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* Retired Justice specially assigned to the Superior Court NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v. FRANK C. PISCATELLO, Appellee No. 1703 WDA 2016

Appeal from the Order October 5 , 2016 In the Court of Common Pleas of Cambria County Criminal Division at No(s): CP

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- 2016 BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.* MEMORANDUM BY OLSON, J.: FILED OCTOBER 13, 2017 The Commonwealth of Pennsylvania appeals from the October 5, 2016 order granting Appellee Frank Piscatello’s suppression motion. We vacate and remand for further proceedings consistent with this memorandum. The factual background and procedural history of this case are as follows. On October 13, 2015, Appellee was pulled over by a member of the Pennsylvania State Police and admitted to drinking several beers prior to operati ng the vehicle. Appellee was transported to a local hospital and informed, by a 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 p resence of alcohol in his blood
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On April 14, 2016, the Commonwealth charged Appellee via criminal information with two counts of driving under the influence (“DUI”)

- general impairment 1 and five summary offenses. On September 6, 2016, Appellee

mov ed to suppress the blood draw evidence. Thereafter, the trial court held a suppression hearing which encompassed this case and six other cases which raised similar legal issues. On October 5, 2016, the trial court granted the suppression motion. The Com monwealth filed this timely interlocutory appeal as of right. 2 See Pa.R.A.P. 311(d). The Commonwealth presents two issues for our review:
1. Whether the [trial] court erred by suppressing evidence that was seized based upon the [trooper’s] good faith reli ance on appellate precedent[?]
2. Whether [Appellee’s] inculpatory statements regarding his alcohol use render any potential coercion inert as [Appellee] was ready and willing to admit to his alcohol use[?] Commonwealth’s Brief at 6. Both 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

1 75 Pa.C.S.A. §§ 3802(a)(1), 3802(a)(2).

2 On November 8, 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 November 29, 2016, the Commonwealth filed its concise statement. On December 9, 2016, the trial court issued an order stating that its reasoning for granting Appellee’s suppression motion was included in its October 5, 2016 opinion. Both of the Commonwealth’s issues were included in its concise statement.J

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preponderance of the evidence, that the chall enged 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 motio n 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) ( 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

w itnesses 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 finding s 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 p resented 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 forJ

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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. “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). 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 this case. 3

3 The Commonwealth attempt s to draw a distinction between the rule set forth in Davis v. United States , 564 U.S. 229 (2011) and Illinois v. Krull , 480 U.S. 340 (1987) and the good

- faith exception to the exclusionary rule originally announced in United States v. Leon , 468 U.S. 897 ( 1984). Referred to as the Davis/Krull rule, in those two cases 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 (Footnote Continued Next Page)J

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It is well

- settled that a blood draw is a search under the Fourth Amendment of the Unit ed 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 [t he 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 S upreme 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 exceptio n 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 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 (Footnote Continued)

_______________________ authority which is later inva lidated, the exclusionary rule does not apply. Davis , 564 U.S. at 249

- 250; Krull , 480 U.S. at 347. 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 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 excep tion 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.J

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circumstances exception rarely applies in DUI cases. See id. at 149

- 156. Consent, on the other hand, is a factual issue. “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 approx imately 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 v. United States , 564 U.S. 229, 238 (2011) (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 as a result of that search is admissible under the good

- f aith exception. Id. at 239

- 241. In Illinois v. Krull , 480 U.S. 340 (1987) , 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 Uni ted States held that the good

- faith exception to the exclusionary rule applied because theJ

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officer acted in an objectively reasonable manner in relying upon the subsequently invalidated statute. Id. at 349

- 351. Therefore, evidence that is collected pursu ant 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
Unite d 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, 75 6 (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 6 41, 657 (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 (ci tation omitted).J

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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 resolu tion of the instant appeal. In this case, Appellee moved to suppress the blood draw evidence under both the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. The trial court correctly found that there is no good

- faith exclusion under Article I, Section 8 of the Constitution. Therefore, the Commonwealth is not entitled to relief on its first claim of

error. In its second issue, the Commonwealth argues that Appellee’s statement that he drank seve ral beers prior to driving renders any coercion of the partially incorrect DL

- 26 warnings “inert.” Commonwealth’s Brief at 19. In other words, the Commonwealth argues that, notwithstanding the partially inaccurate DL

- 26 warnings, Appellee’s consent was v oluntary. When a defendant is given partially inaccurate DL

- 26 warnings, the trial court must evaluate his or her “consent based on the totality of all the circumstances and given the partial inaccuracy of the officer’s advisory.”
Evans , 153 A.3d at 331 (internal ellipses and alterations omitted), quoting Birchfield , 136 S.Ct. at 2186. Our Supreme Court has explained that: While there is no hard and fast list of factors evincing voluntariness, some considerations include: 1) the defenda nt’s custodial status; 2) the use of duress or coercive tactics by law enforcement personnel; 3) the defendant’s knowledge of hisJ

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right to refuse to consent; 4) the defendant’s education and intelligence; 5) the defendant’s belief that no incriminating ev idence will be found; and 6) the extent and level of the defendant’s cooperation with the law enforcement personnel. Commonwealth v. Gillespie , 821 A.2d 1221, 1225 (Pa. 2003) (Eakin, J., opinion announcing the judgment of the court) (internal quotation ma rks omitted), citing Commonwealth v. Cleckley , 738 A.2d 427, 433 n.7 (Pa. 1999). The trial court weighed these factors and determined that Appellee’s consent to the blood draw was not voluntary. We conclude that one of the trial court’s factual findings i s not supported by the record. With respect to the sixth factor set forth in Gillespie , i.e. , Appellee’s cooperation with law enforcement personnel, the trial court found that there was no evidence presented regarding whether Appellee cooperated with the trooper. See Trial Court Opinion, 10/5/16, at 8. The record reflects, however, that Appellee admitted to the trooper that he drank several beers and he consented to a portable breathalyzer test. N.T., 9/15/16, at 16. After that test showed a reading of .095, Appellee admitted to the trooper that he was likely over the legal limit of .08. Id. at 17. The Commonwealth, however, does not challenge the trial court’s conclusion that three of the other five factors weighed against a finding that Appellee’s co nsent was voluntary. He was in custody at the time police asked him to consent to the blood draw. The police used coercive tactics (albeit unknowingly) by reading the partially inaccurate DL

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Similarly, Appellee had no knowledge of his right to refuse the blood draw as police informed him that he would be subject to increased criminal penalties if he refused. Thus, this case turns on the weighing of these factors. We believe that the trial court is in the best position to weigh these facto rs and determine whether, in light of our conclusion that Appellee cooperated with police, his consent was voluntary. Therefore, we will vacate the suppression order and remand this case to the trial court for further proceedings consistent with this memo randum. Order vacated. Case remanded. Jurisdiction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/13/2017