Commonwealth v. Smith , 177 A.3d 915 ( 2017 )

J-S69039-17
2017 PA Super 416COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
BRITTANY NORA SMITH :
: No. 877 WDA 2017
Appellant
Appeal from the Judgment of Sentence May 19, 2017
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0001493-2016
BEFORE: BOWES, J., RANSOM, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED DECEMBER 28, 2017
Appellant Brittany Nora Smith appeals from the judgment of sentence
entered by the Court of Common Pleas of Mercer County after the trial court
convicted Appellant of Driving Under the Influence of a Controlled Substance
(DUI) and related vehicle code violations. Appellant argues that the trial court
erred in refusing to suppress the evidence obtained from the seizure of her
vehicle and the warrantless testing of her blood. We affirm.
The trial court aptly summarized the factual background of this case as
follows:
[O]n August 6, 2016, at approximately 1:28 a.m., Trooper Sherry
L. Hogue was traveling east on Route 62 in Mercer County. She
was in a marked cruiser in full uniform. Trooper Hogue observed
a white truck pull onto Route 62 traveling in a westwardly
direction. When the truck pulled out onto Route 62 (which is a
lined, two-way road), it traveled in the center of the roadway for
a sufficient period of time forcing Trooper Hogue to apply her
brakes as to avoid a collision. The truck returned to the
westbound lane and Trooper Hogue turned her vehicle around and
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S69039-17
followed the truck. The truck turned right onto Springfield Church
Road and then left into what appeared to be a business driveway.
The trooper pulled behind the truck, activated her lights, and
exited the vehicle.
The Trooper approached the driver, whom the Trooper identified
as [Appellant], and asked [Appellant] to exit her vehicle.
[Appellant] screamed at the Trooper and the Trooper detected an
odor of alcohol coming from [Appellant] and observed
[Appellant’s] blood shot eyes. Trooper Hogue also observed a
drink with a straw in the center console of [Appellant’s] vehicle.
Upon request, [Appellant] handed the drink to the Trooper who
smelled the drink and detected the smell of alcoholic beverages.
[Appellant] was uncooperative with the Trooper’s instructions
relative to field sobriety tests.
[Appellant] was then placed under arrest and transported to the
Grove City Medical Center. During the trip to the Grove City
Medical Center, [Appellant] told the Trooper that the Trooper
should arrest criminals and not “drunks.” The Trooper asked
[Appellant] what if [Appellant] hit a car with a family in it and
[Appellant] replied “we all have to die sometime.”
Upon arrival at the Grove City Medical Center, Trooper Hogue read
the new DL-26 form which did not contain any information
regarding enhanced criminal penalties. [Appellant] signed the
form because she did not want a license suspension. Blood was
drawn and it was subsequently determined that [Appellant’s]
blood alcohol content was .274.
Trial Court Opinion (T.C.O.), 7/17/17, at 3-4.
Appellant was charged with DUI and several motor vehicle code
violations.1 On January 3, 2017, Appellant filed a suppression motion, alleging
she was subjected to an unlawful stop of her vehicle and illegal warrantless
____________________________________________
175 Pa.C.S.A. §§ 3802(a)(1) (DUI – General impairment, Incapable of Safely
Driving, second offense), 3802(c) (DUI – Highest Rate of Alcohol, BAC >
0.16%, second offense), 3301(a) (Driving on Right Side of Roadway), 3309(1)
(Driving on Roadways Laned for Traffic), 3809 (Restriction on Alcoholic
Beverages).
-2-
J-S69039-17
blood testing. After an evidentiary hearing, the trial court denied Appellant’s
suppression motion. On May 19, 2017, the trial court held a stipulated bench
trial and convicted Appellant of the aforementioned offenses. The trial court
imposed a sentence of ninety days to one year of imprisonment to be followed
by four years’ probation for the DUI conviction under Section 3802(c). No
further penalty was imposed on the remaining charges. Appellant filed a
timely appeal and complied with the trial court’s direction to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant raises the following issues for our review:
1. The suppression court erred in refusing to declare the seizure
of [Appellant] and her vehicle unlawful, as there was no
probable cause for the traffic stop, as set more fully in
[Appellant’s] Omnibus Pre-Trial Motion, which is attached
hereto and made a part hereof.
2. The suppression court erred in refusing to suppress evidence
of the warrantless blood search conducted by the Pennsylvania
State Police, as set forth in [Appellant’s] Omnibus Pre-Trial
Motion, which is attached hereto and made a part hereof.
1925(b) statement, 6/20/17, at 1 (reordered for ease of review).
In reviewing a challenge to the lower court’s decision to deny a
suppression motion, our standard of review is as follows:
Our standard of review in addressing a challenge to a trial court's
denial of a suppression motion is limited to determining whether
the factual findings are supported by the record and whether the
legal conclusions drawn from those facts are correct.
Commonwealth v. Woodard, 634 Pa. 162, 129 A.3d 480, 498
(2015). We are bound by the suppression court's factual findings
so long as they are supported by the record; our standard
of review on questions of law is de novo. Commonwealth v.
Galvin, 603 Pa. 625, 985 A.2d 783, 795 (2009). Where, as here,
-3-
J-S69039-17
the defendant is appealing the ruling of the suppression court, we
may consider only the evidence of the Commonwealth and so
much of the evidence for the defense as remains uncontradicted.
Commonwealth v. Poplawski, 634 Pa. 517, 130 A.3d 697, 711
(2015). Our scope of review of suppression rulings includes only
the suppression hearing record and excludes evidence elicited at
trial. In the Interest of L.J., 622 Pa. 126, 79 A.3d 1073, 1085
(2013).
Commonwealth v. Singleton, 169 A.3d 79, 82 (Pa.Super. 2017) (quoting
Commonwealth v. Yandamuri, ––– Pa. –––, 159 A.3d 503, 516 (2017)).
First, we review Appellant’s claim that she was subjected to an unlawful
traffic stop that was not justified by the requisite suspicion. Our Legislature
has specifically defined in statute the requisite cause for a traffic stop at 75
Pa.C.S.A. § 6308(b), which provides:
(b) Authority of police officer.-- Whenever a police officer is
engaged in a systematic program of checking vehicles or drivers
or has reasonable suspicion that a violation of this title is occurring
or has occurred, he may stop a vehicle, upon request or signal,
for the purpose of checking the vehicle's registration, proof of
financial responsibility, vehicle identification number or engine
number or the driver's license, or to secure such other information
as the officer may reasonably believe to be necessary to enforce
the provisions of this title.
75 Pa.C.S.A. § 6308(b).
Further, this Court has clarified:
“Traffic stops based on a reasonable suspicion: either of criminal
activity or a violation of the Motor Vehicle Code under the
authority of Section 6308(b) must serve a stated investigatory
purpose.” Commonwealth v. Feczko, 10 A.3d 1285, 1291
(Pa.Super. 2010) (en banc) (citation omitted). For a stop based
on the observed violation of the vehicle code or otherwise non-
investigable offense, an officer must have probable cause to make
a constitutional vehicle stop. Feczko, 10 A.3d at 1291 (“Mere
reasonable suspicion will not justify a vehicle stop when the
-4-
J-S69039-17
driver's detention cannot serve an investigatory purpose relevant
to the suspected violation”).
Commonwealth v. Bush, 166 A.3d 1278, 1282 (Pa.Super. 2017).
This Court has specifically discussed this distinction in the context of a
suspected DUI violation:
[W]hen considering whether reasonable suspicion or probable
cause is required constitutionally to make a vehicle stop, the
nature of the violation has to be considered. If it is not necessary
to stop the vehicle to establish that a violation of the Vehicle Code
has occurred, an officer must possess probable cause to stop the
vehicle. Where a violation is suspected, but a stop is necessary to
further investigate whether a violation has occurred, an officer
need only possess reasonable suspicion to make the stop.
Illustrative of these two standards are stops for speeding and DUI.
If a vehicle is stopped for speeding, the officer must possess
probable cause to stop the vehicle. This is so because when a
vehicle is stopped, nothing more can be determined as to the
speed of the vehicle when it was observed while traveling upon a
highway. On the other hand, if an officer possesses
sufficient knowledge based upon behavior suggestive of
DUI, the officer may stop the vehicle upon reasonable
suspicion of a Vehicle Code violation, since a stop would
provide the officer the needed opportunity to investigate
further if the driver was operating under the influence of
alcohol or a controlled substance.
Commonwealth v. Salter, 121 A.3d 987, 993 (Pa.Super. 2015). (emphasis
added). Further, in order to further investigate a suspected DUI violation, an
officer must conduct an investigatory stop, which “almost invariably leads to
the most incriminating type of evidence, i.e., strong odor of alcohol, slurred
speech, and blood shot eyes.” Commonwealth v. Feczko, 10 A.3d 1285,
1289 (Pa.Super. 2010) (quoting Commonwealth v. Sands, 887 A.2d 261(Pa.Super. 2005)). In Sands, this Court concluded that the police officer was
justified in stopping the appellant’s vehicle based on his reasonable suspicion
-5-
J-S69039-17
that appellant was drunk driving as the officer witnessed the appellant’s
vehicle drift across the fog line three times in the early morning hours.
In this case, the trial court found that Appellant made a “wide and
dangerous turn” onto Route 62 and traveled a significant distance in the center
of a lined, two-way road, forcing Trooper Hogue, who was approaching from
the opposite direction, to apply her brakes to avoid a collision. T.C.O. at 5.
The trial court found that Trooper Hogue credibly testified that she stopped
Appellant’s vehicle as she believed that Appellant was intoxicated based on
her driving at that time of the early morning. Accordingly, we conclude that
the trial court did not err in finding that Trooper Hogue had reasonable
suspicion to stop Appellant’s vehicle for suspicion of DUI.
Second, Appellant claims the trial court erred in denying her suppression
motion in which she argued that Trooper Hogue was required to obtain a
warrant to compel Appellant to submit to blood testing pursuant to the United
States Supreme Court’s decision in Birchfield v. North Dakota, ---U.S.---,
136 S.Ct. 1535 (2016). Moreover, Appellant asserted that the “warrantless
seizure of her blood was without any legal exception and violated her rights
under Article I, Section 8 of the Pennsylvania Constitution and the 4 th
Amendment of the United States Constitution.” Omnibus Pre-trial Motion,
12/29/16, at 2.
The Fourth Amendment to the United States Constitution and Article I,
Section 8 of the Pennsylvania Constitution protect citizens from unreasonable
searches and seizures. Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa.
-6-
J-S69039-17
Super. 2012). Blood tests constitute searches under the Fourth Amendment
as they implicate privacy concerns. Birchfield, 136 S.Ct. at 2173. See also
Commonwealth v. Ellis, 608 A.2d 1090, 1091 (Pa.Super. 1992) (providing
that “the administration of a blood test is a search within the meaning of the
Fourth Amendment if it is performed by an agent of the government”).
“A search conducted without a warrant is deemed to be unreasonable
and therefore constitutionally impermissible, unless an established exception
applies.” Commonwealth v. Strickler, 563 Pa. 47, 56, 757 A.2d 884, 888
(2000) (citations omitted). Those exceptions include voluntary consent. Id.“The central Fourth Amendment inquiries in consent cases entail assessment
of the constitutional validity of the citizen/police encounter giving rise to the
consent; and, ultimately, the voluntariness of consent.” Id.Although Appellant argued in the lower court that the results of her
blood test should be suppressed as none of the exceptions to the warrant
requirement applied, she does not contest the fact that she consented to
submit to the blood test. Instead, Appellant baldly asserted that her
constitutional rights were violated by the warrantless search and cited to
Birchfield without providing any further explanation to the trial court. The
trial court found Appellant’s claim to be meritless as it found the holding in
Birchfield inapplicable to this case.
In Birchfield, the High Court reviewed a consolidated case in which one
of the petitioners, Steve Michael Beylund, was arrested for DUI and informed
that the refusal to submit to blood testing constituted a crime itself under
-7-
J-S69039-17
North Dakota law. Thereafter, petitioner Beylund argued that his consent had
been coerced by the officer’s warning. Relevant to the instant case, the United
States Supreme Court held that a state may not “insist upon an intrusive blood
test, but also … impose criminal penalties upon the refusal to submit to such
a test.” Birchfield, 136 S.Ct. at 2185. Moreover, the High Court emphasized
that “motorists cannot be deemed to have consented to a blood test upon pain
of committing a criminal offense.” Id. at 2186. As petitioner Beylund had
consented to a blood test only after police had erroneously informed him that
he could be criminally penalized if he refused to do so, the Birchfield Court
remanded for the trial court to “reevaluate Beyland’s consent given the partial
inaccuracy of the officer’s advisory.” Id.
Nevertheless, the Birchfield Court emphasized that its holding did not
apply to the imposition of civil penalties and evidentiary consequences upon
motorists suspected of DUI who refused blood testing upon their arrest:
It is well established that a search is reasonable when the subject
consents, and that sometimes consent to a search need not be
express but may be fairly inferred from context. Our prior
opinions have referred approvingly to the general concept of
implied-consent laws that impose civil penalties and
evidentiary consequences on motorists who refuse to
comply. Petitioners do not question the constitutionality of
those laws, and nothing we say here should be read to cast
doubt on them.
Birchfield, 136 S.Ct. at 2185 (emphasis added) (citations omitted).2
____________________________________________
2We observe that the Pennsylvania Commonwealth Court held that Birchfield
does not affect the imposition of civil license suspension for refusal to submit
-8-
J-S69039-17
Thereafter, this Court decided Commonwealth v. Evans, 153 A.3d 323(Pa.Super. 2016), in which the appellant had similarly argued that his consent
to blood testing after his arrest for DUI was coerced as he only consented after
the police warned him that his refusal to submit to blood testing would result
in harsher penalties upon conviction. Although the Evans court recognized
that Pennsylvania’s implied consent law did not make refusal to submit to a
blood test a crime, the panel emphasized that the law “undoubtedly impose[s]
criminal penalties on the refusal to submit to a test.” Evans, 153 A.3d at 331
(quoting Birchfield, 136 S.Ct. at 2185–86). This Court pointed out to the
DUI penalty provisions set forth in 75 Pa.C.S.A. § 3804:
Section 3804(c) provides that an “individual who violates section
3802(a)(1)[, DUI, general impairment] and refused testing of
blood” is punished more severely than an individual who commits
the stand-alone DUI, general impairment offense under Section
3802(a)(1)—and to the same extent as an individual who violates
Section 3802(c), relating to DUI, highest rate of alcohol. 75
Pa.C.S.A. § 3804(c). As such, Birchfield controls the case at bar.
Id.
Since the appellant in Evans had argued that he agreed to submit to
blood testing only after being informed that harsher penalties would apply if
he refused, this Court held that the officer’s advisory to Evans was “partially
inaccurate” as Birchfield prohibits states from imposing criminal penalties for
the refusal to submit to blood testing. Evans, 153 A.3d at 331. As a result,
this Court vacated the appellant’s sentence and the suppression order and
____________________________________________
to a blood test. Boseman v. Commonwealth, Dep't of Transportation,
Bureau of Driver Licensing, 157 A.3d 10, 21 (Pa.Cmwlth. 2017).
-9-
J-S69039-17
remanded with instructions for the trial court to reevaluate the voluntariness
of appellant’s consent in light of this inaccurate warning and the totality of the
circumstances.
The instant case is factually distinguishable from Birchfield and Evans.
To reiterate, the decision in Birchfield, which was controlling law at the time
of Appellant’s arrest, prohibited states from imposing criminal penalties upon
an individual’s refusal to submit to a warrantless blood test. Birchfield, 136
S.Ct. at 2185. The trial court in this case found Birchfield was inapplicable
since Appellant was never advised that she would be subject to enhanced
criminal sanctions upon refusal of blood testing. Our review of the record
confirms this finding; both parties agree that Trooper Hogue only informed
Appellant that her driver’s license would be suspended if she refused blood
testing. Appellant signed a DL-26 form acknowledging that she was advised
of this particular consequence. This form does not contain any reference to
enhanced criminal penalties. See Commonwealth’s Exhibit 1, DL-26 form.
Thereafter, Appellant agreed to submit to blood testing, which revealed a
blood alcohol level of 0.274. We cannot conclude that the trial court erred
in denying Appellant’s suppression motion that vaguely cited to Birchfield.
On appeal, Appellant does not take issue with Trooper Hogue’s warning
before she consented to the warrantless blood test and concedes that neither
Trooper Hogue nor the written form informed her that she would be subject
to enhanced criminal penalties upon refusal of blood testing. Rather,
Appellant raises the additional claim that her consent cannot be deemed
- 10 -
J-S69039-17
voluntary as, at the time of her arrest, the Pennsylvania DUI penalty provision
allowing for enhanced penalties upon refusal of blood testing had not yet been
amended by the Legislature to conform to the holding in Birchfield. Appellant
argues that the “continued existence of the statutory penalty enhancement”
vitiated the consensual search. Appellant’s Brief, at 18. Appellant suggests
that she should have been deemed “presumptively aware” of the enhanced
criminal penalty provision as she had been previously convicted of DUI.
Appellant’s Brief at 18.
As Appellant did not present this argument to the lower court, but
attempts to raise it for the first time on appeal, this argument is waived. See
Pa.R.A.P. 302 (“Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal”). As a result, we need not review this claim
further.
For the foregoing reasons, we affirm Appellant’s judgment of sentence.
Judge Ransom joins the opinion.
Judge Bowes concurs in the result.
- 11 -
J-S69039-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/28/2017
- 12 -