J-S55028-17

                                  2017 PA Super 336

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                     Appellant                 :
                                               :
                                               :
              v.                               :
                                               :
                                               :
GREGORY ALAN KURTZ                             :   No. 286 MDA 2017


                Appeal from the Order Entered January 19, 2017
              In the Court of Common Pleas of Cumberland County
              Criminal Division at No(s): CP-21-CR-0001790-2016


BEFORE:      DUBOW, RANSOM, and STRASSBURGER,* JJ.

OPINION BY RANSOM, J.:                                FILED OCTOBER 23, 2017

        The Commonwealth appeals from the order entered January 19, 2017,

granting the motion to suppress filed by Appellee, Gregory Alan Kurtz. 1 We

affirm.

        The suppression court made the following findings of fact, which are in

turn supported by the record.

           On December 2, 2015, at approximately 23:13 hours, Trooper
        Cummings of the Pennsylvania State Police stopped [Kurtz] on I-
        81 near mile marker 49.5, Middlesex Township, Cumberland
        County[,] Pennsylvania. Trooper Cummings called for back-up
        because he had someone else in the back of his vehicle in custody

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*   Retired Senior Judge assigned to the Superior Court.
1 This appeal is properly before us pursuant to the Commonwealth’s
certification that the order will terminate or substantially handicap the
prosecution. See Commonwealth v. Ivy, 146 A.3d 241, 244 n.2 (Pa. Super.
2016); see also Pa.R.A.P. 311(d). Thus, our jurisdiction over this appeal is
proper.
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     for DUI. Trooper Caley arrived as back-up, Trooper Cummings
     apprised Trooper Caley of observations he made of [Kurtz] and
     Trooper Cummings left the scene.

         Trooper Caley approached [Kurtz], who was in his vehicle and
     immediately detected the odor of an alcoholic beverage emanating
     from the vehicle. The [T]rooper asked [Kurtz] for his driver’s
     license, registration, insurance and explained to [Kurtz] the
     reason for the stop. In addition to the smell of an alcohol
     beverage, the [T]rooper noticed that [Kurtz] had bloodshot [] and
     glassy eyes, sleepy or sluggish behavior and was having difficulty
     retrieving the requested documents. Trooper Caley noted that in
     talking to [Kurtz] that there was a strong odor of alcohol coming
     from [Kurtz] himself.

         Trooper Caley asked [Kurtz] to step out of the vehicle to do
     field sobriety tests. As [Kurtz] did so, [he] struggled with his
     footing[,] staggered[,] and stumbled as he walked. [Kurtz’s]
     clothes were disheveled. [Kurtz’s] speech was slurred and at
     times incoherent. Trooper Caley had [Kurtz] do the Standardized
     Field Sobriety tests. [Kurtz’s] performance on all the tests was
     poor.

        Trooper Caley had [Kurtz] take a Portable Breath Test, which
     clearly showed that [Kurtz] had imbibed alcohol. Trooper Caley
     was of the opinion that [Kurtz] was under the influence of alcohol
     and incapable of safely operating his vehicle, and he placed
     [Kurtz] under arrest.

        Trooper Caley took [Kurtz] to the Carlisle Regional Medical
     Center for legal blood to be drawn. At 23:45 hours, Trooper Caley
     read the entire DL-26 Implied Consent Form to [Kurtz] before
     asking for consent to submit a blood sample. The implied consent
     warning read to [Kurtz] contained a statement which warned
     [Kurtz] that, “If you refuse to submit to the chemical
     test…because of your refusal, you will be subject to more severe
     penalties…[.]” On December 2, 2014, at approximately 23:48
     hours [Kurtz’s] blood was drawn and the kit was collected for
     testing.

Findings of Fact in Support of Order Granting Defendant’s Pretrial Motion to

Suppress Evidence of Blood Results, 1/19/2017, at ¶¶ 1-18 (formatting


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J-S55028-17


modified, citations omitted).         Thereafter, Kurtz was charged with driving

under the influence (DUI) – general impairment, DUI – high rate of alcohol,

DUI – highest rate of alcohol, and failure to regard traffic lane while driving

on roadways laned for traffic.2

        Kurtz filed a motion to suppress the blood results. Within his motion to

suppress, Kurtz argued that his blood test was obtained in violation of the

Fourth and Fourteenth Amendments of the United States Constitution, and

Article 1, Section 8 of the Pennsylvania Constitution because his consent to

the test was coerced under threat of enhanced criminal penalties. See Kurtz’s

Motion to Suppress, 9/26/2016, at ¶¶ 6-7 (citing Birchfield v. North

Dakota, 136 S.Ct. 2160, 2185 (2016)).3

        Following a hearing in November 2016, the suppression court granted

Kurtz’s motion and suppressed the results of the blood test, finding that Kurtz

“did not knowingly and voluntarily consent to the blood draw.”              See

Suppression Order, Findings of Fact, and Conclusions of Law, 1/19/2017, at

¶¶ 1-2.

        The Commonwealth timely filed a notice of appeal and court-ordered


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2   75 Pa.C.S. §§ 3802(a)(1), 3802(b), 3802(c), and 3309(1).

3 At the suppression hearing, the Commonwealth argued for the application of
a good faith exception to the exclusionary rule, suggesting that suppression
of the evidence would not deter police misconduct where the officer’s reliance
on the implied consent statute and caselaw authorizing criminal penalties for
refusal was objectively reasonable.      See, generally, Commonwealth’s
Memorandum of Law (dated 1/17/2017).

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Pa.R.A.P. 1925(b) statement.     The suppression court issued a responsive

opinion.

      On appeal, the Commonwealth raises the following issues:

      I.    Should the exclusionary rule be applied in Pennsylvania in
            limited circumstances where suppression is not the proper
            remedy where police were following valid established
            precedent pre-Birchfield?

      II.   Did the [t]rial [c]ourt improperly suppress [] [Kurtz’s] blood
            test results when [he] gave valid actual consent?

Commonwealth’s Br. at 4.

      Our standard of review is as follows.

      When reviewing the grant of a suppression motion, we must
      determine whether the record supports the trial court's factual
      findings and “whether the legal conclusions drawn from those
      facts are correct.” Commonwealth v. Brown, 64 A.3d 1101,
      1104 (Pa. Super. 2013) (quoting Commonwealth v. Cauley, 10
      A.3d 321, 325 (Pa. Super. 2010)). We may only consider
      evidence presented at the suppression hearing. In re L.J., 622
      Pa. 126, 79 A.3d 1073, 1085–87 (2013). 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.” Brown, 64 A.3d at 1104
      (quoting Cauley, 10 A.3d at 325). We may reverse only if the
      legal conclusions drawn from the facts are in error. Id.

Commonwealth v. Haines, 168 A.3d 231, 2017 PA Super 252, at *3 (filed

Aug. 2, 2017).

      In Birchfield, the United States Supreme Court recognized that “[t]here

must be a limit to the consequences to which motorists may be deemed to

have consented by virtue of a decision to drive on public roads.” Birchfield,

136 S. Ct. at 2185. Of particular significance, Birchfield held that “motorists

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cannot be deemed to have consented to submit to a blood test on pain of

committing a criminal offense.” Id. at 2185-2186. Accordingly, this Court

has    recognized      that   Pennsylvania’s     implied   consent   scheme   was

unconstitutional insofar as it threatened to impose enhanced criminal

penalties for the refusal to submit to a blood test.          Commonwealth v.

Ennels, 167 A.3d 716, 724 (Pa. Super. 2017), reargument denied (Sept. 19,

2017) (noting that “implied consent to a blood test cannot lawfully be based

on the threat of such enhanced penalties”); Commonwealth v. Evans, 153

A.3d 323, 330-31 (Pa. Super. 2016).

       In its first issue, recognizing the post-Birchfield state of the law, the

Commonwealth contends that we should recognize an exception to the

exclusionary rule rooted in Birchfield. See Commonwealth's Br. at 11.4 As

noted by the Commonwealth, the exclusionary rule is designed to deter police

misconduct that violates the Fourth Amendment. See Commonwealth’s Br.

at 12-13 (citing United States v. Leon, 486 U.S. 897 (1984)).                 The

Commonwealth argues that the federal good faith exception should apply

because Birchfield is a federal decision. See id. at 21. Federal precedent

recognizes application of the good faith exception where officers acted in good

faith reliance on existing legislation that is later found to be unconstitutional.



____________________________________________


4 The Commonwealth argues for application of the exception where law
enforcement reads an arrestee a “DL-26 form” referencing enhanced criminal
penalties found to be improperly coercive by Birchfield.

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J-S55028-17


See, e.g., Illinois v. Krull, 480 U.S. 340, 350 (1987) (holding that exclusion

of evidence by penalizing the officer, “who has simply fulfilled his responsibility

to enforce the statute as written,” would not logically serve the purpose of

exclusionary rule to deter Fourth Amendment violations). According to the

Commonwealth, law enforcement was required to read the entire DL-26 form

to provide notice of the consequence of a refusal based on pre-Birchfield

legislation and caselaw. See Commonwealth's Br. at 19-20 (citing in support

Commonwealth v. Riedel, 651 A.2d 135 (Pa. 1994)).              Thus, according to

the Commonwealth, the police should not be penalized for their good faith

adherence to the law. Further, the Commonwealth also directs our attention

to a Tennessee Supreme Court decision to adopt the good faith exception in

limited Birchfield contexts. See Commonwealth's Br. at 29 (citing State v.

Reynolds, 504 S.W.3d 283, 288 (Tenn. 2016)).

      In response, Kurtz contends that the good faith exception to the

exclusionary rule does not apply because it is contrary to Article 1, Section 8,

of the Pennsylvania Constitution.      See Kurtz’s Br. at 6.      Kurtz relies on

Commonwealth v. Edmunds, 586 A.2d 887, 901 (Pa. 1991), in which our

Supreme Court declined to adopt a good faith exception to the exclusionary

rule. In Edmunds, our Supreme Court held that “a ‘good faith’ exception to

the exclusionary rule would frustrate the guarantees embodied in Article I,

Section 8 of the Pennsylvania Constitution.” Edmunds, 586 A.2d at 888. In

interpreting state constitutional provisions, “each state has the power to


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provide broader standards, and go beyond the minimum floor which is

established by the federal Constitution.” Edmunds, 586 A.2d at 894. As

interpreted by our Supreme Court, Article I, Section 8 “is meant to embody a

strong notion of privacy, carefully safeguarded in this Commonwealth for the

past two centuries.” Edmunds, 586 A.2d at 897.

       The Commonwealth attempts to distinguish Edmunds, asserting that

the Edmunds Court did not address a situation in which the officer had

probable    cause     to   conduct    a   search      authorized   by   statute.        See

Commonwealth's Br. at 25, 32-33.5 We find this argument unpersuasive. As

explained in Edmunds, “[t]he history of Article I, Section 8, [] indicates that

the purpose underlying the exclusionary rule in this Commonwealth is quite

distinct from the purpose underlying the exclusionary rule under the 4th

Amendment[.]”          Edmunds,        586     A.2d    at   897.    Contrary       to   the

Commonwealth’s assertion, Pennsylvania law has had “clear divergence from

federal precedent” in rejecting an exception to the exclusionary rule through

Article I, Section 8’s “unshakabl[e] link[] to a right of privacy in this

Commonwealth.” Id.

       In this case, the trial court reasoned that Birchfield established a new

constitutional floor (“minimal protections”) to which this Commonwealth’s


____________________________________________


5 The Commonwealth argues that suppression of the evidence would not serve
the purpose of deterring Fourth Amendment violations under the
circumstances where the officer relied on legislation. See Krull, 480 U.S. at
349-50.

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historical rejection of the good faith exception should apply. See Trial Ct.

1925(a) Op. (TCO), 4/21/2017, at 6-7 (citing Edmunds, supra). Birchfield

recognized that there are “important ‘interests in human dignity and privacy’”

implicated by blood tests, as they are “searches involving intrusions beyond

the body’s surface.” Birchfield, 136 S.Ct. at 2183 (quoting Schmerber v.

California, 384 U.S. 757, 771 (1966)). Because blood tests require piercing

of the skin to extract a part of a person’s body, they are “significantly more

intrusive” than breath tests. Birchfield, 136 S.Ct. at 2184; see also id. at

2178. Moreover, a blood sample may be preserved by the police and contains

“information beyond a simple BAC reading.” Id. at 2178.

      Given the entanglement of privacy interests inherent in a blood test

administered by the state, see Birchfield, 136 S.Ct. at 2183, we decline to

recognize a good faith exception to the exclusionary rule, as it would frustrate

the purpose of Article 1, Section 8 of the Pennsylvania Constitution by

undermining privacy interests. See Edmunds, supra. Accordingly, the court

did not err.

      In its second issue, the Commonwealth contends that there was

sufficient evidence to establish that Kurtz gave “valid actual consent” to the

blood test.     See   Commonwealth's       Br. at 38-41    (citing in support

Commonwealth v. Cleckley, 738 A.2d 427 (Pa. 1999)).

          “The Fourth Amendment to the [United States] Constitution
      and Article I, Section 8 of [the Pennsylvania] Constitution protect
      citizens       from        unreasonable        searches        and
      seizures.” Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa.

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J-S55028-17


     Super. 2012). “A search conducted without a warrant is deemed
     to be unreasonable and therefore constitutionally impermissible,
     unless an established exception applies.” Commonwealth v.
     Strickler, 757 A.2d 884, 888 (Pa. 2000). “Exceptions to the
     warrant requirement include the consent exception, the plain view
     exception, the inventory search exception, the exigent
     circumstances exception, the automobile exception ..., the stop
     and frisk exception, and the search incident to arrest
     exception.” Commonwealth v. Dunnavant, 63 A.3d 1252, 1257
     n.3 (Pa. Super. 2013).

        The “administration of a blood test ... performed by an agent
     of, or at the direction of the government” constitutes a search
     under     both    the    United    States     and   Pennsylvania
     Constitutions. Commonwealth v. Kohl, 615 A.2d 308, 315 (Pa.
     1992); Schmerber[, 384 U.S. at 770]. Since the blood test in
     the case at bar was performed without a warrant, the search is
     presumptively unreasonable “and therefore constitutionally
     impermissible,      unless      an     established     exception
     applies.” Strickler, 757 A.2d at 888.

Evans, 153 A.3d at 327–28.

     Absent a valid, implied consent, we have required suppression courts to

evaluate a defendant’s actual consent based on the totality of all the

circumstances. Evans, 153 A.3d at 331; Commonwealth v. Danforth, 576

A.2d 1013, 1022 (Pa. Super. 1990) (en banc) (“[w]hether consent has been

voluntarily given is a question of fact [to be] determined in each case from

the totality of the circumstances.”), aff’d sub nom., Commonwealth v. Kohl,

615 A.2d 308 (Pa. 1992).

     In determining the validity of a given consent, the Commonwealth
     bears the burden of establishing that a consent is the product of
     an essentially free and unconstrained choice—not the result of
     duress or coercion, express or implied, or a will overborne—under
     the totality of the circumstances. The standard for measuring the
     scope of a person's consent is based on an objective evaluation of
     what a reasonable person would have understood by the exchange
     between the officer and the person who gave the consent. Such

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      evaluation includes an objective examination of the maturity,
      sophistication and mental or emotional state of the defendant.
      Gauging the scope of a defendant's consent is an inherent and
      necessary part of the process of determining, on the totality of the
      circumstances presented, whether the consent is objectively valid,
      or instead the product of coercion, deceit, or misrepresentation.

Commonwealth v. Haines, 168 A.3d 231, 2017 PA Super 252, at *4 (filed

August 2, 2017) (quoting Commonwealth v. Smith, 77 A.3d 562, 573 (Pa.

2013) (internal citations omitted)). Necessarily, this includes consideration of

the coercive nature of an officer’s advisory of the potential for enhanced

criminal penalties. Evans, 153 A.3d at 331. Under such circumstances, we

have previously affirmed a suppression court’s decision to suppress the results

of a blood test where consent to the test was obtained after an officer read

the DL-26 form. Ennels, 167 A.3d at 724.

      According to the Commonwealth, the reading of enhanced criminal

penalties for refusal from a DL-26 form prior to Kurtz’s consent did not

necessarily render his consent involuntary. See Commonwealth’s Br. at 37,

39. To determine whether the consent was voluntary, the Commonwealth

suggests that the court may consider a number of factors:

      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.

Cleckley, 738 A.2d at 433 (citation omitted).      The Commonwealth argues

that factors indicating voluntariness of the consent given included Kurtz’s


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knowledge of his right to refuse, his prior DUI experience, his cooperation with

police, and belief that no incriminating evidence would be found.           See

Commonwealth's Br. at 40-42.

       In response, Kurtz correctly points out that the knowledge of the right

to refuse is not determinative. See Kurtz's Br. at 8; see Cleckley, 738 A.2d

at 432 (“[K]nowledge [of the right to refuse] on the part of the subject of the

search may be a factor in ascertaining whether consent was voluntarily given,

but [our Supreme Court] decline[d] the invitation to render such a factor

determinative of that issue.”).6               Moreover, according to Kurtz, the

Commonwealth is required to demonstrate a total absence of coercion for

Kurtz’s consent to be effective.        Id. (citing in support Commonwealth v.

Harris, 239 A.2d 290, 293 (Pa. 1968) (“Consent must at least be freely given

to be effective. This means there must be a total absence of duress or

coercion, express or implied.” (citations omitted)).

       Recently, in Ennels, we affirmed the suppression of a blood test based

on the finding that the defendant was informed that he could face enhanced

penalties if he refused the test. Ennels, 167 A.3d at 718-719; see also id.

at 722. In that case, the defendant was read “the DL-26 form that warned


____________________________________________



6In Cleckley, our Supreme Court held that an officer does not need to inform
an arrestee of the right to refuse a warrantless search for consent to be
voluntary under Pa. Const. Art. I, Section 8. Cleckley, 738 A.2d at 432
(declining to reverse suppression ruling on sole basis that there was no
showing that defendant was aware of right to refuse test).

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J-S55028-17


him that, for at least one of the charges, he faced enhanced criminal penalties

if he refused to submit to the blood test.” Id. at 724. This Court held that

the trial court did not err in concluding that the threat of criminal penalty on

the DL-26 form rendered the defendant’s consent involuntary because

“Birchfield makes plain that the police may not threaten enhanced

punishment for refusing a blood test in order to obtain consent[.]” Id. (citing

Birchfield, 136 S.Ct. at 2186).

      Here, the suppression court deemed dispositive Kurtz’s custodial status

and the use of duress or coercive tactics by law enforcement. Specifically, the

court found:

      [Kurtz] was under arrest at the time [he consented to the test]
      and was not free to leave the hospital room where the blood draw
      was performed. Kurtz was also read the enhanced criminal
      penalties provision of the DL-26 form, which expressly informed
      him that a refusal to consent could subject him to enhanced
      criminal penalties. Here, Kurtz was presented with a dilemma:
      either consent to the blood draw and risk incriminating himself, or
      face the possibility of enhanced criminal penalties for refusing to
      consent. Under Birchfield, supra and Evans, supra, consent
      cannot be voluntarily given when a defendant is under the cloud
      of enhanced criminal penalties for the failure to consent.

TCO at 11.     The court concluded that “Kurtz clearly did not provide voluntary

consent for the blood draw, as he was under arrest at the time and was clearly

informed that if he did not consent he would face the possibility of heightened




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J-S55028-17


criminal penalties.” TCO at 12.7

       Because the suppression court concluded that Kurtz consented to the

blood draw after being informed that he faced enhanced criminal penalties for

refusal, the court did not err in finding that his consent was involuntary under

the circumstances. See Ennels, 167 A.3d at 724. Accordingly, we affirm the

suppression ruling.

       Order affirmed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/23/2017




____________________________________________


7 The trial court’s findings are supported by the record. See Notes of
Testimony (N.T.), 11/16/2016, at 16-18. At approximately 11:25 p.m., Kurtz
was taken into custody. See id. The Trooper transported Kurtz to Carlisle
Regional Medical Center, in Cumberland County for a blood draw. Id. at 16-
17. At approximately 11:45 p.m., Trooper read aloud the standard DL-26 (3-
12) implied consent warnings to Kurtz; thereafter, Kurtz gave his consent for
a blood sample. Id. at 17. The Trooper showed Kurtz the form, “explained
and pointed to everything [the Trooper] read, and [the Trooper] placed an ‘x’
where [Kurtz’s] signature would go if he would agree to the test.” Id. After
receiving the results of Kurtz’s blood test, the Trooper filed DUI-related
charges against Kurtz. See id. at 18.


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