Loading...
HomeMy WebLinkAboutCP-21-CR-0000905-2017 COMMONWEALTH : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : KYAI CHEROKEE WILLIAMS : CP-21-CR-0905-2017 IN RE: DEFENDANT’S OMNIBUS PRETRIAL MOTION OPINION & ORDER OF COURT Peck, J., August 25, 2017. Before this Court is Defendant Kyai Williams’s Omnibus Pretrial Motion to Suppress. Following a hearing on July 18, 2017, the matter was taken under advisement. This Court now denies the Motion to Suppress. Findings of Fact 1.On September 24, 2016, at approximately 12:00 a.m., Trooper Michael Bruce of the Pennsylvania State Police was on patrol in the North Earl Street area in Shippensburg, Cumberland County. 2.As Trooper Bruce was traveling south on Earl Street, he saw the Defendant’s vehicle traveling north towards the Trooper, ultimately passing him, with its high beam lights on. 3.Trooper Bruce pulled over the Defendant, who was the driver of that vehicle, for the high beam lights vehicle code violation. See 75 Pa.C.S.A. §4306(a). 4.Upon approaching the vehicle, Trooper Bruce smelled an odor of marijuana and observed the Defendant had bloodshot and glassy eyes. 5.Trooper Bruce questioned the Defendant about the use of marijuana, to which the Defendant reported that he smoked marijuana approximately one or two hours prior to being pulled over by the Trooper. Trooper Bruce asked the Defendant if he had anything to drink that night, to which the Defendant replied that he had two to three beers, one to two hours earlier. 6.Trooper Bruce gave the Defendant field sobriety tests, during which the Defendant showed signs of impairment. 7.No discussion regarding a blood draw was had during the roadside interaction. 8.Trooper Bruce took the Defendant to the Cumberland County Prison Booking Center to provide the Defendant an opportunity to give a blood sample. During the transport, the Trooper explained to the Defendant that he was being taken to the booking center, that he was going to be asked to submit to a blood draw, that he would face a license suspension if he refused, and that if he agreed to the blood draw that the phlebotomist would draw the blood at the booking center. Trooper Bruce asked if the Defendant had any questions, to which the Defendant replied no. Trooper Bruce asked the Defendant whether he was going to be willing to do the blood draw, to which he replied, “I’ll let you know”. 9.At the booking center, Trooper Bruce read the Defendant the “new” DL-26 form, which included language notifying Defendant that he was under arrest for driving under the influence, that he was being requested to submit to a chemical test of blood, that if he refused to do so his operating privilege would be suspended for at least 12 months, and that he had no right to speak with an attorney before deciding whether to submit to testing. Defendant signed the DL-26 form. 10.The DL-26 form read to Defendant did not include language regarding Defendant being subject to increased criminal penalties should he refuse the blood draw, nor did Trooper Bruce inform Defendant of any such enhanced penalties during any portion of their interaction. 11.Trooper Bruce asked the Defendant to consent to the legal blood draw, to which he agreed. Trooper Bruce reported that his interaction with the Defendant was normal, that the Trooper did nothing to coerce the Defendant to agree to the blood draw and that the Defendant comprehended the entire interaction. 12.The Commonwealth entered into evidence the written DL-26 warnings, the roadside motor vehicle recording, and the motor vehicle recording of the Trooper’s transport of the Defendant to the booking center. The Commonwealth did not enter any booking video into evidence. 2 13.The motor vehicle recordings corroborated the Trooper’s testimony that the Defendant was cooperative and forthcoming in his discussions with the Trooper. 14.Defendant was charged with: one count of Driving Under the Influence, rd Controlled Substance (3 Offense), a first degree misdemeanor, 75 Pa.C.S.A. §3802(d)(1)(i); one count of Driving Under the Influence, Controlled Substance rd (3 Offense), a first degree misdemeanor under 75 Pa.C.S.A. §3802(d)(1)(iii); one rd count of Driving Under the Influence, Combination of Drugs and Alcohol (3 Offense), a first degree misdemeanor under 75 Pa.C.S.A. §3802(d)(3); Unlawful Possession of Small Amount of Marijuana, and ungraded misdemeanor, Unlawful Possession of Drug Paraphernalia, an ungraded misdemeanor, and summary vehicle code violations of Driving Under Suspension and failing to lower high beams when within 500 feet of oncoming traffic. 15. Defendant filed an Omnibus Motion to Suppress the blood draw evidence on the basis that: 1) the chemical test warnings read to the Defendant were statutorily insufficient as required by 75 Pa.C.S.A. §1547(b)(2), and 2) that Defendant’s consent to the blood draw was not voluntary because, as citizens are presumed to know the law, the existence of Pennsylvania’s driving under the influence statute with enhanced criminal penalties that have been held unconstitutional under Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), and related Pennsylvania progeny, acts coercively to obtain the Defendant’s assent to the blood draw. Discussion Regarding the Defendant’s first issue that the DL-26 form read to the Defendant were insufficient warnings under 75 Pa.C.S.A. §1547(b)(1), we note that our colleague, The Honorable Thomas Placey, recently opined, in a case factually very similar to the instant case, that the defendant was properly advised of the consequences for a refusal of the blood draw under the new DL-26 form, specifically a license suspension, which is civil in nature and not deemed to be a criminal penalty. Commonwealth v. Gates, Jr., 3 (Cumb. Cty., J. Placey, 7/31/17). We defer to Judge Placey’s review of the new DL-26 form and likewise hold that such warnings in the instant matter are sufficient. Defendant secondarily argues that, because enhanced criminal penalties attendant to a refusal of a blood draw are still listed in Pennsylvania’s driving under the influence statute, any consent he provides can never be voluntary as such consent is necessarily, and always will be, coerced by the remaining existence of such statutes. By way of background, the United States Supreme Court held in Birchfield that states cannot impose criminal penalties upon individuals who refuse to submit to a warrantless blood test because such penalties violate an individual's Fourth Amendment right to be free from unreasonable searches and seizures. Birchfield, 136 S.Ct. at 2185-2186. Pennsylvania appellate courts thereafter held that Pennsylvania’s driving under the influence statutes, 75 Pa.C.S.A. §§3803 and 3804, imposed criminal penalties upon individuals who refuse to submit to blood tests and that they were therefore unconstitutional. Commonwealth v. Evans, 153 A.3d 323 (Pa.Super., 2016); Commonwealth v. Giron, 155 A.3d 635 (Pa. Super., 2017). The Commonwealth counters that the Defendant voluntarily consented to the blood draw. The Commonwealth bears the burden of establishing that an exception to the general warrant requirement applies. Commonwealth v. Smith, 77A.3d 562, 573 (Pa. 2013). If no exception applies, the evidence must be suppressed as the result of an unreasonable search and seizure. See id. at 571-72. The Commonwealth bears the burden of establishing Defendant knowingly and voluntarily consented to the search. Id. at 573. The Smith court summarized: In determining the validity of a given consent \[to a blood draw\], ‘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 of 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.’...Gauging the scope of a defendant’s consent is an inherent and necessary part 4 of the process of determining, on the totality of the circumstances presented, whether the consent is objectively valid, or instead the produce of coercion, deceit, or misrepresentation. Id. at 573. (internal citations omitted). We do not find persuasive Defendant’s argument that he could never provide a valid consent under the law. To the extent that Defendant argues he is presumed to know the law that necessarily coerces his consent with enhanced criminal penalties, the law now holds that Defendant is not subject to enhanced criminal penalties. We note that the Pennsylvania Superior Court indicated in Giron, that the Birchfield Court referred approvingly to implied consent laws that impose civil penalties on motorists who refuse a blood draw and that nothing in Birchfield casts doubt on any law that imposes such civil Evans,Birchfield consequences. 2016 PA Super 293, quoting , 136 S.Ct. at 2185; Giron, 155 A.3d at 639. Trooper Bruce did not advise Defendant of enhanced criminal penalties for any refusal to submit to a blood test. He advised only of a civil penalty of a license suspension. Trooper Bruce therefore validly advised the Defendant of the consequences of a refusal. All that remains is an analysis of whether Defendant’s consent was knowing and voluntary. Following a review of the record, it is apparent that Trooper Bruce, whom this Court found credible, did not use deceit, misrepresentation or coercion in obtaining the Defendant’s consent to the blood draw. The Defendant understood his actions and was cooperative in the entire roadside to blood draw interaction with the Trooper. The motor vehicle recordings and signed DL-26 form entered into evidence corroborated the Trooper’s testimony that Defendant understood what would happen with the blood draw and that he voluntarily agreed to it. We conclude, based on a totality of the circumstances, that the Defendant made a knowing and voluntary consent to give his blood to be tested. The blood result evidence was validly obtained and the Motion to Suppress will therefore be denied. 5 BY THE COURT, Christylee L. Peck, J Nathan L. Boob, Esq. Senior Assistant District Attorney Sean Owen, Esq. Office of the Public Defender 6 COMMONWEALTH : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : KYAI CHEROKEE WILLIAMS : CP-21-CR-0905-2017 IN RE: DEFENDANT’S OMNIBUS PRETRIAL MOTION ORDER OF COURT th AND NOW, this 25 day of August, 2017, upon consideration of the Defendant’s Omnibus Pretrial Motion, and following a hearing held on July 18, 2017, and review of the record, we find that the Defendant’s consent to the blood draw was knowing and voluntary, and accordingly, the Omnibus Pretrial Motion to Suppress is DENIED. BY THE COURT, Christylee L. Peck, J Nathan L. Boob, Esq. Senior Assistant District Attorney Sean Owen, Esq. Office of the Public Defender 7