COMMONWEALTH of Pennsylvania, Appellant v. Gregory Alan KURTZ
No. 286 MDA 2017
Superior Court of Pennsylvania.
Submitted July 31, 2017. Filed October 23, 2017
172 A.3d 1153
We are reminded that [t]he offense of disorderly conduct is not intended as a catchall for every act which annoys or disturbs people; it is not to be used as a dragnet for all the irritations which breed in the ferment of a community. It has a specific purpose; it has a definitive objective, it is intended to preserve the public peace; It has thus a limited periphery beyond which the prosecuting authorities have no right to transgress any more than the alleged criminal has the right to operate within its clear outlined circumference.
Commonwealth v. Hock, 556 Pa. 409, 728 A.2d 943, 947 (1999) (quoting Commonwealth v. Greene, 410 Pa. 111, 189 A.2d 141, 145 (1963)). While we do not condone the behavior of N.M.C. or his classmates, we conclude that the evidence before the trial court was insufficient to prove that N.M.C. created a hazardous or physically offensive condition.
Judgment of sentence vacated.
John A. Abom, Carlisle, for appellee.
BEFORE: DUBOW, RANSOM, and STRASSBURGER,* JJ.
OPINION BY RANSOM, J.:
The Commonwealth appeals from the order entered January 19, 2017, granting the motion to suppress filed by Appellee, Gregory Alan Kurtz.1 We affirm.
On December 2, 2015, at approximately 23:13 hours, Trooper Cummings of the Pennsylvania State Police stopped [Kurtz] on I-81 near mile marker 49.5, Middlesex Township, Cumberland County, Pennsylvania. Trooper Cummings called for back-up because he had someone else in the back of his vehicle in custody for DUI. Trooper Caley arrived as back-up. Trooper Cummings apprised Trooper Caley of observations he had made of [Kurtz] and Trooper Cummings left the scene.
Trooper Caley approached [Kurtz], who was in his vehicle and immediately detected the odor of an alcoholic beverage emanating from the vehicle. The [T]rooper asked [Kurtz] for his driver‘s license, registration, insurance and explained to [Kurtz] the reason for the stop. In addition to the smell of an alcohol beverage, the [T]rooper noticed that [Kurtz] had bloodshot [] and glassy eyes, sleepy or sluggish behavior and was having difficulty retrieving the requested documents. Trooper Caley noted that in talking to [Kurtz] that there was a strong odor of alcohol coming from [Kurtz] himself.
Trooper Caley asked [Kurtz] to step out of the vehicle to do field sobriety tests. As [Kurtz] did so, [he] struggled with his footing,[] staggered[,] and stumbled as he walked. [Kurtz‘s] clothes were disheveled. [Kurtz‘s] speech was slurred and at times incoherent. Trooper Caley had [Kurtz] do the Standardized Field Sobriety tests. [Kurtz‘s] performance on all the tests was poor.
Trooper Caley had [Kurtz] take a Portable Breath Test, which clearly showed that [Kurtz] had imbibed alcohol. Trooper Caley was of the opinion that [Kurtz] was under the influence of alcohol and incapable of safely operating his vehicle, and he placed [Kurtz] under arrest.
Trooper Caley took [Kurtz] to the Carlisle Regional Medical Center for legal blood to be drawn. At 23:45 hours, Trooper Caley read the entire DL-26 Implied Consent Form to [Kurtz] before asking for consent to submit a blood sample. The implied consent warning read to [Kurtz] contained a statement which warned [Kurtz] that, “If you refuse to submit to the chemical test ... because of your refusal, you will be subject to more severe penalties . . . [.]” On December 2, 2014, at approximately 23:48 hours [Kurtz‘s] blood was drawn and the kit was collected for testing.
Findings of Fact in Support of Order Granting Defendant‘s Pretrial Motion to Suppress Evidence of Blood Results, 1/19/2017, at 11 1-13 (formatting modified, citations omitted). Thereafter, Kurtz was charged with driving under the influence (DUI)—general impairment, DUI—high rate of alcohol, DUI—highest rate of alcohol, and failure to regard traffic lane while driving on roadways laned for traffic.2
Kurtz filed a motion to suppress the blood results. Within his motion to suppress, Kurtz argued that his blood test was obtained in violation of the Fourth and Fourteenth Amendments of the United States Constitution, and Article 1, Section 8 of the Pennsylvania Constitution because his consent to the test was coerced under threat of enhanced criminal penalties. See Kurtz‘s Motion to Suppress, 9/26/2016, at
Following a hearing in November 2016, the suppression court granted Kurtz‘s motion and suppressed the results of the blood test, finding that Kurtz “did not knowingly and voluntarily consent to the blood draw.” See Suppression Order, Findings of Fact, and Conclusions of Law, 1/19/2017, at ¶¶ 1-2.
The Commonwealth timely filed a notice of appeal and court-ordered
On appeal, the Commonwealth raises the following issues:
- Should the exclusionary rule be applied in Pennsylvania in limited circumstances where suppression is not the proper remedy where police were following valid established precedent pre-Birchfield?
- Did the [t]rial [c]ourt improperly suppress [ ] [Kurtz‘s] blood test results when [he] gave valid actual consent?
Commonwealth‘s Br. at 4.
Our standard of review is as follows.
When reviewing the grant of a suppression motion, we must determine whether the record supports the trial court‘s factual findings and “whether the legal conclusions drawn from those facts are correct.” Commonwealth v. Brown, 64 A.3d 1101, 1104 (Pa. Super. 2013) (quoting Commonwealth v. Cauley, 10 A.3d 321, 325 (Pa. Super. 2010)). We may only consider evidence presented at the suppression hearing. In re L.J., 622 Pa. 126, 79 A.3d 1073, 1085-87 (2013). In addition, because the defendant prevailed on this issue before the suppression court, we consider only the defendant‘s evidence and so much of the Commonwealth‘s evidence “as remains uncontradicted when read in the context of the record as a whole.” Brown, 64 A.3d at 1104 (quoting Cauley, 10 A.3d at 325). We may reverse only if the legal conclusions drawn from the facts are in error. Id.
Commonwealth v. Haines, 168 A.3d 231, 2017 PA Super 252, at *3 (2017).
In Birchfield, the United States Supreme Court recognized that “[t]here must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.” Birchfield, 136 S.Ct. at 2185. Of particular significance, Birchfield held that “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” Id. at 2185-2186. Accordingly, this Court has recognized that Pennsylvania‘s implied consent scheme was unconstitutional insofar as it threatened to impose enhanced criminal penalties for the refusal to submit to a blood test. Commonwealth v. Ennels, 167 A.3d 716, 724 (Pa. Super. 2017), reargument denied (Sept. 19, 2017) (noting that “implied consent to a blood test cannot lawfully be based on the threat of enhanced penalties“); Commonwealth v. Evans, 153 A.3d 323, 330-31 (Pa. Super. 2016).
In its first issue, recognizing the post-Birchfield state of the law, the Com-
In response, Kurtz contends that the good faith exception to the exclusionary rule does not apply because it is contrary to Article 1, Section 8, of the Pennsylvania Constitution. See Kurtz‘s Br. at 6. Kurtz relies on Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887, 901 (1991), in which our Supreme Court declined to adopt a good faith exception to the exclusionary rule. In Edmunds, our Supreme Court held that “a ‘good faith’ exception to the exclusionary rule would frustrate the guarantees embodied in Article I, Section 8 of the Pennsylvania Constitution.” Edmunds, 586 A.2d at 888. In interpreting state constitutional provisions, “each state has the power to provide broader standards, and go beyond the minimum floor which is established by the federal Constitution.” Edmunds, 586 A.2d at 894. As interpreted by our Supreme Court, Article I, Section 8 “is meant to embody a strong notion of privacy, carefully safeguarded in this Commonwealth for the past two centuries.” Edmunds, 586 A.2d at 897.
The Commonwealth attempts to distinguish Edmunds, asserting that the Edmunds Court did not address a situation in which the officer had probable cause to conduct a search authorized by statute. See Commonwealth‘s Br. at 25, 32-33.5 We find this argument unpersuasive. As explained in Edmunds, “[t]he history of Article I, Section 8, [ ] indicates that the purpose underlying the exclusionary rule in this Commonwealth is quite distinct from the purpose underlying the exclusionary rule under the 4th Amend-
In this case, the trial court reasoned that Birchfield established a new constitutional floor (“minimal protections“) to which this Commonwealth‘s historical rejection of the good faith exception should apply. See Trial Ct.
Given the entanglement of privacy interests inherent in a blood test administered by the state, see Birchfield, 136 S.Ct. at 2183, we decline to recognize a good faith exception to the exclusionary rule, as it would frustrate the purpose of Article I, Section 8 of the Pennsylvania Constitution by undermining privacy interests. See Edmunds, supra. Accordingly, the court did not err.
In its second issue, the Commonwealth contends that there was sufficient evidence to establish that Kurtz gave “valid actual consent” to the blood test. See Commonwealth‘s Br. at 39-41 (citing in support Commonwealth v. Cleckley, 558 Pa. 517, 738 A.2d 427 (1999)).
“The Fourth Amendment to the [United States] Constitution and Article I, Section 8 of [the Pennsylvania] Constitution protect citizens from unreasonable searches and seizures.” Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa. Super. 2012). “A search conducted without a warrant is deemed to be unreasonable and therefore constitutionally impermissible, unless an established exception applies.” Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884, 888 (2000). “Exceptions to the warrant requirement include the consent exception, the plain view exception, the inventory search exception, the exigent circumstances exception, the automobile exception ..., the stop and frisk exception, and the search incident to arrest exception.” Commonwealth v. Dunnavant, 63 A.3d 1252, 1257 n.3 (Pa. Super. 2013).
The “administration of a blood test . . . performed by an agent of, or at the direction of the government” constitutes a search under both the United States and Pennsylvania Constitutions. Commonwealth v. Kohl, 532 Pa. 152, 615 A.2d 308, 315 (1992); Schmerber, 384 U.S. at 770, 86 S.Ct. 1826]. Since the blood test in the case at bar was performed without a warrant, the search is presumptively unreasonable “and therefore constitutionally impermissible, unless an established exception applies.” Strickler, 757 A.2d at 888.
Absent a valid, implied consent, we have required suppression courts to evaluate a defendant‘s actual consent based on the totality of all the circumstances. Evans, 153 A.3d at 331; Commonwealth v. Danforth, 395 Pa. Super. 1, 576 A.2d 1013, 1022 (1990) (en banc) (“[w]hether consent has been voluntarily
In determining the validity of a given consent, 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 or 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. Such evaluation includes an objective examination of the maturity, sophistication and mental or emotional state of the defendant. Gauging the scope of a defendant‘s consent is an inherent and necessary part of the process of determining, on the totality of the circumstances presented, whether the consent is objectively valid, or instead the product of coercion, deceit, or misrepresentation.
Commonwealth v. Haines, 168 A.3d 231, 2017 PA Super 252, at *4 (2017) (quoting Commonwealth v. Smith, 621 Pa. 218, 77 A.3d 562, 573 (2013) (internal citations omitted)). Necessarily, this includes consideration of the coercive nature of an officer‘s advisory of the potential for enhanced criminal penalties. Evans, 153 A.3d at 331. Under such circumstances, we have previously affirmed a suppression court‘s decision to suppress the results of a blood test where consent to the test was obtained after an officer read the DL-26 form. Ennels, 167 A.3d at 724.
According to the Commonwealth, the reading of enhanced criminal penalties for refusal from a DL-26 form prior to Kurtz‘s consent did not necessarily render his consent involuntary. See Commonwealth‘s Br. at 37, 39. To determine whether the consent was voluntary, the Commonwealth suggests that the court may consider a number of factors:
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 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.
Cleckley, 738 A.2d at 433 (citation omitted). The Commonwealth argues that factors indicating voluntariness of the consent given included Kurtz‘s knowledge of his right to refuse, his prior DUI experience, his cooperation with police, and belief that no incriminating evidence would be found. See Commonwealth‘s Br. at 40-42.
In response, Kurtz correctly points out that the knowledge of the right to refuse is not determinative. See Kurtz‘s Br. at 8; see Cleckley, 738 A.2d at 432 (“[K]nowledge [of the right to refuse] on the part of the subject of the search may be a factor in ascertaining whether consent was voluntarily given, but [our Supreme Court] decline[d] the invitation to render such a factor determinative of that issue.“).6 Moreover, according to Kurtz, the Commonwealth is required to demonstrate
Recently, in Ennels, we affirmed the suppression of a blood test based on the finding that he could face enhanced penalties if he refused the test. Ennels, 167 A.3d at 718-719; see also id. at 722. In that case, the defendant was read the DL-26 form that warned him that, for at least one of the charges, he faced enhanced criminal penalties if he refused to submit to the blood test. Id. at 724. This Court held that the trial court did not err in concluding that the threat of criminal penalty on the DL-26 form rendered the defendant‘s consent involuntary because ”Birchfield makes plain that the police may not threaten enhanced punishment for refusing a blood test in order to obtain consent[.]” Id. (citing Birchfield, 136 S.Ct. at 2186).
Here, the suppression court deemed dispositive Kurtz‘s custodial status and the use of duress or coercive tactics by law enforcement. Specifically, the court found:
[Kurtz] was under arrest at the time [he consented to the test] and was not free to leave the hospital room where the blood draw was performed. Kurtz was also read the enhanced criminal penalties provision of the DL-26 form, which expressly informed him that a refusal to consent could subject him to enhanced criminal penalties. Here, Kurtz was presented with a dilemma: either consent to the blood draw and risk incriminating himself, or face the possibility of enhanced criminal penalties for refusing to consent. Under Birchfield, supra and Evans, supra, consent cannot be voluntarily given when a defendant is under the cloud of enhanced criminal penalties for the failure to consent.
TCO at 11. The court concluded that “Kurtz clearly did not provide voluntary consent for the blood draw, as he was under arrest at the time and was clearly informed that if he did not consent he would face the possibility of heightened criminal penalties.” TCO at 12.7
Because the suppression court concluded that Kurtz consented to the blood draw after being informed that he faced enhanced criminal penalties for refusal, the court did not err in finding that his consent was involuntary under the circumstances. See Ennels, 167 A.3d at 724. Accordingly, we affirm the suppression ruling.
Order affirmed. Case remanded. Jurisdiction relinquished.