Commonwealth v. Trahey

• Decision Date: 22 April 2020
• Docket Number: No. 38 EAP 2018,38 EAP 2018
• Citation: 228 A.3d 520
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Timothy TRAHEY, Appellant
• Court: Pennsylvania Supreme Court

228 A.3d 520

COMMONWEALTH of Pennsylvania, Appellee

v.Timothy TRAHEY, Appellant

No. 38 EAP 2018

Supreme Court of Pennsylvania.

ARGUED: September 10, 2019

DECIDED: April 22, 2020

OPINION

JUSTICE WECHT

In this discretionary appeal, we revisit the limitations that the Fourth Amendment to the United States Constitution places upon the collection of evidence from the body of a motorist suspected of driving under the influence of alcohol or controlled substances ("DUI"), in light of the Supreme Court of the United States' decisions in Missouri v. McNeely , 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), Birchfield v. North Dakota , ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), and Mitchell v. Wisconsin , ––– U.S. ––––, 139 S.Ct. 2525, 204 L.Ed.2d 1040 (2019) (plurality). This matter concerns the exigent circumstances doctrine.¹

The trial court granted Timothy Trahey's motion to suppress the results of a blood test that revealed his blood alcohol concentration ("BAC"), finding no justification for the investigating officers' failure to obtain a search warrant before conducting the test. On the Commonwealth's appeal, the Superior Court reversed, opining that the Commonwealth's evidence sufficiently established the existence of exigent circumstances, thus excusing the absence of a warrant. We reverse the order of the Superior Court.

I.

The facts giving rise to this appeal, as summarized from the suppression court's findings, are as follows. On the evening of September 4, 2015, the Friday before Labor Day, 911 dispatchers received a report that a motorist had stricken a bicyclist with a pickup truck on the 4900 block of Wynnewood Avenue in Philadelphia. The accident was reported at 9:15 p.m., but, because the Philadelphia Police Department assigns a relatively low priority to vehicular accident response, police officers were not dispatched to the scene until 10:01 p.m. Officers Christopher Marchesani and Derrick Lewis arrived at the scene at approximately 10:04 p.m. The bicyclist already had been transported to a hospital, but ultimately died from the injuries sustained. A group of bystanders informed the officers that Trahey was operating the pickup truck when he collided with the bicyclist. Officer Marchesani approached Trahey, who confirmed that he was the driver. During his interaction with Trahey, Officer Marchesani noticed that Trahey smelled of alcohol, that his speech was slow and slurred, that his eyes were glassy, and that his gait was unsteady. Based upon these observations, Officer Marchesani arrested Trahey for DUI.

The officers had spent approximately thirty minutes at the accident scene before they departed to transport Trahey to the Police Detention Unit ("PDU"). While en route to the PDU, they were called back to the scene by officers of the Accident Investigation District ("AID"), a unit that specializes in the investigation of accidents involving critical injuries. After observing the indicia of Trahey's intoxication, and learning that over an hour had passed since the accident, AID Officer Patrick Farrell became concerned with the timing of a BAC test.² Accordingly, at 10:49 p.m., Officer Farrell sent Trahey to the PDU for a blood test.

AID Officer John Zirilli was the officer assigned to conduct breath and blood tests that evening. In accordance with a Department policy for the investigation of accidents involving serious injuries, Officer Zirilli selected a blood test rather than a breath test. No officer attempted to obtain a search warrant for the blood draw. Upon encountering Trahey, Officer Zirilli advised him of the requirements of Pennsylvania's "implied consent" law,³ which, at the time, included warnings that the refusal to submit to chemical testing could result in legal consequences, including increased criminal penalties upon conviction. Trahey verbally acknowledged these warnings, stated that he would submit to a blood test, and signed the applicable form. However, Trahey did not check the box on the form indicating that he agreed to undergo blood testing. A nurse drew Trahey's blood at 11:20 p.m.

Trahey was charged with DUI, homicide by vehicle while driving under the influence, homicide by vehicle, and involuntary manslaughter. During the pre-trial proceedings, however, the Supreme Court of the United States issued its decision in Birchfield . Drawing a constitutional distinction between breath and blood, the Birchfield Court held that a breath test may be conducted without a search warrant as a valid search incident to arrest. Birchfield , 136 S.Ct. at 2185. The same cannot be said of the "significantly more intrusive" blood test, the reasonableness of which "must be judged in light of the availability of the less invasive alternative of a breath test." Id. at 2184. Following the Birchfield decision, on November 30, 2016, Trahey filed a motion to suppress the results of his blood test, asserting that the test was unconstitutional without a search warrant.

On February 8, 2017, the trial court held a hearing on Trahey's motion. Officer Zirilli testified regarding his interactions with Trahey, the procedure that he followed before having Trahey's blood drawn, and his recitation of the "implied consent" warnings. Notes of Testimony, Suppression Hearing, 2/8/2017 ("N.T."), at 6-22. Officer Zirilli confirmed that a blood test ordinarily is selected when a vehicular accident results in death or serious injury, and that he chose a blood test for that reason. Id. at 7, 38. However, Officer Zirilli acknowledged that an Intoxilyzer 8000 breath-testing machine was present in the room when he was interacting with Trahey. Id. at 23.

Officer Marchesani testified about his initial response to the accident scene and his investigation thereof. He established the beginning of the relevant time frame, confirming that the initial report of the collision was received at 9:15 p.m., and that he and his partner were dispatched to the scene at 10:01 p.m. Id. at 85-87. Officer Marchesani explained this temporal gap by describing the hierarchy pursuant to which police response is prioritized in Philadelphia. The highest priority is assigned to incidents requiring officer backup, then to reports involving weapons or robberies, then to burglaries or vandalism in progress, then to domestic violence reports, and finally to vehicular accident response. Id. at 46, 68-69.

AID Officer Farrell testified, accounting for the time that elapsed after AID officers took responsibility for the investigation. Officer Farrell detailed his concern for the timing of a BAC test upon learning that the accident had occurred approximately one hour before AID's arrival at the scene. Id. at 97-98. Officer Farrell confirmed that AID officers transported Trahey to the PDU at 10:49 p.m. Id. at 99-100.

Finally, AID Officer Daniel Shead testified. Officer Shead detailed the responsibilities of various AID officers when they are on duty, as well as certain procedures involved in DUI investigation. He testified that, on the evening in question, two AID officers were on duty at AID headquarters and three officers were in the field, including himself. Id. at 108. Because one officer was assigned to answer the telephone and one officer was assigned to conduct chemical tests, Officer Shead opined that no one at the headquarters was available to begin preparing a search warrant before Trahey arrived. Id. at 109-11. He noted, however, that, had Trahey refused to submit to a blood draw, the officers "would have tried to secure a search warrant" for the test. Id. at 111.

With regard to the process for obtaining a search warrant and the time frame involved, Officer Shead detailed the steps that an officer would have to take in order to obtain a warrant. First, an officer must leave the accident scene and return to AID headquarters, which in this case would have taken between ten and fifteen minutes. Id. at 113, 118. The officer then must write an affidavit, which may take twenty to thirty minutes. Id. at 113, 118. The officer must submit the affidavit to an Assistant District Attorney for review, which takes another ten to fifteen minutes. Id. at 113, 119. If approved, the officer must prepare the search warrant application on a typewriter. Id. at 113. With the documents completed, the officer must contact the arraignment court and determine whether a bail commissioner is available to approve the warrant. Id. at 113-114. Officer Shead opined a commissioner might be available right away, or the affiant might have to wait upwards of an hour, there being "no rhyme or reason" for the time variation. Id. at 113, 114, 120. Once a commissioner is available, the officer must travel from AID headquarters, which may take another ten minutes. Id. at 121. Waiting for a commissioner could then take between five and thirty minutes. Id. The bail commissioner's review takes another five minutes. Id. at 122. All told, Officer Shead opined, the procedure for obtaining a search warrant at the time would take, at best, seventy to seventy-five minutes, but could take up to three hours. Id. at 122-23.

The court asked Officer Shead if he was aware that, due to the intervening change in the law, blood testing requires a search warrant absent exigent circumstances. Officer Shead stated his understanding that a search warrant is required if the suspect refuses to submit to chemical testing. Id. at 126-27. He opined that, had Trahey refused the blood draw, "then there would have been a warrant gotten that night because of the injuries that were sustained and whatever else happened at the accident." Id. at 127. The court asked whether the officers would have requested a breath test in that situation, and Officer Shead replied: "No. We would have gotten a search warrant for the blood." Id. at 128. Asked why the officers would choose a blood test over a breath test, Officer Shead explained that "a Breathalyzer only shows someone's blood alcohol concentration" but does not...