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HomeMy WebLinkAboutCP-21-CR-2423-2007 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : ROBERT REED STAATS HOLLER : CP-21-CR-2423-2007 IN RE: MOTION TO SUPPRESS EVIDENCE OPINION AND ORDER OF COURT Bayley, J., January 8, 2008:-- Defendant, Robert Holler, is charged with driving under the influence, general 12 impairment with accident, driving under the influence of controlled substances, driving 3 under the influence with a combination of alcohol and controlled substances, and 4 accidents involving damage to unattended property. He filed a motion to suppress evidence upon which a hearing was conducted on January 4, 2008. We find the following facts. On January 12, 2007, at 11:43 a.m., Trooper Michael Brandtonies of the Pennsylvania State Police was dispatched to the scene of a one vehicle accident on Park Drive in Monroe Township, Cumberland County. It was reported to him that a vehicle had struck a stone embankment, and that the operator had fled on foot. A __________ 1 75 Pa.C.S. § 3802(a)(1). 2 75 Pa.C.S. § 3802(d)(1)(iii). 3 75 Pa.C.S. § 3802(d)(3). 4 75 Pa.C.S. § 3745. CP-21-CR-2423-2007 description of the operator was provided in the dispatch. About one-quarter mile before the scene of the accident, Trooper Brandtonies stopped at the Cold Spring Tavern to see if the person described in the dispatch had gone there. The trooper saw a person walking toward the tavern who matched the description. This was approximately fifteen to twenty minutes after he had received the dispatch. The person, who was Robert Holler, had trouble walking. There was blood on his head. Holler told the trooper that he had just been involved in a crash, and was going to the tavern to call a tow truck. Trooper Brandtonies smelled alcohol on Holler. He had glassy eyes, was very unstable, and his speech was slow and slurred. The trooper had to steady him. Holler told the trooper he had two drinks earlier that morning. Trooper Brandtonies arrested Holler for driving under the influence, and turned him over to another trooper who 5 arrived who took him to a booking center. Trooper Brandtonies then went to the scene of the accident, completed his investigation, and called the booking center. A booking agent, Teresa Coyle, told him that two blood tests were performed on defendant that 6 measured blood alcohol at .059 and .056. She said that she believed something else was going on. Trooper Brandtonies has extensive experience in dealing with persons driving under the influence and in alcohol related matters generally. In all his __________ 5 Trooper Brandtonies did not do field sobriety tests because of the head injury even though Holler declined medical assistance. 6 The tests were performed at 1:06 p.m. and 1:07 p.m. on an Intoxilyzer 5000 EN. Defendant had been given Implied Consent warnings and agreed to take the tests. -2- CP-21-CR-2423-2007 experience he had never seen the kind of indicators that defendant had where the alcohol test results were as low as they were. He had expected, based on his experience and what he knew at that point about defendant, that his blood alcohol content would be .15 percent or higher. Trooper Brandtonies went to the booking center at approximately 1:30 p.m. He decided that he would take defendant to a hospital for a blood test. He went to where defendant’s personal property was gathered and found drug paraphernalia consisting of a metal pipe with wire mesh and black residue in it. He told defendant he suspected that he had been driving while under the influence of illegal drugs. They went to the Carlisle Hospital, arriving between 2:00 p.m. and 2:30 p.m. Trooper Brandtonies read defendant Implied Consent warnings and asked him to consent to the taking of blood. Defendant refused to consent to a blood test. Trooper Brandtonies then took defendant to the State Police Barracks which was near the hospital. He called George Geisler who is the law enforcement director for alcohol and drugs with the Pennsylvania Driving Under the Influence Association, and a part-time police officer in Newberry Township, York County. In August 2006, after completing a course based on standards approved by the Federal Highway Administration, Geisler was certified by the International Chief’s of Police Association as a drug recognition expert. Trooper Brandtonies told Geisler everything he knew up to that point. Geisler told the trooper to do two physical tests on defendant, and what indicators to look for. The first was a Romberg balance test which involves standing -3- CP-21-CR-2423-2007 still with head backwards and eyes closed for thirty seconds. The second was a finger to nose test. The trooper tested defendant and told Geisler the results. Geisler asked him to look for other indicators, of which the trooper saw that defendant had dilated pupils, a slow response to bright light, body tremors, significant eye tremors, frequent mood swings, he was very excited, and his pulse was 122 beats per minute. A normal pulse is 60 to 90 beats per minute. Geisler told Trooper Brandtonies that there are seven categories of illegal drugs, and from all of the information he had it was his opinion that defendant was under the influence of chemical stimulants, which are central nervous system stimulants. Trooper Brandtonies then applied for a search warrant to obtain blood from defendant based on the following affidavit of probable cause: On 1/12/07, I was dispatched to a single vehicle crash at the intersection of Park Place and Millers Rd, Monroe Twp, Cumberland Co, PA. The operator of the vehicle was said to have fled the area by foot on Park Place and headed toward Cold Spring Tavern. I found a man identified as Robert R.S. HOLLER, DOB 01/13/58, matching the description of the operator. He was also observed with minor cuts and blood on his face. HOLLER related that he was just involved in a one vehicle crash and that he was the operator of that vehicle. While speaking with HOLLER, I observed classic signs of intoxication impairment. He had an odor of an alcoholic beverage about his person. His eyes were bloodshot and glassy. He walked in a staggered movement and swayed in place when he was not walking. His speech was slow and slurred. He was then taken into custody and transported to the Cumberland County Processing Center, where he was asked to take a breath test. The test result of the breath test through an Intoxilyzer 5000EN indicated that operator’s blood alcohol concentration (BAC) was at a level of .05%. Corrections Officer COYLE contacted me via telephone in regards to the result of the BAC test and her observations of HOLLER. Based on her training and experience, it was C.O. COYLE’s opinion that HOLLER was under the -4- CP-21-CR-2423-2007 influence of a controlled substance. I then went to the Cumberland County Processing Center to gather more information of HOLLER. I then discovered a metal pipe with a wire filter commonly known to be used for smoking crack cocaine among the items found on HOLLER during the time of arrest. HOLLER was then transported to Carlisle Regional Medical Center for a blood test. After arriving at the Medical Center, HOLLER was read his implied consent warnings and requested to submit to a blood test for a presence of a controlled substance. HOLLER then refused the test. The implied warnings were then re-read to HOLLER and he still refused. This was witnessed by Alice KENDRICK who is employed with Carlisle Regional Medical Center. HOLLER was then brought to PA State Police Carlisle Station while your affiant attempted to locate and speak with a Drug Recognition Officer (DRE). I then made contact with Officer George C. GEISLER, Jr of the Newberry twp Police Department who is DRE certified and considered an expert of drug recognition through the Pennsylvania State Police. Officer GEISLER received his certificate in August 2006. GEISLER indicated several Standardized Field Sobriety Tests to go through and look for other indicators for the presence of a stimulant drug in HOLLER’s blood system. These other indicators include but are not limited to dialated [sic] pupils, high body temperature, tremors, excitedness, anxiety, redness of his nose, runny nose, pulse over 90 beats per minute and restlessness. I had HOLLER perform these SFSTs which were a time test and a finger to nose test. These tests gave clues that HOLLER was possibly under the influence of a controlled substance. I also observed HOLLER as having dialated [sic] pupils, show response to bright light in regard to his pupils, total body tremors, excitedness, eye tremors, mood swings, and a pulse of 122 beats per minute based on a 30 second count. GEISLER indicated that all of these clues and indicators are signs that HOLLER is possibly or likely under the influence of a controlled substance. A Magisterial District Judge issued the warrant, and Trooper Brandtonies took defendant back to the Carlisle Hospital where he obtained his blood. Defendant maintains that the results of the test of his blood must be suppressed. He initially argues that Trooper Brandtonies did not have reasonable grounds to believe that he operated a vehicle while under the influence of a controlled substance; therefore, he -5- CP-21-CR-2423-2007 did not have a legal basis to ask him to submit to a blood test. The Vehicle Code at 75 Pa.C.S. Section 1547: (a) General rule.— Any person who drives, operates or is in actual shall physical control of the movement of a vehicle in this Commonwealth be deemed to have given consent to one or more chemical tests of breath,bloodorurine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been drivinga , operating or in actual physical control of the movement of vehicle : in violation of section (1) 1543(b)(1.1) (relating to driving 3802 (relating while operating privilege is suspended or revoked), tocontrolled substance driving under influence of alcohol or ) . . . . Based on everything that Trooper Brandtonies knew when he asked defendant to submit to a blood test while at the Carlisle Hospital, which included defendant having operated a vehicle in a one vehicle crash, his overt and manifest signs of intoxication, his blood alcohol tests being significantly lower than the trooper had ever experienced with a person who had the indicators of intoxication that defendant had, and his having in his possession a drug smoking device with residue in it, we are satisfied Trooper Brandtonies had reasonable grounds to believe that defendant was under the influence of a controlled substance which the Intoxilyzer 5000 EN, a device that tests solely for Matthews v. Commonwealth, alcohol in the blood, could not detect. See 115 Pa. Karabinos v. Commonwealth of Pennsylvania, Department of Commw. 403 (1988); Transportation, Bureau of Driver Licensing, 739 A.2d 601 (Pa. Commw. 1999). Therefore, Trooper Brandtonies legally sought a test of defendant’s blood. We are also -6- CP-21-CR-2423-2007 satisfied that the affidavit that supported the issuance of the search warrant to seize blood from defendant was supported by probable cause. These conclusions, however, do not end the inquiry because, when Trooper Brandtonies first took defendant to the Carlisle Hospital, and after he advised him of his Implied Consent warnings, defendant refused to submit to a blood test. In Commonwealth v. Mulhollan, 55 Cumberland L.J. 126 (2007), a police officer went to the scene of an accident in which the defendant operated a vehicle. The officer found that the defendant was manifestly under the influence of alcohol. The defendant was arrested for driving under the influence, taken to a booking center, and advised of the warnings required under the Implied Consent Law. He refused to take a test of his blood alcohol content. The police officer then obtained a search warrant to seize the defendant’s blood based on probable cause to believe that he had operated a motor vehicle while under the influence of alcohol. The warrant was issued, blood was seized and tested for alcohol. The defendant filed a motion to suppress the results of the tests. We stated: Commonwealth v. Eisenhart, In 531 Pa. 103 (1992), the Supreme Court of Pennsylvania stated: whether the appellant has The issue before this Court is the right to refuse to submit to blood alcohol testing If there is such a right, we under the Motor Vehicle Code. must determine whether blood test results acquired in contravention of that asserted right should be suppressed. (Emphasis added.) The facts were that appellant’s vehicle crashed into the cement wall of a residence. A police officer arrived at the scene and after investigating, arrested appellant for driving under the influence. Appellant -7- CP-21-CR-2423-2007 alternately agreed and refused to submit to a blood alcohol test. He was then transferred to a hospital where he refused to consent to a test. Notwithstanding, blood was drawn from him. He filed a motion to suppress evidence of the results of the test, which was denied. He was convicted, and the Superior Court of Pennsylvania affirmed the conviction. Appellant argued that once he refused to submit to a blood test, the Implied Consent provision of the Motor Vehicle Code, 75 Pa.C.S. Section 1547, prohibited the testing of his blood for alcohol level, and the subsequent evidentiary use of such test results was prejudicial error. The Commonwealth argued that the testing of the blood satisfied both statutory and constitutional requirements, that the police officer complied with the requirements which permit blood to be tested upon the showing of probable cause, and that the police officer validly obtained the test results from a search incident to the lawful arrest and/or under exigent circumstances. The Supreme Court of Pennsylvania noted that Section 1547(b)(1) provides: If any person placed under arrest for a violation of Section 3731 (relating to driving under influence of alcohol or controlled substance) is requested to submit to a chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the 9 person for a period of 12 months. The Court concluded that Section 1547 “grants an explicit right to a driver who is under arrest for driving under the influence to refuse to consent to chemical testing.” Once a conscious driver denies consent, the testing shall not be conducted. Finding that it was error not to suppress the results of appellant’s blood test “because it was taken unlawfully,” the Court reversed the conviction for driving under the Commonwealth v. Riedel, influence, and ordered a new trial. In 651 A.2d 135 (Pa. 1994), the Supreme Court, commenting on its decision in Eisenhart , stated: “We held that because the appellant was under arrest, he had an explicit statutory right to refuse to consent to blood testing and suppressed the results of the test.” (Footnote 10 omitted.) 9 Section 1547(b)(1) now reads: “if any person placed under arrest for a violation of section 3802 is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person . . . .” Section 3802 is now the driving under the influence of alcohol or controlled substance section of the Vehicle Code. -8- CP-21-CR-2423-2007 Mulhollan We concluded in that: Eisenhart was not decided on the basis that appellant’s blood was drawn without a search warrant. Rather, it was decided based on a statutory right that we believe is applicable to the facts in the present case. Defendant herein was arrested for driving under the influence, and he refused a test of his blood alcohol content. Under the same reasoning Eisenhart as in , once a person is arrested for driving under the influence andrefusesupon request to take a test, a search warrant cannot be used in contravention of the statutory right in Section 1547 that “testing shall not be conducted.” Securing a search warrant in the present case is Eisenhart a distinction without a difference from , where, after a request and a refusal, blood was taken without a search warrant based on 11 probable cause and exigent circumstances. Accordingly, the motion of defendant to suppress evidence of the results of the alcohol content in the blood drawn from him, will be granted. (Footnote 12 omitted.) 11 Because defendant was taken to a hospital by Officer Dunkerly for the purpose of having blood drawn, and not because he required treatment in an emergency room, Section 3755(a) of the Vehicle Code, that requires hospital personnel to take a blood sample where probable cause exists to believe that the person being treated was driving while under the Commonwealth v. Keller, influence of alcohol, is not implicated. See 823 A.2d 1004 (Pa. Super. 2003). We note that there is no issue before us of whether a test result would have to be suppressed if, after an arrest on probable cause to believe that a person was operating a motor vehicle while under the influence of alcohol there was no request to submit to chemical testing, but a search warrant was issued which resulted in the Commonwealth v. Kohl, removal of blood. See 532 Pa. 152 (1992), where the Supreme Court noted that the Implied Consent provisions of Section 1547 of the Vehicle Code “dispense with the need to obtain a warrant.” The only difference between the facts in the present case and those in Mulhollan is that when defendant herein refused a test of his blood it was after he had consented to a test of his breath. That is a distinction without a difference. Having felt -9- CP-21-CR-2423-2007 Mulhollan Commonwealth compelled to suppress the blood test in on the authority of v. Eisenhart, supra, we feel the same way here. Therefore, the following order is entered. ORDER OF COURT AND NOW, this _________ day of January, 2008, the motion of defendant to IS suppress the results of the test of his blood drawn at the Carlisle Hospital, GRANTED. By the Court, Edgar B. Bayley, J. Daniel Sodus, Esquire Assistant District Attorney Stephen O. Fugett, Esquire For Defendant :sal -10- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : ROBERT REED STAATS HOLLER : CP-21-CR-2423-2007 IN RE: MOTION TO SUPPRESS EVIDENCE ORDER OF COURT AND NOW, this _________ day of January, 2008, the motion of defendant to IS suppress the results of the test of his blood drawn at the Carlisle Hospital, GRANTED. By the Court, Edgar B. Bayley, J. Daniel Sodus, Esquire Assistant District Attorney Stephen O. Fugett, Esquire For Defendant :sal