Lead Opinion
This appeal presents the issue of whether under Article 1, Section 8 of the Pennsylvania Constitution, a police officer may obtain the results of a blood alcohol test, pursuant to 75 Pa.C.S. § 3755 (reports by emergency room personnel), without a search warrant and without having requested that the blood alcohol test be performed, for purposes of possible prosecution under 75 Pa.C.S. § 3731 (relating to driving under the influence of alcohol or a controlled substance).
On August 29, 1996, at approximately 3:40 p.m., Pennsylvania State Police Trooper Todd Hershey arrived at the scene of a two vehicle accident involving a van and an automobile. The accident occurred at the intersection of State Route 394 and the south exit ramp of State Route 15. Trooper Hershey observed a stop sign and thirty-two feet of skid marks on the exit ramp and determined that the driver of the van had failed to stop, entered State Route 394 in the path of a westbound vehicle and caused the collision. Trooper Hershey’s subsequent inspection of the interior of the van revealed a cooler containing ice and several unopened cans of beer. Several opened and empty beer cans were also discovered in the vehicle. Trooper Hershey observed that the cooler and all beer cans were readily accessible to the driver.
The driver of the van, Appellant David Shaw, had been taken by ambulance to Gettysburg Hospital. After Trooper Hershey arrived at Gettysburg Hospital, he
A few minutes after this encounter, hospital personnel drew a blood sample from Appellant for independent medical purposes. Trooper Hershey called the hospital laboratory a short time later and obtained the results, which indicated that Appellant had a blood alcohol content (BAC) of .267%.
On September 9, 1996, Appellant was arrested and charged with two counts of driving under the influence, 75 Pa.C.S. § 3731(a)(1) and (a)(4), and one count of failing to stop at a clearly marked stop line, 75 Pa.C.S. § 3323(b). The investigating officers subsequently obtained the formal written results of Appellant’s BAC test through the issuance of a subpoena.
On December 9, 1996, Appellant filed an omnibus pre-trial motion, seeking suppression of the BAC test results. At the conclusion of a hearing held January 22, 1997, the motion was denied. After a bench trial, Appellant was convicted of all charges and sentenced to seven days house arrest and twenty-three months intermediate punishment, plus fines, costs and restitution. On April 1, 1998, the Superior Court affirmed the judgment of sentence. This Court granted allocatur on September 30,1998.
In Commonwealth v. Riedel,
Section 3755 reads as follows:
§ 3755. Reports by emergency room personnel
(a) General rule. — If, as a result of a motor vehicle accident, the person who drove, operated or was in actual physical control of the movement of any involved motor vehicle requires medical treatment in an emergency room of a hospital and if probable cause exists to believe a violation of section 3731 (relating to driving under the influence of alcohol or a controlled substance) was involved, the emergency room physician or his designee shall promptly take blood samples from those persons and transmit them within 24 hours for testing to the Department of Health or a clinical laboratory licensed and approved by the Department of Health and specifically designated for this purpose. This section shall be applicable to all injured occupants who were capable of motor vehicle operation if the operator or person in actual physical control of the movement of the motor vehicle cannot be determined. Test results shall be released upon the request of the person tested, his attorney, his physician or governmental officials or agencies.
(b) Immunity from civil or criminal liability. — No physician, nurse or technician or hospital employing such physician, nurse or technician and no otheremployer of such physician, nurse or technician shall be civilly or criminally liable for withdrawing blood or obtaining a urine sample and reporting test results to the police pursuant to this section or for performing any other duty imposed by this section. No physician, nurse or technician or hospital employing such physician, nurse or technician may administratively refuse to perform such tests and provide the results to the police officer except as may be reasonably expected from unusual circumstances that pertain at the time of admission.
Section 3755 and the implied consent law, 75 Pa.C.S. § 1547,
Appellant asserts that the failure of Trooper Hershey to request that the hospital perform BAC testing under Section 3755(a), renders Trooper Hershey’s subsequent warrantless acquisition of Appellant’s BAC test result illegal under the Pennsylvania Constitution.
Section 3755(a), by its plain language, requires hospital personnel, in cases where probable cause exists to believe that an emergency room patient has violated Pennsylvania’s DUI statute, to take blood samples for BAC testing. There is ‘no requirement in the statute that the BAC testing be conducted at the request of a police officer. The only requirement is the abstract requirement that “probable cause exists to believe a violation of Section 3731.” If such “probable cause exists,” then hospital personnel must take blood samples for BAC testing.
Accordingly, as Appellant’s BAC test was not conducted pursuant to Section 3755(a), the release of the result of the BAC test at the request of Trooper Hershey was not authorized by Section 3755(a), nor is there any other statutory basis for releasing the result. The question then becomes whether the release of the result violates Article 1, Section 8 of the Pennsylvania Constitution.
As stated in Commonwealth v. Kohl,
As stated in the Riedel concurrence:
The implied consent provision of 75 Pa.C.S. § 1547(a)(1) does not eliminate the need to obtain a warrant to seize medical records, but only to request and conduct chemical tests. The reason for this is obvious. Due to the evanescent nature of the evidence of blood alcohol content, there is an immediate need to obtain samples of blood for testing. When blood samples have been drawn for medical purposes and the results of blood alcohol content tests are part of a patient’s medical record, the evidence will not have dissipated during the time that application for a search warrant is being made.
Thus, the release of the result of Appellant’s BAC test, taken for independent medical purposes and not pursuant to Section 3755(a), to Trooper Hershey without a warrant and in the absence of exigent circumstances, violated Article 1, Section 8 of the Pennsylvania Constitution. Accordingly, the BAC test results should have been suppressed.
The order of the Superior Court which affirmed the order of the common pleas court is reversed.
Notes
. Section 1547 provides:
(a) General Rule.- — Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine 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 driving, operating or in actual physical control of the movement of a motor vehicle:
(1) while under the influence of alcohol or a controlled substance or both....
. The dissenting opinion asserts that the opinion announced today is in direct contravention of Commonwealth v. Edmunds, 526 Pa. 374,
. Section 3755(a) is, to say the least, inartfully drafted. For some vague and curious reason, the legislature has required a probable cause determination without specifying who is to make such determination, or how such an abstract requirement is to be met. The request of a police officer, based on probable cause to believe a violation of Section 3731, would seem to satisfy the probable cause requirement and therefore mandate that hospital personnel conduct BAC testing. Likewise, a determination by hospital personnel familiar with Section 3755(a), that probable cause existed to believe that a person requiring treatment had violated Section 3731, would also seem to mandate that hospital personnel conduct BAC testing. However, neither of those scenarios occurred in the instant case.
. The dissent concludes that today's decision will force citizens to face "more intrusive" government conduct in the form of a "court-ordered freedom to have a blood sample withdrawn by a hypodermic needle twice ....”, dissent at 631 (emphasis in original). We do not share in this conclusion. Today’s decision only requires that police officers request that a BAC test be conducted on any blood withdrawn by the hospital for independent medical purposes, or in the absence of such, that blood be withdrawn for the sole purpose of conducting a BAC test.
Concurrence Opinion
Concurring.
Today the majority concludes, consistent with Justice Zappala’s concurring opinion in Commonwealth v. Riedel,
The Riedel Court concluded that the warrantless police seizure of Riedel’s blood test results did not violate the Fourth Amendment’s proscription against unreasonable searches and seizures because the seizure was executed in accordance with 75 Pa.C.S. § 3755(a). While I recognize that Riedel is a decision of somewhat recent vintage, I believe that it was wrongly decided because the blood test at issue in that case was performed for purely medical reasons, and not in response to any request on the part of a police officer or in accordance with a perceived statutory duty to do so pursuant to Section 3755(a). Based on its own terms, Section 3755(a) applies only in limited situations where emergency health care providers draw a blood sample based on a police request or a perceived statutory obligation to do so in order to assist the police in procuring evidence for a possible future DUI prosecution. Thus, it seems clear that the Riedel Court erred in relying on Section 3755(a) in upholding the police seizure of Riedel’s blood test results. Assuming that the Riedel Court had instead found Section 3755(a) inapplicable to the warrantless police seizure of Riedel’s blood test results, it seems only logical that the Court would also have found that the seizure violated the Fourth Amendment. In fact, the Riedel Court said as much in dictum, stating: “We recognize that in the absence of the implied consent scheme [i.e., Section 3755(a) ], the actions of Trooper Davis would constitute an unreasonable search and seizure.”
Importantly, the operative facts in the instant appeal are practically identical to those presented in Riedel. Nevertheless, the majority, without expressly overruling Riedel, concludes that Section 3755(a) is inapplicable to the warrantless police seizure of Appellant’s blood test results, and consequently finds the seizure violative of Article I, Section 8 of the Pennsylvania Constitution. In addition, by quoting a passage from Commonwealth v. Kohl,
As the above discussion indicates, I would expressly overrule Riedel, as I believe that the facts presented in that case do not support the applicability of Section 3755(a). Likewise, based on the practically identical facts presented in the instant appeal, I believe that 75 Pa.C.S. § 3755(a) is not applicable to the warrantless police seizure of Appellant’s blood test results. Thus, I would conclude that the unauthorized, warrantless police seizure of Appellants blood test results violated both the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution.
Dissenting Opinion
Dissenting.
The majority would hold that Article I, § 8 of the Pennsylvania Constitution commands, where Fourth Amendment jurisprudence does not, that the results of a medical purposes blood alcohol content (BAC) test performed by a hospital on a Pennsylvania driver, who by operation of law is deemed to have impliedly consented to have his blood tested if there is probable cause to believe that he was driving while impaired, cannot simply be requested by police unless or until they first secure a search warrant. In my view, such a warrantless police request is just as reasonable, and hence as constitutionally permissible, under Article I, § 8 as it is under the Fourth Amendment. Furthermore, in light of the legislative implied consent scheme, I fail to see how impaired drivers could be said to have a reasonable expectation of privacy in their BAC test results. Because I cannot accept the majority’s unsupported state constitutional conclusion to the contrary, I respectfully dissent.
Six years ago, this Court unanimously held that, in light of the implied consent provisions in Title 75, the Fourth Amendment did not require police to secure a warrant in these same circumstances. Commonwealth v. Riedel,
Instead, the Riedel Court simply acknowledged and applied certain bedrock principles of search and seizure jurisprudence: ie., that searches without a warrant are generally unreasonable, but exceptions to the warrant requirement exist, including actual and implied consent, where warrantless searches have been deemed reasonable.
The Riedel Court merely held that the implied consent provision of the Motor Vehicle Code, 75 Pa.C.S. § 1547(a), and its emergency room counterpart, id. § 3755(a), justified warrantless requests by police for the analysis results of BAC tests of blood drawn for medical treatment purposes. The Court concluded that those provisions comprised a “statutory scheme that implies the consent” of a driver to undergo chemical blood testing when “reasonable grounds,” which the Court equated with “probable cause,” existed to believe that the driver had operated his vehicle while under the influence of alcohol or a controlled substance.
In this regard, the Riedel Court employed a balancing test, contrasting the limited “search” of the hospital’s records occasioned by a request for the BAC test results, which involves “only a minimal intrusion into Lthe driver’s] privacy;” with the substantial physical intrusion occasioned by the “initial taking,” i.e., the actual blood sample withdrawal itself. Id. at 182,
[C]ontrary to appellant’s insistence, the implied consent scheme adopted by our legislature is designed to do more than just preserve evanescent evidence. As stated above, the scheme is designed to facilitate prosecution of chemically impaired drivers.
Jurisprudentially, one would expect the majority’s state constitutional analysis to begin with a discussion of Riedel’s rationale, since it is the case most relevant to the equivalent state constitutional issue now presented to this Court for the first time. But the majority baldly rejects Riedel as a matter of state constitutional jurisprudence without so much as acknowledging its reasoning, much less explaining why that reasoning, unanimously deemed sound under the Fourth Amendment, is somehow at odds with Article I, § 8. The practical effect of the majority’s inability to articulate exactly how Riedel’s balanced constitutional analysis is mistaken is to mandate a far more intrusive medical procedure grounded solely in the majority’s highly idiosyncratic view of the state constitution.
The right of privacy protected by the Fourth Amendment exclusionary rule and, much more recently, by the state exclusionary equivalent, Article I, § 8, has been most simply and eloquently expressed in the notion that, at least as against the government, there is a “right to be let alone-the most comprehensive of rights and the right most valued by civilized men.” Olmstead v. United States,
The absence of an Edmunds analysis perhaps results from the fact that the majority merely tracks the Riedel concurring opinion, which itself failed to engage in an Edmunds analysis. But the Riedel concurrence itself is a dubious source of state constitutional reasoning, not just because it lacks an Edmunds analysis, but also because of the procedural posture of that case. No Article I, § 8 question was presented in Riedel. The concurrence’s prejudgment of the state constitutional question was offered entirely gratuitously, without the benefit of a case or controversy, much less an adversarial presentation addressing the Edmunds factors. Our system of jurisprudence, of course, proceeds upon the time-proven assumption that adversarial presentation in actual cases and controversies, rather than visceral reactions to academic questions discovered by the Court itself, produces the best and wisest decision-making. This is why we take pains to avoid, where possible, unripe questions, moot questions, advisory opinions, and dicta. Because the Riedel concurrence proceeded without the benefit of adversarial presentation or a case or controversy, it is, as a jurisprudential matter, inherently suspect at best, if not presumptively erroneous. The further lack of analysis by today’s majority certainly does nothing to improve this glaring omission.
The Riedel concurrence’s prejudgment of the issue has spawned a secondary evil that has infected this case as well. Although this case presents the actual case or controversy involving Article I, § 8 that was missing in Riedel, we still lack the benefit of an Edmunds analysis from appellant because, predictably enough, he simply relies upon the Riedel concurrence’s prejudgment. In short, we are left with a situation where the majority would announce and establish a state constitutional proposition, distinct and different from this Court’s recent, unanimous Fourth Amendment jurisprudence on the very same question, without this Court ever having analyzed it with regard to any remotely plausible basis for such a distinction, and without the majority ever bothering to explain on its own how it is they arrived at their remarkable, contrary conclusion. Such has become the state of affairs that passes for this Court’s unique — and it is certainly that if nothing else — Article I, § 8 jurisprudence.
I am particularly wary of novel expansions of Article I, § 8 that are unaccompanied by an Edmunds analysis. A novel and unexplained holding under Article I, § 8 is a practice that permits a jurisprudence of contrariness or, even worse, arbitrariness. Such an unexplained holding is at least as likely to be a mere expression of a Court majority’s personal disagreement with contrary Fourth Amendment jurisprudence, dressed in state constitutional
Nothing in the majority opinion rebuts that presumption here. Rather than employ Edmunds, or account for Riedel, the majority simply notes that Article I, § 8 has a “separate and distinct” identity from the Fourth Amendment. The majority then declares that the “protection” of Article I, § 8 extends to medical records of patients, which, the majority apparently concludes, would include BAC test results. But, as this Court has repeatedly recognized, such general observations about Article I, § 8 command no particular result. See Commonwealth v. Glass,
In determining the scope of protection afforded under Article I, § 8 this Court employs the very same “reasonable expectation of privacy” test that the United States Supreme Court employs to determine the Fourth Amendment’s sweep. “That test requires a person to (1) have established a subjective expectation of privacy and (2) have demonstrated that the expectation is one that society is prepared to recognize as reasonable and legitimate.” Commonwealth v. Gordon,
The majority supports its declaration that the distinct Pennsylvania right of privacy under Article I, § 8 applies to medical records by citations to two cases, tellingly with no accompanying legal analysis:
Similarly, when Riedel spoke of a “substantial privacy interest” in medical records,
Nor can I discern anything in this Court’s twenty year-old Article I, § 8 jurisprudence
This exclusionary rule-based divergence traced in the Edmunds line makes the majority’s conclusion here even more indefensible. The Riedel Court did not approve of the warrantless police request for the medical purposes BAC test results there because disapproval would not serve the deterrence rationale of the exclusionary rule. Instead, it approved the practice because, on balance, it was a reasonable accommodation in light of the implied consent licensing provisions which were “designed to facilitate prosecution of chemically impaired. drivers,” and in light of the limited intrusion the request for test results occasioned. Those factors — the existence and purpose of the legislation, the limited nature of the intrusion, and the reasonableness of the practice — are no less crucial factors under any state constitutional analysis. The Edmunds line, including its articulation of the reason for Article I, § 8’s divergence from the Fourth Amendment, certainly cannot justify the majority’s unexplained departure from Riedel.
The majority’s rejection of Riedel further contradicts actual Article I, § 8 jurisprudence because it simply ignores the fact that the “distinct” right to privacy applicable in Pennsylvania only for the past twenty years has never been the absolute that the majority apparently believes it to be. The majority concludes that, since the BAC test here was not performed pursuant to police request or pursuant to the emergency room statute, it automatically follows that the results could not lawfully be requested absent exigent circumstances or a warrant. But Article I, § 8’s right to privacy “ ‘is not an unqualified one; it must be balanced against weighty competing private and state interests.’ ” Cass, supra,
Furthermore, in point of fact, this Court has specifically approved of a flexible, balancing approach under Article I, § 8, particularly in circumstances like this one, where the question involves the warrant requirement and diminished expectations of privacy. For example, in Williams, supra, this Court held that parolees had no greater protection from warrantless searches under Article I, § 8 than under the Fourth Amendment. In so holding, the Court noted, inter alia, the parolee’s diminished expectation of privacy arising from his parole status and then balanced that diminished expectation against the “government interests involved in granting parole and supervising parolees.”
Thus, this Court’s historical search warrant jurisprudence under Article I, § 8 is indistinguishable from the Fourth Amendment balancing analysis employed in Riedel, and stands in sharp contrast to the majority’s unexplained contrary conclusion. As the Riedel Court noted, the intrusion involved in a simple oral request for BAC test results is minimal, i.e., it is “far less intrusive” than the actual withdrawal of blood and administration of a test which had already occurred. In addition, the existence of the implied consent scheme obviously diminishes any expectation of privacy a properly suspected drunken driver could have had in the BAC test results. Thus, even if a particular test was not administered for “legal purposes,” the fact remains that the statute implies the consent of suspected impaired drivers to such testing, and that fact affects the driver’s expectations. Given that reality, the distinction between blood withdrawn for “medical purposes” or blood withdrawn for “legal purposes” adds nothing to the reasonableness of a driver’s expectation that his BAC test results would not be disclosed. Such a driver, who may have had no idea whether a blood sample was taken from him for either medical purposes or for legal purposes, can harbor no “legitimate” expectation that the results would not be disclosed to investigating officers acting with probable cause.
Furthermore, the request does not involve a general search through the driver’s medical records, but is limited to disclosure of the BAC test results: it “does not grant police officers carte blanche to invade the privacy of an individual’s medical records.” Riedel,
To the factors articulated by the Riedel Court, I would add the following points demonstrating the reasonableness of the warrantless request at issue here. As I have noted earlier, a simple request for the results of a medical purposes BAC test is far less intrusive than a request that a second blood sample be taken and tested — a practice I believe plainly authorized by the implied consent scheme and, as a practical matter, required by the majority’s approach. The decidedly lesser intrusion of a request for the results, which spares the driver multiple drawings of blood, unquestionably is reasonable. Finally, requiring a warrant in these circumstances would do little to further the driver’s right of “privacy.” The “search” at issue here involves a hospital’s disclosure of a single item, the driver’s BAC test results. It is not a search of the driver’s home, person, or effects. In fact, the police here did not actually “search” the driver’s medical records. Instead, it was the hospital that reviewed
In summary, I see nothing in the text, case history, or policy concerns unique to Article I, § 8 that remotely justifies departing from this Court’s balanced, Fourth Amendment analysis in Riedel. Accordingly, I would hold that the approach under Article I, § 8 is controlled by Riedel. Under that analysis, the blood alcohol test results were properly admitted. Therefore, I respectfully dissent.
SAYLOR, Justice, joins this dissenting opinion.
. Justice Zappala filed a concurring opinion, joined by then-Justice, now Chief Justice, Flaherty and Justice Cappy, agreeing with the majority opinion’s Fourth Amendment analysis, but sua sponte raising and then addressing an issue not presented in the case. Specifically, without benefit of adversarial presentation on the matter, the concurrence stated that, if a state constitutional claim had been presented, it would have ruled that the warrantless police request violated Article I, § 8.
. Section 1547 provides that any person who drives, operates or is in actual physical control of a motor vehicle in this Commonwealth "shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purposes of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe” that the person was under the influence of alcohol and/or a controlled substance. 75 Pa.C.S. § 1547(a). A driver who refuses the BAC test faces an automatic one-year suspension of driving privileges. Id. § 1547(b). The emergency room provision similarly states that, if there is probable cause to believe that a person driving, operating or in actual physical control of a motor vehicle involved in an accident, who requires medical treatment in a hospital emergency room, violated the DUI laws, "the emergency room physician or his designee shall promptly take blood samples” and have the samples tested. 75 Pa.C.S. § 3755(a). Those test results must be released, upon request, to the person tested, his attorney, his physician, or government officials or agencies. Id.
. Appellant’s BAC was .267%.
. Although this Court had earlier recognized that the state constitution was a potential source for greater or different rights in search and seizure cases, the first time we actually departed from a United States Supreme Court precedent on Article I, § 8 grounds was in Commonwealth v. DeJohn,