J-S81012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    THOMAS JARROD STONE                        :   No. 391 MDA 2017

               Appeal from the Order Entered February 10, 2017
                  In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0002951-2016


BEFORE:      PANELLA, J., STABILE, J., and PLATT, J.

MEMORANDUM BY PANELLA, J.                                  FILED MAY 01, 2018

        The Commonwealth of Pennsylvania appeals1 from the order entered in

the York County Court of Common Pleas, which granted the suppression

motion of Appellee, Thomas Jarrod Stone, and suppressed the results of his

blood alcohol test. We affirm.

        On the night of May 23, 2014, Appellee and Aaron Groendyk were

involved in a single vehicle motorcycle accident in Warrington Township.

Pennsylvania State Police were immediately alerted, but by the time Trooper

Matthew Kabacinski arrived at the scene, emergency medical services (“EMS”)

had transported Appellee and Groendyk to York Hospital. After conducting an
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   Retired Senior Judge assigned to the Superior Court.

1The Commonwealth has certified in its notice of appeal that the suppression
court’s order substantially handicapped or terminated the prosecution of this
matter. As such, this appeal is properly before us for review. See Pa.R.A.P. §
311(d).
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investigation at the scene of the crash, Trooper Kabacinski arrived at York

Hospital to find both Appellee and Groendyk intubated. Trooper Kabacinski

directed hospital staff to draw blood from both men in order to test their blood

alcohol content (“BAC”). Appellee’s BAC registered at .118%, well above the

legal limit. Groendyk subsequently died from the injuries he sustained in the

accident.

       On March 22, 2016, the Commonwealth charged Appellee with homicide

by vehicle while driving under the influence, homicide by vehicle, driving under

the influence – general impairment, driving under the influence – high rate,

and unauthorized use of a motor vehicle.2 Appellee filed a motion to suppress

the BAC results, asserting the authorities illegally obtained his blood in the

absence of a warrant or his consent.3

       At the suppression hearing, Trooper Kabacinski testified that he had

investigated numerous traffic accidents in his nine years as a Pennsylvania

State Police trooper. Trooper Kabacinski stated that when he arrived on the

scene, an EMS technician informed him there was a moderate odor of alcohol

on an article of clothing found near the scene of the accident. Based upon this

information, and the fact that the accident occurred at night, over a holiday

weekend, involved two young male drivers, and that the turn in the road

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275 Pa.C.S.A. §§ 3735(a), 3732(a), 3732(a)(1), 3732(b), and 18 Pa.C.S.A. §
3928(a), respectively.

3Appellee also filed a petition for writ of habeas corpus, which the court later
denied.

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where the accident occurred was not severe, Trooper Kabacinski believed one

of the young men had driven while intoxicated. However, Trooper Kabacinski

admitted that Tyler Kline, a witness after the crash who helped Appellee off

the road, did not detect any smell of alcohol on Appellee or his clothing.

Further, Trooper Kabacinski stated that he had not personally observed the

item of clothing that smelled of alcohol, and had been unable to identify the

owner of that particular article of clothing.4

       The suppression court suppressed the blood results, concluding Trooper

Kabacinski was not entitled to request hospital staff remit blood samples from

Appellee pursuant to 75 Pa.C.S.A. § 3755, as he did not possess probable

cause to believe a violation under “section 3731 (relating to driving under the

influence of alcohol or controlled substance),” occurred. Suppression Court

Opinion, 2/10/17, at 7-11. Additionally, the suppression court found that,

even if Trooper Kabacinski possessed probable cause to believe either

Appellee or Groendyk had been driving under the influence, the holding in the

recent United States Supreme Court case of Birchfield v. North Dakota, 136

S.Ct. 2160 (2016), required Trooper Kabacinski to obtain a search warrant

prior to requesting blood samples. See id., at 11-13. This timely appeal

follows.


____________________________________________


4 Trooper Kabacinski also testified Kline relayed to him that Appellee told
Groendyk they should not call the police. However, Trooper Kabacinski did not
appear to find this statement important enough to include it as a factor in
forming his belief that driving under the influence had occurred.

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      On appeal, the Commonwealth presents the following issues for our

review:
      I.   DID THE TRIAL COURT ERR IN GRANTING [APPELLEE’S]
           MOTION TO SUPPRESS?

           A. DID THE TRIAL COURT ERR IN RULING THAT THE
              TROOPER LACKED PROBABLE CAUSE TO REQUEST
              HOSPITAL PERSONNEL TO DRAW BLOOD FROM THE
              DEFENDANT?

           B. DID THE TRIAL COURT ERR IN RULING THAT A SEARCH
              WARRANT WAS REQUIRED TO DRAW DEFENDANT’S
              BLOOD WHEN DEFENDANT’S BLOOD WAS LEGALLY
              DRAWN PURSUANT TO 75 PA.C.S. § 1547[] AND PA.C.S.
              § 3755?

           C. DID THE TRIAL COURT ERR IN SUPPRESSING
              [APPELLANT’S] BLOOD DRAW PURSUANT TO THE
              RULING IN BIRCHFIELD V. NORTH DAKOTA, __ U.S. __,
              136 S.Ct. 2160 (2016) WHEN BIRCHFIELD DOES NOT
              APPLY TO THE INSTANT CASE?

Commonwealth’s Brief, at 4.

      Our scope and standard of review following an order granting a

suppression motion are as follows.

      When reviewing the propriety of a suppression order, an appellate
      court is required to determine whether the record supports the
      suppression court’s factual findings and whether the inferences
      and legal conclusions drawn by the suppression court from those
      findings are appropriate. Because Appellee prevailed in the
      suppression court, we may consider only the evidence of the
      defense and so much of the evidence for the Commonwealth as
      remains uncontradicted when read in the context of the record as
      a whole. Where the record supports the factual findings of the
      suppression court, we are bound by those facts and may reverse
      only if the legal conclusions drawn therefrom are in error.
      However, where the appeal of the determination of the
      suppression court turns on allegations of legal error, “[t]he
      suppression court’s conclusions of law … are not binding on an


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      appellate court, whose duty it is to determine if the suppression
      court properly applied the law to the facts.” As a result, the
      conclusions of law of the suppression court are subject to plenary
      review.

Commonwealth v. Salter, 121 A.3d 987, 992 (Pa. Super. 2015) (citation

omitted; brackets in original).

      The Commonwealth argues the court erred in concluding Trooper

Kabacinski did not have the requisite probable cause to request hospital staff

draw blood for BAC testing from Appellee. Further, in the event we find

Trooper Kabacinski possessed probable cause to request the blood draw, the

Commonwealth urges us to hold that the fact that Appellee had not been

arrested at the time Trooper Kabacinski requested hospital staff draw his blood

negates any warrant requirement suggested by either Birchfield or our

Supreme Court’s decision in Commonwealth v. Myers, 164 A.3d 1162 (Pa.

2017). However, we do not reach the issue of whether Birchfield and Myers

required Trooper Kabacinski to obtain a search warrant prior to requesting a

sample of Appellee’s blood, as we find that Trooper Kabacinski lacked probable

cause to conclude that the crime of driving under the influence had occurred.

      In Pennsylvania, our Motor Vehicle Code provides, in pertinent part:

      (a)   General rule.—If, as a result of a motor vehicle accident, the
            person who drove, operated or was in actual physical control
            of the movement of any involved motor vehicle requires
            medical treatment in an emergency room of a hospital and
            if probable cause exists to believe a violation of the section
            3802 (relating to driving under influence of alcohol or
            controlled substance) was involved, the emergency room
            physician or his designee shall promptly take blood samples
            from those persons and transmit them within 24 hours for
            testing to the Department of Health or a clinical laboratory

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            licensed and approved by the Department of Health and
            specifically designated for this purpose. This section shall be
            applicable to all injured occupants who were capable of
            motor vehicle operation if the operator or person in actual
            physical control of the movement of the motor vehicle
            cannot be determined. Test results shall be released upon
            request of the person tested, his attorney, his physician or
            governmental officials or agencies.

75 Pa.C.S.A. § 3755(a).

      “Probable cause exists where the officer has knowledge of sufficient

facts and circumstances to warrant a prudent person to believe that the driver

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

Commonwealth v. Welshans, 580 A.2d 379, 381 (Pa. Super. 1990)

(citations omitted). “In determining whether probable cause exists, we must

consider the totality of the circumstances as they appeared to the arresting

officer.” Commonwealth v. Griffin, 24 A.3d 1037, 1042 (Pa. Super. 2011)

(citation and internal quotation marks omitted).

      The Commonwealth asserts the evidence of probable cause adduced at

the suppression hearing clearly supports Trooper Kabacinski’s belief that that

driving under the influence had occurred. The Commonwealth supports its

argument by relying on our finding of probable cause in Commonwealth v.

Aiello, 675 A.2d 1278 (Pa. Super. 1996).

      There, after coming upon a single vehicle accident, the police discovered

defendant behind the wheel of her car with blood on her face and her hands.

See id., at 1280. The defendant refused medical assistance, and was

observed staggering by the police officer. See id. Additionally, the defendant

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admitted to the police officer that she “had one or two mixed drinks” before

the accident. Id. Based upon this evidence, the court found that the police

officer correctly concluded that he had probable cause to believe defendant

had been driving under the influence, and was therefore was permitted to

request a blood draw. See id.

      Aiello is plainly distinguishable from this case. Notably, the court in

Aiello based its finding of probable cause, in part, on the officer’s direct

observation of the defendant prior to requesting a blood draw. In fact, all of

the cases cited by the Commonwealth, where probable cause was found to

support a blood draw, rely upon an officer’s direct observation of the

defendant before requesting the blood draw. See Commonwealth v. Thus,

906 A.2d 552, 567 (Pa. Super. 2006) (finding probable cause where a

defendant was involved in a head on crash, emitted a moderate smell of

alcohol, and appeared to the police officer to have red eyes and labored

speech); Commonwealth v. Simon, 655 A.2d 1024, 1027-1028 (Pa. Super.

1995) (finding probable cause where police officer observed driver involved in

a crash was shaking, making nonsensical statements, and smelled strongly of

alcohol); Commonwealth v. Pelkey, 503 A.2d 414, 416 (Pa. Super. 1985)

(finding probable cause for a blood draw where defendant was found by police




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behind the wheel, in a semiconscious state, with an odor of alcohol on his

breath).5

       As Trooper Kabacinksi did not directly observe Appellee prior to

requesting the blood draw by hospital personnel, probable cause to suspect

driving under the influence must have arisen from circumstances attendant to

the   crash.    The    suppression      court    concluded   that   these   attendant

circumstances did not support an inference that driving under the influence

had occurred. We are constrained to agree.

       In its opinion, the suppression court found the following facts supported

Trooper Kabacinski belief that driving under the influence had occurred.

       The turn in the road where the accident occurred was not severe.
       The motorcycle riders were young males. The accident occurred
       over a holiday. The time of the accident was at night. And, the
       officer was advised by an EMT that there was the moderate smell
       of alcohol on some clothes found at the scene.

Suppression Court Opinion, 2/10/17, at 10.




____________________________________________


5  In its initial brief, the Commonwealth also relied on the case of
Commonwealth v. March, 154 A.3d 803 (Pa. Super. 2017), to support its
assertion that probable cause can be developed in a number of different ways.
However, in its supplemental brief, the Commonwealth reports that our
Supreme Court subsequently vacated March and remanded it for
reconsideration in light of the decisions in Myers and Birchfield. See
Commonwealth’s Supplemental Brief, at 1-2; see also Commonwealth v.
March, 172 A.3d 582 (Pa. 2017) (per curiam order). As such, the
Commonwealth notes that it no longer wishes to argue that the holding in
March supports its arguments. See Commonwealth’s Supplemental Brief, at
1.

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       After reviewing the standard for probable cause, the suppression court

concluded that these facts simply did not form the requisite probable cause.

See id, at 11. Further, while the suppression court recognized that a moderate

smell of alcohol on clothing could support a finding of probable cause in the

right circumstances, Trooper Kabacinski’s inability to determine if the clothing

smelling of alcohol belonged to the driver of the motorcycle defeated a finding

of probable cause under the totality of these particular circumstances. See id.

       The record supports the suppression court’s findings of fact, and we find

no error in its application of the law. Trooper Kabacinski was unable to observe

either Appellee or Groendyk before formulating probable cause to believe the

crash was a result of driving under the influence. While the smell of alcohol

on clothing would normally factor into a finding of probable cause, Trooper

Kabacinski’s inability to tie this clothing to the driver of the motorcycle makes

his inference of driving under the influence nothing more than a hunch, with

does not rise to the level of probable cause. The totality of the circumstances,

when viewed through the lens of the trooper’s experience and personal

observations, does not support the determination that probable cause existed

to request the blood draw under           § 3755. As such, the suppression court

committed no error in suppressing Appellee’s BAC results.6



____________________________________________


6  As we have determined that the suppression court properly suppressed
Appellee’s BAC test, we need not reach the merits of the Commonwealth’s
final two issues on appeal.

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     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/01/2018




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