Commonwealth v. Navarro

1

COMMONWEALTH OF PENNSYLVANIA v. JOSE LUIS NAVARRO Appellant

No. 467 MDA 2022

No. J-S41008-22

Superior Court of Pennsylvania

February 14, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered February 28, 2022 In the Court of Common Pleas of Northumberland County Criminal Division at No(s): CP-49-CR-0000990-2019

BEFORE: LAZARUS, J., MURRAY, J., and STEVENS, P.J.E ^[*]

MEMORANDUM

LAZARUS, J.

Jose Luis Navarro appeals from the judgment of sentence, entered in the Court of Common Pleas of Northumberland County, after he was found guilty, upon stipulation of facts, of driving under the influence (DUI) of a controlled substance.^[1] On appeal, Navarro challenges the trial court's failure to grant Navarro's suppression motion challenging a vehicle stop and subsequent consent to a blood test. We affirm.

Navarro was charged with possession of a small amount of marijuana DUI, speeding,^[2] and failing to utilize his safety belt. The charges stemmed from an April 20, 2019 vehicle stop, effectuated by Trooper Allen T. Wolff of the Stonington State Police Barracks. Trooper Wolff testified that he stopped Navarro's vehicle because it was traveling at an excessive rate of speed-53 miles per hour in a 35 miles-per-hour speed zone. Trooper Wolff asked Navarro for his license, registration, and insurance when he approached the vehicle. As he interacted with Navarro, Trooper Wolff stated that he "sensed a strong odor of what [he] believed to be marijuana emitting from the vehicle" and observed that Navarro had "eyes [that] were glassy, like, red, like [] bloodshot." N.T. Suppression Hearing, 8/18/20, at 10. At that point, the trooper asked Navarro where the odor was coming from. Navarro replied that "he had recently smoked." Id. at 11. Trooper Wolff then asked Navarro if he would perform a series of field sobriety tests, to which Navarro replied, "yes." Id. Trooper Wolff testified that the Horizontal Gaze Nystagmus (HGN) test revealed that Navarro had "multiple signs of impairment," id., and that there were "some clues" of impairment when Navarro performed the walk-and-turn and one-leg-stand tests. Id. at 11-12.

As a result of his performance on the sobriety tests, Trooper Wolff advised Navarro that he was being placed under arrest for suspected DUI. Id. at 12. For safety reasons, Trooper Wolff asked Navarro if he had anything on his person. Id. Navarro told the trooper that he had three pill bottles of marijuana on his person. Id. The substance in the bottles later tested positive for tetrahydrocannabinol (THC), the active ingredient in marijuana. Id. Trooper Wolff then placed Navarro in the rear passenger seat of his patrol vehicle and asked him if he would consent to a blood draw. Id. at 13. Trooper Wolff twice read Navarro a DL-26B form,^[3] a form that contains implied consent warnings for blood draws. See Birchfield v. North Dakota, 579 U.S. 438 (2016) (holding state may not criminalize motorist's refusal to comply with demand to submit to blood testing). Navarro's blood was drawn and later analyzed at a lab. A toxicology report returned positive findings for three forms of THC as well as amphetamines, barbiturates, opiates, and methanol.^[4]See NMS Labs Report, 5/6/19, at 3.

On January 6, 2020, Navarro filed a pre-trial motion to suppress the evidence obtained from Trooper Wolff's motor vehicle stop, claiming that the stop was not based upon probable cause and that he did not voluntarily consent to the blood draw. On December 29, 2020, the trial court denied the motion. On October 25, 2021, Navarro was found guilty of all charges based upon stipulated facts. On February 28, 2022, the court sentenced Navarro to the costs of prosecution and $50 fine on each possession charge, as well as 72 hours to six months in prison for DUI, with immediate parole after serving the minimum sentence.^[5]

Navarro filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Navarro raises the following issues for our consideration:

(1) Whether the trial court erred in denying [Navarro's] motion to suppress evidence seized from his vehicle and his person after he was stopped by an officer of the Pennsylvania State Police[.]

(2) Whether [Navarro's] consent to the extraction of his blood for chemical testing was knowing, intelligent[,] and voluntary[.]

Appellant's Brief, at 8.

Navarro first argues that the trial court improperly concluded that his vehicle stop was based on reasonable suspicion, rather that the requisite probable cause. Thus, he claims the stop was invalid. He is entitled to no relief.

In ruling on Navarro's suppression motion, the trial court specifically made the following conclusions of law:

(1) A police officer may detain an individual in order to conduct an investigation if that officer reasonably suspects that the individual is engaging in criminal conduct. Commonwealth v. Conrad, 892 A.2d 826, 829 (Pa. Super. 2006).

(2) This standard, less stringent than probable cause, is commonly known as reasonable suspicion. Commonwealth v. Cook, 735 A.2d 673, 676 (Pa. 1999).

(3) In order to determine whether the police officer had reasonable suspicion, the totality of the circumstances must be considered. In re[:] D.M., 781 A.2d 1161, 1163 (Pa. 2001).

Order, 12/29/20, at 2.

It is evident that the court's enumerated legal conclusions refer to Trooper Wolff's investigation of a suspected DUI following his legal car stop that was based upon probable cause. The record reveals that the trooper stopped Navarro for driving at an excessive rate of speed (53 miles per hour) in a posted 35-mile-per-hour zone^[6] and that the radar gun used to clock Navarro's speed was certified for its accuracy. N.T. Suppression Hearing, 8/18/20, at 6 (Trooper Wolff testifying "stop was due to [Navarro] going 53 in a 35 mile-per-hour zone"); id. at 6-7 (Trooper Wolff testifying as to radar gun's accuracy); see also Commonwealth's Exhibit-1 (certificate of accuracy, dated February 20, 2019, for radar gun used to measure Navarro's speed). See Commonwealth v. Salter, 121 A.3d 987, 992-93 (Pa. Super. 2015) (if vehicle stopped for speeding, officer must possess probable cause because nothing more can be determined as to speed of vehicle when observed while traveling upon highway). Thus, we find no merit to his claim.

In his second issue, Navarro claims that his consent to have his blood drawn was not voluntary where, prior to agreeing to take the test, Trooper Wolff informed Navarro that: (1) he was requesting Navarro submit to a chemical blood test; (2) if he refused to submit to the test, his operating privileges would be suspended for at least 12 months and he would have to pay a restoration fee of up to $2,000; (3) he had no right to speak to any attorney while he was in custody; and (4) if he requested to speak to an attorney, it would be considered a refusal to take the test. Appellant's Brief, at 14.

A trial court must consider the totality of the circumstances when determining if a defendant's consent to a warrantless blood draw is voluntary. Commonwealth v. Robertson, 186 A.3d 440, 447 (Pa. Super. 2018). Birchfield, supra, "makes plain that police may not threaten enhanced punishment for refusing a blood test in order to obtain consent[;] whether that enhanced punishment is (or can be) ultimately imposed is irrelevant to the question [of] whether the consent was valid." Commonwealth v. Ennels, 167 A.3d 716, 724 (Pa. Super. 2017) (emphasis in original). However, 75 Pa.C.S.A. § 1547(b)(2) requires a police officer tell an arrestee of the consequences of a refusal to take a chemical test so that he or she can make a conscious choice. Commonwealth v. Xander, 14 A.3d 174 (Pa. Super. 2011) (concluding officer required to provide defendant with [75 Pa.C.S.A. §] 1547(b) warnings^[7] before he could suffer enhanced penalties, which included civil consequences of suspension of operating privileges). Finally, a police officer has a duty to inform a motorist, who has been asked to submit to chemical testing, that the Miranda rights are inapplicable to a request for chemical testing under the Implied Consent Law. Commonwealth v. O'Connell, 555 A.2d 873 (Pa. 1989) (O'Connell warnings).

"Like any other search premised upon the subject's consent, a chemical test conducted under the implied consent statute is exempt from the warrant requirement only if consent is given voluntarily under the totality of the circumstances." Commonwealth v. Myers, 164 A.3d 1162, 1180 (Pa. 2017).

While there is no hard and fast list of factors evincing voluntariness, some considerations include: 1) the defendant's custodial status; 2) the use of duress or coercive tactics by law enforcement personnel; 3) the defendant's knowledge of his right to refuse to consent; 4) the defendant's education and intelligence; 5) the defendant's belief that no incriminating evidence will be found; and 6) the extent and level of the defendant's cooperation with the law enforcement personnel.

Commonwealth v. Miller, 186 A.3d 448, 451 (Pa. Super. 2018) (citation omitted).

Instantly Trooper Wolff testified that, after placing Navarro under arrest, he read Navarro the DL-26B form and O'Connell warnings. N.T. Suppression Hearing, 8/18/20, at 14-15. Trooper Wolff testified that Navarro had questions regarding the warnings, so the trooper read Navarro his warnings a second time. Id. at 13. Following this second reading, Navarro signed the consent form to have his blood drawn. Id. at 14. Navarro was then transported to Sunbury Hospital where his blood was drawn by a phlebotomist. See Affidavit of Probable Cause, 5/14/19 (Trooper Wolff averring Navarro was read O'Connell warnings,^[8]...