Commonwealth v. Johnson , 188 A.3d 486 ( 2018 )

J-S12018-18
2018 PA Super 133COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
SHARON KAY JOHNSON
No. 1198 MDA 2017
Appeal from the Order entered June 30, 2017,
in the Court of Common Pleas of Centre County,
Criminal Division, at No(s): CP-14-CR-0000526-2017
BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
OPINION BY KUNSELMAN, J.: FILED MAY 21, 2018
The Commonwealth appeals from the order granting Sharon Kay
Johnson’s motion to suppress the test results of a warrantless blood-draw.
We reverse.
A summary of the facts, as stipulated to by the parties, is as follows.
On January 16, 2017, Officer Nicole Foley arrested Johnson with
probable cause and requested a blood-draw. Within the required two hour
time period, Johnson was transported to Nittany Medical Center for a blood-
draw. At the hospital, Officer Foley gave Johnson the revised DL-26 form; the
form did not list enhanced criminal penalties as a consequence of failing to
consent to a blood-draw. Officer Foley read the DL-26 form to Johnson and
gave her the opportunity to read it herself. She did not tell Johnson that she
would face greater criminal penalties if she refused consent to a blood-draw.
J-S12018-18
Johnson, signing the form, consented to the blood-draw. Officer Foley did not
threaten or coerce Johnson.
Johnson testified that, at the time of her arrest, she sincerely but
erroneously believed that refusing the blood-draw would subject her to greater
criminal penalties. This misunderstanding came from Johnson’s previous DUI
arrest and attending DUI Safe Driving School.
Johnson filed a pretrial motion, seeking to suppress the warrantless
blood-draw. She argued that: 1) a blood-draw given based upon the revised
O’Connell warnings,1 even without the clause regarding increased penalties,
remained coercive and contrary to Birchfield v. North Dakota, 579 U.S.
___, 136 S.Ct. 2160 (2016), because 75 Pa.C.S.A. § 3804(c) still contained
the increased penalty language as the law; and 2) Johnson’s existing
knowledge of the enhanced penalties under 75 Pa.C.S.A. § 3804 rendered her
warrantless blood-draw coercive under Birchfield. The trial court granted
Johnson’s motion to suppress.
The Commonwealth appealed one issue:
Whether the trial court erred in granting Johnson’s motion
to suppress, because Officer Foley did not tell Johnson that
she would face harsher criminal penalties for refusing a
blood test, making Johnson’s consent voluntary.
____________________________________________
1 “O'Connell warnings” refer to the obligation of police officer to inform
motorists, of whom the officer requests chemical testing, that the Miranda
rights are inapplicable to such tests under the Pennsylvania Implied Consent
Law. See Commonwealth, Department of Transportation v. O'Connell,
555 A.2d 873 (Pa. 1989). Critical to this case, the officer must also inform
motorists of the legal consequences they will face if they refuse consent to the
blood-draw.
-2-
J-S12018-18
See Commonwealth’s Brief at 4.
Our standard of review for a suppression court’s conclusions is de novo,
because when police elect not to procure a warrant prior to searching, they
forgo prior judicial authorization and so invite our highest degree of appellate
scrutiny on review. See Ornelas v. United States, 517 U.S. 690 (1996).
That said, we must “take care both to review findings of historical fact only for
clear error and to give due weight to inferences drawn from those facts by
resident judges and local law enforcement officers.” Id. at 699.
In making these judgments, our scope of review is limited to only the
evidence in the suppression hearing. See Commonwealth v. Ennels, 167
A.3d 716 (Pa. Super. 2017) (citations omitted). “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.”
Ennels at 718–19 (quotation marks and citations omitted). Despite our
narrowed view of the record and the clearly erroneous standard we apply to
the trial judge’s findings of fact, we cannot sustain the order granting
suppression of Johnson’s blood-draw in this case.
The governing law in this area is well settled. The Fourth Amendment
to the Constitution of the United States and Article I, § 8 of the Constitution
of the Commonwealth of Pennsylvania both prohibit unreasonable searches
and seizures. “The administration of a blood test, performed by an agent of,
or at the direction of the government, constitutes a search under both the
-3-
J-S12018-18
United States and Pennsylvania Constitutions.” Commonwealth v. Evans,
153 A.3d 323, 328 (2016) (citations omitted). If an officer performs a blood-
draw search without a warrant, it is “unreasonable and therefore
constitutionally impermissible, unless an established exception applies.
Exceptions to the warrant requirement include the consent exception. For
the consent exception to apply, the consent must be voluntary.” Id.In granting Johnson’s motion, the trial court concluded that Johnson did
not voluntarily consent to the blood-draw, because Officer Foley did not inform
Johnson that the enhanced criminal penalties of 75 Pa.C.S.A. § 3804(c) were
unconstitutional. The trial court reasoned as follows:
The subject of the search must be made aware of his rights
against a warrantless search for a waiver to be intelligent
and for consent to be given.
* * * *
At the time of [Johnson’s] arrest on January 16, 2017, the
[§ 3804(c)] criminal penalties were still a part of the
[statute] regardless of their enforceability or redaction from
the DL-26. It was on January 31, 2017 [a couple of weeks
after Johnson’s arrest], when [Commonwealth v. Giron,
155 A.3d 635 (Pa. Super. 2017)], was decided that the
Superior Court declared 3804(c) unconstitutional.
[Johnson] is expected and assumed to know the law of
this Commonwealth, including the criminal penalties if she
refused the blood-draw. See In re Kearney, 7 A.2d 159,
161 (Pa. Super. 1939) (Ignorance of the law excuses no
one, according to the ancient maxim, everyone being
presumed to know the law). [Johnson] was not made aware
of her rights to refuse against a warrantless search, because
she was not informed that the enhanced criminal penalties
of 75 Pa.C.S. § 3804(c) would not be enforced. A citizen,
like [Johnson], with knowledge of the criminal penalties
within the law would naturally expect them to be enforced
-4-
J-S12018-18
to the fullest extent possible. Silence by the arresting officer
is not synonymous with communication of [Johnson’s]
rights, specifically that she would not face enhanced
criminal penalties for refusal to consent to a search, without
a warrant when the law says otherwise. Thus, the Court
finds that [Johnson] did not intentionally relinquish a known
right or privilege when consenting to a blood-draw as she
was not informed that the enhanced criminal penalties of 75
Pa.C.S. §3804(c) were unconstitutional.
Trial Court Opinion, 6/30/17, at 4-5 (citations omitted). We disagree.
The issues in this case stem from the United States Supreme Court’s
decision in Birchfield. In that case, the defendant was arrested for DUI. In
requesting a blood-draw without a warrant, the officer informed the defendant
of North Dakota's implied consent advisory and that “test refusal in these
circumstances is itself a crime.” The defendant then agreed to the requested
blood-draw. Id. at 2172. In defending his case, the defendant argued that
“his consent to the blood test was coerced by the officer's warning that
refusing to consent would itself be a crime.” Id. The Supreme Court of the
United States held that the Supreme Court of North Dakota erred in concluding
that the defendant’s consent was voluntary, as the state court's conclusion
rested “on the erroneous assumption that the State could permissibly compel
[ ] blood ... tests” by “impos[ing] criminal penalties on the refusal to submit
to such a test.” Id. at 2185-86.
The critical inquiry following Birchfield is whether the officer conveyed
the threat of enhanced criminal penalties at the time of the arrest when
seeking a warrantless blood-draw. Notably, the threat of civil penalties and
evidentiary consequences is permissible under implied consent laws; however,
-5-
J-S12018-18
a threat of added criminal sanctions is not. Previously, we stated that,
“Birchfield makes plain that the police may not threaten enhanced
punishment for refusing a blood test in order to obtain consent; whether that
enhanced criminal punishment is (or can be) ultimately imposed is irrelevant
to the question of whether the consent was valid.” Commonwealth v.
Ennels, 167 A.3d 716, 724 (Pa. Super. 2017) (citations omitted).
Where the motorist does not face such a dilemma, we have previously
held that consent is voluntary. See Commonwealth v. Smith, 177 A.3d 915(Pa. Super. 2017).2 In Smith, the defendant, who was arrested for DUI, and
the officer used a DL-26 form containing no reference to enhanced penalties
for refusing a blood-draw. Also, the officer only informed the defendant that
his driver’s license would be suspended, a civil penalty, if he refused. The
defendant consented. The trial court denied suppression, because the
defendant’s consent was voluntary. Birchfield did not apply, because the
arresting officer never told the defendant that he would be subjected to
greater criminal penalties if he refused the blood-draw. On appeal, we
affirmed.
Smith is similar to this case. Officer Foley never told Johnson that she
would be subject to enhanced criminal penalties for refusing the blood-draw.
Also, the DL-26 form that Officer Foley asked Johnson to sign accorded with
Birchfield, because it did threaten additional criminal sanctions for refusal.
____________________________________________
2This Court decided Commonwealth v. Smith, 177 A.3d 915 (Pa. Super.
2017) after the decision by the suppression court in this case.
-6-
J-S12018-18
The form, therefore, accurately reflected the law after Birchfield. Thus, the
coercion by the police in Birchfield, which rendered the defendant’s consent
involuntary, did not exist here.
Moreover, it is not necessary that the police completely review changes
in the law, from the time of a motorist’s previous arrest or DUI-related
schooling until the motorist’s next traffic stop. Johnson’s ignorance of the
most recent Supreme Court decisional law did not impose upon Officer Foley
an affirmative duty to provide her with an update on criminal procedure prior
to requesting a blood-draw. Neither our state nor the federal constitution
compels our police officers to serve as road-side law professors.
Given the foregoing, Johnson’s personal failure to realize that the
Supreme Court’s issuance of Birchfield struck down § 3804(c)’s enhanced
penalties is irrelevant. She apparently believed that our Commonwealth’s
enhanced penalties remained in full force and effect until a Pennsylvania
appellate court declared them unconstitutional or the General Assembly
amended them to comport with Birchfield. Her misconception – and the trial
court’s imposition of a duty upon the arresting officer to enlighten her as to
the current state of the law – is predicated upon a fundamentally flawed view
of our federalism.
The Constitution of the United States “shall be the supreme Law of the
Land; and the Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding.” U.S.
Const. Art. VI, Cl. 2. Thus, the Supreme Court of the United States’
-7-
J-S12018-18
constitutional pronouncements have immediate and national consequence.
Birchfield became the “supreme Law of the Land,” which Johnson and all
other citizens of the United States were presumed to know on the day that
the Supreme Court announced it – April 20, 2016. Thus, Johnson’s ignorance
of United States Constitutional Law cannot excuse her consent to Officer
Foley’s search. On the day Birchfield became law, Johnson should have
known that § 3804(c)’s additional criminal sanctions were without force or
effect of law, and so the law constructively imports that knowledge to her.
Therefore, her ignorance of her constitutional rights was no excuse, and so
her consent to the blood-draw was knowing and voluntary.
Hence, the trial court’s extension of the maxim “ignorance of the law is
no excuse” to Johnson’s ignorance of recent Supreme Court case law was in
error. Officer Foley had no obligation to enlighten Johnson as to the full details
of federal constitutional law; Officer Foley only needed to tell Johnson the
current, legal consequences of refusing to consent to the blood-draw. See
O’Connell, supra. She did. Thus, Johnson’s consent was voluntary.
Accordingly, the trial court improperly applied the constitutional law to
the facts herein; thus, its conclusions were erroneous. Ennels, supra.
-8-
J-S12018-18
Order reversed. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/2018
-9-