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Home My WebLink AboutCP-21-CR-0002727-2016 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-2727-2016 v. : : COLBY MICHAEL SNYDER : IN RE: OPINION PURSUANT TO P.A. R.C.P 1925 BREWBAKER, J., April 19, 2017 The Commonwealth appeals this Court’s March 3, 2017 order granting Defendant’s motion to suppress. For the reasons that follow, the Court respectfully requests that its decision be affirmed. FACTS AND PROCEDURAL HISTORY On June 11, 2016, at approximately 9:25 p.m., Trooper Michael Rosewarne was on 1 traffic patrol on Interstate 81 in South Middleton Township. Trooper Rosewarne noticed a silver vehicle travelling at a high rate of speed, changing lanes, weaving, and turning without a 2 signal. After stopping the vehicle and speaking to the driver, Defendant Colby Snyder, Trooper 3 Rosewarne noticed an odor of alcoholic beverage. Defendant was staggering, appeared slightly 4 disheveled, and had trouble locating his documents. During the standard field sobriety tests, Defendant failed the Horizontal Gaze Nystagmus test and the walk and turn test, and refused to 1 Notes of Testimony of the Suppression Hearing held March 3, 2017 (hereinafter “N.T.”), pg. 4. 2 N.T. pgs. 5-6. 3 N.T. pg. 7. 4 N.T. pgs. 7-8. 5 take the one-leg stand test, stating “I don’t want to do the test, just go ahead and arrest me.” His 6 preliminary breath test revealed a 0.121 blood alcohol content. Following his arrest for driving under the influence, Trooper Rosewarne took Defendant to the Cumberland County Booking Center, where the Trooper read Defendant the standard DL- 26 form, including the notification of increased penalties for failure to submit to chemical 7 testing. After being read the form, Defendant agreed to submit to a blood test, with a result of a 8 0.213 blood alcohol content. Defendant never volunteered to provide a blood sample, but did 9 consent to give his blood when requested to do so by the Trooper. Defendant filed a timely motion to suppress on December 16, 2016. A hearing on Defendant’s motion was held on March 3, 2017, after which this Court granted the motion on the basis of its decision in three prior cases. Although the three prior cases were not appealed, on March 28, 2017, the Commonwealth filed notice of its appeal to the Superior Court in the present case. In response to the Court’s Order of March 30, 2017, the Commonwealth filed its Concise Statement on April 12, 2017. ANALYSIS The Commonwealth’s first complaint is that suppression was improper because the blood draw was based on actual consent, and that therefore the reading of the DL-26 form did not coerce the Defendant. We disagree. The basis for Defendant’s Motion to Suppress arose as a result of the recent United States Supreme Court decision in Birchfield v. North Dakota, 136 S. Ct. 2160, 195 L. Ed. 2d 560 5 N.T. pgs. 11-13. 6 N.T. pg. 13. 7 N.T. pgs. 14-15; Commonwealth Exhibit #1. 8 N.T. pg. 16. 9 N.T. pg. 18. 2 (2016). Decided in June of last year, Birchfield addressed the constitutionality of implied consent laws that require motorists to consent to blood alcohol testing if arrested on suspicion of driving under the influence. Id. at 2169, 195 L. Ed. 2d. at 570. After a very thorough analysis, the Supreme Court found that because the impact on privacy is slight, the Fourth Amendment to the United States Constitution does permit warrantless breath tests incident to arrests for drunk driving. Id. at 2183, 195 L. Ed. 2d. at 587. The Court arrived at a different conclusion, however, with regard to blood tests, finding that “\[b\]lood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test.” Id. Thus, the Court held that because breath tests are significantly less intrusive than blood tests, a breath test, but not a blood test, may be administered as a search incident to an arrest for drunk driving. Id. at 2185, 195 L. Ed. 2d. at 588. Additionally, although a search warrant may be sought for blood evidence pursuant to an arrest for drunk driving, no search warrant was sought in the instant case. Pursuant to the Birchfield analysis and holding, the question then becomes whether Pennsylvania’s implied consent law necessarily invalidates an otherwise valid consent to a blood test. While this ultimate question was not squarely decided by Birchfield, its language is instructive: The North Dakota Supreme Court held that one of the unnamed petitioner’s, Beylund, consent was voluntary on the erroneous assumption that the State could permissibly compel both blood and breath tests. “Because voluntariness of consent to a search must be ‘determined from the totality of all the circumstances,’ we leave it to the state court on remand to 10 reevaluate Beylund’s consent given the partial inaccuracy of the officer’s advisory.” Birchfield 10 Steve Michael Beylund was arrested for driving under the influence, and was taken to a nearby hospital and read North Dakota’s implied consent advisory. The advisory informed him that a refusal to consent to the blood test was 3 at 2186, 195 L. Ed. 2d. at 590 (internal citations omitted). Although Pennsylvania does not make refusal to consent to a blood alcohol test a crime in and of itself, there are consequences for a refusal, including increased penalties for a resulting driving under the influence conviction and administrative sanctions in the form of a separate license suspension. 75 Pa. C.S. § 1547; 75 Pa. C.S. § 3804(c). Defendant was advised of these consequences by Trooper Rosewarne when the Trooper read to Defendant Pennsylvania’s implied consent language from the DL-26 form. In light of Birchfield v. North Dakota, when reviewing the totality of the circumstances, including the sanctions cited in the DL-26 form, coupled with the failure to offer Defendant a breath test, and Defendant’s refusal to take one of the standard field sobriety tests, the situation was sufficiently coercive such as to invalidate Defendant’s otherwise lawful consent. The Commonwealth’s second and third complaints are that the police were following established law (basically were acting in “good faith”) and that this Court should have created a good faith exception to Birchfield. Pennsylvania has a long history of jurisprudence declining to adopt a “good faith” 11 exception, emphasizing the increased protections available to our citizenry due to protections contained within our state constitution. Although the Commonwealth attempts to argue that the Trooper acted within “established law,” and therefore the blood test should be validated by this show of “good faith,” this misstates the law. According to the United States Supreme Court, “\[s\]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Whren v. United States, 517 U.S. 806, 813 (U.S. 1996). While this Court completely accepts that Trooper Rosewarne acted properly under the law at the time in requesting consent for a blood draw, the law under Birchfield now invalidates that consent. This Court declined to overrule our a crime. Beylund then consented to having his blood drawn which was found to contain an amount of alcohol significantly above the legal limit. Id. at 2172, 195 L. Ed. 2d. at 573-74. 11 See, e.g., Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991). 4 Supreme Court’s decision that there is no “good faith” exception in Pennsylvania, and found that the results of the blood test must be suppressed. It is respectfully submitted that this Court did not commit any error, and it is requested that the Superior Court affirm this Court’s Order of March 3, 2017 granting Defendant’s Motion to Suppress. April 19, 2017 ________________________________ Jessica E. Brewbaker, J. Courtney Hair LaRue, Esquire Assistant District Attorney Bradon Toomey, Esquire Assistant Public Defender :rlm 5