isolation

when determining probable cause but, instead, look at the totality of the

circumstances. See Commonwealth v. Nobalez, 805 A.2d 598 600 (Pa.

Super. 2002). In evaluating the facts, it is not done in a piecemeal fashion.

Id.   We consider all the circumstances presented in the affidavit together

which established that Kress was speeding, caused an accident, and admitted

drinking.

      In summary, we conclude that, under the totality of the circumstances,

the affidavit presented by Officer Kazmierczak established probable cause that

justified the issuance of a search warrant for Kress’ blood results. Thus, we

hold the trial court improperly suppressed the results of Kress’s blood alcohol

test. Accordingly, we reverse the trial court’s order and remand for trial.

      Order reversed. Case remanded for trial. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/19/2019




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