Com. v. Piscatello, F.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
FRANK C. PISCATELLO,
Appellee No. 1703 WDA 2016
Appeal from the Order October 5, 2016
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0000325-2016
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED OCTOBER 13, 2017
The Commonwealth of Pennsylvania appeals from the October 5, 2016
order granting Appellee Frank Piscatello’s suppression motion. We vacate
and remand for further proceedings consistent with this memorandum.
The factual background and procedural history of this case are as
follows. On October 13, 2015, Appellee was pulled over by a member of the
Pennsylvania State Police and admitted to drinking several beers prior to
operating the vehicle. Appellee was transported to a local hospital and
informed, by a 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 alcohol in his blood
stream.
* Retired Justice specially assigned to the Superior Court
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On April 14, 2016, the Commonwealth charged Appellee via criminal
information with two counts of driving under the influence (“DUI”)-general
impairment1 and five summary offenses. On September 6, 2016, Appellee
moved to suppress the blood draw evidence. Thereafter, the trial court held
a suppression hearing which encompassed this case and six other cases
which raised similar legal issues. On October 5, 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 two issues for our review:
1. Whether the [trial] court erred by suppressing evidence that was
seized based upon the [trooper’s] good faith reliance on
appellate precedent[?]
2. Whether [Appellee’s] inculpatory statements regarding his
alcohol use render any potential coercion inert as [Appellee] was
ready and willing to admit to his alcohol use[?]
Commonwealth’s Brief at 6.
Both 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
1
75 Pa.C.S.A. §§ 3802(a)(1), 3802(a)(2).
2
On November 8, 2016, the trial court ordered the Commonwealth to file a
concise statement of errors complained of on appeal (“concise statement”).
See Pa.R.A.P. 1925(b). On November 29, 2016, the Commonwealth filed its
concise statement. On December 9, 2016, the trial court issued an order
stating that its reasoning for granting Appellee’s suppression motion was
included in its October 5, 2016 opinion. Both of the Commonwealth’s issues
were included in its concise statement.
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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., 79 A.3d 1073,
1080 (Pa. 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
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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, 136 S.Ct 2160 (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). 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. 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 this case.3
3
The Commonwealth attempts to draw a distinction between the rule set
forth in Davis v. United States, 564 U.S. 229 (2011) and Illinois v. Krull,
480 U.S. 340 (1987) and the good-faith exception to the exclusionary rule
originally announced in United States v. Leon, 468 U.S. 897 (1984).
Referred to as the Davis/Krull rule, in those two cases the Supreme Court
of the United States held that when the police conduct a search in
objectively reasonable reliance upon binding appellate precedent or statutory
(Footnote Continued Next Page)
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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 (1989); Schmerber v. California,
384 U.S. 757, 767–768 (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,
135 S.Ct. 530, 536 (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 (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 (1978). In Missouri v. McNeely, 569 U.S. 141(2013), the Supreme Court of the United States held that the exigent
_______________________
(Footnote Continued)
authority which is later invalidated, the exclusionary rule does not apply.
Davis, 564 U.S. at 249-250; Krull, 480 U.S. at 347.
The Supreme Court of the United States made clear in both Davis and Krull
that it was merely applying the good-faith exception to the exclusionary rule
and not announcing a new exception to the exclusionary rule. See Davis,
564 U.S. at 249 (this case “comes within the good-faith exception”); Krull,
480 U.S. at 346 (internal citation omitted) (“We granted certiorari to
consider whether [the] good-faith exception to the Fourth Amendment
exclusionary rule applies” in this case.). Thus, the Davis/Krull rule is just a
specific example of the good-faith exception.
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circumstances exception rarely applies in DUI cases. See id. at 149-156.
Consent, on the other hand, is a factual issue.
“To effectuate the rights guaranteed under the Fourth Amendment, in
the early part of the last century, the [Supreme Court of the United States]
adopted the exclusionary rule, which bars the use of evidence obtained
through an illegal search and seizure.” Commonwealth v. Arter, 151 A.3d
149, 153 (Pa. 2016) (citation omitted). After approximately two decades of
strict adherence to the exclusionary rule, the Supreme Court of the United
States adopted the good-faith exception to the exclusionary rule.
Under the good-faith exception, “when the police act with an
objectively reasonable good-faith belief that their conduct is lawful, or when
their conduct involves only simple, isolated negligence, the deterrence
rationale loses much of its force, and exclusion [is not appropriate].” Davis
v. United States, 564 U.S. 229, 238 (2011) (internal quotation marks and
citations omitted). In Davis, the Court held that when a police officer
conducts a search pursuant to binding appellate precedent, which is later
overturned, the evidence seized as a result of that search is admissible
under the good-faith exception. Id. at 239-241. In Illinois v. Krull, 480
U.S. 340 (1987), police conducted a warrantless administrative search
pursuant to a state statute. Later, that statute was found to be
unconstitutional. Nonetheless, the Supreme Court of the United States held
that the good-faith exception to the exclusionary rule applied because the
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officer acted in an objectively reasonable manner in relying upon the
subsequently invalidated statute. Id. at 349-351. Therefore, evidence that
is collected pursuant to a state statute that has previously been upheld by
an appellate court, but which is later declared unconstitutional, is generally
admissible under the good-faith exception.
The good-faith exception distinguishes the Fourth Amendment of the
United States Constitution from its Pennsylvania counterpart since “it is
settled that under Article I, Section 8 of the Pennsylvania [C]onstitution, a
good[-]faith exception to the exclusionary rule does not exist.”
Commonwealth v. Frederick, 124 A.3d 748, 756 (Pa. Super. 2015),
appeal denied, 138 A.3d 2 (Pa. 2016) (citations omitted); Commonwealth
v. Arnold, 932 A.2d 143, 148 (Pa. Super. 2007) (citation omitted);
Commonwealth v. Edmunds, 586 A.2d 887, 888 (Pa. 1991). Although a
concurring opinion authored by a member of this Court suggests that the
good-faith exception may apply to exclusionary claims raised under Article I,
Section 8 of the Pennsylvania Constitution in circumstances such as the ones
present in this case, see Commonwealth v. Burgos, 64 A.3d 641, 657
(Pa. Super. 2013) (Shogan, J., concurring), appeal denied, 77 A.3d 635 (Pa.
2013), the majority in Burgos explicitly rejected this statement and noted
that “the good[-]faith exception does not exist [under] Pennsylvania [law].”
Id. at 657 n.22 (citation omitted).
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We have traced these distinctions between the Fourth Amendment of
the United States Constitution and Article I, Section 8 because the precise
legal authority Appellee cited in support of his motion has a significant
impact upon the resolution of the instant appeal. In this case, Appellee
moved to suppress the blood draw evidence under both the Fourth
Amendment of the United States Constitution and Article I, Section 8 of the
Pennsylvania Constitution. The trial court correctly found that there is no
good-faith exclusion under Article I, Section 8 of the Constitution.
Therefore, the Commonwealth is not entitled to relief on its first claim of
error.
In its second issue, the Commonwealth argues that Appellee’s
statement that he drank several beers prior to driving renders any coercion
of the partially incorrect DL-26 warnings “inert.” Commonwealth’s Brief at
19. In other words, the Commonwealth argues that, notwithstanding the
partially inaccurate DL-26 warnings, Appellee’s consent was voluntary.
When a defendant is given partially inaccurate DL-26 warnings, the
trial court must evaluate his or her “consent based on the totality of all the
circumstances and given the partial inaccuracy of the officer’s advisory.”
Evans, 153 A.3d at 331 (internal ellipses and alterations omitted), quoting
Birchfield, 136 S.Ct. at 2186. Our Supreme Court has explained that:
While there is no hard and fast list of factors evincing
voluntariness, some considerations include: 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
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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.
Commonwealth v. Gillespie, 821 A.2d 1221, 1225 (Pa. 2003) (Eakin, J.,
opinion announcing the judgment of the court) (internal quotation marks
omitted), citing Commonwealth v. Cleckley, 738 A.2d 427, 433 n.7 (Pa.
1999).
The trial court weighed these factors and determined that Appellee’s
consent to the blood draw was not voluntary. We conclude that one of the
trial court’s factual findings is not supported by the record. With respect to
the sixth factor set forth in Gillespie, i.e., Appellee’s cooperation with law
enforcement personnel, the trial court found that there was no evidence
presented regarding whether Appellee cooperated with the trooper. See
Trial Court Opinion, 10/5/16, at 8. The record reflects, however, that
Appellee admitted to the trooper that he drank several beers and he
consented to a portable breathalyzer test. N.T., 9/15/16, at 16. After that
test showed a reading of .095, Appellee admitted to the trooper that he was
likely over the legal limit of .08. Id. at 17.
The Commonwealth, however, does not challenge the trial court’s
conclusion that three of the other five factors weighed against a finding that
Appellee’s consent was voluntary. He was in custody at the time police
asked him to consent to the blood draw. The police used coercive tactics
(albeit unknowingly) by reading the partially inaccurate DL-26 warnings.
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Similarly, Appellee had no knowledge of his right to refuse the blood draw as
police informed him that he would be subject to increased criminal penalties
if he refused.
Thus, this case turns on the weighing of these factors. We believe that
the trial court is in the best position to weigh these factors and determine
whether, in light of our conclusion that Appellee cooperated with police, his
consent was voluntary. Therefore, we will vacate the suppression order and
remand this case to the trial court for further proceedings consistent with
this memorandum.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/2017
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