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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 2329 EDA 2015
:
RISHAD WILLIAMS :
Appeal from the Order, July 13, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. MC-51-CR-0038600-2014
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 28, 2016
The Commonwealth appeals from the July 13, 2015 order granting
defendant/appellee, Rishad Williams’ petition for writ of certiorari to the
Court of Common Pleas and reversing his conviction. We affirm.
The trial court has summarized the procedural and factual background
of this matter as follows:
On November 12, 2014, Appellee Rishad
Williams was arrested and charged with Driving
Under the Influence pursuant to 75 Pa.C.S. § 3802.
On February 3, 2015, in the Municipal Court,
Appellee argued a motion to suppress blood test
results pursuant to the Fourth and Fourteenth
Amendments of the United States Constitution and
Article 1, Section 8 of the Pennsylvania Constitution.
On March 23, 2015, Municipal Court Judge Francis
Shields denied the motion and found Appellee guilty
after a bench trial. On that date, Judge Shields
sentenced Appellee to 72 hours to six months of
confinement. On May 19, 2015, Appellee filed a Writ
* Former Justice specially assigned to the Superior Court.
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of Certiorari to Common Pleas Court. On July 13,
2015, this Court issued an Order granting Appellee’s
Writ of Certiorari, thereby reversing the denial of the
suppression motion, vacating Appellee’s sentence,
and reversing his conviction. This Commonwealth
appeal followed.[1]
Trial court opinion, 1/4/16 at 1.
At around 4:30 a.m. on November 12, 2014,
James Brown was asleep in his home on
Loretto Avenue in Philadelphia. Mr. Brown heard a
loud noise and went to his window. He saw a motor
vehicle and went outside. There, he saw three
damaged vehicles; two were parked and one was in
the street. Mr. Brown also saw Appellee standing
next to the vehicle in the street. The two parked
vehicles were not occupied. Mr. Brown watched
Appellee get into the vehicle in the street and try to
start it.
Police officers arrived at the scene fifteen
minutes after Mr. Brown initially went outside.
Officer Panarello spoke to Mr. Brown and Appellee at
the scene. The officer observed that Appellee had
watery, bloodshot eyes, slurred speech, and a
moderate odor of alcohol on his breath, and that
there were signs of a motor vehicle accident from
debris in the road and damage to three vehicles.
Officer Panarello took Appellee into custody because
he believed Appellee was intoxicated and not able to
operate a motor vehicle safely.
Appellee was transported to Frankford Hospital
for chemical testing. There, at around 5:07 a.m.,
Lieutenant Jamil Taylor encountered Appellee.
Appellee was handcuffed on a gurney and wearing a
neck brace. He was sleeping and snoring loudly.
When Lieutenant Taylor called Appellee’s name,
Appellee opened his eyes and immediately fell back
1
Pursuant to Pa.R.A.P. 311(d), the Commonwealth has certified in good
faith that the trial court’s order will terminate or substantially handicap the
prosecution of this case.
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to sleep. Thereafter, Lieutenant Taylor administered
O’Connell warnings.[2] Appellee was asleep at this
time. Lieutenant Taylor then instructed a nurse to
take Appellee’s blood. The nurse took Appellee’s
blood and gave it to Lieutenant Taylor. There was
no search warrant prepared or executed prior to the
blood draw. There is no evidence that Appellee ever
consented to or refused the blood test.
Id. at 1-2 (citations to the transcript omitted).
The Commonwealth has raised the following issue for this court’s
review:
Did the lower court, sitting as an appellate court, err
in reversing the denial of suppression of blood test
evidence based on defendant’s lack of affirmative
consent notwithstanding the implied consent statute?
Commonwealth’s brief at 4.3
The trial court relied on this court’s decision in Commonwealth v.
Myers, 118 A.3d 1122 (Pa.Super. 2015), appeal granted, 131 A.3d 480
(Pa. 2016), in which we held that the police were required to obtain a
warrant before drawing blood from an unconscious DUI suspect,
notwithstanding Pennsylvania’s implied consent law. The trial court
explained the rationale for its decision as follows:
2
See Com., Dept. of Transp., Bureau of Traffic Safety v. O’Connell,
555 A.2d 873 (Pa. 1989).
3
At the same time that the notice of appeal was filed, July 29, 2015, the
Commonwealth filed a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), even though the trial court had not yet
ordered it to do so. On January 4, 2016, the trial court issued an opinion in
support of its decision.
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Here, like Myers, Appellee was arrested for DUI
pursuant to 75 Pa.C.S. § 3802. Lieutenant Taylor
gave Appellee O’Connell warnings after he observed
Appellee fall back to sleep. Similar to Myers,
Appellee did not respond to the standard informed
consent warnings. Although Appellee was not
unconscious like Myers, he was sleeping and
unresponsive at the time of the warnings and
subsequent blood draw. Thus, Appellee did not
consent to the blood test, nor was he able to refuse
his consent to the test under Pennsylvania’s implied
consent statute, 75 Pa.C.S. § 1547.[4] Further, and
4
The Pennsylvania implied consent statute reads, in pertinent part:
Any person who drives, operates, or is in actual
physical control of the movement of a vehicle in this
Commonwealth shall be deemed to have given
consent to one or more chemical tests of breath,
blood or urine for the purpose of determining the
alcoholic content of blood . . . if a police officer has
reasonable grounds to believe the person to have
been driving, operating or in actual physical control
of the movement of a vehicle: . . . in violation of
section . . . 3802 (relating to driving under the
influence of alcohol or controlled substance). . . .
75 Pa.C.S.A. § 1547(a)(1).
(b) Suspension for refusal.--
(1) If any person placed under arrest for a
violation of section 3802 is requested to submit
to chemical testing and refuses to do so, the
testing shall not be conducted but upon notice
by the police officer, the department shall
suspend the operating privilege of the person
as follows. . . .
75 Pa.C.S.A. § 1547(b)(1).
(2) It shall be the duty of the police officer to
inform the person that:
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similar to the facts of Myers, Lieutenant Taylor did
not obtain a warrant before requesting the blood
draw. Instead, Lieutenant Taylor had the nurse
perform a warrantless blood draw. Finally, no
exigency appears on the record in the instant case
that would justify a warrantless blood draw. Thus,
based on Myers and the facts presented here,
Appellee’s blood was improperly obtained by the
Commonwealth because Appellee was sleeping and
did not consent to the test.
Trial court opinion, 1/4/16 at 5 (footnote omitted). See also Bailey v.
State, S.E.2d , 2016 WL 3751822 at *5 (Ga.Ct.App. July 13, 2016)
(“Bailey’s implied consent was insufficient to satisfy the Fourth Amendment,
and he could not have given actual consent to the search and seizure of his
blood and urine, as he was unconscious”) (footnote omitted); State v.
Romano, 785 S.E.2d 168 (N.C.Ct.App. April 19, 2016) (warrantless blood
(i) the person’s operating privilege will
be suspended upon refusal to
submit to chemical testing; and
(ii) if the person refuses to submit to
chemical testing, upon conviction
or plea for violating section
3802(a)(1), the person will be
subject to the penalties provided in
section 3804(c) (relating to
penalties).
75 Pa.C.S.A. § 1547(b)(2).
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draw of unconscious DWI defendant was unconstitutional despite North
Carolina’s implied consent law).5
The Commonwealth argues that Myers was wrongly decided and notes
that the Pennsylvania Supreme Court has granted allowance of appeal in
that case. (Commonwealth’s brief at 17-18.) However, unless and until
Myers is overturned by our supreme court, we remain bound by it. See
Commonwealth v. Reed, 107 A.3d 137, 143 (Pa.Super. 2014) (“This Court
is bound by existing precedent under the doctrine of stare decisis and
continues to follow controlling precedent as long as the decision has not
been overturned by our Supreme Court.” (citations omitted; footnote
omitted)). We agree with the trial court that Myers is controlling here.6
The Commonwealth also argues that the good-faith exception to the
exclusionary rule should apply, where appellee was arrested prior to this
court’s decision in Myers. However, the basis for our holding in Myers was
the United States Supreme Court’s decision in Missouri v. McNeely,
5
Although not binding precedent, out-of-state decisions may be relied upon
as persuasive authority. Trach v. Fellin, 817 A.2d 1102, 1115 (Pa.Super.
2003) (en banc), appeal denied, 847 A.2d 1288 (Pa. 2004) (citations
omitted).
6
We recognize that in Myers, the defendant was unconscious due to the
hospital’s administration of Haldol a few minutes before the officer arrived.
Myers, 118 A.3d at 1124. Here, appellee was asleep or passed out,
apparently due to intoxication. The Commonwealth does not dispute that
appellee was unresponsive. The bottom line is that neither the defendant in
Myers nor appellee in this case was able to exercise his statutory right of
refusal to blood testing under 75 Pa.C.S.A. § 1547(b)(1).
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U.S. , 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), which predated
appellee’s arrest. In McNeely, a blood sample had been taken from the
suspect, despite his refusal to submit to such testing. The McNeely Court
ruled that, “[i]n those driving situations where police officers can reasonably
obtain a warrant before a blood sample can be drawn without significantly
undermining the efficacy of the search, the Fourth Amendment mandates
that they do so.” Id. at 1561. McNeely rejected a per se rule allowing the
involuntary taking of a person’s blood when there is probable cause to
believe he committed a drunk driving offense. Id. Rather, whether a
warrantless blood draw is reasonable must be determined on a case-by-case
basis, considering the totality of the circumstances. Id. at 1563. See also
Bailey, 2016 WL 3751822 at *4 (“courts from other jurisdictions generally
have found that, under McNeely, implied consent of an unconscious suspect
is insufficient to satisfy the Fourth Amendment. Those states have
concluded that the State must either obtain a warrant or show exigent
circumstances for a warrantless search under the totality of the
circumstances.”) (footnote omitted) (collecting cases); Romano, 785 S.E.2d
at 174-175 (holding that the officers could not reasonably rely on the good
faith exception to the exclusionary rule where they never attempted to
obtain a warrant).
In its reply brief, the Commonwealth asserts that the recent case of
Birchfield v. North Dakota, U.S. , 136 S.Ct. 2160, 84 USLW 4493
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(June 23, 2016), dictates a contrary result. We disagree. Birchfield held
that a blood test, as opposed to a breath test, may not be administered as a
search incident to a lawful arrest for drunk driving:
It is true that a blood test, unlike a breath test, may
be administered to a person who is unconscious
(perhaps as a result of a crash) or who is unable to
do what is needed to take a breath test due to
profound intoxication or injuries. But we have no
reason to believe that such situations are common in
drunk-driving arrests, and when they arise, the
police may apply for a warrant if need be.
Id. at 2184-2185. Birchfield rejected the respondents’ alternative
argument that such tests are justified based on the driver’s legally implied
consent to submit to them, stating that,
It is another matter, however, for a State not only to
insist upon an intrusive blood test, but also to
impose criminal penalties on the refusal to submit to
such a test. There must be a limit to the
consequences to which motorists may be deemed to
have consented by virtue of a decision to drive on
public roads.
Id. at 2185. It is true, as the Commonwealth points out, that the state
statutes at issue in Birchfield, unlike Pennsylvania’s implied consent law,
went further than imposing civil penalties and evidentiary consequences on
drivers who refused to comply and imposed criminal penalties:
Our prior opinions have referred approvingly to the
general concept of implied-consent laws that impose
civil penalties and evidentiary consequences on
motorists who refuse to comply. Petitioners do not
question the constitutionality of those laws, and
nothing we say here should be read to cast doubt on
them.
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Id. However, Birchfield did not address the issue presented here and in
Myers, the constitutionality of taking blood from an unconscious suspect
who is unable to refuse consent. North Dakota’s implied consent law made
refusal a misdemeanor. Id. at 2186. The Court in Birchfield concluded
that “motorists cannot be deemed to have consented to submit to a blood
test on pain of committing a criminal offense.” Id. The Commonwealth’s
argument that the United States Supreme Court would have reached a
different conclusion if North Dakota’s implied consent law had not imposed
criminal penalties for refusal is speculation. As such, the Commonwealth’s
reliance on Birchfield is misplaced. As discussed above, Myers dictates the
result here.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2016
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