Commonwealth v. Carper, 1715 WDA 2016

CourtSuperior Court of Pennsylvania
Citation172 A.3d 613
Docket NumberNo. 1715 WDA 2016,1715 WDA 2016
Parties COMMONWEALTH of Pennsylvania, Appellant v. Brian Wayne CARPER, Appellee
Decision Date13 October 2017

172 A.3d 613

COMMONWEALTH of Pennsylvania, Appellant
Brian Wayne CARPER, Appellee

No. 1715 WDA 2016

Superior Court of Pennsylvania.

Submitted August 28, 2017
Filed October 13, 2017

Scott M. Lilly, Assistant District Attorney, Ebensburg, for Commonwealth, appellant.

Lucas A. Kelleher, Public Defender, Bedford, for appellee.



The Commonwealth of Pennsylvania appeals from the October 7, 2016 order granting Appellee Brian Wayne Carper's suppression motion and granting, in part, his habeas corpus motion. In this case, we conclude that Appellee preserved his state constitutional claim in his post-suppression hearing brief. We hold that blood draw evidence collected prior to June 23, 2016 is not admissible under Davis v. United States, 564 U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) and Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987),1 as no good-faith exception to the exclusionary rule exists under Article I, Section 8 of the Pennsylvania Constitution. Finally, we hold that blood draw evidence is necessary to make a prima facie showing that a defendant violated 75 Pa.C.S.A. § 3802(d)(1). Accordingly, we affirm.

The factual background and procedural history of this case are as follows. On October 13, 2014, a Pennsylvania State Police trooper pulled Appellee over for an expired inspection sticker. During the ensuing interaction, the trooper found evidence that Appellee was driving under the influence of a controlled substance. Appellee was transported to a local hospital and informed, by a reading of the DL–26 form, that, if he did not consent to a blood draw, he would face increased criminal penalties.

172 A.3d 616

Appellee then agreed to the blood draw, which showed the presence of a controlled substance.

On February 12, 2016, the Commonwealth charged Appellee via criminal information with two counts of driving under the influence ("DUI")-controlled substance,2 manufacturing a designer drug,3 possession of drug paraphernalia,4 and three summary offenses. On September 1, 2016, Appellee moved to suppress the blood draw evidence. He argued that the evidence was collected in violation of the Fourth Amendment of the United States Constitution. Appellee also moved for a writ of habeas corpus with respect to the DUI-controlled substance charges because, he argued, without the blood draw evidence the Commonwealth failed to make a prima facie case.

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 trial court also granted the habeas corpus motion with respect to count two of the criminal information, which charged Appellee with DUI-controlled substance in violation of 75 Pa.C.S.A. § 3802(d)(1), and denied the habeas corpus motion in all other respects. The Commonwealth filed this timely interlocutory appeal as of right.5 See Pa.R.A.P. 311(d).

The Commonwealth presents three issues for our review:

1. Whether the [trial court] erred by ruling that [ Davis and Krull ] were inapplicable under Article [I,] 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 [I,] 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 the trial court erred by granting the motion for writ of habeas corpus and holding that the Commonwealth required a blood test to meet its burden when there is no such language in the [statute?]

Commonwealth's Brief at 6.6

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

172 A.3d 617

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. 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., 622 Pa. 126, 79 A.3d 1073, 1080 (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 his 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, ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (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.

"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, 167 A.3d 716, 719–22 (Pa. Super. 2017). Therefore, in the wake of Birchfield, the DL–26 warnings read to Appellee were partially incorrect insofar as they advised Appellee that he faced additional charges and/or enhanced penalties if he 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 applies in this case.7

It is well-settled that a blood draw is a search under the Fourth Amendment

172 A.3d 618

of the United States Constitution. See Skinner v. Ry. Labor Execs.' Assn ., 489 U.S. 602, 616–617, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) ; Schmerber v. California, 384 U.S. 757, 767–768, 86 S.Ct. 1826, 16 L.Ed.2d 908 (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, –––U.S. ––––, 135 S.Ct. 530, 536, 190 L.Ed.2d 475 (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, 110 S.Ct. 2793, 111 L.Ed.2d 148 (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, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978). In Missouri v. McNeely, 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), the Supreme Court of the United States held that the exigent circumstances exception rarely applies in DUI cases. In this case, however, the Commonwealth does not argue that either the consent search or exigent circumstances exceptions apply. Instead, it argues only that the good-faith...

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