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HomeMy WebLinkAboutCP-21-CR-0225-2006 COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. MONTRILL ANGELO BARBER CP-21-CR-0225-2006 IN RE: MOTION OF DEFENDANT TO SUPPRESS EVIDENCE OPINION AND ORDER OF COURT Bayley, J., April 3, 2007:-- Defendant, Montrill Angelo Barber, is charged with rape,1 robbery,2 simple assaulV and theft.4 He filed a motion to suppress evidence upon which a hearing was conducted on March 28, 2007. On December 14, 2005, Sergeant William Meneses of the Mechanicsburg Police Department obtained a warrant from a Magisterial District Judge to arrest defendant on the within charges. Defendant was arrested and placed into prison on January 10, 2006. He did not post bail. Counsel was appointed to represent him, and a preliminary hearing was conducted on January 23, 2006. On February 13, 2006, a Magisterial District Judge issued a search warrant to secure blood from the person of defendant. Police officers picked up defendant from prison that day and took him 118 PaC.S. S 3121(a)(1). 218 PaC.S. S 3701(a)(1)(v). 318 PaC.S. S 2701(a)(1) & (3). 418 PaC.S. S 3921 (a). CP-21-CR-0225-2006 to the Holy Spirit Hospital where two vials of blood were drawn. Defendant was then returned to prison. The police had the blood tested. Defendant maintains that all evidence obtained as a result of the taking of his blood must be suppressed because the seizure was illegal. He argues that his blood should not be obtained without counsel being present, and without his counseled consent.5 Defendant cites no authority whereby the police, acting on the authority of a search warrant issued upon probable cause, cannot seize evidence from his person after he has been arrested and has counsel. That is because there is no Fourth Amendment violation. Possibly, defendant is confusing his rights under the Sixth Amendment once the right to counsel attached. See In Interest of Pack, 420 Pa Super. 347 (1992). Defendant cites Commonwealth v. Shaw, 770 A.2d 295 (Pa 2001), in support of his motion to suppress evidence. In Shaw, a state trooper investigated an accident involving a van which contained a cooler with several unopened cans of beer, and other opened and empty cans of beer. The driver had been taken to a hospital. The trooper went to the hospital where he approached the driver who said he had operated the van. The driver had slurred speech, bloodshot and glassy eyes, and an odor of alcohol. The trooper told the driver of his Miranda rights and the Implied Consent Law, 75 PaC.S. Section 1547, and advised him that the hospital would be drawing a sample 5At the beginning of the suppression hearing defendant withdrew all other allegations in his omnibus pretrial motion. -2- CP-21-CR-0225-2006 of blood for treatment purposes. The driver asked that the trooper inform him of the results. A few minutes later, hospital personnel drew a blood sample for independent medical purposes. The trooper called the hospital a short time later and obtained the results, which indicated a blood alcohol content of .267 percent. The driver was arrested on a later date for driving under the influence. Subsequently, the trooper obtained the formal written results of the blood test through the issuance of a subpoena The driver sought to suppress evidence of the blood test results which was denied, and he was convicted. The Superior Court affirmed. The Supreme Court of Pennsylvania reversed, holding that the release of the results of the blood test to the trooper that had been taken for independent medical purposes pursuant to Section 3755(a) of the Vehicle Code, without a warrant and in the absence of exigent circumstances, violated Article I, Section 8 of the Pennsylvania Constitution.6 Shaw provides no support for defendant in the present case. There was no search warrant to support the seizure of the blood in Shaw, while here blood was drawn from defendant under the authority of a search warrant issued upon probable cause. That seizure was legal. Therefore, the following order is entered. ORDER OF COURT AND NOW, this day of April, 2007, the motion of defendant to 6 The Vehicle Code at 75 PaC.S. Section 3755(a) requires hospital personnel, in cases where probable cause exists to believe that an emergency room patient has violated the Pennsylvania DUI statute, to take blood samples for testing. -3- CP-21-CR-0225-2006 suppress evidence, IS DENIED. Christin Mehrtens-Carlin, Esquire Assistant District Attorney Dirk Berry, Esquire F or Defendant :sal By the Court, Edgar B. Bayley, J. -4- COMMONWEAL TH V. MONTRILL ANGELO BARBER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CP-21-CR-0225-2006 IN RE: MOTION OF DEFENDANT TO SUPPRESS EVIDENCE AND NOW, this suppress evidence, IS DENIED. Christin Mehrtens-Carlin, Esquire Assistant District Attorney Dirk Berry, Esquire F or Defendant :sal ORDER OF COURT day of April, 2007, the motion of defendant to By the Court, Edgar B. Bayley, J.