J-S12018-18

                             2018 PA Super 133



COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                         Appellant

                    v.

SHARON KAY JOHNSON

                                                     No. 1198 MDA 2017


               Appeal from the Order entered June 30, 2017,
              in the Court of Common Pleas of Centre County,
            Criminal Division, at No(s): CP-14-CR-0000526-2017


BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

OPINION BY KUNSELMAN, J.:                               FILED MAY 21, 2018

      The Commonwealth appeals from the order granting Sharon Kay

Johnson’s motion to suppress the test results of a warrantless blood-draw.

We reverse.

      A summary of the facts, as stipulated to by the parties, is as follows.

      On January 16, 2017, Officer Nicole Foley arrested Johnson with

probable cause and requested a blood-draw. Within the required two hour

time period, Johnson was transported to Nittany Medical Center for a blood-

draw. At the hospital, Officer Foley gave Johnson the revised DL-26 form; the

form did not list enhanced criminal penalties as a consequence of failing to

consent to a blood-draw. Officer Foley read the DL-26 form to Johnson and

gave her the opportunity to read it herself. She did not tell Johnson that she

would face greater criminal penalties if she refused consent to a blood-draw.
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Johnson, signing the form, consented to the blood-draw. Officer Foley did not

threaten or coerce Johnson.

       Johnson testified that, at the time of her arrest, she sincerely but

erroneously believed that refusing the blood-draw would subject her to greater

criminal penalties. This misunderstanding came from Johnson’s previous DUI

arrest and attending DUI Safe Driving School.

       Johnson filed a pretrial motion, seeking to suppress the warrantless

blood-draw. She argued that: 1) a blood-draw given based upon the revised

O’Connell warnings,1 even without the clause regarding increased penalties,

remained coercive and contrary to Birchfield v. North Dakota, 579 U.S.

___, 136 S.Ct. 2160 (2016), because 75 Pa.C.S.A. § 3804(c) still contained

the increased penalty language as the law; and 2) Johnson’s existing

knowledge of the enhanced penalties under 75 Pa.C.S.A. § 3804 rendered her

warrantless blood-draw coercive under Birchfield. The trial court granted

Johnson’s motion to suppress.

       The Commonwealth appealed one issue:

          Whether the trial court erred in granting Johnson’s motion
          to suppress, because Officer Foley did not tell Johnson that
          she would face harsher criminal penalties for refusing a
          blood test, making Johnson’s consent voluntary.
____________________________________________


1  “O'Connell warnings” refer to the obligation of police officer to inform
motorists, of whom the officer requests chemical testing, that the Miranda
rights are inapplicable to such tests under the Pennsylvania Implied Consent
Law. See Commonwealth, Department of Transportation v. O'Connell,
555 A.2d 873 (Pa. 1989). Critical to this case, the officer must also inform
motorists of the legal consequences they will face if they refuse consent to the
blood-draw.

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See Commonwealth’s Brief at 4.

      Our standard of review for a suppression court’s conclusions is de novo,

because when police elect not to procure a warrant prior to searching, they

forgo prior judicial authorization and so invite our highest degree of appellate

scrutiny on review. See Ornelas v. United States, 517 U.S. 690 (1996).

That said, we must “take care both to review findings of historical fact only for

clear error and to give due weight to inferences drawn from those facts by

resident judges and local law enforcement officers.” Id. at 699.

      In making these judgments, our scope of review is limited to only the

evidence in the suppression hearing. See Commonwealth v. Ennels, 167

A.3d 716 (Pa. Super. 2017) (citations omitted). “In addition, because the

defendant prevailed on this issue before the suppression court, we consider

only the defendant's evidence and so much of the Commonwealth's evidence

as remains uncontradicted when read in the context of the record as a whole.”

Ennels at 718–19 (quotation marks and citations omitted).           Despite our

narrowed view of the record and the clearly erroneous standard we apply to

the trial judge’s findings of fact, we cannot sustain the order granting

suppression of Johnson’s blood-draw in this case.

      The governing law in this area is well settled. The Fourth Amendment

to the Constitution of the United States and Article I, § 8 of the Constitution

of the Commonwealth of Pennsylvania both prohibit unreasonable searches

and seizures. “The administration of a blood test, performed by an agent of,

or at the direction of the government, constitutes a search under both the

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United States and Pennsylvania Constitutions.” Commonwealth v. Evans,

153 A.3d 323, 328 (2016) (citations omitted). If an officer performs a blood-

draw    search   without   a   warrant,   it       is   “unreasonable   and   therefore

constitutionally impermissible, unless an established exception applies.

Exceptions to the warrant requirement include the consent exception.               For

the consent exception to apply, the consent must be voluntary.” Id.

       In granting Johnson’s motion, the trial court concluded that Johnson did

not voluntarily consent to the blood-draw, because Officer Foley did not inform

Johnson that the enhanced criminal penalties of 75 Pa.C.S.A. § 3804(c) were

unconstitutional. The trial court reasoned as follows:

          The subject of the search must be made aware of his rights
          against a warrantless search for a waiver to be intelligent
          and for consent to be given.

                                *    *         *        *

          At the time of [Johnson’s] arrest on January 16, 2017, the
          [§ 3804(c)] criminal penalties were still a part of the
          [statute] regardless of their enforceability or redaction from
          the DL-26. It was on January 31, 2017 [a couple of weeks
          after Johnson’s arrest], when [Commonwealth v. Giron,
          155 A.3d 635 (Pa. Super. 2017)], was decided that the
          Superior Court declared 3804(c) unconstitutional.

              [Johnson] is expected and assumed to know the law of
          this Commonwealth, including the criminal penalties if she
          refused the blood-draw. See In re Kearney, 7 A.2d 159,
          161 (Pa. Super. 1939) (Ignorance of the law excuses no
          one, according to the ancient maxim, everyone being
          presumed to know the law). [Johnson] was not made aware
          of her rights to refuse against a warrantless search, because
          she was not informed that the enhanced criminal penalties
          of 75 Pa.C.S. § 3804(c) would not be enforced. A citizen,
          like [Johnson], with knowledge of the criminal penalties
          within the law would naturally expect them to be enforced

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         to the fullest extent possible. Silence by the arresting officer
         is not synonymous with communication of [Johnson’s]
         rights, specifically that she would not face enhanced
         criminal penalties for refusal to consent to a search, without
         a warrant when the law says otherwise. Thus, the Court
         finds that [Johnson] did not intentionally relinquish a known
         right or privilege when consenting to a blood-draw as she
         was not informed that the enhanced criminal penalties of 75
         Pa.C.S. §3804(c) were unconstitutional.

Trial Court Opinion, 6/30/17, at 4-5 (citations omitted). We disagree.

      The issues in this case stem from the United States Supreme Court’s

decision in Birchfield. In that case, the defendant was arrested for DUI. In

requesting a blood-draw without a warrant, the officer informed the defendant

of North Dakota's implied consent advisory and that “test refusal in these

circumstances is itself a crime.” The defendant then agreed to the requested

blood-draw. Id. at 2172. In defending his case, the defendant argued that

“his consent to the blood test was coerced by the officer's warning that

refusing to consent would itself be a crime.” Id. The Supreme Court of the

United States held that the Supreme Court of North Dakota erred in concluding

that the defendant’s consent was voluntary, as the state court's conclusion

rested “on the erroneous assumption that the State could permissibly compel

[ ] blood ... tests” by “impos[ing] criminal penalties on the refusal to submit

to such a test.” Id. at 2185-86.

      The critical inquiry following Birchfield is whether the officer conveyed

the threat of enhanced criminal penalties at the time of the arrest when

seeking a warrantless blood-draw. Notably, the threat of civil penalties and

evidentiary consequences is permissible under implied consent laws; however,

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a threat of added criminal sanctions is not.       Previously, we stated that,

“Birchfield makes plain that the police may not threaten enhanced

punishment for refusing a blood test in order to obtain consent; whether that

enhanced criminal punishment is (or can be) ultimately imposed is irrelevant

to the question of whether the consent was valid.”        Commonwealth v.

Ennels, 167 A.3d 716, 724 (Pa. Super. 2017) (citations omitted).

       Where the motorist does not face such a dilemma, we have previously

held that consent is voluntary. See Commonwealth v. Smith, 177 A.3d 915

(Pa. Super. 2017).2 In Smith, the defendant, who was arrested for DUI, and

the officer used a DL-26 form containing no reference to enhanced penalties

for refusing a blood-draw. Also, the officer only informed the defendant that

his driver’s license would be suspended, a civil penalty, if he refused. The

defendant consented.          The trial court denied suppression, because the

defendant’s consent was voluntary. Birchfield did not apply, because the

arresting officer never told the defendant that he would be subjected to

greater criminal penalties if he refused the blood-draw.       On appeal, we

affirmed.

       Smith is similar to this case. Officer Foley never told Johnson that she

would be subject to enhanced criminal penalties for refusing the blood-draw.

Also, the DL-26 form that Officer Foley asked Johnson to sign accorded with

Birchfield, because it did threaten additional criminal sanctions for refusal.
____________________________________________


2This Court decided Commonwealth v. Smith, 177 A.3d 915 (Pa. Super.
2017) after the decision by the suppression court in this case.

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The form, therefore, accurately reflected the law after Birchfield. Thus, the

coercion by the police in Birchfield, which rendered the defendant’s consent

involuntary, did not exist here.

      Moreover, it is not necessary that the police completely review changes

in the law, from the time of a motorist’s previous arrest or DUI-related

schooling until the motorist’s next traffic stop.   Johnson’s ignorance of the

most recent Supreme Court decisional law did not impose upon Officer Foley

an affirmative duty to provide her with an update on criminal procedure prior

to requesting a blood-draw.     Neither our state nor the federal constitution

compels our police officers to serve as road-side law professors.

      Given the foregoing, Johnson’s personal failure to realize that the

Supreme Court’s issuance of Birchfield struck down § 3804(c)’s enhanced

penalties is irrelevant.   She apparently believed that our Commonwealth’s

enhanced penalties remained in full force and effect until a Pennsylvania

appellate court declared them unconstitutional or the General Assembly

amended them to comport with Birchfield. Her misconception – and the trial

court’s imposition of a duty upon the arresting officer to enlighten her as to

the current state of the law – is predicated upon a fundamentally flawed view

of our federalism.

      The Constitution of the United States “shall be the supreme Law of the

Land; and the Judges in every State shall be bound thereby, any Thing in the

Constitution or Laws of any State to the Contrary notwithstanding.”      U.S.

Const. Art. VI, Cl. 2.     Thus, the Supreme Court of the United States’

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constitutional pronouncements have immediate and national consequence.

Birchfield became the “supreme Law of the Land,” which Johnson and all

other citizens of the United States were presumed to know on the day that

the Supreme Court announced it – April 20, 2016. Thus, Johnson’s ignorance

of United States Constitutional Law cannot excuse her consent to Officer

Foley’s search.   On the day Birchfield became law, Johnson should have

known that § 3804(c)’s additional criminal sanctions were without force or

effect of law, and so the law constructively imports that knowledge to her.

Therefore, her ignorance of her constitutional rights was no excuse, and so

her consent to the blood-draw was knowing and voluntary.

      Hence, the trial court’s extension of the maxim “ignorance of the law is

no excuse” to Johnson’s ignorance of recent Supreme Court case law was in

error. Officer Foley had no obligation to enlighten Johnson as to the full details

of federal constitutional law; Officer Foley only needed to tell Johnson the

current, legal consequences of refusing to consent to the blood-draw. See

O’Connell, supra. She did. Thus, Johnson’s consent was voluntary.



      Accordingly, the trial court improperly applied the constitutional law to

the facts herein; thus, its conclusions were erroneous. Ennels, supra.




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      Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/2018




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