Commonwealth v. Wolfel

233 A.3d 784

COMMONWEALTH of Pennsylvania, Appellee

v.Kaitlyn N. WOLFEL, Appellant

No. 23 WAP 2019

Supreme Court of Pennsylvania.

Submitted: April 16, 2020

Decided: July 21, 2020

OPINION

CHIEF JUSTICE SAYLOR

This interlocutory appeal concerns whether evidence of a blood alcohol test performed on an arrestee under suspicion of driving while intoxicated should be suppressed.

The main, substantive arguments center on the recent ruling, by the Supreme Court of the United States, that the Fourth Amendment proscribes warrantless blood draws secured on pain of enhanced criminal penalties for refusal. This Court's present resolution, however, ultimately turns on issue preservation considerations.

While driving a vehicle in December 2014, Appellant struck two pedestrians, killing one and injuring the other. She was arrested on suspicion of driving under the influence, and police transported her to a local health center for blood testing. Prior to the blood draw, police advised Appellant that, if she refused to submit to the test, she would be subject to enhanced criminal penalties pursuant to the Implied Consent Law.¹ See 75 Pa.C.S. § 1547(b)(2)(ii). See generally Commonwealth v. O'Connell , 521 Pa. 242, 252, 555 A.2d 873, 878 (1989) (charging law enforcement officers with a duty, in connection with requests for chemical testing, to explain the consequences of a refusal). Appellant consented to the procedure, and the test yielded a blood alcohol content of .178 percent. Petitioner was charged with numerous criminal offenses, including homicide by vehicle while driving under the influence. See 75 Pa.C.S. § 3735(a).

In 2016, while the present case remained at the pretrial stage, the Supreme Court of the United States issued its decision in Birchfield v. North Dakota , ––– U.S. ––––, 136 S. Ct. 2160, 195 L.Ed.2d 560 (2016). Birchfield held, among other things, that consent to a warrantless blood draw is vitiated when such assent follows the administration by police of a warning of enhanced criminal penalties upon refusal of the testing. See id. at ––––, 136 S. Ct. at 2186 ("[M]otorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense"). Appellant then lodged a motion contending, in very general terms, that Birchfield required suppression of the blood evidence. See Motion to Suppress in Commonwealth v. Wolfel dated July 25, 2016, No. CP-12-CR-40-2015 (C.P. Cameron), at 1 ("[T]he United States Supreme Court, in Birchfield v. North Dakota , held that the Fourth Amendment does not permit warrantless blood tests.").²

At a hearing before the suppression court, Appellant's position was refined to encompass Birchfield ’s recognition of the heightened coerciveness when an arrestee is warned of enhanced criminal penalties inuring upon a refusal of chemical testing. See N.T., Aug. 12, 2016, at 20. The Commonwealth, on the other hand, asserted that Birchfield shouldn't be retroactively applied to Appellant's circumstances, particularly given that police acted in good faith by merely advising her of the enhanced-penalty provisions embedded in the governing statutory regime. See id. at 4-5, 21-23.

The suppression court nonetheless awarded the exclusionary remedy, and the Commonwealth lodged an interlocutory appeal as of right. See Pa.R.A.P. 311(d). In an ensuing opinion, the suppression court found the contested legal issue to be one of first impression. The court noted, however, that retroactive application had been assumed in the Superior Court's decision in Commonwealth v. Evans , 153 A.3d 323 (Pa. Super. 2016) (awarding a new trial based on a Birchfield violation). Additionally, the suppression court reasoned as follows:

In the instant case, the suppression hearing was held after Birchfield had been decided and had become the law of the land. Therefore, this Trial Court based its decision on the holding of Birchfield and knew to consider all the circumstances of the arrest, warnings, and blood draw. This Court had before it all the evidence which could come under the term, "totality of the circumstances." ...

It is also significant that the decision was based on the fundamental constitutional right of an individual to be free from unreasonable searches and seizures under the Fourth Amendment to the United States Constitution and Pa. Const. Art. 1, § 8 . It would be unconscionable for this court to hold that defendants who were deprived of such a fundamental right prior to June 23, 2016, and had not yet been tried, were not protected by the Fourth Amendment and that only those whose warrantless search took place after said date would be protected by its safety net.

Commonwealth v. Wolfel , No. CP-12-CR-40-2015, slip op. at 2-3 (C.P. Cameron Feb. 21, 2017) (emphasis added).

In the appeal proceedings, the Commonwealth discarded its position that Birchfield should be applied only prospectively. Instead, it presented a different argument that allowed for the retroactive application of Birchfield but would nonetheless avoid suppression, if credited. Specifically, the Commonwealth invoked the federal good-faith exception to the exclusionary rule.³

Notably, the Commonwealth's brief before the Superior Court offered the following circumspection:

It would be disingenuous of the Commonwealth to fail to acknowledge the Pennsylvania Supreme Court in Commonwealth v. Edmunds , , 586 A.2d 887 (Pa. 1991) rejected Leon as an Article 1, Section 8 matter, and holding that Section 8 "does not incorporate a ‘good faith’ exception to the exclusionary rule." Edmunds , 586 A.2d at 905-06.

Brief for Appellant in Wolfel , No. 1357 WDA 2016 (Pa. Super.), 2017 WL 4682501, at *13 (recognizing that, in Edmunds , "the exclusionary remedy was deemed available even in a situation where police acted in good faith"). The Commonwealth, however, then made a point to clarify that it was in no way seeking an overruling of Edmunds . See id.

Instead, the Commonwealth urged that Edmunds ’ holding simply should not be applied in the present circumstances. Because Pennsylvania's implied consent regime had been repeatedly upheld by the courts prior to Birchfield ’s issuance, the Commonwealth submitted, "interjection of Article I, Section 8 analysis and authority into this matter is unwarranted and this case should instead be viewed through the lens of the Fourth Amendment and its related caselaw." Id. at *14. According to the Commonwealth's brief, "[t]he alternative would be to hold that all of Pennsylvania's prior decisions finding that the Commonwealth's DUI testing regime did not run afoul of Article I, Section 8 were retroactively incorrect as a matter of state law." Id. The argument continued as follows:

The Commonwealth submits that it would make much more sense to view Birchfield as holding that the prior state court decisions were incorrect under the Fourth Amendment and proceed accordingly, rather than interpret Birchfield as requiring the application of the more stringent and explicitly privacy-oriented Article I, Section 8 authority.

Id.

It is important to note that these contentions reflect an attempt to garner a broad-based legal ruling that Birchfield violations do not implicate Pennsylvania's variant of the exclusionary rule per Edmunds . In other words, the Commonwealth did not present a case-specific claim that Appellant had failed to advance a challenge under the Pennsylvania Constitution.

The Superior Court nonetheless raised this issue preservation concern of its own accord and reversed in a non-precedential opinion. See Commonwealth v. Wolfel , No. 1357 WDA 2016, slip op. , 2017 WL 6629411, at *4 (Pa. Super. Dec. 29, 2017). Initially, the court repeatedly highlighted that, at the time at which Appellant lent her consent to the testing, the warnings about increased criminal penalties were "legally correct." Id. at *3 ; cf. Commonwealth v. Olson , ––– Pa. ––––, ––––, 218 A.3d 863, 868 (2019) (treating Birchfield as having announced a new rule of law). But again, the intermediate court decided the case based on issue-preservation considerations rather than on the merits.

In this respect, the Superior Court explained that Appellant had never sought suppression under Article I, Section 8 of the Pennsylvania Constitution, and therefore, the only relevant protections were those available under the Fourth Amendment to the United States Constitution. See id. at *4 (citing Commonwealth v. Updike , 172 A.3d 621, 626-27 (Pa. Super. 2017) ("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." (citing Commonwealth v. Rosa , 734 A.2d 412, 420 (Pa. Super. 1999) )). In such circumstances, the Superior Court found, the good-faith exception to the federal exclusionary rule clearly applied. Accord id. (citing, inter alia , Kansas v. Schmidt , 53 Kan.App.2d 225, 385 P.3d 936, 943 (2016) ).

Appeal was allowed to consider the issue, as framed by Appellant, of: "Whether the Superior Court of Pennsylvania disregarded the controlling authority of Birchfield v. North Dakota , ––– U.S. ––––, 136 S. Ct. 2160, 195 L.Ed.2d 560 (2016), by reversing the trial court's decision suppressing the results of the testing of Petitioner's blood." Commonwealth v. Wolfel , ––– Pa. ––––, 206 A.3d 491 (2019) (per curiam ).⁴

Presently, Appellant argues, among other things, that the Superior Court erred in reversing the suppression court's ruling based on a sua sponte finding of waiver. See Brief for Appellant at 13 ("[T]he Commonwealth lost at the suppression hearing and waived any newly inserted arguments." (citing Commonwealth v. Fant , 637 Pa. 135, 157-58, 146 A.3d 1254, 1267-68 (2016) (Wecht, J., concurring))). Moreover, Appellant explains that, regardless of any failure on her part to invoke the Pennsylvania Constitution, the trial judge did so specifically in the opinion explaining his ruling. Accord Brief for Amicus Defender...