J-S60004-17
2017 PA Super 325
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
MICKEY H. UPDIKE,
Appellee No. 1714 WDA 2016
Appeal from the Order October 10, 2016
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0001111-2016
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
OPINION BY OLSON, J.: FILED OCTOBER 13, 2017
The Commonwealth of Pennsylvania appeals from the October 10,
2016 order granting Appellee Mickey H. Updike’s suppression motion. In
this case, we hold that blood draw evidence collected prior to June 23, 2016
is admissible under the good-faith exception to the exclusionary rule when a
defendant only seeks suppression under the federal constitution. As
Appellee did not seek suppression under the state constitution in this case,
we reverse.
The factual background and procedural history of this case are as
follows. On May 5, 2016, Detective Mark Britton sought to question an
individual sitting in the rear passenger seat of Appellee’s vehicle. When
Detective Britton approached, he noticed an open beer can in the vehicle
and asked Appellee if he had been drinking or using drugs. Appellee
responded that he was not drinking but he had used heroin earlier in the
* Retired Justice specially assigned to the Superior Court
J-S60004-17
day. Appellee was transported to a local hospital and informed, by reading
of the DL-26 form, that, if he did not consent to a blood draw, he would face
increased criminal penalties. Appellee then agreed to the blood draw, which
showed the presence of a controlled substance and metabolites in his blood
stream.
On August 4, 2016, the Commonwealth charged Appellee via criminal
information with four counts of driving under the influence (“DUI”)-controlled
substance.1 On September 6, 2016, Appellee moved to suppress the blood
draw evidence. He argued that the evidence was collected in violation of the
Fourth Amendment of the United States Constitution. Thereafter, the trial
court held a suppression hearing which encompassed this case and six other
cases which raised similar legal issues. On October 10, 2016, the trial court
granted the suppression motion. The Commonwealth filed this timely
interlocutory appeal as of right.2 See Pa.R.A.P. 311(d).
The Commonwealth presents three issues for our review:
1. Whether the [trial court] erred by ruling that the holdings of the
Supreme Court of the United States in Davis v. United States,
1
75 Pa.C.S.A. §§ 3802(d)(1)(i), 3802(d)(1)(ii), 3802(d)(1)(iii), and
3802(d)(2).
2
On November 10, 2016, the trial court ordered the Commonwealth to file a
concise statement of errors complained of on appeal (“concise statement”).
See Pa.R.A.P. 1925(b). On December 1, 2016, the Commonwealth filed its
concise statement. On December 7, 2016, the trial court issued an order
stating that its reasoning for granting Appellee’s suppression motion was
included in its October 10, 2016 opinion. All of the Commonwealth’s issues
were included in its concise statement.
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[564 U.S. 229 (2011)] and Illinois v. Krull, [480 U.S. 340
(1987)3] were inapplicable under Article [I,] Section 8 of the
Pennsylvania Constitution when [Appellee] had only made a
claim under the Fourth Amendment of the Federal Constitution
and had implicitly waived all claims under Article [I,] Section
8[?]
2. Whether the [trial] court erred by suppressing evidence that was
seized based upon the officer’s good faith reliance on appellate
precedent[?]
3. Whether [Appellee’s] inculpatory statements regarding his heroin
use render any potential coercion inert as [Appellee] was ready
and willing to admit to his heroin use[?]
Commonwealth’s Brief at 6.4
All three of the Commonwealth’s claims challenge the trial court’s
order suppressing the results of the blood draw. “Once a motion to suppress
evidence has been filed, it is the Commonwealth’s burden to prove, by a
preponderance of the evidence, that the challenged evidence was not
obtained in violation of the defendant’s rights.” Commonwealth v. Evans,
153 A.3d 323, 327 (Pa. Super. 2016) (citation omitted). Our standard of
review in addressing a challenge to a trial court’s order granting a
suppression motion is whether the factual findings are supported by the
record and whether the legal conclusions drawn from those facts are correct.
See Commonwealth v. Champney, 161 A.3d 265, 271 (Pa. Super. 2017)
3
Referred to as the Davis/Krull rule, the Supreme Court of the United
States held that when the police conduct a search in objectively reasonable
reliance upon binding appellate precedent or statutory authority which is
later invalidated, the exclusionary rule does not apply. Davis, 564 U.S. at
249-250; Krull, 480 U.S. at 347.
4
We have re-numbered the issues for ease of disposition.
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(en banc) (citation omitted). “[O]ur scope of review is limited to the factual
findings and legal conclusions of the [trial] court.” In re L.J., 79 A.3d 1073,
1080 (Pa. 2013) (citation omitted). “When the Commonwealth appeals from
a suppression order, we . . . consider only the evidence from the defendant’s
witnesses together with the evidence of the prosecution that, when read in
the context of the entire record, remains uncontradicted.” Commonwealth
v. Young, 162 A.3d 524, 527 (Pa. Super. 2017) (citation omitted). “Where
the [trial] court’s factual findings are supported by the record, we are bound
by these findings and may reverse only if the [trial] court’s legal conclusions
are erroneous.” Commonwealth v. Palmer, 145 A.3d 170, 173 (Pa.
Super. 2016) (citation omitted).
In order to understand the issues presented in this case, it is
necessary to review the change in the law which prompted Appellee to file
his suppression motion. When Appellee was arrested and gave consent to
the blood draw, the warnings regarding increased criminal penalties for
refusing a blood draw (included in form DL-26) were legally correct. While
Appellee’s case was pending, however, the Supreme Court of the United
States decided Birchfield v. North Dakota, 136 S.Ct 2160 (2016). In
Birchfield, the Supreme Court of the United States considered whether a
blood draw was subject to one of the limited exceptions to the Fourth
Amendment’s warrant requirement.
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“In Birchfield, the Supreme Court of the United States held that
police can compel a driver to give a breath sample without a warrant;
however, police cannot compel a driver to provide a blood sample without
first obtaining a search warrant except in certain limited circumstances.”
Commonwealth v. Giron, 155 A.3d 635, 637 n.1 (Pa. Super. 2017)
(citation omitted). Although Birchfield, Evans, and Giron were DUI-
alcohol cases, their reasoning is equally applicable in DUI-controlled
substance cases. Commonwealth v. Ennels, 2017 WL 2954227, *3–5 (Pa.
Super. July 11, 2017). Therefore, in the wake of Birchfield, the DL-26
warnings read to Appellee were partially incorrect insofar as they advised
Appellee that he faced additional charges and/or enhanced penalties if he
refused the blood draw.
Notwithstanding the issuance of Birchfield, the Commonwealth
maintains that the results of Appellee’s blood test withstand suppression
since the good-faith exception to the exclusionary rule applies in cases
decided under the Fourth Amendment of the United States Constitution, the
sole legal ground cited and preserved by Appellee in support of his search
and seizure claim before the trial court.5 The Fourth Amendment of the
United States Constitution provides that:
5
The Commonwealth attempts to draw a distinction between the
Davis/Krull rule and the good-faith exception to the exclusionary rule
originally announced in United States v. Leon, 468 U.S. 897 (1984). The
Supreme Court of the United States made clear in both Davis and Krull that
it was merely applying the good-faith exception to the exclusionary rule and
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The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no [w]arrants shall issue, but upon
probable cause, supported by [o]ath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.
U.S. Const. amend. IV.
It is well-settled that a blood draw is a search under the Fourth
Amendment of the United States Constitution. See Skinner v. Ry. Labor
Execs.’ Assn., 489 U.S. 602, 616–617 (1989); Schmerber v. California,
384 U.S. 757, 767–768 (1966). The fact that a blood draw is a search,
however, does not end the inquiry. “As the text indicates and [the Supreme
Court of the United States has] repeatedly affirmed, the ultimate touchstone
of the Fourth Amendment is reasonableness.” Heien v. North Carolina,
135 S.Ct. 530, 536 (2014) (internal quotation marks and citation omitted).
For this reason, the Supreme Court of the United States has created a
number of exceptions to the Fourth Amendment’s warrant requirement. One
such exception is if a defendant consents to a search. See Illinois v.
Rodriguez, 497 U.S. 177, 183–186 (1990). Another such exception is a
search conducted pursuant to exigent circumstances, i.e., when police have
insufficient time to seek a warrant because of an emergency. See Michigan
not announcing a new exception to the exclusionary rule. See Davis, 564
U.S. at 249 (this case “comes within the good-faith exception”); Krull, 480
U.S. at 346 (internal citation omitted) (“We granted certiorari to consider
whether [the] good-faith exception to the Fourth Amendment exclusionary
rule applies” in this case.). Thus, the Davis/Krull rule is just a specific
example of the good-faith exception.
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v. Tyler, 436 U.S. 499, 509 (1978). In Missouri v. McNeely, 569 U.S. 141
(2013), the Supreme Court of the United States held that the exigent
circumstances exception rarely applies in DUI cases. See id. at 149-156.
Consent, on the other hand, is a factual issue. For the reasons set forth
below, we need not consider whether Appellee’s consent to the blood draw in
this case was voluntary. Instead, we conclude that, even assuming
arguendo that his consent was involuntary, the blood draw evidence was
admissible in this case.
“To effectuate the rights guaranteed under the Fourth Amendment, in
the early part of the last century, the [Supreme Court of the United States]
adopted the exclusionary rule, which bars the use of evidence obtained
through an illegal search and seizure.” Commonwealth v. Arter, 151 A.3d
149, 153 (Pa. 2016) (citation omitted). After approximately two decades of
strict adherence to the exclusionary rule, the Supreme Court of the United
States adopted the good-faith exception to the exclusionary rule.
Under the good-faith exception, “when the police act with an
objectively reasonable good-faith belief that their conduct is lawful, or when
their conduct involves only simple, isolated negligence, the deterrence
rationale loses much of its force, and exclusion [is not appropriate].” Davis,
564 U.S. at 238 (internal quotation marks and citations omitted). In Davis,
the Court held that when a police officer conducts a search pursuant to
binding appellate precedent, which is later overturned, the evidence seized
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as a result of that search is admissible under the good-faith exception. Id.
at 239-241. In Krull, police conducted a warrantless administrative search
pursuant to a state statute. Later, that statute was found to be
unconstitutional. Nonetheless, the Supreme Court of the United States held
that the good-faith exception to the exclusionary rule applied because the
officer acted in an objectively reasonable manner in relying upon the
subsequently invalidated statute. Krull, 480 U.S. at 349-351. Therefore,
evidence that is collected pursuant to a state statute that has previously
been upheld by an appellate court, but which is later declared
unconstitutional, is generally admissible under the good-faith exception.
The good-faith exception distinguishes the Fourth Amendment of the
United States Constitution from its Pennsylvania counterpart since “it is
settled that under Article I, Section 8 of the Pennsylvania [C]onstitution, a
good[-]faith exception to the exclusionary rule does not exist.”
Commonwealth v. Frederick, 124 A.3d 748, 756 (Pa. Super. 2015),
appeal denied, 138 A.3d 2 (Pa. 2016) (citations omitted); Commonwealth
v. Arnold, 932 A.2d 143, 148 (Pa. Super. 2007) (citation omitted);
Commonwealth v. Edmunds, 586 A.2d 887, 888 (Pa. 1991). Although a
concurring opinion authored by a member of this Court suggests that the
good-faith exception may apply to exclusionary claims raised under Article I,
Section 8 of the Pennsylvania Constitution in circumstances such as the ones
present in this case, see Commonwealth v. Burgos, 64 A.3d 641, 657
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(Pa. Super. 2013) (Shogan, J., concurring), appeal denied, 77 A.3d 635 (Pa.
2013), the majority in Burgos explicitly rejected this statement and noted
that “the good[-]faith exception does not exist [under] Pennsylvania [law].”
Id. at 657 n.22 (citation omitted).
We have traced these distinctions between the Fourth Amendment of
the United States Constitution and Article I, Section 8 because the precise
legal authority Appellee cited in support of his motion has a significant
impact upon the resolution of the instant appeal. In this case, Appellee only
moved to suppress the blood draw evidence under the Fourth Amendment of
the United States Constitution. See Appellee’s Suppression Motion, 9/6/16,
at 3. He did not move to suppress the evidence under Article I, Section 8 of
the Pennsylvania Constitution. See id. Moreover, Appellee’s counsel never
mentioned the Pennsylvania Constitution at the suppression hearing. 6 When
a defendant moves to suppress evidence only under the federal constitution,
he or she waives any argument that the evidence should be suppressed
under the state constitution. See Commonwealth v. Rosa, 734 A.2d 412,
420 (Pa. Super. 1999), appeal denied, 751 A.2d 184 & 751 A.2d 189 (Pa.
6
In its brief before this Court, the Commonwealth cites a brief filed by
Appellee after the suppression hearing was held. The docket does not reflect
that such a brief was filed nor does the certified record contain such a brief.
“[O]ur review is limited to those facts which are contained in the certified
record and what is not contained in the certified record does not exist for
purposes of our review.” Commonwealth v. Brown, 161 A.3d 960, 968
(Pa. Super. 2017) (internal quotation marks and citation omitted).
Therefore, we do not address whether Appellee preserved this issue in that
non-existent filing.
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2000). Thus, Appellee waived his argument that suppression was required
under the Pennsylvania Constitution and the trial court erred by sua sponte
raising the constitutionality of the blood draw under Article I, Section 8 of
the Pennsylvania Constitution.
Having determined that the trial court erred in applying Article I,
Section 8, we turn to whether the blood draw evidence was admissible under
the good-faith exception incorporated under the Fourth Amendment’s
exclusionary rule. The Supreme Court of the United States did not directly
address whether the good-faith exception is applicable in these
circumstances. See Birchfield, 136 S.Ct. at 2186 n.9 (vacating a
defendant’s conviction who had consented to a blood draw after being read
partially incorrect warnings, similar to the DL-26 warnings, and remanding
for a determination if the defendant’s consent was voluntary notwithstanding
the warnings and, if not, whether the good-faith exception applies). All of
the Pennsylvania cases that have considered the now-invalid warnings found
in the DL-26 form have done so under Article I, Section 8, not the Fourth
Amendment. Thus, to our knowledge, there are no binding cases directly
addressing this issue.
We find persuasive, however, the decisions of courts in other
jurisdictions which have found that blood draw evidence collected in
circumstances similar to the case sub judice was admissible under the good-
faith exception to the exclusionary rule. The most extensive discussion of
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this issue was undertaken by the Court of Appeals of Kansas in Kansas v.
Schmidt, 385 P.3d 936 (Kan. App. 2016).7 In that case, the court found
that the good-faith exception applied and that the blood draw evidence was
admissible. Id. at 943-944. The court reasoned that at the time of
Schmidt’s arrest, the police officer was required by statute to inform him
that, if he refused a blood draw, he would be subjected to increased criminal
penalties. Id. at 943. Moreover, the officer “had no reason to know that
the implied consent advisories would be found impermissibly coercive []
after Schmidt’s arrest, and [the statute] was not so clearly unconstitutional
at the time of Schmidt’s arrest that a reasonably well-trained officer would
have known that it was unconstitutional.” Id.
The same situation is present in the case at bar. At the time of
Appellee’s arrest, police were required to read Appellee the warnings
contained in the DL-26 form which this Court and our Supreme Court had
consistently upheld as constitutional. See, e.g., Commonwealth v.
Riedel, 651 A.2d 135, 139 & n.1 (Pa. 1994), abrogated, Birchfield, 136
S.Ct. 2160; Commonwealth v. Carley, 141 A.3d 1287 (Pa. Super. 2016),
vacated, 2017 WL 203678 (Pa. Jan. 18, 2017). Police officers in
Pennsylvania had no reason to believe that the Supreme Court of the United
States would render the statute at issue unconstitutional in Birchfield.
7
Schmidt only addressed the Fourth Amendment and did not address any
state constitutional claims.
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Furthermore, as noted in Schmidt, other jurisdictions had similar laws which
had been upheld.
The United States District Court for the Northern District of Ohio
reached a similar conclusion in Greer v. Bradshaw, 2016 WL 3555427
(N.D. Ohio June 30, 2016).8 In Greer, the petitioner was subject to a
warrantless blood draw under Ohio law. He argued that under Birchfield,
this blood draw was unconstitutional and as such he was entitled to relief.
The court rejected this argument and held that “[t]he blood draw was
admissible under the good[-]faith exception[.]” Id. at *8 n.80.
In the aftermath of Birchfield, as Schmidt and Greer make clear,
blood draw evidence obtained pursuant to subsequently-invalidated warning
statements such as those contained in the DL-26 is admissible under the
good-faith exception. We conclude that the good-faith exception applied in
this case because Appellee only sought suppression pursuant to the Fourth
Amendment, not Article I, Section 8 of the Pennsylvania Constitution. In
light of our examination of the Commonwealth’s first two claims, we need
not consider its third claim.
Appellee argued before the trial court that even if the good-faith
exception to the exclusionary rule applied, Detective Britton lacked probable
cause and/or reasonable suspicion to believe that Appellee was driving under
8
In Greer, the court was required to apply Fourth Amendment law and was
not permitted to review any determinations regarding the state constitution.
See 28 U.S.C. § 2254(a).
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the influence of a controlled substance. This argument is without merit.
Detective Britton saw Appellee driving the vehicle and Appellee admitted
that he used heroin earlier that day. This provided Detective Britton with
probable cause to arrest Appellee for DUI-controlled substance. As noted
above, the blood draw evidence was admissible under the good-faith
exception to the Fourth Amendment, the only ground raised for suppression
by Appellee. As such, we conclude that the trial court erred by granting
Appellee’s suppression motion. We therefore reverse the trial court’s
suppression order and remand for further proceedings consistent with this
opinion.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/2017
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