*1 576 A.2d 1013 Pennsylvania COMMONWEALTH of DANFORTH, Appellant. Louise Sharon Superior Court of Pennsylvania.

Argued Oct. 1989.

Filed June 1990. *3 Swetz, James A. Stroudsburg, for appellant. Christine, E. David Dist. Atty., East Stroudsburg, Com., appellee. CIRILLO,

Before President Judge, CAVANAUGH, BROSKY, OLSZEWSKI, SOLE, DEL MONTEMURO, TAMILIA, KELLY, JOHNSON, JJ.

MONTEMURO, Judge: The issue on appeal is whether the taking and testing of a *4 blood sample for alcohol content pursuant to one of the “implied provisions consent” of the Motor Code, Vehicle Pa. 1547(a)(2),1 C.S.A. violates the federal and state § con prohibition stitutional against unreasonable searches and seizures. breath, We find that the blood and urine tests 1547(a)(2) authorized by Section are constitutionally invalid. We appellant’s reverse conviction and remand for a new trial. (Purdon 1547(a)(2) 1984).

1. 75 Pa. C.S.A. § Sharon Louise Dan- appellant, trial Following by jury, a influence of forth, under the driving was convicted of alcohol, 3731(a)(4). The trial denied judge Pa. C.S.A. § a appellant sentenced to motions and appellant’s post-trial (48) consecu- imprisonment forty-eight minimum term year. term of one hours to a maximum tive 29, 1987, September During early morning hours the help a call for from police received Coolbaugh Township call, police to the responding Byrd residence. While accident which had occurred encountered a serious one-car The of the residence. driv- Byrd few hundred south yards The discov- unoccupied. police side of the vehicle was er’s of life passenger apparent signs that with no ered a male a tree impacted remained in the car. The car had with on the side of the road. stump utility pole lying and a to the investigating Byrd The officer continued police appellant residence he found who identified herself where Appellant involved in the accident. as driver car at told the officer that earlier she had been the Swiftwater Inn met a her he lived where she man who told near request, appellant At the man’s her Pocono Farms. ride, the During to him a ride home. man agreed give clothes, at at lunged grabbed her and tried to appellant, him Appellant stop remove her told to several blouse. times, persisted. appellant but he When tried defend she lost control of pushing passenger away, herself her nearby the car which ran off the road into a wooded area. Byrd ran to the residence and appellant After accident called police. encouraged appellant go officer her injuries. appel- for treatment of facial While

hospital receiving hospital, the officer lant was treatment hospital questions. to the to ask more When asked came had told the happened, appellant the officer to recount what she had earlier at the residence. story Byrd same told while and the severity Based on the the accident fact solely occurred, ask appel- had the officer decided to death sample. for a At no time did the officer suspect lant blood *5 appellant that was under the influence of alcohol. There her, nowas odor of alcohol about her complexion appeared normal, bloodshot, her were eyes her while balance normal, standing was she did not need any help walking. appellant The officer told he investigat- ing part accident that as investiga- the accident tion he sample wanted to obtain a of her blood for analysis. Appellant agreed to have sample a of her blood taken. The appellant officer did not tell that the part blood test was investigation, a criminal that if sample resulted a blood alcohol content of or more she could charged .10% be prosecuted for driving under the influence. did not He appellant Miranda give warning or inform her that she bemay giving against evidence herself. At no time was appellant asked to sign a consent form. A labo- hospital ratory technician drew blood from appellant and turned the over sample police to the officer. The crime lab test results revealed blood alcohol level. .21%

Appellant was arrested accident, several weeks after the 16, 1987, on October and charged with driving under the influence,2 vehicle,3 by homicide homicide vehicle while driving under the influence4 and [failing vehicle to] driv[e] speed.5 at safe pre-trial motions,

In her appellant moved to suppress results test on blood the basis that the test was taken in violation of her federal and state right constitutional against unreasonable searches and seizures. suppres- sion court denied the finding motion to suppress, appellant’s consent to the implied blood test was under the implied provision consent Code, Motor Vehicle 75 Pa. 1547(a)(2). C.S.A. The court never addressed the issue § whether appellant voluntarily consented After test. a trial jury, appellant was driving convicted of under the 3731(a). 2. Pa. C.S.A. § Pa.

3. 75 C.S.A. 3732. §

4. Pa. C.S.A. 3735. §

5. Pa. C.S.A. 3361. § her motions. post-trial denied The trial court influence. *6 timely appeal. this brought sentencing, appellant Following pursu- administered the blood test argues Appellant Code was unconsti- 1547(a)(2) of the Motor Vehicle ant to § probable officer lacked cause to police tutional because agree. influence. We under the appellant was believe 1547(a)(2) OF UNDER I. CONSTITUTIONALITY § FEDERAL THE CONSTITUTION United Consti The Amendment States Fourth of the to be secure right people provides tution “[t]he effects, houses, against and unrea papers, persons, their seizures, violated, no and shall be sonable searches issue, cause ... “U.S. upon probable Warrants shall but Const, to the applies Amendment amend. IV. The Fourth of the of the Fourteenth Amendment by virtue States T.L.O., 325, 469 v. U.S. Jersey Federal Constitution. New 334, 733, 738, (1985). 720 The Fourth 83 L.Ed.2d 105 S.Ct. against arbitrary as a constraint Amendment functions privacy, into an individual’s government intrusions Court, Municipal 387 security. v. dignity, Camara (1967); 523, 528, 1727, 1730, 18 L.Ed.2d 930 87 S.Ct. 1826, 757, 768, 86 S.Ct. 384 U.S. California, v. Schmerber 1834, 908 L.Ed.2d to be the Fourth Amendment concerns order for test is attributa must first ascertain that the

implicated, we agents. v. or its Commonwealth ble to Government (cita 317, (1985) 77, 320-21 Cieri, 346 Pa.Super. omitted); Pa.Super. Lapia, v. tions Commonwealth 264, (1983), on Common grounds, A.2d 877 rev’d other (1985). At Pa. 486 A.2d 382 v. Dugger, wealth by a appellant’s blood was drawn request, officer’s police sample to the hospital who handed over technician Thus, technician as testing. hospital acted officer sam drawing of the the blood an agent Cieri, supra Pa.Super. ple. See Commonwealth (where hospital nurse drew private A.2d at 321 hospital procedure, according defendant’s blood routine and later forwarded sample police test, for blood alcohol nurse acted as an “instrument” “agent” govern- ment). analysis for blood alcohol content was per- formed state crime laboratory. Given these facts, testing taking appellant’s are blood attrib- utable to the Commonwealth.

It is well-established that the administration of falling blood alcohol test a search within the protection the Fourth Amendment. Skinner v. Railway Labor Exec Association, utives’ 602, -, 489 U.S. 109 S.Ct. citing Schmerber v. Califor 103 L.Ed.2d 639 nia, 767-68, supra 1834; U.S. at 86 S.Ct. at Winston Lee, 1611, 1616, 84 L.Ed.2d 662 *7 also (1985). See Commonwealth v. Murray, 441 Pa. 22, 25, 500, 271 Smith, (1970); A.2d 501 382 Pa.Super. 288, (1989).6 555 A.2d 185 Since a blood alcohol test constitutes a search within meaning the of the Fourth Amendment, the test is if constitutionally valid only reason Sharpe, United States v. able. 675, 682, 470 U.S. 105 S.Ct. 1568, 1573, (1985); 84 L.Ed.2d 605 Schmerber v. Califor nia, supra 768, 384 In re Gartley, 1834; U.S. at 86 at S.Ct. Pa.Super. 350, 341 (1985), 491 A.2d 851 In re aff'd, Search B-21778, Warrant 429, (1987) 513 Pa. (Fourth 521 A.2d 422 prohibits Amendment those only searches which are unrea sonable).

As general rule, a a search or seizure is not reasonable unless it is pursuant conducted to search warrant aby issued magistrate upon a showing probable Quarles, cause. v. 363, 377, 229 Pa.Super. 452, 324 A.2d 460 quoting Commonwealth v. Maione, Pa.Super. 239, 227 556, (1974). See Payton York, also New 573, 586, 1371, 100 S.Ct. (1980). L.Ed.2d The warrant requirement separate probable from the requirement, and, cause even if Likewise, breathalyzer 6. collecting testing test of a urine sample meaning are searches within the of the Fourth Amendment. Association, 602, -, Railway Skinner v. Labor Executives’ 489 U.S. 1412, 1413, (1989) (citations 109 S.Ct. omitted). 103 L.Ed.2d 639 warrant, search without a may performed be the search probable cause to believe based on still must be Jersey the law. New has searched violated to be person citing T.L.O., supra 469 U.S. at States, v. United Almeida-Sanchez 413 U.S. New Sibron v. (1978); 2585, 2539, 37 L.Ed.2d

S.Ct. York, L.Ed.2d 917 40, 88 S.Ct. testified that he in this case investigating officer under testing blood for appellant’s requested sample Code of the Motor Vehicle provision authority the driver is tests in the event blood permits which The officer death results. in an accident which involved consent law” provision “implied referring provides: which testing determine smoimt of alco- 1547. Chemical

§ hol substance or controlled

(a) drives, operates or person who rale.—Any General of a of the movement motor is in actual control physical deemed to have shall be vehicle this Commonwealth breath, one or more chemical tests given consent determining the alcohol- purpose blood or urine for the of a controlled sub- presence ic content of blood grounds to be- stance if a officer has reasonable or in person driving, operating to have been lieve of a motor ve- control of the movement physical actual hicle:

(2) in an accident in which the which was involved or any or of vehicle involved a operator passenger facility or pedestrian required treatment at a medical killed. 1547(a)(2). 75 Pa. C.S.A. § 1547(a)(2), ap-

The court that under suppression found § the chemical test- pellant given implied had her consent of blood, operator had the a ing of her since she been in death and resulting bodily- involved in an accident vehicle Ap- at medical facility. treatment a injury required which 1547(a)(2) were concedes that the conditions of pellant § Appellant met. claims a test performed under the authority 1547(a)(2) is unconstitutional in the absence § of probable cause to believe the driver was under influence of alcohol. question whether,

The must we decide is in authorizing blood, or breath urine test of a person who is reason- ably believed to have been driving a vehicle involved an accident resulting death or bodily injury requiring medi- care, 1547(a)(2) cal authorizes an “unreasonable search.” § We hold that searches pursuant 1547(a)(2) conducted to § are unreasonable.

A. Warrant Requirement 1547(a)(2) Section empowers police officer to order the taking testing of a driver’s blood without a warrant. In Schmerber, supra, Court held importance collecting samples blood justified waiving the requirement warrant under the “exigent circumstances” Fourth exception Amendment warrant requirement. Schmerber, 384 U.S. at 86 S.Ct. at 1835 (“[T]he delay necessary obtain a warrant ...' ‘the destruc threatens] ”) tion (citation omitted). Thus, evidence.’ we hold that requirement absence of a warrant under 1547(a)(2) § blood, does not render the breath and urine tests unreason able under the Fourth Amendment.

B. Probable Cause 1547(a)(2) Section authorizes seizure and search an accused’s blood on based solely fact that he or driving she was a vehicle which was involved in an accident in which death or an injury requiring medical treatment occurred. The authority to conduct the test on hinges happening mere of a motor vehicle accident and on the severity injuries to the people involved in the accident. The statute does not require any evidence of alcohol or drug use 1547(a)(2), the driver. Under § police officer order may blood, breath, a test a driver’s urine, where, one, even such cases as this the driver gives every indication of sobriety and an immediate and *9 exists. A factual the accident explanation for contrary 1547(a)(2) set meeting the bare conditions scenario § of requirement Amendment satisfy the Fourth not does police the officer case Specifically, cause. this probable had been appellant cause to believe probable lacked The officer influence of alcohol. under the driving while on the suspect part intoxication that he did not testified signs of alcohol typical of the any or notice appellant breath, on alcohol eyes, such as bloodshot consumption, maintain balance while inability a staggering walk to for the Further, explanation offered an appellant standing. car while she lost control her of the accident: cause to remove trying passenger with her who struggling and circumstances Nothing the facts clothes. appellant’s appellant officer warranted a belief that to the known See Commonwealth driving under influence. had been Smith, supra Pa.Super. 555 A.2d at at (1989) (“Probable an officer has knowl- cause exists when circumstances, gained through of sufficient facts and edge information, prudent a man to be- trustworthy warrant (cita- crime.”) has a person seized committed lieve that omitted). tion that a on the of the solely

We hold test administered basis 1547(a)(2) set is an unrea existence conditions § Amendment, prohibited by search Fourth since sonable 1547(a)(2) meeting do a support facts criteria § the driver of the finding probable cause believe was under the influence.7 vehicle Exception “Special

C. Needs” probable While both the existence of cause and bear requirement a warrant on reasonableness search, neither is re exceptional certain circumstances quired. Skinner, supra at -, S.Ct. at Almeida-Sanchez, supra at 661; at 103 L.Ed.2d probable to believe a 7. note that if officer does have cause We an influence, driving been under the officer has driver has blood, authority test under Pa. C.S.A. to order breath or urine 1547(a)(1). constitutionality pursuant of tests administered § Quarles, 1547(a)(1) supra upheld. has been § Pa.Super. 666. A.2d at *10 12

277, (Powell, 93 at 2541 J., concurring). S.Ct. In a limited cases, number of Supreme the United States Court has held that a probable warrantless search conducted without cause may nevertheless the test of withstand un reasonableness the needs, der Fourth Amendment “special when beyond enforcement, the need for law normal make the warrant impracticable.” Skinner, probable-cause requirement at -, supra 1414, 489 U.S. 109 at quoting Griffin S.Ct. Wisconsin, 868, 873-874, v. 483 3164, 3168, U.S. 107 S.Ct. National Treasury (1987); 97 L.Ed.2d 709 Un Employees Raab, ion v. Von 656, -, 489 U.S. 1384, -, 109 S.Ct. T.L.O., 685, (1989); 103 Jersey New v. L.Ed.2d 702 469 U.S. 351, cases, In 105 S.Ct. at 747. these the Court has on balanced the intrusion privacy individual’s interests against government’s need conduct the search to Raab, determine whether the search is reasonable. Von at -, supra at -, 489 U.S. 109 103 S.Ct. L.Ed.2d at 700; Skinner, supra at -, 489 U.S. 109 1414. S.Ct. at “special these needs”

Importantly, cases civil involve taking searches place outside of the context of criminal Raab, supra, See Von investigations. (United States Cus drug testing toms Service of employees seeking transfer or positions); Skinner, promotion supra, to certain (Federal Railroad regulations Administration safety alco authorizing Wisconsin, hol and drug testing of employees); Griffin supra, (search probationer’s home); O’Connor v. Orte 709, ga, 1492, (1987) 107 S.Ct. 94 L.Ed.2d 714 (work-related of employees’ offices); searches desks and T.L.O., New York v. (search supra, pocketbook student’s officials).8 by school Skinner, supra, Supreme upheld Court Federal regulations which,

Railroad Administration part, in mandate Although 8. involving minimally in certain cases intrusive searches arising in criminal context Court has relaxed the standard, probable required showing cause Court has still a suspicion justify individualized reasonable the searches in these Sokolow, U.S. -, 1581, instances. See United States v. 109 S.Ct. (1989); 104 L.Ed.2d Hensley, United States v. 469 U.S. 105 S.Ct. (1985); Prouse, 83 L.Ed.2d 604 Delaware v. 440 U.S. 99 S.Ct. (1979); Mimms, Pennsylvania L.Ed.2d (1977); Brignoni-Ponce, S.Ct. 54 L.Ed.2d 331 United States v. in the event of railroad crew members urine tests blood and requiring fatality, without involving accident of a railroad employee. suspicion any particular individualized test, govern that the Court, balancing reasoned its applying of railroad em the conduct regulating ment’s interest outweighed tasks safety-sensitive engaged ployees Skinner, supra 489 U.S. at interests. employees’ privacy Skin Although regulations -, at 1421. 1547(a)(2), ner we conclude bear a resemblance § finding the Skinner holding compel does not *11 1547(a)(2) reasonable the are within by authorized tests § Skinner, the Court the Amendment. meaning of Fourth not regulations prom the FRA were point the that stresses in prosecution the criminal to aid law enforcement ulgated “ prevent rather were intended ‘to acci but employees result operations in railroad from dents and casualties ” Skinner, by drugs.’ employees alcohol impairment 662, supra -, at -, 109 at 103 L.Ed.2d at S.Ct. Raab, also, Von quoting 49 See 219.1(a) (1987). CFR § supra at -, 1391, 103 L.Ed.2d at 109 at 489 U.S. S.Ct. however, (“Our teach, probable-cause 703 cases investigations.’ ”). related to criminal peculiarly standard ‘is Skinner, find that there are no the Court in we Unlike needs, need for enforce- beyond the normal law “special 2574, Williams, 873, (1975); v. 407 L.Ed.2d 607 Adams U.S. 95 S.Ct. 45 1921, Ohio, 143, (1972); Terry 32 L.Ed.2d 612 U.S. 92 S.Ct. 1868, cases, 1, L.Ed.2d 889 In a few 88 S.Ct. 20 suspicion upheld searches conducted without individualized Court has regulatory the searches were conducted in the context where routinized, stops programs nonintrusive and searches. and involved Martinez-Fuerte, U.S. 96 S.Ct. See United States v. (1976) (interrogative stop permanent border check- L.Ed.2d 1116 at status); Municipal point Camara v. to ascertain motorist’s residence Court, (1967) (routine 18 L.Ed.2d 930 department). inspection by city housing Unlike "substan- annual cases, blood, tially in these breath and less intrusive” searches question directly impact- in here entail full-scale searches urine tests privacy. ing Even if the in this case did on the individual's searches intrusions, 1547(a)(2) significant does not meet the less § not involve applied stringent in these cases since the standard of reasonableness any showing of individualized authorizes the tests absent statute suspicion. ment,” presented by this case a relaxation of justify strict probable cause standard imposed Fourth governmental Amendment. purpose underlying 1547(a)(2) is to enable the to gather evidence of § or drug intoxication use to be used in criminal proceedings against drivers of vehicles involved in accidents. See Funk, 1547(c). See also Commonwealth v. Pa.C.S.A. § 233, 240, Pa.Super. (1978) 385 A.2d (“primary consideration enacting implied consent statute was Quarles, supra evidentiary”); 229 Pa. (Commonwealth’s Super. at interest implied reflected in consent law is to obtain evidence that can against be used drunken proceed drivers criminal ings). 1547(a)(2) a provision Section within statute Thus, which criminalizes drunken driving. the searches 1547(a)(2) authorized do fall within scope § civil searches at issue in the Skinner case.

We refuse to extend the holding of Skinner context of a criminal investigation driving of a under the influence noted, case. As this has Court prosecution defendant a criminal has much at

[a] reputation, stake-his work, his continued capacity *12 important, most his The rights freedom. him provided are Fourth Amendment most important when the so high. stakes are Quarles, supra, Pa.Superior Ct. at

381, 324 at A.2d 462. we recognize While the substantiality of the Commonwealth’s in interest eradicating problem of drunk driving, recognize and we that evidence of blood time, alcohol diminishes with we cannot conclude that highly blood, intrusive breath urine designed tests lead to for evidence use in criminal proceedings are consti- valid in tutionally of probable absence cause. In Schmerber, supra, the Supreme Court that police noted must evidence of drunk-driving have a suspect’s impairment forcing before him or her to endure a blood test: The interests in dignity human and privacy which the Fourth Amendment protects forbid any such intrusions might on mere chance that desired evidence be ob- of a clear indication that in fact tained. the absence found, these fundamental such evidence will be human law officers to suffer the risk that such require interests may disappear. evidence

Schmerber, supra 769-70, 1835. S.Ct. at We in find no current Court cases which authority standard, would a relaxation of the support probable cause Amendment, in plain embodied text of the Fourth blood, breath and urine tests at issue this case.9 1547(a)(2) We hold that authorizes unreasonable § taking searches violation of the Fourth Amendment. The testing appellant’s blood amounted an unconstitu- tional search and seizure. The results of the blood test were not admissible at trial. 1547(a)(2)

II. CONSTITUTIONALITY OF UNDER § PENNSYLVANIA CONSTITUTION ARTICLE

I, SECTION 8 counterpart state constitutional to the Fourth provides: Amendment found Article Section which dissenting acknowledges opinion 9. While the the that the Skinner situations, expressly holding Court its limited to non-law-enforcement holding the dissent maintains that an extension of the Skinner to the prosecutions context of criminal is nonetheless warranted under the application facts of this case. The dissent’s established doctrine on search and of Skinner contradicts seizure, requires showing which or, cases, probable suspicion, supra cause in some reasonable see prosecutorial note before a search for evidence can be conducted. question important There is no that the Commonwealth has an inter- removing est in wealth has the such drunk drivers from the roads and that the Common- power driving Any to criminalize under the influence. however, regulation, comply must with constitutional mandates. destroyed party The concern that evidence will be lost or or that a will escape ing accountability justification from has been never for eliminat- or, requirement probable that the have cause in those searches, involving minimally suspicion cases intrusive reasonable that the desired evidence will be found. Nor has the rate of occur- *13 particular type justification rence of a of criminal offense ever been a conducting probable searches without cause the search where involves the level of intrusion involved in the tests issue here. A, As discussed it above section is well settled that a officer obtaining sample need not secure a warrant before a blood from a person suspected driving under influence. Security 8. from searches and seizures § shall secure in people persons, houses, be their papers possessions from unreasonable searches and seizures, and no warrant to search any place or to seize shall any person things describing issue without them be, nearly may cause, as as nor without probable sup- or affirmation ported by oath by subscribed affi- ant. CONST, 1,

PA. art. 8.§ hold today While we the searches authorized by 1547(a)(2) constitution, find, the federal violate we also as § law, independent a matter of state of the federal constitu tion, that the searches are constitutionally invalid under our rule, state general constitution. As a the Pennsylvania requires showing Constitution of probable cause before a search or seizure occurs.10 1547(a)(2) Since does not § require any blood, evidence of a crime upon which the breath, based, may and urine tests be we conclude that the 1547(a)(2) tests by authorized offend our constitution’s § restraints against unreasonable searches and seizures. I,

In interpreting 8, article section Supreme our Court has explained the interplay between the federal and state consti- tutional protection of fundamental liberties:

While minimum federal guarantees constitutional are “equally applicable [analogous] state constitutional provision,” see, e.g., Platou, 455 Pa. 2, (1973), 260 n. denied, A.2d n. cert. S.Ct. L.Ed.2d 1146 the state has the power provide broader standards than those mandated the federal Constitution: circumstances, 10. Supreme a limited number of our Court has requirement probable relaxed the adopted traditional cause and balancing test used the United States Court in Fourth cases, I, analyzing by balancing Amendment the individual’s conducting 290-91, article section 8 issues privacy against governmental interests interest in Tarbert, the search. See Commonwealth 517 Pa. (1987) (applying Fourth Amendment balancing roadblocks). systematic driving test to drunk test in the We find that application balancing present inappro- case would be priate, given high 1547(a)(2) level of intrusiveness of the § searches.

17 It is well settled that a state may provide through its rights constitution a basis for the and liberties of its independent citizens from that provided the Federal Constitution, and the rights guaranteed may so be expansive more than their federal counterparts. Robins, Shopping Prune-Yard Center v. 74, 447 U.S. 80-82, 2035, 2040-41, (1980); 100 S.Ct. 64 L.Ed.2d 741 Hass, see v. Oregon 714, 719, 1215, 420 U.S. 95 S.Ct. Cooper v. California, 1219, (1975); 43 L.Ed.2d 570 386 58, 62, 788, 791, (1967). U.S. 87 S.Ct. 17 L.Ed.2d 730 Ware, See also Commonwealth v. 52, 446 Pa. 284 A.2d v. Pennsylvania (1971), 700 cert. granted sub nom. Ware, 987, 1254, 453, 405 U.S. 92 31 S.Ct. L.Ed.2d denied, 910, subsequently vacated and 406 U.S. 92 S.Ct. 1606, (1972) (“it 31 appearing L.Ed.2d 821 judgment below upon adequate ground”). rests an state This Court has on numerous occasions recognized Pennsylvania Constitution to an and inde be alternative Willing pendent See, source of rights. e.g. individual Mazzocone, v. 377, Com (1978); 482 Pa. 393 A.2d 1155 monwealth v. Triplett, 244, (1975); 462 Pa. 341 A.2d 62 Knowles, Commonwealth v. 70, 3, 459 Pa. 73 n. 327 Platou, Commonwealth v. 19, (1974); A.2d 20 n. 3 455 258, (1973), 312 denied, 976, Pa. A.2d 29 cert. 417 3183, Goldman The 94 (1974); S.Ct. 41 L.Ed.2d 1146 atres, Dana, Inc. v. 83, 59, 405 Pa. 173 A.2d cert. denied, 897, 174, 368 U.S. 82 (1961). S.Ct. 7 L.Ed.2d 93 Tate, Commonwealth v. 158, 169-70, 495 Pa. 432 A.2d 1382, (1981). 1387-1388

This Court has not hesitated to interpret Pennsylvania Constitution as affording greater protection to defen See, Common e.g., dants than the federal Constitution. wealth Bussey, v. 221, (1979); 486 Pa. 404 A.2d 1309 Commonwealth v. Triplett, 462 Pa. 244, 62 A.2d Richman, Commonwealth v. (1975); 167, 458 Pa. Campana, (1974); A.2d 351 452 Pa. 233, 432, vacated, A.2d 414 U.S. S.Ct. remand, on

L.Ed.2d 455 Pa. 314 A.2d 3172, 41 L.Ed.2d 1139 denied, cert. (1974). 282-83, Tarbert, 517 Pa. at supra

Commonwealth Sell, 1037-38, 504 Pa. A.2d at quoting 46, 63-64, 466-67 instances, imposed higher our Courts have several *15 than the standards on searches and seizures standards the Federal Constitution. See Commonwealth required by I, 8, Sell, (under Article section defendant who supra v. possessory offense has automatic stand charged with to fruit challenge admissibility alleged of evidence be ing seizure); DeJohn, illegal search and Commonwealth v. 32, (1979), denied, 444 486 Pa. 403 A.2d 1283 cert. U.S. (under 1032, 704, (1980) I, Article 100 62 L.Ed.2d 668 S.Ct. 8, legitimate expectation section customers have bank affairs, in records at a to their privacy kept pertaining bank and, thus, standing challenge admissibility have records); Pa.Super. v. 327 Beauford, Commonwealth 319, 253, (1984), dismissed, 783 508 Pa. 496 appeal 475 A.2d (1985) (under I, 8, A.2d 1143 article section installation and recorders pen registers requires use of dialed number cause). upon probable order judicial based light of the United States Court’s will circumstances, blood, ingness, uphold in some breath and probable urine tests in the absence of cause to believe that being tested is under the influence of alcohol individual substance, that our state constitu or a controlled we hold protection against tion such searches. We provides broader I, requires showing conclude that article section 8 blood, can order a probable cause before breath or urine search.

III. ACTUAL CONSENT argues that the test results Commonwealth voluntarily at trial con appellant were admissible because actual, testing. to the It is that an sented well-settled to a search eliminate the warrant and voluntary consent will of the Fourth Amendment. probable requirements cause

19 Bustamonte, v. Schneckloth 218, 2041, 412 U.S. 36 Walsh, v. (1973); L.Ed.2d 854 314 Pa.Su- citing Zap United 65, 767, per. 460 A.2d 771 States, 624, 628, 1277, 1279, 66 90 L.Ed. 1477 S.Ct. Anderson, Commonwealth v. (1946); 323, 208 Pa.Super. See also Commonwealth v. 329, (1966). A.2d Watkins, Pa.Super. 344 A.2d 678 consent has is a voluntarily given ques- been

“[W]hether tion of fact which must be determined in from the each case Walsh, totality of the circumstances.” supra quoting Com- Pa.Super. at 460 A.2d at Watkins, monwealth v. supra Pa.Super.

A.2d at 679. factors mitigate Some relevant favor of a finding consent was are: voluntary

(1) if the defendant’s background indicates his under- standing investigating procedures understanding his Dressner, of his rights, constitutional [Commonwealth 154, 157, 232 Pa.Super. (2) if (1975)]; the suspect search, has aided an investigation or as by *16 Id.; providing (3) if key, the consenter believed the evidence to be so well concealed that it probably would discovered, Id.; (4) not be the fact of some prior coopera- tion by the consenter produced which no incriminating Id.; evidence, (5) if the consenter was advised of his Id.; (6) if rights prior consent, constitutional his giving suspect felt that the best course of conduct was cooperation given the fact the he had caught been virtual- Commonwealth Griffin, “red-handed”, ly 232 Pa.Su- 163, 169, per. 336 A.2d 421 (1975); (7) presence probable cause to arrest or search the sus- pect, Commonwealth v. Thompson, 292 Pa.Super. 108, 113-14, (1981). 436 A.2d Mancini, Commonwealth v. Pa.Super. 592, 603-604, 490 A.2d Some of the factors that weigh against a finding consent voluntary was are:

(1) that the defendant interrogated was numerous times Common- while the hours, defendant was in for custody Smith, wealth v. 220, 228-29, 470 Pa. 368 A.2d (1977) (a in questioned custody defendant was while hours); (2) used or express implied twelve that the consent, Id.; (3) the defendant’s that the threats obtain order, in acquiesced suggestion, request defendant an Id.; (4) the lack of cause to police, probable Commonwealth v. Thomp- arrest or search the subject, son, supra. Mancini, supra Pa.Super. at

490 A.2d at 1383-84. factors,

In of these find that light appellant’s we Nothing appellant’s background consent was not valid. an understanding investigating indicates that she has of her procedures understanding rights. or an constitutional in the record that she had encounters Nothing any shows justice system prior with the criminal to her arrest this case, or that she ever in the enforcement employed was law Walsh, Commonwealth v. Further, supra, field. this any understanding investigative proce Court noted that weigh finding intelligent dures would not in favor of a of an in the knowing consent absence some awareness being part the blood test consented to was of a criminal Walsh, investigation. Commonwealth v. supra 314 Pa.Su 75-76, 460 A.2d at 772. The Court concluded that if per. “can that he no the defendant establish had notice test, investigative purpose criminal of the blood his consent Id., Pa.Superior would be invalid.” Ct. at Walsh, at 773. determinative factors which led the Court to conclude that the consent a Miranda voluntary patrolman gave were that warning, explained the consent form to and had appellee, Id., sign Pa.Superior the consent form. Ct. at appellee 77-78, 460 A.2d at 773. See also Commonwealth v. El *17 liott, denied, appeal (1988) 546 A.2d 654 Pa.Super. (1989) (where 521 Pa. 557 A.2d 721 defendant was Miranda given warnings, signed and read and a consent form, Com search); defendant consented to the voluntarily Chiesa, monwealth v. Pa.Super. 478 A.2d 850 (1984) (where defendant had been informed of thoroughly his Miranda rights signed and had a written consent form search, prior to the defendant had to voluntarily consented search). The uncontradicted in this evidence case shows that appellant had no notice of investigative purpose the criminal of the Miranda given warning blood test. She was not a told that the results of the against blood test could be used her in a criminal nor proceeding, sign did she a consent officer, form. Although it was a rather than a staff, of the hospital requested member who that appellant test, to submit this fact is not sufficient establish that appellant investigation had notice that the was criminal in nature. Appellant had summoned the police to the scene of the Despite appellant’s accident. reluctance to seek care, medical encouraged the officer her go to the hospi tal for treatment of her facial injuries, and then followed her to the hospital obtain a blood sample. Before re questing sample, the officer appellant assured that she was not under arrest and that for furtherance his acci investigation, dent he would like to obtain a sample. blood Appellant had no reason to investigation believe that the was any different from a routine accident investigation. facts, Given these we must conclude that appellant put on notice possible of the criminal ramifications of the blood test.11

Further, appellant had not been caught “red-handed” in act, some criminal and the police did not probable have cause to arrest her or order the blood test. On the basis of circumstances, all of these appellant’s we hold that consent was not valid.12 giving

11. We do not warnings hold that the necessary of Miranda is finding for a of valid warnings consent. The absence of Miranda is supports one factor finding appellant which was unaware of the investigation. criminal nature of the Dissenting 12. Opinion, Judge Kelly In his completely and without foundation analysis injecting mischaracterizes our as a Fifth Amend- "knowing intelligent” ment analysis waiver into a Fourth Amend- above, voluntary ment consent case. As stated whether a consent voluntary must be determined in totality each case from the circumstances, in consideration of the factors delineated above. We give do not hold warning precludes that the failure to a Miranda *18 breath, and urine tests authorized We hold that blood 1547(a)(2) constitute unrea- of the Motor Vehicle Code by § consti- searches in violation of our federal and state sonable not conclude that officer did have tutions. We of taking testing appel- to order and probable cause blood, did not consent to the appellant validly lant’s and alcohol test administered test. Because the blood rights, constitutional the results appellant’s violation of See Commonwealth at trial. the test were not admissible Williams, Pa.Super. and remand for a new of sentence judgment We vacate trial. relinquished. and remanded. Jurisdiction is

Vacated CIRILLO, Judge, President by Joined JOHNSON, CAVANAUGH, DEL JJ. SOLE OLSZEWSKI, J., concurring opinion. files a TAMILIA, J., dissenting opinion joined by files a BROSKY, J.

KELLY, J., dissenting opinion. files a supra finding n. 11. We find the case of of valid consent. See Wabh, supra, particularly to be relevant because similarity upon by case at hand. The cases relied its factual dissent either to the easily distinguishable support holding from our or are Slaton, example, Pa.Super. in Commonwealth v. this case. For 301, appellant pharmacist (1989), panel banc of this Court held that the 556 A.2d 1343 an en voluntarily did not consent to search his suspected of prescription files where he was not informed that he was against search was for evidence to be used criminal conduct and the him. In Commonwealth v. cert. Supreme a search of his Albrecht, Pa. 511 A.2d 764 denied, (1987), the 94 L.Ed.2d 801 appellant voluntarily found had consented to Court signed The consent form car where he had a consent form which had stated, attorney. part, negotiated been that the his my right appellant constitutional had been "informed warrant and to have a search made of the vehicle ... without a search search____" my right Pa. at to refuse to consent to such a Id. 510 regarding every An extensive discussion of case 511 A.2d at 769. unnecessary pointless, because voluntariness of consent is both facts; thus, particular we each case must be decided on the basis of its shall avoid this exercise in circumstances of this futility. We reiterate that under the case, voluntary. appellant’s consent was not OLSZEWSKI, Judge, concurring: I agree with decision reached how- majority; ever, I separately emphasize scope write the limited our decision.

The decision by majority compelled reached long-standing precedent. Taking samples blood constitutes a search and seizure. Schmerber v. California, 757, 1826, (1966). 16 L.Ed.2d 908 Contrary to the implication 1547(a), of 75 Pa.C.S.A. drivers cannot be § “deemed” to consent to warrantless searches and seizures as a condition on right privilege of driving. Com- Quarles, monwealth v. 229 Pa.Super. 324 A.2d 460-462 The blood test fall recog- must under some exception nized to the requirement. warrant Id. Ordinarily, blood tests are on justified grounds of proba- 1547(a)(1); ble cause. 75 Pa.C.S.A. Commonwealth v. § Quarles, 229 Pa.Super. (1974) 460-462 (holding that blood tests are constitutional where there is probable cause). case, the present the blood test was based on solely accident, severity applying 75 1547(a)(2). Pa.C.S.A. accident, Severity standing § alone, is grounds not sufficient a justify warrantless test; blood accordingly, 1547(a)(2) Pa.C.S.A. is uncon- § stitutional.

Where, here, as reason only for the blood test is the accident, severity illegal blood test is an search and seizure. If police officer in this case had noticed any signs intoxication, such an alcohol, as odor of bloodshot eyes, lack of coordination or speech, slurred the blood test would have been authorized 1547(a)(1). Pa.C.S.A. § See, e.g., Commonwealth v. Haynos, Pa.Super.

A.2d 394 Pa.Super. Pelkey, (1985) A.2d (probable cause on based existence of an accident and odor of breath). alcohol on the driver’s our Consequently, decision affects only those cases in which the officer requesting the blood test has no reason to suspect intoxication.

Furthermore, I while concur with the majority’s conclu- sion that did not appellant actually consent to the blood test, I disagree Mi- majority’s with the suggestion randa warnings necessary are for valid consent. It is sufficient if the tested person understands the nature and to refuse. Miranda purpose right of the blood test and the consent, warnings may be evidence of voluntary they but required. are not

TAMILLIA, Judge, dissenting: This case involves one-car accident which the passen- accident, killed. ger Following was the appellant, who driving, nearby went to a residence she where called responded police. the call and on the way residence, to the encountered a car with the driver side unoccupied passenger and the dead. The gone car had off *20 the stump road and struck a tree and a utility pole which Moreover, was on the side of lying the road. of its because force and the speed, impaled vehicle became on the pole through the passenger compartment killing the passenger. residence, At the the appellant identified herself to the as the police police driver. She informed the that earlier in Inn, evening, at an she while met the man who her was passenger, driving home, and while him lunged he had at her, attempting to her In defending remove blouse. her- self, she lost control of the vehicle and ran off the road. accident, After the she Byrd ran to the residence from police. where she called the The police encouraged her to go to the hospital for treatment of her facial injuries. While she receiving was treatment at the hospital, police there and questioned arrived her.

Based on the severity of the accident and the death of the passenger, requested appellant officers to provide them sample. They with blood did not detect an odor alcohol on her nor they breath were able to any observe usual indicators of Appellant alcohol use. consented to the tested, test and her blood after the lab work done by police, with a blood alcohol content of per .21 cent. Police warnings did not her nor inform her give they Miranda did charges the test could result in criminal if she was according legal found to be intoxicated standards established law. cent,

As a result of the test finding per blood .21 appellant charged driving influence, was with under the vehicle, homicide by driving homicide vehicle while under driving the influence and speed. Following unsafe her arraignment and, course, in due a motion to suppress the presented alleging blood test was blood test was inadmissible as evidence probable because there was no test, obtaining cause for a blood appellant had not been warned that she subject prosecution, was to criminal she not informed she was was entitled to counsel under court denied Miranda. trial the motion and held that statute, because of the implied consent 75 Pa.C.S. § Chemical testing to determine amount of alcohol or con- substance, police trolled had a right to obtain the blood Thereafter, sample. trial, appellant, following a jury alcohol, convicted only driving under the influence of 3731(a)(4). Following Pa.C.S. post-trial denial of her mo- § tions, appellant (48) was sentenced to forty-eight hours to (1) one year imprisonment. appeal This followed.

The majority acknowledges police procedure con- written, formed with the statute as analyzing Skin- ner v. Railway Association, Labor Executives’ 103 L.Ed.2d 639 and other state cases, and federal finds that while the and court *21 complied procedures with the statute and it provides, the statute is unconstitutional. It is the contention of the that under the fourth majority amendment of the Federal Constitution, having seizure, to do with search and and the eighth section of article I the Pennsylvania Constitution, of seizure, concerning likewise search and the statute relied upon by by and affirmed the court is unconstitu- provides tional as it for probable search without cause in cases such as this.

I with the result respectfully disagree by reached and believe that of the majority throughout Opinion, most it provided supporting has law and judicial interpretations permit finding which sufficient constitutionality, justify testing under the circumstances of this case. It is only the conclusion of the and its majority refusal to take Skinner, supra, step interpreting necessary both other cases to sustain the constitutionality of statute to statute, which I dissent. It is that the my belief under the case, limited very special circumstances of this class of supplies the necessary probable substitute cause due to important public which, interest very considerations when against interests, balanced the private require the exercise of a search.

As the Skin developed majority Opinion tracking ner analysis, every aspect search and seizure related to this case has been identified and resolved. Skinner had to do regulations pursuant with railroad to the Federal Rail Safety road Act of 1970 which authorized the secretary transportation promulgate rules and regulations for all areas of safety. Finding railroad drug alcohol and poses abuse railroad employees serious threat safety, (FRA) the Federal Railroad Administration promul gated regulations mandating blood and urine tests of em ployees who were involved certain train accidents.1 Skinner involved a motion certain employees of rail case, roads to enjoin regulation. course, in due reached the Supreme Court, United States which reversed Appeals the Court of in its holding that these regulations were violative of the fourth amendment search and seizure provisions. reversing court, the appeals the Supreme Court directed its attention to the multi-faceted fourth amendment issues presented, resolving all of them in favor of the interest of public rather than the private interest of the individual. provisions regulations,

1. There were dealing testing other with occurred, employees suspicion on mere when no accident had approved by which were discussed and Court but which are not relevant to this review. *22 blood, found that urine holding, In Court so to the Federal Constitu- subject tests were breathalyzer and It found that application. fourth amendment tion’s therefore, and, such government agent FRA was an regulations. their rights applied to fourth amendment a search or seizure say went on to that whether Skinner fourth the Federal Constitution’s is reasonable under surrounding on all the circumstances depends amendment prohibitions The fourth amendment search or seizure. relate to unreasonable search against search and seizure in certain well-de- except and seizure. It reaffirmed circumstances, in criminal case is a search or seizure a fined is the fourth amendment unless it not reasonable under upon judicial to a warrant issued accomplished pursuant However, inquiry as to cause. evaluation probable did not end seizure under these circumstances search and warrant, pursuant to the fourth requiring there. seizure, amendment, purpose search and is justify authorized lawby assure the citizen that the intrusion scopes, limited in the narrowly objectives and that it is of a neutral provides scrutiny and also for the detached ensures an determination magistrate objective and thus case. Skin- justified any given an intrusion is whether ner cited the cases which hold that we must strike the procedure favor of the described the warrant balance in most cases. clause of the fourth amendment criminal However, to the rule when special recognized exceptions it needs enforcement make beyond the normal need law probable requirements impracticable. the warrant and cause Wisconsin, U.S. Griffin L.Ed.2d needs, special faced with such we have not hesi-

“When governmental privacy tated to balance the interest and the practicality probable assess the warrant e.g., See in the context.” requirements particular cause supra 107 S.Ct. at 97 L.Ed.2d at 709 Griffin, Burger, New York (search home); probationer’s of a 2636, 2642-2644, 699-703, 96 L.Ed.2d 601 S.Ct. (1987) (search of certain premises highly regulated busi *23 v. Ortega, nesses); O’Conner 709, 721-725, 480 U.S. 107 1492, 1500-1502, (1987) (work-related 714 S.Ct. L.Ed.2d offices); of employees’ Jersey New searches desks and L.O., T. 337-342, 733, 740-743, U.S. 105 S.Ct. (1985) (search by L.Ed.2d 720 of student’s school property officials); Wolfish, Bell v. 520, 558-560, 99 S.Ct. 1861, 1884-1885, (1979) (body 60 L.Ed.2d cavity Skinner, inmates), at supra prison searches cited at -, -, 109 S.Ct. at L.Ed.2d 661. those Skinner, cases, as with the Supreme Court held that the in government’s regulating interest the conduct involved, railroads, it persons whether be the government office, school or prison, presents special beyond need law normal enforcement that from may justify departures probable the usual Skin requirements. warrant and cause ner, supra at -, at -, 103 L.Ed.2d at 662.

In Skinner at footnote stated: court “We leave for day another the question whether routine use in criminal prosecutions evidence obtained pursuant to the adminis- give scheme trative would rise to an inference of or pretext, impugn the otherwise administrative nature of the Agency’s It program.” would deal possibility with regulations pretext were a to law enable enforcement au- gather to of penal thorities evidence law violations. How- ever, in to decide refusing that issue because it was not Skinner presented, there did not rule out a statute such as which, here, that with which deal we without in- pretext, use the implied consent of the individual enable tends blood, procurement of from evidence or breathalyzer urine tests in order to that person determine whether had violated in driving while under the influence. The rationale law Skinner, that neither a proba- warrant nor a showing suspicion required ble cause to permit reasonable is regulation, intrusion for the purposes is applicable here, scrutiny governmental statute under and the as as a just important interest involved the statute FRA. promulgated by such as that regulation of a purpose on to state that an essential goes Skinner interests protect privacy is to requirement warrant or seizure that such ensuring subject citizens to search govern acts of arbitrary are not the random or intrusions A assures the"citizen that the intru agents. ment warrant it is limited in narrowly sion is authorized law and that New York v. scope. e.g., Burger, its See objectives A 96 L.Ed.2d at at 2636. supra at S.Ct. provides scrutiny warrant also the detached of a neutral magistrate objective and thus ensures an determination an intrusion is case. justified any given whether See *24 Chadwick, 1, 9, 97 S.Ct. United States (1977). The makes Supreme L.Ed.2d 538 Court then here, point essential which needs to be made that in the context a do little present warrant would these further at -, Paraphrasing Skinner, supra aims. S.Ct. -, 103 L.Ed.2d at both justifying the circumstances toxilogical testing the permissible limits of such intru in narrowly sions are defined the statute specifically provides which authorizes them. This focus necessary supplied by showing restriction which is a of normally probable cause and the a by disinterested review neutral magistrate. on the may rely presumption

While we that every knows the for this body purpose, law terms its exact content, presume textual we knows that one may everybody may not drive under the influence of alcohol. Carry while ing logic Skinner, light further the propounded by standardized nature of the tests and minimal discretion charged administering in those the testing, vested with magistrate there are no facts for a virtually neutral at -, at -, Skinner, evaluate. supra S.Ct. further, Going L.Ed.2d at 663. Court stated it recognized government’s dispensing interest with the when, here, is at as requirement strongest warrant its obtaining to frustrate the likely burden warrant governmental purpose behind the search. They concluded imposing requirement a warrant in the context of a railroad accident would add little to the assurance of cer- tainty and regularity already afforded regulation, and, significantly hindering cases, while in many frustrat- ing the objectives government’s program. There- fore, the warrant is not essential to render the intrusion at issue with reasonableness requirement of the fourth amendment. The identical considerations are applicable here.

Going forward to the next prong search and seizure amendment, under the fourth Skinner analyzed the find- ings that even when a warrant is not required general as a matter, a search may not be instituted probable unless cause exists to person believe the violated the law. Skin- ner held that a showing individualized suspicion is not a constitutional floor below which a search must be presumed Martinez-Fuerte, unreasonable. United States v. 428 U.S. 543, 560, 3074, 3084, L.Ed.2d 1116 In limited circumstances where the privacy interests implicated by the search are minimal and important where an govern- mental interest furthered the intrusion would be placed in jeopardy by requirement of individualized suspicion, a search may despite be reasonable the absence of such suspicion. We believe this is true of the intrusions in Schmerber v. California, question here. *25 (1966), S.Ct. 16 L.Ed.2d 908 the Supreme Court held that the intrusion of the pursuant statute, state in drawing a sample blood from a suspected driver of driving intoxicated, while despite consent, his refusal to was proper as the intrusion is significant since such tests are and, place common in persons, most involve no risk or Skinner went on to the- analyze trauma. intrusion accom- panying or breathalyzer urine test as well and found that neither of those a imposed significant Going intrusion. further in its analysis, Skinner determined that since these intrusions were not considered significant to be intrusions and, in contrast, government testing, interest even or cause suspicion probable of individual showing without would be requirement cause probable compelling, these of laws types circumstances of under the unrealistic therefore, conclude, that a I would not regulations. impli- it simply intrusive because significantly be test would prosecution. criminal possible cated before, finds, taking stated that also as majority The unconstitutional the statute was sample pursuant blood Consti- Pennsylvania State under article section Pennsylvania distinction between the tution. There is little in terms of search the Federal Constitution Constitution and seizure, it is true that the State Constitution and while broadly more than the Federal Constitu- may be construed has tion, relatively in the area of criminal law there been regard. in this little of the State Constitution expansion courts, and the Pennsylvania Like the federal this Court Pennsylvania have determined the Constitu- Supreme Court without prohibit tion does not certain arrests warrant if circumstances exist. The probable special without cause Tarbert, relies on Commonwealth majority particularly a road- 517 Pa. 535 A.2d 1035 which held that means for drunk driv- permissible deterring block is not a as in test it cast too broad a net ing, applying balancing holding distinguishable purpose. easily for that This identified individu- present specifically from the case whereas pursuant subject testing, als to the statute are roadblock, identi- persons specifically in a have not been on luck depends fied and it is a random intrusion which conditions of identification to ascer- particular rather than Here, person special tain the to be tested. because determining concerns for whether serious accidents and ingestion part death were caused at least because drugs, important governmental alcohol or a serious and implicated testing persons interest is which all who justifies single category. fit in limited and narrow very relationship drug ingestion between alcohol and and serious spelled accidents is so documented that it need not be well in this class special government out here. The needs *26 superior of cases are of a requirement warrant or probable taking cause in a sample. blood

A of the Pennsylvania is, review case law on this issue degree, a but does not informative address the constitution- Quarles, In Commonwealth v. ality provision. of such a (1974), 324 A.2d 452 Pa.Super. concerning issue in implied consent was addressed relation to that portion the statute which had to do an arrest with drunken driving where it suspected party was was under the In interpreting influence. the section which now 7.5 1547(a), Pa.C.S. this legislature Court determined the had § injected probable a cause requirement a warrantless search, prearrest which was constitutional. Statutory reen- Quarles actments since have substantially been the same in respect driving section, to the while under the influence but time, since that question the section under has added been probable which does not cause require obtaining basis for Quarles is, therefore, helpful blood test. not to us in coming to a decision this matter. Cases which followed Quarles, Cieri, Commonwealth v. Pa.Super. (1985), and Commonwealth v. A.2d 317 Pelkey, Pa.Su- (1985), were, likewise, per. rulings .which probable turned on the existence of cause and the issue present in this case raised. was Smith, 382 Pa.Super. 555 A.2d 185 involved here, is, same issue as is an presented accident result- ing in injury being death with blood extracted at a case, however, hospital. there was noticeable evi- ingestion, dence of alcohol though sample even consent, taken without it taking was held to be a valid since probable taking. cause existed for the There was no need to consider the issue of implied consent absent a finding probable cause.

We are now faced for the first time with the issue as to whether, under section blood taken may solely be 1547(a)(2), implied provision because of the consent and without probable existence cause terms of physical appearance or odors of alcohol. The majority bright draws a line at the

33 exist, holding that the cause did not probable where point to the extent are unconstitutional provisions consent implied therein requirement cause is contained probable that a statute. or read into the rule leap, majority ignores primary

In this making statute, is that of a which examining constitutionality of constitu must find favor possible, to the extent we Com., Transp. v. McFar Dept. of a statute. tionality of (1987). evident ren, clearly A.2d 1185 It is 514 Pa. 525 411, probable not intend to have a cause legislature that the did condition to a warrantless requirement triggering be the samp in order to obtain a blood and nonconsensual search intend to the consti legislature Neither did the violate le.2 section, 1922(8). reviewing this 1 Pa.C.S. tution. See § furthering a legislative plan is to look at the necessary it result, an obtaining important interest governmental individuals to a right private reduction of the despite the I and seizure. believe probable cause search warranted and the rationale for legislative plan clearly apparent plan necessary.3 such a is reasonable find the search was While the Commonwealth would have us 2. test, willing appellant gave I am as actual consent to consensual adopt consent, majority’s court that the if view and that the trial cause, probable lack of and unconstitutional because of uninformed Monahan, 623, Pa.Super. nullity. 549 Commonwealth v. 378 was a (1988). A.2d 231 not testimonial in nature and Evidence such as blood tests are amendment, consequently not the fall within the ambit of the fourth significance warnings Thus the Miranda have no as fifth amendment. test, implied by blood or the coerciveness to the voluntariness of the Anderl, failing Also see Commonwealth v. 329 to warn a driver. Also, 69, results). (1984) (breathalyzer Pa.Super. no 477 A.2d 1356 appellant required is not taken into Miranda waiver is where the Bruder, custody. Pennsylvania S.Ct. Gonzalez, (1988); 546 A.2d 519 Pa. L.Ed.2d 172 Britcher, (1988); Pa.Super. 563 A.2d 502 Ellis, Pa.Super. Also see Commonwealth v. denied, (1989) Pa. 562 A.2d 824 allocatur room). (defendant hospital custody questioned in not in when his act, provides: statutory seq., construction 1 Pa.C.S. 1901 et § 3. The Legislative intent controls 1921. §

All of the reasons enunciated in as to the right Skinner to effectuate in- government regulations to control an strumentality prospect great danger which contains the sanctions, and harm to the public, by both deterrence and are here. The applicable United States Court reviewed and documented the necessity impose special railroads, treatment on due to the employees numbers and kinds of accidents are engendered employ- which when ees are under the influence of drugs alcohol. That documentation is no less relevant and applicable opera- vehicles, tors of motor whether be they private vehicles *28 case, such as in large the automobile this or buses carrying of or people, carrying array numbers trucks an enormous of toxic, products, extremely some of which are lethal and capable damaging large communities, of areas and entire heavy transports carrying bridge beams and heavy equip- ment, which travel the hills of Pennsylvania capable and are large death and destruction over areas if properly potential controlled. The for harm on the highways of Pennsylvania, which is one of the most extensive highway in systems tunnels, the world and one which involves roads, bridges, ice, mountain passages, fog, narrow snow conditions, is rainy necessary regulation go so as to death, question. appears potential without It the de- great public struction and harm is far by exceeded the vehicle traffic on the Pennsylvania highways than is the case with the railroad system unques- this state. It is tionably necessary people, to assure that who are incompe- drug who, tent to drive because of and alcohol by use and (c) explicit, When the words of the statute are not the intention of Assembly may by considering, among the General other matters: be ascertained (1) necessity The occasion and for the statute. (2) The circumstances under which it was enacted. (3) The mischief to be remedied. (4) (5) object The to be attained. law, any, including upon The former if other statutes the subjects. same or similar (6) (7) consequences particular interpretation. The of a contemporaneous legislative history. The (8) Legislative interpretations and administrative of such statute. use, dangerousness increase the illegal dramatically their drive, regulat- are vehicle which they and lethalness the necessity the any about question ed. There cannot be deter and sanction adequate provisions prevent, to statutory defy this to drive and then privilege those who abuse people regulations. the to has refused which the balancing majority

Thus a test as the individual if related concerns of apply, privacy in this interest compared general governmental with the law, mandates, narrow very in a clearly area of the governmen- an which favors way, application restricted before, tests As intrusion tal we have said interest. drugs has been considered to the use of alcohol or relating Court and both United States minimal statutory The scheme which of this Commonwealth. Courts an assent to drive privilege driving implied equates the not an unreason- without the use of alcohol is legally and scheme scheme also a measured statutory able one. degree necessary is limited to the which the intrusion in protecting provide order the maximum effectiveness into intruding public minimally while at the same time private interest. scheme, legisla- it is evident Reviewing statutory *29 law, person a implied ture intended that under the consent on public a license and drives the who obtains driver’s a search and gives right his to warranted highways up blood, samples, or breath under 75 Pa.C.S. seizure of urine if, arrest, 1547(a), prior exists and an probable to cause § drugs or driver is under the influence of officer believes the conditions, blood, a of breath sample alcohol. Under those a and without or urine could be taken without warrant Quarles, supra. See This has inter- consent. section been above, mean, cause preted probable to as discussed that to a is under the influence. person must exist believe However, person this to those cases when a applies only or resulting no in injury is on and accident highway the minimal thereby death establishes a is issue. law go to further. intrusion where the need is established However, “implied the provision consent” of the Motor Code, 1547(a)(2), Vehicle 75 Pa.C.S. the legislature recog- § nized when person injured that a is to the degree needing medical attention or a death occurs as a result of an accident, vehicular prevented ultimate condition to or be exists governmental deterred and this as a requires, inter- concern, est and public right go further and man- dates testing both for the purpose of deterrence and for the purpose of sanctions.

The greater danger and greater having harm been real- ized in actuality, implied goes consent law further than (a)(1) subsection requirement eliminates the of probable cause. A further reason for is doing so easily evident. If a is party injured in the accident and before the or police can perhaps should further in go evaluating party’s condi- cause, tion to establish probable he may have been trans- ported to hospital By treatment. the time the police opportunity obtain an with person deal to ascertain probable exists, whether cause for testing the basis for ascertainment of probable dissipated. cause have If may for medical reasons the was party totally beyond contact police their investigation conduct of when there was serious injury were not able observe the individual or to smell the odors prior of alcohol to the time the dissipated alcohol from person’s system, then person escape would the review that other any person, might who have been under the influence of drugs alcohol, subjected to by implied consent laws. There is no better example the above the companion than case Kohl, Pa.Super. decided, which the majority also under the here, it reasoning propounds on the unconstitutionality There, 1547(a)(2). 75 Pa.C.S. in an early morning § acci- dent, appellant/driver was rendered unconscious and his passengers two were killed. He hospitalized did not regain consciousness until the following day. After *30 investigating accident, the scene of the police went to the hospital requested and a test, blood alcohol which estab- A motion to of .15 cent. per alcohol content lished a blood result, a amend- on the basis of fourth this test suppress conviction, the the reversing denied. right, ment was to for it the Commonwealth impossible makes majority behavior, who, through knowing illegal his party a pursue destruction, his simply because has death and produced probable finding permit condition does medical to test. cause above, obtaining intrusion in terms stated the

As has been blood, purpose test urine or breath for in other cases to be minimal. in determined Skinner is deterrence of uncontrolled to achieved goal be fact, by assuring that after incompetent drivers when or accountability injury no from escape there will be accident in which the abuser death occurs in an involved. greater is than the governmental interest much

This This resulting to the individual. is minimal intrusion neither a warrant for special necessity situation which can the balance probable justified arrest nor cause be when governmental pri interest and the public between are killed persons interest are When more weighed. vate in each than are killed most of public highways year on our has and the country participated only which this wars on weapon carnage highways effective reduce the ingested screening drugs those who have by persons driving have serious alcohol while or who been involved influence, right of the accidents while under the then the probable being without cause shown individual be tested public the tests is far less than need have performed.4

I judgment affirm the sentence. would BROSKY, J., joins. Pa.Super. Leninsky, 519 A.2d 984

4. governmental preventing and control- the role of interest discusses “ irresponsible ‘The car- ling caused drivers. the extensive harm no nage is well documented and needs caused drunk drivers Neville, 553, 558, South Dakota v. detailed recitation here.’ *31 38

KELLY, dissenting: Judge, I respectfully dissent. I would affirm judgment sen- imposed appellant’s tence conviction of drunk I driving. not would address the constitutionality of 42 Pa.C.S.A. 1547(a)(2), Ias find appellant’s express consent was § valid, voluntary and and so would find recourse statutory to unnecessary consent to implied uphold the search (by blood test) challenged Nonetheless, here. as the majority base disposition their appeal this on that I ground, shall commence dissent my by explaining my views on im- issue, plied consent before to proceeding explain, length, at I with why disagree on the majority critical issue of appellant’s whether express consent was voluntary and valid.

I. 154-7(c) 75 Constitutionality Pa.C.S.A. § enacted, implied As the current consent statute leaves discretion to the in the to deter- unfettered mine whether officer field

or implied invoke consent request that a conscious driver submit to a blood test or direct that performed test be on an unconscious driver. 75 Pa.C. 1547(a)(2). S.A. every While driver who falls within the § triggering language of the statute consent, is deemed to there is no requirement that every driver deemed to consent Rather, be tested. the officer in pick the field may choose which test on an ad entirely hoc basis. The absence of sufficient restrictions on the officer’s discretion as to which conscious drivers are to requested be to submit test, to a blood or which unconscious drivers are to be test, subjected a blood the implied consent provi- renders unconstitutional, sion if a mandatory even “request sub- 919, 916, (1983). 103 S.ct. 74 slaughter L.Ed.2d 748 ‘The on the highways of our Nation exceeds the death toll all our wars.’ Perez Cambell, 637, 657, 1704, 1715, v. (1971) (Blackmun, 91 S.Ct. 29 L.Ed.2d 233 J., decade, 250,000 concurring). past In the over people 708,000 have year, died alcohol related accidents. Each 74,000 people injured, seriously____ are From 1972 to Pennsylvania number alcohol related fatal accidents in increased argue 154%. It would be feckless to that the Commonwealth’s interest ending carnage paramount.” in 57, Pa.Super. is less than Id. 360 (footnote omitted). 519 A.2d at 988-89

89 pass could to all such drivers applicable mit” provision — U.S. -, Wells, Florida v. muster. constitutional Cf. 43473); (1990) (1990 1 WL 109 L.Ed.2d 1391, L.Ed.2d Prouse, 440 v. S.Ct. Delaware Tarbert, 517 Pa. v. (1979); Commonwealth Pa. Swanger, Commonwealth (1987); A.2d 1035 Leninsky, (1973); 307 A.2d Hence, agree I that the Pa.Super. *32 is unconstitutional. current statute if the ratio- to determine I find it here necessary do not evi- evanescent preserve highly need” to “special nale of train the of a serious content at time dence of blood alcohol testing warrantless, of accident via suspicionless blood regulatory pur- prosecution, train for non-criminal crews Assn., Labor Railway Executive 489 Skinner in poses L.Ed.2d 639 could be 602, 109 S.Ct. warrantless, tests of suspicionless blood permit extended to in accidents for criminal drivers involved serious automobile Nonetheless, the response ma- purposes. prosecution I I be inclined to prohibition, note that would jority’s broad rationale in Skinner Tamilia that the agree Judge with cases, provided consent implied should extended to cover be (deemed discretion, persons as the to which have officer’s consented) tested, regulated in a rational and would be manner. systematic Constitutional Grounds

II. State uncon- same reason that I would find statute For the Amendment, I would likewise under the Fourth stitutional I,Art. sec. 8. I find under Pa. Const. it unconstitutional however, majority’s suggestion with the agree, cannot heightened of 1547(a)(2) because is invalid Pa.C.S.A. § I,Art. sec. 8 which is provided under Pa. Const. protection Amendment. under the Fourth provided Pa.Super. Shaeffer, (1987)(allocatur explained author granted), A.2d this of majority from dissenting a similar conclusion imposed broader en that our state constitution panel banc Amendment: restrictions than the Fourth

A. notes, As the majority Pennsylvania proscription against unreasonable searches and seizures antedates the provision. federal Majority Opinion, supra, 370 Pa.Su- per. 192-194, Indeed, 536 A.2d at 361. each of the guarantees contained in Rights the federal Bill of its had antecedents one or more the state constitutions and Fisher, colonial charters. See 'S. generally The Evolu- (Philadel- tion Constitution United States phia 1897). being “Far from the model states, Rights federal Bill of was added to meet demands the. guarantees same against government the new central people against had secured their own local officials.” Linde, First, First Think Rediscovering State’s Bill 9 U.Balt.L.Rev. Rights, Eight of the thirteen original adopted states a state constitutional prohibition against unreasonable searches and seizures prior to adoption of the Fourth Amendment. See Cuddihy, (Historical “Fourth Amendment Origins),” in Encyclopedia the American (Levy Constitution 762 *33 1987); Fisher, ed. see also supra S. at 199-201. More- over, it is appropriate to note that from 1776 until 1949 when the Fourth Amendment was first applied Amendment, states via the Fourteenth the proscription against searches unreasonable and seizures in the Penn- Constitution, sylvania Amendment, and not the Fourth protected Pennsylvanians from unreasonable searches seizures state law enforcement personnel. Com- Bruno, 541, monwealth v. 203 Pa.Super. 201 A.2d 434 (1964); Rubin, 315, 82 Pa.Super. 319 (1923); Woodside, accord Pennsylvania Constitutional Law, (1985). at 116

Clearly, I, Pa. Art. Const. sec. 8 has identity and vitality separate and distinct from that of the Fourth Amend- ment; it remains therefore emphatically province duty of the Pennsylvania judiciary declare its scope and limitations. See DeJohn, supra, 486 1289; Pa. at Beck, at Pennsylvania

41 Review—1982, Supreme Temple Quarterly Court Law (1983); Roberts, 708-10 The Supreme Court of Action, Pennsylvania; Constitutional Government (1981); Temple Quarterly Law see also Bren- nen, The Bill Rights the States: The revival of State Constitutions as Guardians Individual Rights, (1986); Galie, N.Y.U.L.Rev. Supreme Other Courts: Judicial Activism State Among Courts, 33 Syracuse L.Rev. 731 However, even proponents recognize of “new federalism” independent case for an role for state courts not be read as a case for unthinking “should activism. federal, No judge, state or is knight errant whose only good. Hence, concern is to do the state judge, when presented with the invitation develop body state law, constitutional should pause to consider some of the dangers along Howard, the way.” State Courts and Constitutional Rights Court, Day Burger (1976) (also 62 Va.L.Rev. 940-41 coining the phrase “new-federalism” to describe the use of state sovereignty to insulate state constitution protections broader than the federal protections constitutional from review in the fed courts); eral Berger, New Theories Interpreta cf tion: The Flight Constitution, Activists' from (Winter Ohio 1986) St.L.J. (analyzing and criticizing the approaches). activist

As recognizes, the majority we are “expected to deal with a carefully Supreme Court opinion explain and to forthrightly why find required to reason [we ourselves] differently.” Majority Opinion, supra, Pa.Super. at 189-190, 536 A.2d at quoting Commonwealth v. DeJohn, 486 Pa. supra, 403 A.2d at 1289. More *34 over, if should recognition be noted that the higher standard for searches and seizures under state constitu tional required law than that under federal constitutional circumstances, law in one set of does require that a higher standard should be imposed all other circum stances. 476, Gray, 509 Pa. 503

A.2d 921 our explained, Court “[w]hile we can interpret our own constitution to afford defen- greater dants protections than the federal constitution Sell, see e.g., does, Commonwealth v. 63-64, Pa. (1983) 470 A.2d (collecting cases), there should be a compelling reason to do so.” 509 Pa. at 484-85, added). A.2d at 926. (Emphasis

B. Pennsylvanians undoubtedly right have to adopt a state constitution which provides greater limitations on the warrantless use of electronic participant monitoring by law enforcement personnel than the federal constitu- provides. tion question case, in the however, instant is not whether Pennsylvanians may, but whether we have already done so. I,

The mere fact that Pa. Const. Art. sec. 8 antedates the Fourth Amendment provide does not a reason to construe it differently than the Fourth Amendment. Both were directed toward eliminating the same evils—general war- rants and writs of assistance. Hart, See Wakely (1814); Binn. 317-18 Rubin, Commonwealth v. su- pra, see also V The Founder’s Pa.Super 319-20; at Constitution 219-44 (tracing the origins of the Amendment); Fourth Galloway, Fourth Amendment Ban on General Seizures, Searches and 10 Search and Seizure L.Rep. (1983); Marke, 141-48 “The writs of Assistance Case and the Fourth Amendment,” in Essays in Legal History in Honor Felix Frankfurter, at (Forkosch 351-72 1966); White, ed. Commentaries on the Constitution Pennsylvania, (Philadel- at 157-59 1907). phia

Moreover, there are no significant textual differences provide which would a reason for differing construction of the clauses. Commonwealth v. Gray, supra, Pa. 485-86, 926; 503 A.2d at see also Commonwealth v. Johnston, 454, 472, 515 Pa. (1987)(Hutch- inson, J., concurring); Platou, 455 Pa.

43 denied cert. 11, 29, 34 n. 11 258, 266 n. (1974); 3183, 41 L.Ed.2d 1146 94 S.Ct. and compare I, Pa. Art. sec. U.S. Const. Const.Amend. Indeed, Pennsylvania the of the Constitution 8. revision textual significantly reduced in 1790 of 1776 differences have a broader con might supported otherwise which than federal Pennsylvania provision of the the struction changes It is that these were made significant provision. with the ratification unanimously contemporaneously by Pennsylvania. Fourth Amendment See Common omitted). (footnotes A.2d at 382-84 v. Rodriquez, (1988) wealth 519 Pa. 548 A.2d 1211 Pa. Art. accordance with (construing Const. sec. Reese, v. Commonwealth precedent); Amendment Fourth v. Commonwealth (1988) (same); Pa. 549 A.2d 909 Blystone, (1988) (same; overruling A.2d 519 Pa. — Shaeffer, supra); -, aff'd 108 L.Ed.2d 255 permits provide states to broader system

That our federal authority on to conduct government’s the restrictions required the minimally by and seizures than searches Here, however, unquestioned. Fourth Amendment is text of constitu- provided has no basis in the our majority tion, history application years of its for over before Ohio, Mapp since, history or in its which would justify I, sec. 8 expansive construction Pa. Const. Art. Indeed, on majority’s them here. decision employed announced, explained. rather than point this rationale clearly compelling In absence defined and I, 8,1 of Pa. Const. Art. sec. upon history based text construing to scrupulously provi- will continue avoid imposed than provide greater sion to restrictions especially regard Amendment. I will do so with Fourth evidence, as the suppression otherwise admissible imposed upon rule our con- exclusionary settled state (which repeatedly, expressly, had jurisprudence stitutional rejected exclusionary unequivocally rule) by the mandate Amendment, the Fourth Fourteenth and the federal

Amendment constitution’s Supremacy I no state Clause. find textual or basis historical based constitutionally exclusionary Pennsylvania, rule I will such an apply rule no than exclusionary further our commands. See Common expressly Court *36 v. Shaeffer, wealth Pa.Super. 179, 267-69, 370 235-40 & 536 364, J., (1987) A.2d 382-85 & 398-99 (Kelly, concurring and (allocatur granted); see also Commonwealth v. dissenting) Williams, 493, 498, Pa.Super. 1281, 390 568 A.2d 1285-87 (1990); Commonwealth v. Haggarty, 67, 388 Pa.Super. 73-76, 1269, (1989) J., 564 A.2d 1272-73 (Kelly, concurring); Slaton, v. Commonwealth 301, 343, 383 Pa.Super. 556 A.2d 1343, (1989) J., concurring 1363-64 (Kelly, dissenting); Melson, v. Commonwealth 139, 150, Pa.Super. 383 836, (1989) J., 841 (Kelly, dissenting).

III. Express Consent The find majority that appellant’s voluntary consent test They blood was invalid. do not find her consent coerced, invalid because she was or even because she was Rather, deceived. they find her invalid consent because she not put possible “was on notice of the criminal ramifications Opinion, of the blood test.” Majority supra, 395 Pa.Superi 27, or atCt. 576 A.2d at 1026. For several reasons which I length, shall discuss at I cannot agree. Slaton,

In Commonwealth v. supra, this author exam- consent, ined the length, relevant law of as follows: Early involving cases consent to search contained lan guage suggested which that consent must knowing be i.e. intelligent, express made with full and knowledge of the right Bumper See to refuse consent. v. North Carolina, 543, 1788, 391 U.S. 88 S.Ct. 20 L.Ed.2d 797 (1968); States, Johnson v. United 10, 333 U.S. 68 S.Ct. 367, (1948). 92 However, L.Ed. 436 in Schneckloth v. Bustamonte, 218, 2041, 412 93 S.Ct. 36 L.Ed.2d 854. (1973), our Supreme Court held valid that consent demonstrating established that by given it was voluntar i.e. without coercion ily, express Subsequent or implied. decisions have reinforced Schneckloth ruling

45 party giving not establish need prosecution could be refused. See United that consent consent knew Watson, 423 U.S. 820, 46 L.Ed.2d 411, 96 States v. S.Ct. Matlock, 415 U.S. 164, States United 94 (1976); 598 (1974). 242 988, L.Ed.2d S.Ct. that consent provide also construed cases were

Early in- deceit, stealth, misrepresentation obtained v. Wright, 81, Commonwealth valid. See 411 Pa. States, 255 U.S. Amos v. United citing (1963), A.2d 709 v. United Gouled (1921), 266, L.Ed. 654 S.Ct. States, L.Ed. 647 41 S.Ct. 255 U.S. States, v. United

Weeks Wright dictum was followed L.Ed. 652 in the more recent cases this Court Poteete, (1980) and 418 A.2d 513 Pa.Super. Morgan, 463, 510 A.2d Pa.Super. *37 Poteete). (1986) herein would (citing majority 754 dictum as stated Poteete. Wright in on the rely also misplaced. reliance is Their Weeks, Amos, Gouled, the United

Subsequent upheld has consensual Supreme repeatedly States Court to the despite deception identity as as searches valid conducting purpose person and/or Caceres, v. See United States 741, 440 “search.” U.S. 99 United States v. 1465, (1979); S.Ct. 59 L.Ed.2d 733 White, 401 745, 1122, (1971) 91 28 L.Ed.2d 453 U.S. S.Ct. States, Osborn v. United 323, 87 385 U.S. (plurality); States, v. United 429, (1966); 17 L.Ed.2d 394 S.Ct. Hoffa Lewis v. 293, 408, (1966); 87 17 L.Ed.2d 374 U.S. S.Ct. States, 424, United 206, 17 L.Ed.2d 312 385 U.S. 87 S.Ct. States, v. United Lopez 427, (1966); U.S. S.Ct. States, Rathburn v. United 1381, (1963); 10 L.Ed.2d 462 On Lee 161, (1957); 355 U.S. 78 S.Ct. L.Ed.2d States, United 747, 72 96 L.Ed. 1270 S.Ct. (1952). Thus, Supreme Court has ex- United States invariably does not recognized deception that pressly consent. vitiate

Likewise, cases of our dem Supreme more recent Court dictum (that Wright onstrate that the broad consent invalid) does not state acquired by deception accurately currently of consent as it is understood Penn law Morgan, In 517 Pa. sylvania. (1987), Supreme A.2d 1054 our Court reversed the deci of a of this had held that a panel sion divided Court which for officer suspect’s police (by stating consent to enter in”) rendered decep “come on invalid the officer’s identity (by answering tion as to his “Joe” to the sus Commonwealth v. there”). In pect’s question “who’s Albrecht, 510 Pa. 604, 603, (1986), cert. 511 A.2d 764 denied, 94 L.Ed.2d 801 (1987), Supreme our Court held that a suspect’s consent to search the trunk of his car was valid the fact despite that the uniformed officers did not inform the suspect they prior knew from lawful observations in was located in the trunk. criminating Finally, evidence Brown, 437 Pa. 261 A.2d 879 our held that a uniformed Supreme Court officer’s the reason for deception wanting suspect’s gun as to suspect’s relinquishment did not render the consensual Brown, Wright gun citing invalid. after acknowledging subsequent federal cases Court broad dictum for the set forth in eroding basis our concluded: Wright, Supreme Court necessary It is not this Court to determine what Lewis, are deceptive improper light devices Hoffa Lopez although that is a very question difficult as *38 Supreme grant- United States Court seems to have Court, The Supreme ed to the powers police. broad Term, 1966 81 Harv.L.Rev. 191-4 It is in enough light to state that of those three United decisions, Supreme States Court the police officer’s (Petrovich) constitutional, tactics were and the court refused to properly suppress below evidence of gun, holster and bullets. expressly has Thus, Court Supreme our

261 A.2d at 883. vitiate con- invariably does not deception recognized that sent. proscription Court, too, from the broad has retreated

This may consent be valid recognized that and has Wright, in moti- and/or identity as to an officer’s deception despite relinquishment consensual obtaining suspect’s in vation or statements, contraband to respect privacy with or evidence. inculpatory facts other Brown, in decision our Court’s Subsequent to Weimer, 262 in stated Commonwealth this Court (1978), that, “stealth and 396 A.2d Pa.Super. in the arsenal of the weapons necessary are strategy to in that consent found police officer.” We Weimer despite hunting club was not invalid private enter a reasons and their deception as to their identities officer’s Poteete, supra, seeking entry. for Commonwealth Brown, held that consent citing Wright this but Court officer suspect’s home was invalid when to enter think that the letting suspect suspect by deceived the stolen car follow-up suspect’s on the officer was there his there to confirm actually the officer was report, when prior on a visit lawfully observed suspicion property property. stolen recently fact However, v. Morri months later two (1980), cert. denied son, Pa.Super. Pennsylvania, Morrison v. sub nom. panel of this an en banc 66 L.Ed.2d

S.Ct. to enter a barn consent held that landowner’s Court suspected were marijuana large quantities which the officer’s rendered invalid by stored was not have been and his reason identity his deception as both panel, The en banc without wanting to see the barn. Poteete, distinguished Wright expressly citing Brown precedent of federal decided on the basis having as been modified. substantially subsequently had been which A.2d at 1381.

48 Pa.Super. 586, Schaszberger, v. Commonwealth

In (1981), enter was deemed consent to valid A.2d as to by deception fact that it was obtained despite the in i.e. seeking entry, and for identity officers’ reason the safe execution of a to facilitate the and effective order Ginter, Commonwealth In search warrant. lawful (1981), to enter 432 A.2d consent Pa.Super. to despite deception deemed valid the officers’ as was i.e. seeking entry, reason for their identities their Common- In violations. suspicions liquor confirm law Markman, wealth v. Pa.Super. unequivocally,

(1983), a of this Court stated panel “[con- procured by when may voluntary sent deemed even be misrepresents who both his identity officer As previously, the search.” noted purpose making for Morgan, this Court’s decision in which Morrison, Schaszberger, Ginter and instead ignored Poteete, our relied on reversed Court Carelli, Pa.Super. in Finally, a review of a following majority 546 A.2d 1185 Wright cases, Court held that neither foregoing the this nor Poteete regarding stated the law effect correctly it deception on consent as is understood currently I opinion. remain of that Pennsylvania. Poteete, offer resurrecting majority herein three I find flawed. fatally each justifications.

distinct Carelli based First, attempts distinguish majority case statutory duty in this of a on upon presence state of their purpose inspec- of the officers to part above, I find that the statute re- explained tions. As than statement of the of authorized type no more quires inspection requests the officer intends or administrative not required Because the officer is consent to conduct. seeking inspec- to disclose the reasons statute in that tion, distinguishable respect. case this Second, this case attempts distinguish majority Carel- cited upon their conclusion that cases based li, “were involving agents cases undercover primarily tactics; fact situations suited e.g. uniquely to such police *40 illegal dealings illegal opera- narcotics and gambling supra, Majority Opinion, tions.” Pa.Super. at Ginter, 556 A.2d at 1347 n. 6. While Morgan, Schaszber- Morrison, ger, Weimer and arguably fit restriction on the permissible use deception which the majority Albrecht, Brown, and suggests; Carelli do not. Albrecht an involved uniformed investigating, officer an arson case. Brown involved an uniformed officer investi- gating a murder case. Carelli an involved uniformed officer investigating a stolen truck case. Significantly, our Supreme Court in Brown: explained

The problem for this is permissi- Court to determine the police ble extent of in power light of these United States Supreme Court decisions. Lewis (involving sales marijuana (in- federal agent), narcotics Hoffa volving planting government aof informer in defen- dant’s hotel room and Lo- conversations), to overhear pez (involving an attempted bribe an Internal Reve- agent) nue clearly do not police to be Require completely open and truthful identity as to their and purpose dealing suspects. when with recognize They that undercover work an essential in weapon arsenal. this case the ‘undercover’ work was toas Petrovich’s identity policeman as but rather as to his in motives offering to sell the gun. appears It to us that there is no real difference between this deception and those found permissible Lewis, in Hoffa Lopez. and added). Thus, A.2d 881-82. (Emphasis this case is Albrecht,

not distinguishable Brown or Carelli from based the fact upon that officers involved here were not working undercover, nor is this distinguishable case upon type based of crime under investigation. Third and finally, majority suggest that because Wright overruled, has never been expressly Poteete and not Carelli correctly states the law respect with effect of deception upon in Pennsylvania. consent As however, Carelli, decided our Wright

explained on solely based federal law which was Supreme Court Moreover, modified. subse- subsequently substantially Court, of our while not overrul- quent decisions recog- expressly have nonetheless ing expressly, Wright in the law. See Commonwealth v. change nized this Albrecht, supra; supra; Commonwealth Morgan, Thus, I Brown, remain of the supra. longer correctly no state Poteete opinion Wright law, properly were distin- controlling they guished Morrison Carelli. course, given remains invalid if it is re- consent

Of authority. claim of Lo-Ji sponse to a false or invalid See Sales, York, 442 U.S. Inc. v. New *41 (1979); Bumper L.Ed.2d 920 v. North Carolina U.S. (1968); 1788, 20 L.Ed.2d 797 Im- 88 S.Ct. Go-Bart v. States S.Ct. porting Co. United (1931). Likewise, L.Ed. 374 consent is exceeded when conducted is than scope actually the of the search broader has consented. Gouled that which individual See States, Shaw, 467 supra; United (1978); FaFave, III A.2d 496 see generally Pa. 8.1(c), at nn. 48-108. 160-174 & Search Seizure § consent must deception other vitiate types Whether a case case determination of the volun- depend upon by of the light totality tariness of the consent of the circumstances, including challenged deception. See 882; Brown, 261 A.2d at supra, Com- Morrison, 418 A.2d at 1380-81. supra, monwealth v. only by The voluntariness of consent need be established preponderance Bourjaily of the evidence. v. United 171, 176, 2775, 2779, 97 L.Ed.2d States, 483 U.S. Matlock, (1987); supra. United States v. (footnotes omitted). 556 A.2d at 1358-61 case, appellant In the instant was an auto involved her into a Appellant telephone pole accident. had driven car killed in high passenger at a rate of her was speed; officer, ex- appellant crash. When interviewed had plained evening that she met her earlier that passenger Inn, an that passen- at the accident was caused her ger’s attempt sexually sudden assault her she while was driving. investigating The officer asked if would con- she sent to a blood alcohol test. He her informed result of that test would in his investigation be used of the accident. her He further informed that she not under was arrest, and he charging that was not her crime any with at that time. finds that majority appellant’s consent was “vol- ” it was

untary because not “knowingly and intelligent- ” given. The ly majority reaches that conclusion based upon its that, “appellant determination had no reason to believe investigation was any different from a routine investigation,” accident and “appellant put was not on notice possible criminal ramifications” of her consent. Opinion, Neither, Majority supra, how- 21. ever, had Albrecht, the defendants in Morgan, Brown, Carelli, Morrison, Ginter, Schaszberger, or been Weimer “put on possible notice criminal ramifications” of search; their yet, consent to consent was voluntary deemed and valid in each those cases.

Here, there no deception. Appellant coercion and no voluntarily test, consented to take the voluntarily submitted to test. There no semblance official coercion express implied; I no consequently, grounds see *42 to deem the consent invalid. There is no requirement that consent to search be “knowing and as intelligent” well as “voluntary.” Watson, United v. See States supra; United Matlock, v. supra; Bustamonte, States Schneckloth v. supra.

IV. Waivers “Intelligent” fact, In point of the majority has improperly injected Fifth “knowing intelligent” Amendment and waiver analy- sis into a Fourth Amendment “voluntary” consent case. Moreover, so, in doing they fail to the existing observe limitations on that analysis waiver and on generally, intelligent component waiver particularly. deemed to Miranda warnings only are prophylactic rights Amendment when to Fifth required protect

be interrogation coercive subjected presumptively suspect Bruder, v. Pennsylvania See custody. while Common (1988); 102 L.Ed.2d Com (1988); Gonzalez, 546 A.2d 26 v. 519 Pa. wealth 515, 563 A.2d 502 Britcher, v. Pa.Super. monwealth 337, 549 Ellis, 379 Pa.Super. (1989); Commonwealth to im willing are (1988). Though majority A.2d 1323 Fifth from approach choice” waiver “intelligent port cases into Amendment, confession interrogation, custodial Amendment, non-custodial, to search consent Fourth this however, import as case, unwilling, they apparently are intelligent voluntary, knowing, the limitation that well is in the suspect when the are only required waivers It is coercive setting police custody. presumptively not in appellant in this case that undisputed entirely Thus, to take the blood test. when she consented custody intelligent voluntary, knowing, application the very in this non-custodial signifi context is a analysis waiver of Miranda's legitimate I find no progeny. expansion cant of third history as there is no expansion, for that basis to secure consent blood type by police coercion degree following detentions investigative non-custodial during test accidents, requirement which would warrant auto Fourth warnings regarding Miranda prophylactic -type Slaton, supra, rights. Amendment Cf. 1363-64.1 556 A.2d at Slaton, supra, in Commonwealth v. position as explained this

1. I follows: exclusionary may rule extent there be a state Whether and to what Pennsylvania un- Pennsylvania arising Constitution is from the Montgomery, See Commonwealth v. Pennsylvania. certain in 142-43, (1986); Commonwealth v. Pa. 179, 265-71, (1988) Shaeffer, Pa.Super. A.2d 398-400 Morgan, J., In dissenting. concurring (Kelly, supra, Supreme Court noted: our remedy appropriate [E]xclusion/suppression of evidence is not an Pennsylvania Procedure every Rules of Criminal violation of only concerning It is where the violation searches and seizures. fundamental, concerns, implicates is conducted constitutional also *43 Moreover, in applying “knowing and intelligent” analysis, waiver the majority given have the “intelligent” component waiver broader construction that is permissible is even true Fifth Amendment/Miranda cases. Conceded- ly, majority applies “intelligent an choice” approach Miranda waivers applied which had been to involving cases in this Commonwealth is varied forms Supreme since our Collins, Commonwealth v. Court’s decision in 114, 436 Pa. (1969). 259 A.2d 160 Notwithstanding the line of Pennsyl- from Collins to Common- Supreme vania Court cases Moss, wealth v. 337, (1988) Pa. 543 A.2d 514 applying some form of approach, that I nonetheless conclude that the choice” approach to Miranda waivers of the “intelligent right against compulsory self-incrimination in contrary to controlling Supreme United States precedent Court on this (and issue of constitutional law is even more con- federal such trary precedent to when extended improperly to con- “waivers”). sent to search substantially prejudiced in bad-faith or has the defendant may appropriate remedy. exclusion be an 2, quoting Mason, 396, A.2d at 1056 n. Commonwealth v. 507 Pa. 406-07, 421, (1985) 490 A.2d (emphasis original). light Supreme our Court's resolute resistance to exclusionary the federal prior Ohio, Mapp rule 367 U.S. 81 S.Ct. 6 L.Ed.2d (1961), recognition I find application indepen- of an exclusionary dent state rule this inappropriate Court would be absent a clear Supreme command our Court. See Common- Shaeffer, J., supra, wealth v. (Kelly, 536 A.2d concurring at 399 dissenting) (discussing prospect of a state constitutional exclu- rule). sionary I note applied that our Court has exclusionary cautiously. rule In Commonwealth v. federal Williams, 454 Pa. they explained: 312 A.2d 597 prophylactic A exclusionary applied only rule is in extreme cases attempts where all other compliance proven secure have unsuc- Ohio, 643, 651-52, cessful. generally Mapp See (1961). 6 L.Ed.2d 1081 In this area there has been no showing widespread flagrant disregard justify formulation of such a rule at this time. 600; 454 Pa. Musi, 312 A.2d at also see 102, 115-16, Pa. may The same be said here. Likewise, (Emphasis original). 556 A.2d at 1363-64. may the same

be said here. *44 54 ap choice” “intelligent that can no doubt

There be was which waivers Fifth Amendment/Mrcmcia to proach rested exclu Supreme our Court forms varied applied law than state constitutional rather sively on federal Court, applying Miranda, Supreme our to Prior grounds. Miranda prophylactic held that no law, uniformly state confessions and that even required, warnings were -type unless the admissible deception were artifice or gained by to induce likely of a type was deception employed artifice Graham, v. e.g. See Commonwealth a confession. false v. John Commonwealth (1962); 155, A.2d 727 Pa. 182 408 v. Commonwealth (1953); son, 372 Pa. 266, 93 A.2d 691 v. Commonwealth (1939); 33, A.2d 353 333 Pa. 3 Hipple, v. Commonwealth (1923); 37, 122 A. 161 278 Pa. Spardute Commonwealth (1899); 326, 44 A. 433 Pa. Cressinger, 193 Commonwealth 218, (1898); Goodwin, 186 Pa. 40 A. v. (1898). Wilson, A. 283 Pa. v. CASES

A. PENNSYL VANIA Collins, of our supra, plurality v. In ap- choice” “intelligent adopted first Court stating: proach, failing sup- erred in the court urges

Appellant statement, he claims was obtained oral which his press Arizona, 86 S.Ct. of Miranda violation (1966). The Com- 694, 10 A.L.R.3d 974 L.Ed.2d setting signed, appellant tosa ‘waiver’ points monwealth that he had read the Miranda stating and warnings forth make a willing and rights of his catalogue inef- this ‘waiver’ was replies that Appellant statement. signed at the time he undisputed is it fective because of the crime of the nature it, not informed he had been questioned. to be for which he was stated, 86 S.Ct. itself, page at Miranda the Court show, must an must or there be 1628, ‘The record at page show, accused was that an and evidence which allegation understandingly intelligently offered counsel but (Em- less is waiver.’ Anything the offer. rejected re- always are added). proof standards High phasis is rights involved. a waiver of constitutional quired where Zerbst, 82 L.Ed. Johnson agree appellant We with 1461, 146 A.L.R. 357 waiver understanding intelligent that an where the has impossible to counsel is right defendant which is investi- being the crime not been informed thing forgo lawyer where gated. different It is a far than to waive counsel where is involved a traffic offense stake. degree murder first Cohen, JJ., O’Brian, J.; join; Jones and (per A.2d at JJ., concur in Bell, Pomeroy, Eagen, C.J. and Roberts *45 added). result). (Emphasis the Richman, v. 167, Commonwealth Pa. 320 A.2d

In 458 (then Nix) (1974), Nix Justice stated Chief Justice opinion: another plurality if argues appellant that even had a Commonwealth oral and

right line-up, to counsel at the his written right. Appel- that he waived that declarations establish asserting lant counters that such waiver was made investigation of crime knowledge without the under knowing intelligent. therefore not to challenges This Court has dealt with similar waivers of Miranda to counsel under on several occasions. right the McKinney, Commonwealth v. 10, See, 453 Pa. v. McIntyre, Commonwealth (1973); 451 Pa. Swint, Commonwealth v. (1973);

A.2d 832 Pa. Boykin, Commonwealth v. (1972); 450 Pa. 296 A.2d 777 Jacobs, v. Commonwealth (1972); 298 A.2d 258 Cooper, (1971); Pa. 284 A.2d 717 cases, 444 Pa. 297 A.2d 108 In each of these to the decision of three members of this Court we alluded Collins, v. Commonwealth 114, 121, 259 A.2d 436 Pa. (1969) ‘an and under- intelligent which held that standing right impossible of the to counsel is waiver the defendant has not been informed of the crime where investigated.’ However, each case we is being which adequately the had been in- suspect determined that general charges against nature the of of formed need while there is no cases teach that him. These all the technicalities in detail explain of know issue, should at least the accused charges rise to giving the transaction nature general charges. (the of the decision plurality aspect A.2d at 354-55 to a different however, solely limited to have been

appears, added). here). (Emphasis considered than the one issue Dixon, 475 Pa. 17, 379 A.2d 553 Commonwealth . majority for a Pomeroy, speaking Justice Court, explained: she did us is that contention before

Appellant’s primary her constitutional intelligently’ waive ‘knowingly lawyer present a remain silent and have rights to it therefore and that was police interrogation, during confes- her oral request suppress refuse her error to record, agree. must of this we On the basis sion. Richman, held that this Court In sus- rights requires waiver Miranda valid nature general awareness have an pect The ratio- investigation. rise to the giving transaction such only was that it is when holding this nale of that he can be said suspect possessed by knowledge *46 right the consequences yielding to understand of forego lawyer a counsel. thing ‘It is far different counsel than to waive a traffic offense is involved where It is clear from murder is at stake.’ degree first where not have Richman, however, suspect need that of the criminal offense of the ‘technicalities’ knowledge he of involved; rather, necessary only it is that be aware Richman Neither does the ‘transaction’ involved. there is, warning’; that a ‘fifth Miranda holding establish interrogating that requirement prophylactic is no to the sus- provide affirmatively information officers Where, how- investigation. under as to the crime pect such ever, has not been furnished with the defendant concerning the valid- challenge and a pre-trial information the Common- ground, is made on this of a confession ity prove by preponderance wealth must a the evidence of that the knew the occasion the interro- defendant of for This burden gation. may sometimes be satisfied establishment attending circumstances the interro- of gation, prior suspect, such as the statements of the that hard the crimi- interrogation upon fact follows nal episode and there is no lending circumstance ambi- guity to the direction and purpose the questioning. (citations omitted; added). emphasis A.2d at Commonwealth v. Travaglia, 502 Pa. 467 A.2d Zappala, speaking Justice for majority of the Court stated: Arizona,

Miranda v. (1966) L.Ed.2d 694 does require in addition to the rights various enumerated a suspect provided must be information as to the crime under investigation. This that a suspect must have ‘an held, however, Court has awareness general nature the transaction rise to giving investigation,’ in order to make an Com- intelligent and understanding rights. waiver of his Dixon, monwealth v. 17, 22, 475 Pa. Richman, See also Commonwealth v.

(1977). 458 Pa. 167, 320 It was stated in Dixon A.2d 351 where ‘the defendant has not been furnished with such information as him to make aware of the transaction [so and a pre-trial challenge concerning the validity involved] the Common- of a confession ground, is made on this prove wealth must aby preponderance the evidence that the knew the occasion the interro- defendant for gation.’ 475 Pa. at 379 A.2d at 556. added). A.2d at 293. (Emphasis Moss, in supra,

Finally, Zappa- Justice la, again speaking majority Court, in rejecting a Miranda claim that warnings should have been re- peated when the police questioned the suspect regarding a second burglary, noted: *47 however,

It would appear, that the approach suggested would greatly expand the of rule the case on which it is Dixon, 475 Pa. Commonwealth

premised, a confession as the (1977). There invalidated we intelli- knowingly and rights of a product waiver Dixon arrested for failure abide given. gently conviction, summary for a but imposed restitution order a son. the ambi- the death of her Given questioned about situation, held that the Commonwealth of the we guity she had sufficient ‘awareness proven had not to the nature of the giving transaction rise general Richman, citing investigation,’ Dixon, did not hold in A.2d 351 We Pa. in- held, suspect that a must be and we have never investigation. crime under every each and formed of held that consistently we have contrary, On the Commonwealth, its burden meeting proving in establish the knowing intelligent, may waiver was and the lack interrogation attending circumstances direction and questioning’s as to ambiguity purpose. added). (Emphasis A.2d at 519 n. 1. “intelligent ap- of the choice” underlying premise to Miranda waivers is that a waiver not be may

proach police in a sense if the “intelligent” constitutional deemed which material- might withheld information knowingly have choice to intelligence on of the ly impact the wisdom self-incrimination right against compulsory waive more sense. I note that our Court’s tactical appli- trend from strict away recent cases reflect a distinct in- substituting intelligent approach, of the choice cation that, in the circumstances requirement stead a lesser of “the case, informed suspect adequately individual be investigation,” or the transaction under general nature criminal not “put possible be on notice suspect Compare Travaglia, ramifications.” Opinion, supra, supra, Majority 467 A.2d at 21. I further a cases which involved note suspect inform a that an individual failure of the died, none- accident had this Court injured an automobile *48 Miranda waiver suspect’s voluntary, theless found the valid; knowing, intelligent, and and therefore notwithstand- ing suspect the fact was not informed of the full See consequences criminal of his confession. potential Gotto, 434, 443, Pa.Super. Collins, compare supra (1982); (plurality).

B. UNITED SUPREME STATES COURT CASES premise The choice” underlying “intelligent ap- Miranda waivers proach to has been traced to the United Illinois, Escobedo v. Court’s decision in States general- See L.Ed.2d 977 Miranda, From Escobedo to ly passim Medalie, (Inst. Pro.1966). Crim.L. Professor D. has Joseph & Grano co- of Escobedo gently, critically, impact albeit summarized the on the law of confessions as follows:

A. Police Interrogation Intelligent Choice Although Escobedo v. Illinois has little as a vitality today case, Amendment its reasoning, Sixth which illustrates the first thinking, strand of modern confessions still exerts influence. After confronted Escobedo an him accomplice shooting, with who accused of the fatal he, responded Escobedo that the accomplice, not had fired the shots. The Supreme sympathetically Court ob- served that as a layman undoubtedly Escobedo unaware that admission complicity his was as dam- aging as an admission that he had shots. fired fatal The Court stated that Escobedo needed counsel’s legal advice, aid and what because resulted the inter- during could rogation the later trial. Absent the right affect advice, to counsel’s the trial would be ‘no more than an ’ appeal interrogation, with conviction virtually from assured by suspect’s confession. appreciate

We can this reasoning only how remarkable by focusing on the evils the court clearly identified as primary suspect evil is the mak- warranting relief. an ing decision to con- unintelligent uninformed decision, assure To an and intelligent fess. informed one comports interests, with the suspect’s best counsel should be present provide aid and A advice. second is the police obtaining evil evidence from suspect help that will assure his conviction. The sus- will not have much pect chance mounting an effec- is, tive at trial—that an winning acquittal— defense he reason, confesses, articulated, some if this is even suspect undesirable when the is guilty. *49 legitimate, If these concerns are the tactics the authors advocate should no in place Indeed, have our law. one if takes Escobedo’s reasoning seriously, police all interro- gation prohibited should be until has defendant had an to opportunity consult with a Under lawyer. vision, Escobedo’s constitutional we cannot rest comfort- ably system permits with a that legal of availability assistance to turn on the suspect’s hurried to response a less than Indeed, enthusiastic warning. pro- legal curement of advice must depend system in such a more on chance than on a reasoned exercise of judgment. course, as the know, Of authors and others provision of counsel to all defendants before interrogation facil- would intelligent itate choice only by eliminating the virtually confessions, possibility for the only advice a competent lawyer typically give, will particularly if the is suspect guilty, This, is not to a however, make statement. is the necessary price taking Escobedo seriously.

Grano, Selling the to Truth, Idea Tell the 84 Mich.L.Rev. (1986) (footnotes omitted, 666-67 added), emphasis re- Inbau, Reed, viewing & Buckley, Criminal Interrogations (3rd Ed.1986). . Confessions Kamisar, however, Professor Yale had force- provided a ful justification of the very results Professor Grano criti- cized, prior the Supreme Court’s decision Miranda:

I do not claim that the state has an obligation prevent suspect from incriminating himself. I do contend that it must ensure that the suspect not, is aware he need to, and cannot be made incriminate himself. I do not should, can, claim that the state or even that it eliminate which ‘disadvan- personal ‘inequalities’ all the subtle more than police interrogation subjects some tage’ is reasonably I that so as it others. do contend far that the choice can and should ensure the state possible poor speak and the ignorant weak and the as that their and as speak not to is as informed free endowed brethren. fortunately more !}{ 5¡C % S& Sj« ^[*] mood, ‘pleading guilty’ there are who feel Suspects plead do reasons most defendants many for some intentionally relin- Suspects there are who would guilty. from the some favor rights hoped-for their quish suspects I such deny I this. do deny state. do not need a lawyer. do not who, in the effect, pleading guilty

Surely man no less than one who arrives lawyer needs a gatehouse surviving perilous only at the same decision after Both needs are sub- that structure. through journey stantial: *50 than defendant to position

An is in a better attorney Moreover, the agreement. any plea and discuss evaluate sentencing inquire to about the court’s attorney will want any proposi- assess the and thus better value practice Under these by prosecuting attorney. tion made circumstances, legal sympathetic a defendant will have a in arriving him all relevant factors expert helping analyze plead to guilty. at the ultimáte conclusion whether who can whether a seriously question One defendant to waive counsel. should ever be admitted pleads guilty ^{[*] [*] [*]} jfc ^{[*] [*]} carry from and Escobedo far. Logical radiations Massiah until all may spent Their not be unless and force counsel is barred. questioning in the absence of Kamisar, and Mansions of “Equal the Gatehouses Justice Procedure,” in Criminal Justice in Our American Criminal 62 10, (Howard

Time 1965) (footnote omitted, at & 61 ed. added).2 emphasis made light support broad constructions both and critics of the Escobedo decision,

ers hardly it is surpris construed Miranda to ing our Court Supreme require suspect that the have least a general awareness matter of the subject interrogation be conducted before Nonetheless, waiving his Fifth Amendment rights. wheth sign misread, er posts were or the United States Su preme simply following Court decided that it was the wrong fact path,3 the remains that recent United Supreme States Court cases indicate that clearly “intelligent choice” is approach the correct path analyzing follow Miranda waivers under law. constitutional federal

Indeed, recent United States Court decisions involving Fifth Amendment generally and Miranda have and in waiversparticularly significantly refined some cases altered our entirely understanding of nature operation of the federal constitutional proscription against compulsory self-incrimination.4 particular significance Of ” 2. The "Massiah case referred to Professor Kamisar Massiah v. States, 201, 1199, (1964). United 377 U.S. 84 S.Ct. L.Ed.2d Frey, Interrogation Wrong Taken, 3. Modern Police Law: The Road Cf. 42 U.Pitt.L.Rev. 731-36 U.S. -, generally 4. Dept. Bouknight, See Balt. Soc. Serv. v. 900, (1990) (5th preclude S.Ct. 107 L.Ed.2d 992 Amendment did not directing produce enforcement of order mother child in her custo dy U.S. -, production” theory); Eagan, an under “act of Duckworth (1989) (warnings 109 S.Ct. 106 L.Ed.2d 166 in their totality despite fulfilled the mandate of Miranda differences from the Bruder, phrasing warnings); Pennsylvania traditional U.S. 109S.Ct. (1988) (ordinary stops 102L.Ed.2d 172 traffic are States, purposes); not U.S. "custodial” Miranda Braswell v. United (custodians (1988) corporate 108S.Ct. 101L.Ed.2d 98 privileged production” records are not Fifth from the "act of under the Amendment); Robinson, United States v. *51 864, (1988) (when argued 99 L.Ed.2d 23 defense counsel that the government explain had denied the defendant chance to his con duct, prosecutor's the testify comment on the defendant’s failure to Miller, response”); was a “fair Greer 483 U.S. S.Ct. (1987) (an post-arrest L.Ed.2d 618 isolated comment on silence was prejudicial answered, question objection not it was error when not an sustained, jury ignore question, the was instructed to the and Mauro, exploited further); the comment was not 481 U.S. Arizona in this case are a series of cases presented to the issue lead me to the Miranda relating to waivers. These cases Collins, Rickman, Dixon, Travaglia and conclusion Moss longer correctly controlling no state the law with to Miranda of Fifth Amend- respect warnings waivers “intelligent” thus the rights, undermining majority’s ment as to Fifth Amendment Miranda approach applied waiver cases and even more so as to Fourth Amendment consent cases. Burbine,

In Moran v. 106 S.Ct. Supreme L.Ed.2d 410 the United States ex- Court that a Miranda waiver pressly rejected proposition “knowing intelligent” could not be deemed when the police prevented contacting had counsel from suspect, and had told counsel falsely suspect that the would not be questioned. explained: Court

... Miranda holds that defendant waive effec- may ‘[t]he rights conveyed warnings tuation’ in the ‘provided the waiver is made voluntarily, knowingly intelligent- ly-’

... the Court of Appeals believe that the ‘[deliberate reckless’ police, conduct of the their particular failure call, to inform respondent of the telephone fatally under- mined the validity proper otherwise waiver. We find this conclusion as logic untenable a matter both and precedent.

Events outside occurring presence suspect and entirely unknown to him can surely have no bearing on the capacity comprehend and'knowingly relinquish a constitutional right. analysis Under defendant, of Appeals, Court the same armed with the same information and confronted precisely with the same conduct, Mi- police would have his knowingly waived randa rights had a lawyer telephoned police (1987) (permitting suspect’s L.Ed.2d speak sight wife to to the accused within and earshot of a police “interrogation”). officer did not constitute *52 inquire

station to about his Nothing status. any. our waiver or in decisions our understanding the essential components of a valid requires incongruous waiver so a result. No doubt the additional would information have been to respondent; perhaps might even it useful have his decision to But we have affected confess. never read the Constitution to require that the police supply suspect with a to help flow of information him calibrate his in deciding whether to self-interest speak or stand his rights.

Once it is determined that a suspect’s decision not to rely uncoerced, on his was rights that he at all times knew he could stand mute and request a lawyer, that he was aware the State’s intention to use his conviction, statements to secure a the analysis is com- plete and the waiver is valid as a matter law. 421-23, 475 U.S. at 1140-41, S.Ct. at 89 L.Ed.2d at (citations 420-22 omitted, added). and footnotes emphasis Despite the fact that information material to the tactical wisdom or intelligence of the waiver had been intentionally, even withheld from the suspect, the Miranda fraudulently, waiver was nonetheless deemed voluntarily, knowingly, Hilliard, intelligently made. Cf. (1977) (a Pa. 370 A.2d 322 plurality Supreme of our Court had previously reached a contrary conclusion apply ing their construction of the law similar circum federal stances). Barrett, Connecticut v.

L.Ed.2d 920 the United Supreme States Court held suspect’s partial that invocation of Fifth Amendment (i.e. talk, rights that he stating willing but not to a written sign statement) did not require cessation of all questioning. The Court specifically rejected a contention that the partial invocation of Fifth Amendment protections demonstrated such defects suspect’s understanding consequences of the Miranda waiver as to preclude finding partial waiver was made knowingly intelligently. Supreme Court explained: the contention that the distinction drawn reject We also oral and written statements indicates Barrett between incomplete so understanding consequences an right should deem his limited invocation of we This suggestion ig- purposes. for all counsel effective *53 trial finding nores Barrett’s the the testimony—and of the questioned by Supreme court not Connecticut the Miranda respondent fully understood Court—that course, of made clear to warnings. warnings, These officers, any police anything Barrett that talk to you ‘[i]f against you App can and will be used court.’ you say might at 48A. The fact that some find Barrett’s decision for we have never ‘embraced the irrelevant, illogical is that a conse- theory ignorance full defendant’s of vitiates their voluntariness.’ quences his decisions 832-33, 93 L.Ed.2d 479 U.S. at S.Ct. at at 928-29 (footnote omitted, added). emphasis again, Here the fact of, misunderstood, was infor- suspect that unaware might materially mation which have affected the tactical intelligence right wisdom or of his decision to waive his not against compulsory self-incrimination did foreclose a that finding voluntarily, knowingly, waiver was made and intelligently. v. Spring, most Colorado

Finally, significantly, 93 L.Ed.2d 954 Supreme United States Court a conten- expressly rejected suspect’s Miranda tion that a waiver could be deemed made if “intelligently” to have been even inten- tionally suspect, failed to inform a who had been arrested firearms, illegal sales of that him in an they suspected relating unrelated murder and that entirely questions that incident also included in questioning would be to be suspect conducted if the chose to his Fifth waive Amend- that, rights. ment The Supreme bluntly Court stated “Spring’s argument meaning compulsion strains the be- breaking point.” yond S.Ct. at L.Ed.2d at 965. The Court then explained:

A statement is not ‘compelled’ within the meaning Fifth if Amendment an individual ‘voluntarily, knowingly and intelligently’ waives his privilege. constitutional

‡ $ sjc 9j( 3): sfc There also is no doubt that Spring’s waiver of his Fifth Amendment privilege knowingly and intelligently is, made: Spring that understood that he had the right to remain silent and that anything he said could be used as against evidence him. The constitution does not require that a criminal know suspect and understand every possible consequence a waiver Fifth Amendment The privilege. Amendment’s guar- Fifth simpler antee is both and more fundamental: defen- may compelled dant not be to be a witness against any respect. warnings protect Miranda himself privilege ensuring this suspect that he knows may officers, choose not to talk to law enforcement talk only present, with counsel or to discontinue talking *54 at time. any The Miranda warnings ensure that a waiver rights these is knowing intelligent of that requiring suspect be fully advised this con- stitutional privilege, including the critical advice that whatever he chooses to say may be used as evidence him. against

In this case there is no allegation Spring that failed to understand the basic privilege guaranteed the Fifth Amendment. Nor is there any allegation that he misun- consequences derstood the of speaking to freely the law sum, enforcement officials. we think that the trial court was correct in indisputably finding that Spring’s waiver was made knowingly and intelligently within the meaning of Miranda. 573-75,

479 U.S. at 107 S.Ct. at 93 L.Ed.2d at 965-66 (citations omitted, and footnotes emphasis added). further

Spring contended that even if his statements were not in “compelled” sense, a Fifth Amendment they were nonetheless the fruits of police deception in violation of the dictum “any Miranda that evidence that the accused into waiver will ... tricked threatened, cajoled or a voluntarily waive his did not that the defendant show 1629, 16 L.Ed.2d at 384 U.S. at S.Ct. privilege.” claim, the Su added).5 In this (Emphasis rejecting 725. preme Court stated: distinction has assuming Spring’s proposed that

Even This has never Court merit, his conclusion. reject we as lawby held that mere silence officials enforcement ‘trickery’ interrogation matter an subject to the Miranda suspect’s invalidate a waiver to sufficient today. so hold expressly and we decline to rights, are it is difficult to see Once Miranda warnings given, to misunder- suspect official silence could cause how right to right—‘his stand the nature of his constitutional question might to which incriminate any refuse answer ‘Indeed, one who is told him.’ it seems self-evident that inis a curious questions he is free to refuse to answer com- to that his answers were posture complain later does that a valid waiver pelled.’ We have held all require that an individual be informa- informed of ’ his decision or all making tion information ‘useful his decision to ‘might ... ‘[W]e affec[t] confess.’ require never read the Constitution have with a police supply suspect information flow of whether deciding him calibrate his help self-interest Here, rights.’ his the additional speak standby a Miranda the wisdom only could information affect na- waiver, knowing essentially voluntary not its the law Accordingly, ture. enforcement failure *55 the to the matter Spring subject of of officials inform decision to Spring’s could not interrogation affect a constitution- privilege his Amendment in waive Fifth manner. significant ally deception/trickery I the of the issue

5. note that even in Miranda focus voluntary the character of waiver. So was on whether it vitiated the warnings long deception/trickery does not relate the the as the itself, right knowing intelligent aspect constitutional the not waiver is effected. 576-77, 479 U.S. at S.Ct. 93 L.Ed.2d at 967-68 (citations omitted, added). emphasis footnotes

Though “intelligent the choice” approach stoutly was defended and extolled in dissenting Justice Marshall’s opin ion, the in joinder only Justice Brennan that dissent demonstrates that the “intelligent approach choice” has been plainly rejected a clear expressly majority is, the body government, which under our system the final expositor the As Constitution. the federal federal Collins, Rickman, premise constitutional which Dix upon on, and Moss are built has Travaglia, collapsed, so too must the precedential of those be authority decisions deemed be collapsed.6 I note Finally, that this Court followed Moran, Barrett, and Spring Commonwealth v. Britch er, supra, A.2d (emphasizing at 507 that “knowing and intelligent” solely refer the suspect’s understanding of Miranda and warnings, suspect’s under standing interests). of his or her tactical

III. COULD TRICKERY INVALIDATE

THE WAIVER? The “intelligent choice” approach has been plainly reject- Moreover, ed. while Supreme Court left expressly question undecided the of what effect an mis- affirmative representation police might have on of a validity waiver, Miranda the Supreme expressly rejected Court suggestion officer’s arguably deceptive silence constituted Colorado v. Spring, vitiating deception. waiver supra, at 576 n. 107 S.Ct. at 858 n. 93 L.Ed.2d added). at 967 n. (Emphasis 8.

I would hold even when a suspect is the presump- tively setting coercive custodial so interrogation, long as the suspect’s rights are clearly explained by adequate Mi- Though Spring, 6. Moss was decided after it is nonetheless without precedential weight because a United States Court construc- constructions, supercedes contrary tion of the federal constitution all and because note in simply Moss casual which dictum ex- plained that even Dixon and Rickman decision would not have appellant’s sustained the or meritless claim in that case. There is no hint suggestion Spring Moss that had even been considered.

69 I police, scrupulously honored warnings7 and randa deception by from “compulsion” arising no possible see If the suspicions facts entertained. as to known police would thinking guilt into denial suspect is “tricked” thrown be outwitted and police or that the could futile be scent, process suspect unwittingly in the and off evidence, I see no police inculpatory with provides Oregon interest Fifth Amendment violated. legitimate Cf. 713, 494, 711, 50 Mathiason, 492, 97 S.Ct. v. 714, (1977) falsely confessed after (suspect 718 L.Ed.2d found); v. Mos being finger Michigan his were prints told 3, 96, 3, 321, n. 324 n. 46 423 98 & 96 S.Ct. & U.S. ley, 313, (1975) after (suspect n. confessed L.Ed.2d & and suspect told another had confessed falsely being trigger-man); him as accord Commonwealth implicated 8, 1264, 1274 n. 423, 442 n. 521 Pa. Hughes, v. (the the Mi (1989) deception alleged would not invalidate established). Indeed, H. waiver, as Professor even if randa observed, “Only purest cogently has Richard UViller police deception is unac argue that all idealists would have a interrogation under must ceptable suspect of the state of the case complete account factually true informed, an and there him to him to make against allow Zeal, UViller, free, Tempered choice to cooperate.” fore con given into suspect legally custody, taken When warnings and has sufficient adequate Miranda stitutionally suspect’s understand the capacity warnings, mental rights, Fifth Amendment voluntarily election to waive to have “com part, or in be deemed been may whole suspect was tricked merely because the pelled” miscalculating of his election into the tactical wisdom rights. Amendment known and understood Fifth to waive constitutionally sig there fundamental and Succinctly, is a statement an compelled nificant difference between a Mendenhall, 446 unwise one. United States Cf. U.S. -, Eagan, 106 L.Ed.2d See 7. Duckworth (1989) (the warnings language is not to Miranda traditional incantation). required be as a talismanic treated 555-56 & S.Ct. 1878 & 64 L.Ed.2d (“It (1980) 510 & 513 may that a happen person makes *57 statements to law enforcement that later person] re- [the grets, but issue in such is cases not whether self-protective, statement was but rather whether it was made voluntarily,” again, “the question is not whether the [person] self-interest, acted in ultimate but [their] person] whether acted voluntarily”). [the Watson, Under United States v. United v. States Mat lock, Bustamonte, and Schneckloth v. no prophylactic Mi randa -type warnings required are an when officer re quests a to suspect search, consent to a regardless of whether the is in suspect police custody at the time of the request. As a corollary reasoning above, to the set forth I see no reason why police deception should vitiate consent to search, unless the deception to suspect’s went search, right to deny right consent to or the deny to consent to search without penalty. Sales, See Lo-Ji Inc. v. New York, supra; Bumper Carolina, v. North supra; Go-Bart States, Importing Co. v. United supra; Commonwealth v. supra. If Wright, police deception went only to the consent, purpose example by acting undercover, by withholding information as to existing knowledge or suspi cions, or by affirmatively misleading the as to suspect search, and not to the suspect’s right purpose decline consent penalty, without the consent would remain uncoerced, hence, valid. See United States voluntary Caceres, v. supra; White, United States v. supra; Osborn States, United supra; States, v. United supra; Hoffa supra; Commonwealth v. Morgan, Commonwealth v. Al brecht, supra; Brown, Commonwealth v. supra; Com Slaton, monwealth v. supra (Kelly, J., dissenting); Com Carelli, monwealth v. supra; Ginter, supra; Commonwealth v. Schaszberger, supra; Common Morrison, wealth supra.

Moreover, even applying the entirely inapplicable Fifth Amendment, presumptively coercive custodial interrogation, Miranda waiver analysis Amendment, to this Fourth non- submitting to a non-custodial, (by consent to search coercive “intelli- test) case, was still made the consent alcohol blood analysis. in Miranda waiver as that term used gently” in the component Miranda “intelligent” Succinctly, knowledge rights, of the rule refers to waiver from may flow waiv- consequences of the which knowledge rights. er appellant, no evidence that

Here, absolutely there is citizen, not aware States intelligent United reasonably express consent for right give had to decline to that she consent; there is no requested test. The officer blood of right he a claim in this record that made suggestion Moreover, there is given. consent was the time authority degree being employed tactics of abusive third history no *58 from drivers involved to blood tests coerce consent submit in custody who are not when in serious auto accidents justify imposition prophy- so to of requested, as consent Fourth Amendment -type warnings outlining lactic Miranda 1; Williams, n. supra at Com- rights. Commonwealth v. Slaton, A.2d at 1364. Further- supra, monwealth v. more, require warnings, if there were cause to such even addressed to the nature of they still would have be and not the nature of rights, Fourth Amendment appellant’s disadvantages ramifications” and tactical the “criminal of Amendment might arise from a waiver Fourth which consent to search. rights by giving express assuming, that Fifth Amendment cus- Finally, arguendo, interrogation, analysis apply, todial Miranda waiver could analysis to that custody the limitation would not “intelligent of choice” aspect and that some the apply, Supreme Court in the custodial rejected approach context, Fifth Amendment waiver interrogation, Miranda non-custodial, in this Fourth apply could nonetheless Amendment, submitting to search voluntary (by consent test) case, with agree alcohol I still could not a blood the notice adequacy assessment majority’s provided by criminal possible ramification officer. Can it be reasonably appellant, believed that who was a driver accident, involved a fatality causing did not know it drunk, that was crime to drive or that if the test blood requested by the police significant officer revealed levels of alcohol in her charges might blood that criminal be filed against her? Has the Commonwealth’s campaign against drunk driving been that I ineffective? think not.

Rather, that, I would find absent evidence of serious on part mental defect of the suspect, when an officer scene of serious accident asks a driver in the involved accident to consent to take a blood alcohol (especially test when the suspect is informed that the results of the blood alcohol test would used in the investigation) be accident suspect been has more than sufficiently put on notice potential criminal ramifications of consent cir- very cumstances which the consent to take a blood alcohol was requested. Dixon, test supra, Cf. (the 379 A.2d at 556 circumstances of the request alone may adequate notice). provide

IV. Conclusion case, In the instant appellant was a driver involved in a fatality causing auto accident. The investigating officer if asked she would consent a blood alcohol test. He informed her that the result that test would be used in investigation his of the accident. He further informed her *59 arrest, that she was not under and that he charg- was not ing her any with crime at that time.

There was no coercion no deception. Appellant vol- untarily consented test, to take the and then voluntarily submitted to the I test. see no grounds to deem the consent invalid.

Neither Constitution, the United States nor Pennsyl- Constitution, vania require police officers to talk suspects of taking out blood alcohol tests in the of gaining course their voluntary consent to such take tests. is precisely That pre- and that require, analysis will majority’s what I dissent cisely why reasons, Dissent. respectfully I foregoing

For the Pennsylvania COMMONWEALTH of KOHL, Appellant. Bruce A. Pennsylvania.

Superior Court of Argued 1989. Oct.

Filed June 1990. Appeal Granted Petition for Allowance Nov. 1990.