Commonwealth v. Olson, J., Aplt.

[J-29-2019] [MO: Wecht, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 26 WAP 2018
:
Appellee : Appeal from the Order of the Superior
: Court entered February 14, 2018 at
: No. 158 WDA 2017, affirming the
v. : Order of the Court of Common Pleas
: of Somerset County entered
: December 22, 2016, at No. CP-56-
JEFFREY ALAN OLSON, : CR-0000544-2015.
:
Appellant : ARGUED: April 10, 2019
CONCURRING OPINION
JUSTICE MUNDY DECIDED: OCTOBER 31, 2019
I join the majority’s holding that Birchfield v. North Dakota, __ U.S. __, 136 S.Ct.
2160 (2016), announced a new procedural rule that does not apply retroactively to
matters on collateral review. I write to distance myself from the majority’s discussion
casting doubt on what it has indicated is the “potential applicability” of the exigent
circumstances exception to the warrant requirement in the DUI arena. Majority Op. at 14-
15.
As the majority notes, the Birchfield Court explicitly acknowledged the exigent
circumstances exception was a viable exception to the Fourth Amendment warrant
requirement when it noted the validity of a search “may be established by a demonstration
of exigent circumstances.” Id. at 15 (citing Birchfield, 136 S.Ct. at 2186 (noting “North
Dakota has not presented any case-specific information to suggest that the exigent
circumstances exception would have justified a warrantless test of Birchfield’s blood[.]”)).
The Birchfield Court did not question the continuing validity of applying exigent
circumstances analysis to Fourth Amendment warrant requirements in DUI cases, noting
that Schmerber v. California, 384 U.S. 757 (1966), “adopted a case-specific analysis
depending on ‘all of the facts and circumstances of the particular case.’” Birchfield, 136
S.Ct. at 2173. The Court further reasoned, this approach was reaffirmed in Missouri v.
McNeely, 569 U.S. 141 (2013), when the Court opted not to adopt a rule of per se
exigency based solely on the dissipation of alcohol in the blood, and rather “refused to
‘depart from careful case-by-case assessment of exigency[.]’” Id. at 2174 (citing
McNeely, 569 U.S. 142). Further, in Mitchell v. Wisconsin, __ U.S. __, 139 S.Ct. 2525(2019) (plurality), the Supreme Court reiterated that “an officer may conduct a BAC test if
the facts of a particular case bring it within the exigent-circumstances exception to the
Fourth Amendment’s general requirement of a warrant.” Id. at 2531.
Despite the concerns raised in this matter, the validity of the exigent circumstances
exception to the warrant requirement and the interplay of the amendment to Section 3804
which criminalizes “refusing . . . testing of blood pursuant to a valid search warrant[,]”
would be better left to a future discussion in an appropriate case. See Majority Op. at 15;
Dissenting Op. (Saylor, C.J.) at 2 (citing 75 Pa.C.S. § 3804(c)). Accordingly, I distance
myself from any analysis of the viability of the exigent circumstances exception. I join the
majority in all other respects.
[J-29-2019] [MO: Wecht, J.] - 2