Commonwealth v. Kurtz

J-S55028-17
2017 PA Super 336COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
GREGORY ALAN KURTZ : No. 286 MDA 2017
Appeal from the Order Entered January 19, 2017
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0001790-2016
BEFORE: DUBOW, RANSOM, and STRASSBURGER,* JJ.
OPINION BY RANSOM, J.: FILED OCTOBER 23, 2017
The Commonwealth appeals from the order entered January 19, 2017,
granting the motion to suppress filed by Appellee, Gregory Alan Kurtz. 1 We
affirm.
The suppression court made the following findings of fact, which are in
turn supported by the record.
On December 2, 2015, at approximately 23:13 hours, Trooper
Cummings of the Pennsylvania State Police stopped [Kurtz] on I-
81 near mile marker 49.5, Middlesex Township, Cumberland
County[,] Pennsylvania. Trooper Cummings called for back-up
because he had someone else in the back of his vehicle in custody
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 This appeal is properly before us pursuant to the Commonwealth’s
certification that the order will terminate or substantially handicap the
prosecution. See Commonwealth v. Ivy, 146 A.3d 241, 244 n.2 (Pa. Super.
2016); see also Pa.R.A.P. 311(d). Thus, our jurisdiction over this appeal is
proper.
J-S55028-17
for DUI. Trooper Caley arrived as back-up, Trooper Cummings
apprised Trooper Caley of observations he made of [Kurtz] and
Trooper Cummings left the scene.
Trooper Caley approached [Kurtz], who was in his vehicle and
immediately detected the odor of an alcoholic beverage emanating
from the vehicle. The [T]rooper asked [Kurtz] for his driver’s
license, registration, insurance and explained to [Kurtz] the
reason for the stop. In addition to the smell of an alcohol
beverage, the [T]rooper noticed that [Kurtz] had bloodshot [] and
glassy eyes, sleepy or sluggish behavior and was having difficulty
retrieving the requested documents. Trooper Caley noted that in
talking to [Kurtz] that there was a strong odor of alcohol coming
from [Kurtz] himself.
Trooper Caley asked [Kurtz] to step out of the vehicle to do
field sobriety tests. As [Kurtz] did so, [he] struggled with his
footing[,] staggered[,] and stumbled as he walked. [Kurtz’s]
clothes were disheveled. [Kurtz’s] speech was slurred and at
times incoherent. Trooper Caley had [Kurtz] do the Standardized
Field Sobriety tests. [Kurtz’s] performance on all the tests was
poor.
Trooper Caley had [Kurtz] take a Portable Breath Test, which
clearly showed that [Kurtz] had imbibed alcohol. Trooper Caley
was of the opinion that [Kurtz] was under the influence of alcohol
and incapable of safely operating his vehicle, and he placed
[Kurtz] under arrest.
Trooper Caley took [Kurtz] to the Carlisle Regional Medical
Center for legal blood to be drawn. At 23:45 hours, Trooper Caley
read the entire DL-26 Implied Consent Form to [Kurtz] before
asking for consent to submit a blood sample. The implied consent
warning read to [Kurtz] contained a statement which warned
[Kurtz] that, “If you refuse to submit to the chemical
test…because of your refusal, you will be subject to more severe
penalties…[.]” On December 2, 2014, at approximately 23:48
hours [Kurtz’s] blood was drawn and the kit was collected for
testing.
Findings of Fact in Support of Order Granting Defendant’s Pretrial Motion to
Suppress Evidence of Blood Results, 1/19/2017, at ¶¶ 1-18 (formatting
-2-
J-S55028-17
modified, citations omitted). Thereafter, Kurtz was charged with driving
under the influence (DUI) – general impairment, DUI – high rate of alcohol,
DUI – highest rate of alcohol, and failure to regard traffic lane while driving
on roadways laned for traffic.2
Kurtz filed a motion to suppress the blood results. Within his motion to
suppress, Kurtz argued that his blood test was obtained in violation of the
Fourth and Fourteenth Amendments of the United States Constitution, and
Article 1, Section 8 of the Pennsylvania Constitution because his consent to
the test was coerced under threat of enhanced criminal penalties. See Kurtz’s
Motion to Suppress, 9/26/2016, at ¶¶ 6-7 (citing Birchfield v. North
Dakota, 136 S.Ct. 2160, 2185 (2016)).3
Following a hearing in November 2016, the suppression court granted
Kurtz’s motion and suppressed the results of the blood test, finding that Kurtz
“did not knowingly and voluntarily consent to the blood draw.” See
Suppression Order, Findings of Fact, and Conclusions of Law, 1/19/2017, at
¶¶ 1-2.
The Commonwealth timely filed a notice of appeal and court-ordered
____________________________________________
2 75 Pa.C.S. §§ 3802(a)(1), 3802(b), 3802(c), and 3309(1).
3 At the suppression hearing, the Commonwealth argued for the application of
a good faith exception to the exclusionary rule, suggesting that suppression
of the evidence would not deter police misconduct where the officer’s reliance
on the implied consent statute and caselaw authorizing criminal penalties for
refusal was objectively reasonable. See, generally, Commonwealth’s
Memorandum of Law (dated 1/17/2017).
-3-
J-S55028-17
Pa.R.A.P. 1925(b) statement. The suppression court issued a responsive
opinion.
On appeal, the Commonwealth raises the following issues:
I. Should the exclusionary rule be applied in Pennsylvania in
limited circumstances where suppression is not the proper
remedy where police were following valid established
precedent pre-Birchfield?
II. Did the [t]rial [c]ourt improperly suppress [] [Kurtz’s] blood
test results when [he] gave valid actual consent?
Commonwealth’s Br. at 4.
Our standard of review is as follows.
When reviewing the grant of a suppression motion, we must
determine whether the record supports the trial court's factual
findings and “whether the legal conclusions drawn from those
facts are correct.” Commonwealth v. Brown, 64 A.3d 1101,
1104 (Pa. Super. 2013) (quoting Commonwealth v. Cauley, 10
A.3d 321, 325 (Pa. Super. 2010)). We may only consider
evidence presented at the suppression hearing. In re L.J., 622
Pa. 126, 79 A.3d 1073, 1085–87 (2013). 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.” Brown, 64 A.3d at 1104(quoting Cauley, 10 A.3d at 325). We may reverse only if the
legal conclusions drawn from the facts are in error. Id.Commonwealth v. Haines, 168 A.3d 231, 2017 PA Super 252, at *3 (filed
Aug. 2, 2017).
In Birchfield, the United States Supreme Court recognized that “[t]here
must be a limit to the consequences to which motorists may be deemed to
have consented by virtue of a decision to drive on public roads.” Birchfield,
136 S. Ct. at 2185. Of particular significance, Birchfield held that “motorists
-4-
J-S55028-17
cannot be deemed to have consented to submit to a blood test on pain of
committing a criminal offense.” Id. at 2185-2186. Accordingly, this Court
has recognized that Pennsylvania’s implied consent scheme was
unconstitutional insofar as it threatened to impose enhanced criminal
penalties for the refusal to submit to a blood test. Commonwealth v.
Ennels, 167 A.3d 716, 724 (Pa. Super. 2017), reargument denied (Sept. 19,
2017) (noting that “implied consent to a blood test cannot lawfully be based
on the threat of such enhanced penalties”); Commonwealth v. Evans, 153
A.3d 323, 330-31 (Pa. Super. 2016).
In its first issue, recognizing the post-Birchfield state of the law, the
Commonwealth contends that we should recognize an exception to the
exclusionary rule rooted in Birchfield. See Commonwealth's Br. at 11.4 As
noted by the Commonwealth, the exclusionary rule is designed to deter police
misconduct that violates the Fourth Amendment. See Commonwealth’s Br.
at 12-13 (citing United States v. Leon, 486 U.S. 897 (1984)). The
Commonwealth argues that the federal good faith exception should apply
because Birchfield is a federal decision. See id. at 21. Federal precedent
recognizes application of the good faith exception where officers acted in good
faith reliance on existing legislation that is later found to be unconstitutional.
____________________________________________
4 The Commonwealth argues for application of the exception where law
enforcement reads an arrestee a “DL-26 form” referencing enhanced criminal
penalties found to be improperly coercive by Birchfield.
-5-
J-S55028-17
See, e.g., Illinois v. Krull, 480 U.S. 340, 350 (1987) (holding that exclusion
of evidence by penalizing the officer, “who has simply fulfilled his responsibility
to enforce the statute as written,” would not logically serve the purpose of
exclusionary rule to deter Fourth Amendment violations). According to the
Commonwealth, law enforcement was required to read the entire DL-26 form
to provide notice of the consequence of a refusal based on pre-Birchfield
legislation and caselaw. See Commonwealth's Br. at 19-20 (citing in support
Commonwealth v. Riedel, 651 A.2d 135 (Pa. 1994)). Thus, according to
the Commonwealth, the police should not be penalized for their good faith
adherence to the law. Further, the Commonwealth also directs our attention
to a Tennessee Supreme Court decision to adopt the good faith exception in
limited Birchfield contexts. See Commonwealth's Br. at 29 (citing State v.
Reynolds, 504 S.W.3d 283, 288 (Tenn. 2016)).
In response, Kurtz contends that the good faith exception to the
exclusionary rule does not apply because it is contrary to Article 1, Section 8,
of the Pennsylvania Constitution. See Kurtz’s Br. at 6. Kurtz relies on
Commonwealth v. Edmunds, 586 A.2d 887, 901 (Pa. 1991), in which our
Supreme Court declined to adopt a good faith exception to the exclusionary
rule. In Edmunds, our Supreme Court held that “a ‘good faith’ exception to
the exclusionary rule would frustrate the guarantees embodied in Article I,
Section 8 of the Pennsylvania Constitution.” Edmunds, 586 A.2d at 888. In
interpreting state constitutional provisions, “each state has the power to
-6-
J-S55028-17
provide broader standards, and go beyond the minimum floor which is
established by the federal Constitution.” Edmunds, 586 A.2d at 894. As
interpreted by our Supreme Court, Article I, Section 8 “is meant to embody a
strong notion of privacy, carefully safeguarded in this Commonwealth for the
past two centuries.” Edmunds, 586 A.2d at 897.
The Commonwealth attempts to distinguish Edmunds, asserting that
the Edmunds Court did not address a situation in which the officer had
probable cause to conduct a search authorized by statute. See
Commonwealth's Br. at 25, 32-33.5 We find this argument unpersuasive. As
explained in Edmunds, “[t]he history of Article I, Section 8, [] indicates that
the purpose underlying the exclusionary rule in this Commonwealth is quite
distinct from the purpose underlying the exclusionary rule under the 4th
Amendment[.]” Edmunds, 586 A.2d at 897. Contrary to the
Commonwealth’s assertion, Pennsylvania law has had “clear divergence from
federal precedent” in rejecting an exception to the exclusionary rule through
Article I, Section 8’s “unshakabl[e] link[] to a right of privacy in this
Commonwealth.” Id.
In this case, the trial court reasoned that Birchfield established a new
constitutional floor (“minimal protections”) to which this Commonwealth’s
____________________________________________
5 The Commonwealth argues that suppression of the evidence would not serve
the purpose of deterring Fourth Amendment violations under the
circumstances where the officer relied on legislation. See Krull, 480 U.S. at
349-50.
-7-
J-S55028-17
historical rejection of the good faith exception should apply. See Trial Ct.
1925(a) Op. (TCO), 4/21/2017, at 6-7 (citing Edmunds, supra). Birchfield
recognized that there are “important ‘interests in human dignity and privacy’”
implicated by blood tests, as they are “searches involving intrusions beyond
the body’s surface.” Birchfield, 136 S.Ct. at 2183 (quoting Schmerber v.
California, 384 U.S. 757, 771 (1966)). Because blood tests require piercing
of the skin to extract a part of a person’s body, they are “significantly more
intrusive” than breath tests. Birchfield, 136 S.Ct. at 2184; see also id. at
2178. Moreover, a blood sample may be preserved by the police and contains
“information beyond a simple BAC reading.” Id. at 2178.
Given the entanglement of privacy interests inherent in a blood test
administered by the state, see Birchfield, 136 S.Ct. at 2183, we decline to
recognize a good faith exception to the exclusionary rule, as it would frustrate
the purpose of Article 1, Section 8 of the Pennsylvania Constitution by
undermining privacy interests. See Edmunds, supra. Accordingly, the court
did not err.
In its second issue, the Commonwealth contends that there was
sufficient evidence to establish that Kurtz gave “valid actual consent” to the
blood test. See Commonwealth's Br. at 38-41 (citing in support
Commonwealth v. Cleckley, 738 A.2d 427 (Pa. 1999)).
“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.
-8-
J-S55028-17
Super. 2012). “A search conducted without a warrant is deemed
to be unreasonable and therefore constitutionally impermissible,
unless an established exception applies.” Commonwealth v.
Strickler, 757 A.2d 884, 888 (Pa. 2000). “Exceptions to the
warrant requirement include the consent exception, the plain view
exception, the inventory search exception, the exigent
circumstances exception, the automobile exception ..., the stop
and frisk exception, and the search incident to arrest
exception.” Commonwealth v. Dunnavant, 63 A.3d 1252, 1257
n.3 (Pa. Super. 2013).
The “administration of a blood test ... performed by an agent
of, or at the direction of the government” constitutes a search
under both the United States and Pennsylvania
Constitutions. Commonwealth v. Kohl, 615 A.2d 308, 315 (Pa.
1992); Schmerber[, 384 U.S. at 770]. Since the blood test in
the case at bar was performed without a warrant, the search is
presumptively unreasonable “and therefore constitutionally
impermissible, unless an established exception
applies.” Strickler, 757 A.2d at 888.
Evans, 153 A.3d at 327–28.
Absent a valid, implied consent, we have required suppression courts to
evaluate a defendant’s actual consent based on the totality of all the
circumstances. Evans, 153 A.3d at 331; Commonwealth v. Danforth, 576
A.2d 1013, 1022 (Pa. Super. 1990) (en banc) (“[w]hether consent has been
voluntarily given is a question of fact [to be] determined in each case from
the totality of the circumstances.”), aff’d sub nom., Commonwealth v. Kohl,
615 A.2d 308 (Pa. 1992).
In determining the validity of a given consent, the Commonwealth
bears the burden of establishing that a consent is the product of
an essentially free and unconstrained choice—not the result of
duress or coercion, express or implied, or a will overborne—under
the totality of the circumstances. The standard for measuring the
scope of a person's consent is based on an objective evaluation of
what a reasonable person would have understood by the exchange
between the officer and the person who gave the consent. Such
-9-
J-S55028-17
evaluation includes an objective examination of the maturity,
sophistication and mental or emotional state of the defendant.
Gauging the scope of a defendant's consent is an inherent and
necessary part of the process of determining, on the totality of the
circumstances presented, whether the consent is objectively valid,
or instead the product of coercion, deceit, or misrepresentation.
Commonwealth v. Haines, 168 A.3d 231, 2017 PA Super 252, at *4 (filed
August 2, 2017) (quoting Commonwealth v. Smith, 77 A.3d 562, 573 (Pa.
2013) (internal citations omitted)). Necessarily, this includes consideration of
the coercive nature of an officer’s advisory of the potential for enhanced
criminal penalties. Evans, 153 A.3d at 331. Under such circumstances, we
have previously affirmed a suppression court’s decision to suppress the results
of a blood test where consent to the test was obtained after an officer read
the DL-26 form. Ennels, 167 A.3d at 724.
According to the Commonwealth, the reading of enhanced criminal
penalties for refusal from a DL-26 form prior to Kurtz’s consent did not
necessarily render his consent involuntary. See Commonwealth’s Br. at 37,
39. To determine whether the consent was voluntary, the Commonwealth
suggests that the court may consider a number of factors:
1) the defendant's custodial status; 2) the use of duress or
coercive tactics by law enforcement personnel; 3) the defendant's
knowledge of his right to refuse to consent; 4) the defendant's
education and intelligence; 5) the defendant's belief that no
incriminating evidence will be found; and 6) the extent and level
of the defendant's cooperation with the law enforcement
personnel.
Cleckley, 738 A.2d at 433 (citation omitted). The Commonwealth argues
that factors indicating voluntariness of the consent given included Kurtz’s
- 10 -
J-S55028-17
knowledge of his right to refuse, his prior DUI experience, his cooperation with
police, and belief that no incriminating evidence would be found. See
Commonwealth's Br. at 40-42.
In response, Kurtz correctly points out that the knowledge of the right
to refuse is not determinative. See Kurtz's Br. at 8; see Cleckley, 738 A.2d
at 432 (“[K]nowledge [of the right to refuse] on the part of the subject of the
search may be a factor in ascertaining whether consent was voluntarily given,
but [our Supreme Court] decline[d] the invitation to render such a factor
determinative of that issue.”).6 Moreover, according to Kurtz, the
Commonwealth is required to demonstrate a total absence of coercion for
Kurtz’s consent to be effective. Id. (citing in support Commonwealth v.
Harris, 239 A.2d 290, 293 (Pa. 1968) (“Consent must at least be freely given
to be effective. This means there must be a total absence of duress or
coercion, express or implied.” (citations omitted)).
Recently, in Ennels, we affirmed the suppression of a blood test based
on the finding that the defendant was informed that he could face enhanced
penalties if he refused the test. Ennels, 167 A.3d at 718-719; see also id.
at 722. In that case, the defendant was read “the DL-26 form that warned
____________________________________________
6In Cleckley, our Supreme Court held that an officer does not need to inform
an arrestee of the right to refuse a warrantless search for consent to be
voluntary under Pa. Const. Art. I, Section 8. Cleckley, 738 A.2d at 432
(declining to reverse suppression ruling on sole basis that there was no
showing that defendant was aware of right to refuse test).
- 11 -
J-S55028-17
him that, for at least one of the charges, he faced enhanced criminal penalties
if he refused to submit to the blood test.” Id. at 724. This Court held that
the trial court did not err in concluding that the threat of criminal penalty on
the DL-26 form rendered the defendant’s consent involuntary because
“Birchfield makes plain that the police may not threaten enhanced
punishment for refusing a blood test in order to obtain consent[.]” Id. (citing
Birchfield, 136 S.Ct. at 2186).
Here, the suppression court deemed dispositive Kurtz’s custodial status
and the use of duress or coercive tactics by law enforcement. Specifically, the
court found:
[Kurtz] was under arrest at the time [he consented to the test]
and was not free to leave the hospital room where the blood draw
was performed. Kurtz was also read the enhanced criminal
penalties provision of the DL-26 form, which expressly informed
him that a refusal to consent could subject him to enhanced
criminal penalties. Here, Kurtz was presented with a dilemma:
either consent to the blood draw and risk incriminating himself, or
face the possibility of enhanced criminal penalties for refusing to
consent. Under Birchfield, supra and Evans, supra, consent
cannot be voluntarily given when a defendant is under the cloud
of enhanced criminal penalties for the failure to consent.
TCO at 11. The court concluded that “Kurtz clearly did not provide voluntary
consent for the blood draw, as he was under arrest at the time and was clearly
informed that if he did not consent he would face the possibility of heightened
- 12 -
J-S55028-17
criminal penalties.” TCO at 12.7
Because the suppression court concluded that Kurtz consented to the
blood draw after being informed that he faced enhanced criminal penalties for
refusal, the court did not err in finding that his consent was involuntary under
the circumstances. See Ennels, 167 A.3d at 724. Accordingly, we affirm the
suppression ruling.
Order affirmed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/23/2017
____________________________________________
7 The trial court’s findings are supported by the record. See Notes of
Testimony (N.T.), 11/16/2016, at 16-18. At approximately 11:25 p.m., Kurtz
was taken into custody. See id. The Trooper transported Kurtz to Carlisle
Regional Medical Center, in Cumberland County for a blood draw. Id. at 16-
17. At approximately 11:45 p.m., Trooper read aloud the standard DL-26 (3-
12) implied consent warnings to Kurtz; thereafter, Kurtz gave his consent for
a blood sample. Id. at 17. The Trooper showed Kurtz the form, “explained
and pointed to everything [the Trooper] read, and [the Trooper] placed an ‘x’
where [Kurtz’s] signature would go if he would agree to the test.” Id. After
receiving the results of Kurtz’s blood test, the Trooper filed DUI-related
charges against Kurtz. See id. at 18.
- 13 -