Commonwealth v. Updike, 1714 WDA 2016

• Court: Superior Court of Pennsylvania
• Citation: 172 A.3d 621
• Docket Number: No. 1714 WDA 2016,1714 WDA 2016
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Mickey H. UPDIKE, Appellee
• Decision Date: 13 October 2017

172 A.3d 621

COMMONWEALTH of Pennsylvania, Appellant
v.
Mickey H. UPDIKE, Appellee

No. 1714 WDA 2016

Superior Court of Pennsylvania.

Submitted August 28, 2017
Filed October 13, 2017

172 A.3d 623

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

Mary E. Schaffer, Ebensburg, for appellee.

BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.^*

OPINION BY OLSON, J.:

The Commonwealth of Pennsylvania appeals from the October 10, 2016 order granting Appellee Mickey H. Updike's suppression motion. In this case, we hold that blood draw evidence collected prior to June 23, 2016 is admissible under the good-faith exception to the exclusionary rule when a defendant only seeks suppression under the federal constitution. As Appellee did not seek suppression under the state constitution in this case, we reverse.

The factual background and procedural history of this case are as follows. On May 5, 2016, Detective Mark Britton sought to question an individual sitting in the rear passenger seat of Appellee's vehicle. When Detective Britton approached, he noticed an open beer can in the vehicle and asked Appellee if he had been drinking or using drugs. Appellee responded that he was not drinking but he had used heroin earlier in the day. Appellee was transported to a local hospital and informed, by reading of the DL–26 form, that, if he did not consent to a blood draw, he would face increased criminal penalties. Appellee then agreed to the blood draw, which showed the presence of a controlled substance and metabolites in his blood stream.

On August 4, 2016, the Commonwealth charged Appellee via criminal information with four counts of driving under the influence ("DUI")-controlled substance.¹ On September 6, 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. Thereafter, the trial court held a suppression hearing which encompassed this case and six other cases which raised similar legal issues. On October 10, 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. 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, 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)³ ] 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

172 A.3d 624

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 [Appellee's] inculpatory statements regarding his heroin use render any potential coercion inert as [Appellee] was ready and willing to admit to his heroin use[?]

Commonwealth's Brief at 6.⁴

All three of the Commonwealth's 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. 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.

172 A.3d 625

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 cases decided under the Fourth Amendment of the United States Constitution, the sole legal ground cited and preserved by Appellee in support of his search and seizure claim before the trial court.⁵ The Fourth Amendment of the United States Constitution provides that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no [w]arrants shall issue, but upon probable cause, supported by [o]ath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV.

It is well-settled that a blood draw is a search under the Fourth Amendment 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. See id. at 149–156, 133 S.Ct. 1552. Consent, on the other hand, is a factual issue. For the reasons set...