Commonwealth v. Kurtz

• Decision Date: 23 October 2017
• Docket Number: No. 286 MDA 2017,286 MDA 2017
• Citation: 172 A.3d 1153
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Gregory Alan KURTZ
• Court: Pennsylvania Superior Court

172 A.3d 1153

COMMONWEALTH of Pennsylvania, Appellant

v.Gregory Alan KURTZ

No. 286 MDA 2017

Superior Court of Pennsylvania.

Submitted July 31, 2017

Filed October 23, 2017

Courtney E. Hair, Assistant District Attorney, Carlisle, for Commonwealth, appellant.

John A. Abom, Carlisle, for appellee.

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

OPINION BY RANSOM, J.:

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 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 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, ––– U.S. ––––, 136 S.Ct. 2160, 2185, 195 L.Ed.2d 560 (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 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 (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 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, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (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. See, e.g., Illinois v. Krull, 480 U.S. 340, 350, 107 S.Ct. 1160, 94 L.Ed.2d 364 (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, 539 Pa. 172, 651 A.2d 135 (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, 526 Pa. 374, 586 A.2d 887, 901 (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 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,...