Com. v. Frank, S. ( 2017 )


Menu:
  • J-S60006-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellant
    v.
    SHANNON MARIE FRANK,
    Appellee                   No. 1716 WDA 2016
    Appeal from the Order October 7, 2016
    In the Court of Common Pleas of Cambria County
    Criminal Division at No(s): CP-11-CR-0001171-2015
    BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
    MEMORANDUM BY OLSON, J.:                         FILED OCTOBER 13, 2017
    The Commonwealth of Pennsylvania appeals from the October 7, 2016
    order granting Appellee Shannon Marie Frank’s suppression motion.       We
    affirm.
    The factual background and procedural history of this case are as
    follows. On February 1, 2015, Appellee struck the center barrier on State
    Route 22.    Soon thereafter, a member of the Pennsylvania State Police
    arrived. During the ensuing interaction, the trooper suspected that Appellee
    was driving under the influence of a controlled substance. Upon questioning,
    Appellee admitted to ingesting mood stabilizer and anti-anxiety medication.
    Appellee was transported to a local hospital and informed, by a reading of
    the DL-26 form, that, if she did not consent to a blood draw, she would face
    * Retired Justice specially assigned to the Superior Court
    J-S60006-17
    increased criminal penalties. Appellee then agreed to the blood draw, which
    showed the presence of a controlled substance.
    On August 28, 2015 the Commonwealth charged Appellee via criminal
    information with driving under the influence (“DUI”)-controlled substance1
    and five summary offenses.           On September 1, 2016, Appellee moved to
    suppress the blood draw evidence.             She argued that the evidence was
    collected in violation of the Fourth Amendment of the United States
    Constitution.
    Thereafter,   the   trial   court    held   a   suppression   hearing   which
    encompassed this case and six other cases which raised similar legal issues.
    Pursuant to the trial court’s order, Appellee filed a post-suppression hearing
    brief. In that brief, Appellee, for the first time, argued that Article I, Section
    8 of the Pennsylvania Constitution barred admission of the blood draw
    evidence.     On October 7, 2016, the trial court granted the suppression
    motion.     The Commonwealth filed this timely interlocutory appeal as of
    right.2 See Pa.R.A.P. 311(d).
    The Commonwealth presents three issues for our review:
    1
    75 Pa.C.S.A. §§ 3802(d)(2).
    2
    On November 8, 2016, the trial court ordered the Commonwealth to file a
    concise statement of errors complained of on appeal (“concise statement”).
    See Pa.R.A.P. 1925(b). On November 29, 2016, the Commonwealth filed its
    concise statement. On December 9, 2016, the trial court issued an order
    stating that its reasoning for granting Appellee’s suppression motion was
    included in its October 7, 2016 opinion. All of the Commonwealth’s issues
    were included in its concise statement.
    -2-
    J-S60006-17
    1. Whether the [trial court] erred by ruling that the holdings of the
    Supreme Court of the United States in Davis v. United States,
    [
    564 U.S. 229
     (2011)] and Illinois v. Krull, [
    480 U.S. 340
    (1987)3] were inapplicable under Article [1,] Section 8 of the
    Pennsylvania Constitution when [Appellee] had only made a
    claim under the Fourth Amendment of the Federal Constitution
    and had implicitly waived all claims under Article [1,] Section
    8[?]
    2. Whether the [trial] court erred by suppressing evidence that was
    seized based upon the officer’s good faith reliance on appellate
    precedent[?]
    3. Whether [Appellee’s] inculpatory statements regarding her drug
    use render any potential coercion inert as [Appellee] was ready
    and willing to admit to her drug use [?]
    Commonwealth’s Brief at 6.4
    The Commonwealth’s first two claims challenge the trial court’s order
    suppressing the results of the blood draw.       “Once a motion to suppress
    evidence has been filed, it is the Commonwealth’s burden to prove, by a
    preponderance of the evidence, that the challenged evidence was not
    obtained in violation of the defendant’s rights.” Commonwealth v. Evans,
    
    153 A.3d 323
    , 327 (Pa. Super. 2016) (citation omitted).        Our standard of
    review in addressing a challenge to a trial court’s order granting a
    suppression motion is whether the factual findings are supported by the
    record and whether the legal conclusions drawn from those facts are correct.
    3
    Referred to as the Davis/Krull rule, the Supreme Court of the United
    States held that when the police conduct a search in objectively reasonable
    reliance upon binding appellate precedent or statutory authority which is
    later invalidated, the exclusionary rule does not apply. Davis, 
    564 U.S. at 249-250
    ; Krull, 
    480 U.S. at 347
    .
    4
    We have re-numbered the issues for ease of disposition.
    -3-
    J-S60006-17
    See Commonwealth v. Champney, 
    161 A.3d 265
    , 271 (Pa. Super. 2017)
    (en banc) (citation omitted). “[O]ur scope of review is limited to the factual
    findings and legal conclusions of the [trial] court.” In re L.J., 
    79 A.3d 1073
    ,
    1080 (Pa. 2013) (citation omitted). “When the Commonwealth appeals from
    a suppression order, we . . . consider only the evidence from the defendant’s
    witnesses together with the evidence of the prosecution that, when read in
    the context of the entire record, remains uncontradicted.” Commonwealth
    v. Young, 
    162 A.3d 524
    , 527 (Pa. Super. 2017) (citation omitted). “Where
    the [trial] court’s factual findings are supported by the record, we are bound
    by these findings and may reverse only if the [trial] court’s legal conclusions
    are erroneous.”    Commonwealth v. Palmer, 
    145 A.3d 170
    , 173 (Pa.
    Super. 2016) (citation omitted).
    In order to understand the issues presented in this case, it is
    necessary to review the change in the law which prompted Appellee to file
    her suppression motion. When Appellee was arrested and gave consent to
    the blood draw, the warnings regarding increased criminal penalties for
    refusing a blood draw (included in form DL-26) were legally correct. While
    Appellee’s case was pending, however, the Supreme Court of the United
    States decided Birchfield v. North Dakota, 136 S.Ct 2160 (2016).            In
    Birchfield, the Supreme Court of the United States considered whether a
    blood draw was subject to one of the limited exceptions to the Fourth
    Amendment’s warrant requirement.
    -4-
    J-S60006-17
    “In Birchfield, the Supreme Court of the United States held that
    police can compel a driver to give a breath sample without a warrant;
    however, police cannot compel a driver to provide a blood sample without
    first obtaining a search warrant except in certain limited circumstances.”
    Commonwealth v. Giron, 
    155 A.3d 635
    , 637 n.1 (Pa. Super. 2017)
    (citation omitted).   Although Birchfield, Evans, and Giron were DUI-
    alcohol cases, their reasoning is equally applicable in DUI-controlled
    substance cases. Commonwealth v. Ennels, 
    2017 WL 2954227
    , *3–5 (Pa.
    Super. July 11, 2017).    Therefore, in the wake of Birchfield, the DL-26
    warnings read to Appellee were partially incorrect insofar as they advised
    Appellee that she faced additional charges and/or enhanced penalties if she
    refused the blood draw.
    Notwithstanding the issuance of Birchfield, the Commonwealth
    maintains that the results of Appellee’s blood test withstand suppression
    since the good-faith exception to the exclusionary rule applies in this case.5
    It is well-settled that a blood draw is a search under the Fourth Amendment
    5
    The Commonwealth attempts to draw a distinction between the
    Davis/Krull rule and the good-faith exception to the exclusionary rule
    originally announced in United States v. Leon, 
    468 U.S. 897
     (1984). The
    Supreme Court of the United States made clear in both Davis and Krull that
    it was merely applying the good-faith exception to the exclusionary rule and
    not announcing a new exception to the exclusionary rule. See Davis, 
    564 U.S. at 249
     (this case “comes within the good-faith exception”); Krull, 
    480 U.S. at 346
     (internal citation omitted) (“We granted certiorari to consider
    whether [the] good-faith exception to the Fourth Amendment exclusionary
    rule applies” in this case.). Thus, the Davis/Krull rule is just a specific
    example of the good-faith exception.
    -5-
    J-S60006-17
    of the United States Constitution.     See Skinner v. Ry. Labor Execs.’
    Assn., 
    489 U.S. 602
    , 616–617 (1989); Schmerber v. California, 
    384 U.S. 757
    , 767–768 (1966).     The fact that a blood draw is a search, however,
    does not end the inquiry. “As the text indicates and [the Supreme Court of
    the United States has] repeatedly affirmed, the ultimate touchstone of the
    Fourth Amendment is reasonableness.”        Heien v. North Carolina, 
    135 S.Ct. 530
    , 536 (2014) (internal quotation marks and citation omitted). For
    this reason, the Supreme Court of the United States has created a number
    of exceptions to the Fourth Amendment’s warrant requirement.        One such
    exception is if a defendant consents to a search.            See Illinois v.
    Rodriguez, 
    497 U.S. 177
    , 183–186 (1990).          Another such exception is a
    search conducted pursuant to exigent circumstances, i.e., when police have
    insufficient time to seek a warrant because of an emergency. See Michigan
    v. Tyler, 
    436 U.S. 499
    , 509 (1978). In Missouri v. McNeely, 
    569 U.S. 141
    (2013), the Supreme Court of the United States held that the exigent
    circumstances exception rarely applies in DUI cases.     See 
    id. at 149-156
    .
    Consent, on the other hand, is a factual issue.
    “To effectuate the rights guaranteed under the Fourth Amendment, in
    the early part of the last century, the [Supreme Court of the United States]
    adopted the exclusionary rule, which bars the use of evidence obtained
    through an illegal search and seizure.” Commonwealth v. Arter, 
    151 A.3d 149
    , 153 (Pa. 2016) (citation omitted). After approximately two decades of
    -6-
    J-S60006-17
    strict adherence to the exclusionary rule, the Supreme Court of the United
    States adopted the good-faith exception to the exclusionary rule.
    Under the good-faith exception, “when the police act with an
    objectively reasonable good-faith belief that their conduct is lawful, or when
    their conduct involves only simple, isolated negligence, the deterrence
    rationale loses much of its force, and exclusion [is not appropriate].” Davis,
    
    564 U.S. at 238
     (internal quotation marks and citations omitted). In Davis,
    the Court held that when a police officer conducts a search pursuant to
    binding appellate precedent, which is later overturned, the evidence seized
    as a result of that search is admissible under the good-faith exception. 
    Id. at 239-241
    . In Krull, police conducted a warrantless administrative search
    pursuant to a state statute.           Later, that statute was found to be
    unconstitutional. Nonetheless, the Supreme Court of the United States held
    that the good-faith exception to the exclusionary rule applied because the
    officer acted in an objectively reasonable manner in relying upon the
    subsequently invalidated statute.      Krull, 
    480 U.S. at 349-351
    .         Therefore,
    evidence that is collected pursuant to a state statute that has previously
    been    upheld   by   an   appellate   court,   but   which   is   later    declared
    unconstitutional, is generally admissible under the good-faith exception.
    The good-faith exception distinguishes the Fourth Amendment of the
    United States Constitution from its Pennsylvania counterpart since “it is
    settled that under Article I, Section 8 of the Pennsylvania [C]onstitution, a
    -7-
    J-S60006-17
    good[-]faith   exception   to   the   exclusionary   rule     does   not   exist.”
    Commonwealth v. Frederick, 
    124 A.3d 748
    , 756 (Pa. Super. 2015),
    appeal denied, 
    138 A.3d 2
     (Pa. 2016) (citations omitted); Commonwealth
    v. Arnold, 
    932 A.2d 143
    , 148 (Pa. Super. 2007) (citation omitted);
    Commonwealth v. Edmunds, 
    586 A.2d 887
    , 888 (Pa. 1991). Although a
    concurring opinion authored by a member of this Court suggests that the
    good-faith exception may apply to exclusionary claims raised under Article I,
    Section 8 of the Pennsylvania Constitution in circumstances such as the ones
    present in this case, see Commonwealth v. Burgos, 
    64 A.3d 641
    , 657
    (Pa. Super. 2013) (Shogan, J., concurring), appeal denied, 
    77 A.3d 635
     (Pa.
    2013), the majority in Burgos explicitly rejected this statement and noted
    that “the good[-]faith exception does not exist [under] Pennsylvania [law].”
    
    Id.
     at 657 n.22 (citation omitted).
    We have traced these distinctions between the Fourth Amendment of
    the United States Constitution and Article I, Section 8 because the precise
    legal authority Appellee cited in support of her motion has a significant
    impact upon the resolution of the instant appeal.           The Commonwealth
    correctly notes that Appellee only moved to suppress the blood draw
    evidence under the Fourth Amendment of the United States Constitution.
    See Appellee’s Suppression Motion, 9/1/16, at 3.            Moreover, Appellee’s
    counsel never mentioned the Pennsylvania Constitution at the suppression
    -8-
    J-S60006-17
    hearing.      We conclude, however, that Appellee preserved her state
    constitutional claim in her post-suppression hearing brief.
    The Commonwealth cites Commonwealth v. Freeman, 
    128 A.3d 1231
     (Pa. Super. 2015) in support of its argument that Appellee’s post-
    suppression hearing brief was insufficient to preserve her Article I, Section 8
    claim.     Freeman, however, involved a case in which waiver occurred
    because the defendant failed to present the suppression issue to the trial
    court either before, during, or after the suppression hearing.     See id. at
    1242.      For that reason, this Court never addressed whether raising a
    suppression issue in a post-suppression hearing brief was sufficient to
    preserve the issue. See id.
    Although Freeman didn’t address whether raising an issue in a post-
    suppression hearing brief preserved an issue, we find instructive this Court’s
    recent decision in Champney.       In Champney, this Court found that the
    defendant failed to preserve a suppression issue because he failed to raise it
    in his motion to suppress, at the suppression hearing, or in a post-
    suppression hearing brief. See id. at 285 n.25. This Court’s statement that
    the defendant failed to include the issue in a post-suppression hearing brief
    indicates that it is possible to preserve the issue in a post-hearing
    submission.
    The requirement that a defendant raise the grounds for suppression in
    his or her suppression motion ensures that the Commonwealth is put on
    -9-
    J-S60006-17
    notice of what evidence it must produce at the suppression hearing in order
    to satisfy its burden of proving that the evidence was legally obtained. Cf.
    Commonwealth v. McDonald, 
    881 A.2d 858
    , 860-861 (Pa. Super. 2005)
    (internal quotation marks and citation omitted) (“[W]hen a motion to
    suppress is not specific in asserting the evidence believed to have been
    unlawfully obtained and/or the basis for the unlawfulness, the defendant
    cannot complain if the Commonwealth fails to address the legality of the
    evidence   the   defendant   wishes    to      contest.”).   In   this    case,    the
    Commonwealth extensively addressed the Article I, Section 8 issue in its
    brief filed prior to the suppression hearing.           Commonwealth’s Brief in
    Opposition, 9/15/16, at 5-10. It also addressed the Article I, Section 8 issue
    in its argument prior to the beginning of the suppression hearing.                N.T.,
    9/15/16, at 5-12.    The only additional evidence that the Commonwealth
    needed to offer because of Appellee’s Article I, Section 8 claim was that of
    the trooper who testified at the suppression hearing.                    Finally, the
    Commonwealth did not object to Appellee raising her Article I, Section 8
    claim before the trial court.    Thus, the Commonwealth was not unfairly
    prejudiced by Appellee’s delay in raising her Article I, Section 8 claim.
    This case is similar to Commonwealth v. Stoops, 
    723 A.2d 184
     (Pa.
    Super. 1998), appeal denied, 
    747 A.2d 368
     (Pa. 1999).             In Stoops, the
    Commonwealth argued, like it does in the case at bar, that the trial court
    improperly raised a suppression issue sua sponte because it was not
    - 10 -
    J-S60006-17
    included in the defendant’s suppression motion.           This Court rejected that
    argument for two reasons.         First, the necessary evidentiary record was
    developed at the suppression hearing.            See id. at 188.      Second, the
    defendant raised the issue in his post-suppression hearing brief and the
    Commonwealth did not object.         See id.     As noted above, in this case the
    necessary evidentiary record was developed at the suppression hearing and
    the Commonwealth did not object to Appellee raising her Article I, Section 8
    claim in his post-suppression hearing brief.         Accordingly, we conclude that
    Appellee properly raised and preserved her Article I, Section 8 claim.6
    As we conclude that Appellee properly preserved her Article I, Section
    8 claim, the trial court correctly found that the good-faith exception to the
    exclusionary rule does not exist under Article I, Section 8. Frederick, 
    124 A.3d at 756
     (citations omitted). As such, the fact that police acted in good-
    faith reliance on appellate precedent was irrelevant when determining if the
    blood draw evidence was admissible at trial. Therefore, the Commonwealth
    is not entitled to relief on its first two issues.
    In its third issue, the Commonwealth argues that Appellee’s statement
    that she ingested mood stabilization and anti-anxiety medication prior to
    driving renders any coercion of the partially incorrect DL-26 warnings
    6
    Since Appellee’s inclusion of her state constitutional claim in a post-hearing
    submission allowed the trial court to consider the issue in light of the facts
    developed at the suppression hearing, we do not perceive Appellee’s Article
    I, Section 8 claim as one that has been raised for the first time on appeal.
    See Pa.R.A.P. 302(a).
    - 11 -
    J-S60006-17
    “inert.” Commonwealth’s Brief at 21. In other words, the Commonwealth
    argues that, notwithstanding the partially inaccurate DL-26 warnings,
    Appellee’s consent was voluntary.
    When a defendant is given partially inaccurate DL-26 warnings, the
    trial court must evaluate his or her “consent based on the totality of all the
    circumstances and given the partial inaccuracy of the officer’s advisory.”
    Evans, 153 A.3d at 331 (internal ellipses and alterations omitted), quoting
    Birchfield, 136 S.Ct. at 2186. Our Supreme Court has explained that:
    While there is no hard and fast list of factors evincing
    voluntariness, some considerations include: 1) the defendant’s
    custodial status; 2) the use of duress or coercive tactics by law
    enforcement personnel; 3) the defendant’s knowledge of h[er]
    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.
    Commonwealth v. Gillespie, 
    821 A.2d 1221
    , 1225 (Pa. 2003) (Eakin, J.,
    opinion announcing the judgment of the court) (internal quotation marks
    omitted), citing Commonwealth v. Cleckley, 
    738 A.2d 427
    , 433 n.7 (Pa.
    1999).
    In this case, the trial court found that the first three factors weighed
    against a finding of consent. Appellee was in custody when she consented
    to the blood draw. The police used coercive tactics (albeit unknowingly) by
    reading her the partially inaccurate DL-26 warnings. Appellee was unaware
    of her knowledge of her right to refuse testing because of those partially
    inaccurate warnings.   The trial court also found that Appellee cooperated
    - 12 -
    J-S60006-17
    with the trooper during the encounter.          Neither the Commonwealth nor
    Appellee challenge these factual findings.
    Instead, the Commonwealth argues that the trial court’s finding that
    there was no evidence that Appellee believed incriminating evidence would
    be found is unsupported by the record. Appellee, on the other hand, argues
    that the record supports the trial court’s finding. After careful review of the
    certified record, we conclude that the trial court’s factual finding is supported
    by the record.
    The trooper testified that Appellee admitted that she took a mood
    stabilizer and an anti-anxiety medication. See N.T., 9/15/16, at 16. There
    was no evidence presented, however, that Appellee knew that having these
    substances in her system would be incriminating. As the trooper admitted at
    the suppression hearing, Appellee stated she had a prescription for these
    medications. See id. at 19. It was reasonable for the trial court to assume
    that Appellee was unaware of the fact that having these substances in her
    blood stream would be incriminating.           As such, the trial court’s factual
    finding is supported by the record.
    The Commonwealth also argues that the trial court erred in weighing
    the relevant factors. We disagree. The trial court reasonably found that the
    coercive effect of being under custody and threatened with 72 hours
    imprisonment for refusing a blood draw outweighed the fact that Appellee
    - 13 -
    J-S60006-17
    cooperated with the trooper. Accordingly, we affirm the order suppressing
    the blood draw evidence.
    Order affirmed. Case remanded. Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/13/2017
    - 14 -