decided: June 24, 1975.
Appeal from judgment of sentence of Court of Common Pleas of Bucks County, No. 94 of 1973, in case of Commonwealth of Pennsylvania v. Jeffrey M. Kelly.
John S. Thome, Jr., Assistant Public Defender, for appellant.
Marc I. Rickles, Assistant District Attorney, Stephen B. Harris, First Assistant District Attorney, and Kenneth G. Biehn, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Dissenting Opinion by Spaeth, J. Hoffman and Cercone, JJ., join in this opinion.
Author: Van Der Voort
[ 235 Pa. Super. Page 300]
Appeal is taken from judgment of sentence rendered following conviction at trial without jury on an indictment charging operation of a motor vehicle while under the influence of intoxicating liquor.*fn1 Pursuant to said statute, appellant was sentenced to pay court costs and a fine of $250.00. This appeal follows denial of post-trial motions.
Factually, it appears on the record that a member of the Warminster Township, Bucks County, police department arrived upon the scene of a three-car automobile
[ 235 Pa. Super. Page 301]
accident. Appellant admitted that he had been driving one of the cars involved. His appearance and the odor surrounding appellant led the investigating officers to conclude that appellant was intoxicated. Appellant was arrested and was asked if he would consent to take a breathalyzer test, to which question appellant replied affirmatively. Being unable to perform this test at the scene, the officer transported appellant to the station-house, again questioning appellant if he would consent to the test and receiving consent, the test was then administered and registered positive.
Appellant challenges the judgment of sentence by arguing that the results of the breathalyzer test should have been suppressed when proper motion was made therefor, reasoning that the arrest was unlawful as being based upon a misdemeanor committed outside the view of the officer. See Commonwealth v. Hargrave, 212 Pa. Superior Ct. 167, 240 A.2d 570 (1968). Arguing the alleged illegality of the arrest, appellant urges upon us the conclusion that a search, here the breathalyzer test, could not be conducted, pursuant to that arrest, and away from the scene of the accident. Because of appellant's unequivocal and freely-given consent to the test involved herein, we disagree.
We find that the factual situation of this case is within the purview of Commonwealth v. Quarles, 229 Pa. Superior Ct. 363, 324 A.2d 452 (1974). Therein, this court noted that while the "implied consent" law may allow an investigating officer to give a breathalyzer test at the scene, the officer must obtain an arrest warrant or have probable cause for a misdemeanor occurring in his presence, if the suspect is to be removed to the police station for testing. Our oft-stated concerns for the integrity of the individual's control over his person mandate this position.*fn2 Quarles, supra, provides an exception to this
[ 235 Pa. Super. Page 302]
in the situation where "a driver may actually consent to a seizure of his person and the administration of a test of his breath or blood." 229 Pa. Superior Ct. at 377.
In the instant case, we find such consent. At the scene of the accident, appellant gave his consent to be removed to the State Police barracks for a breathalyzer test. At the barracks, appellant again consented. We believe that these two circumstances, there being no indication that appellant was coerced or threatened into consenting, allow for the police action in conducting the test at a location some distance from the scene of the accident. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). We cannot agree with the dissent's reliance upon an inference that appellant was coerced into consenting by his implied or actual knowledge of the possible suspension of his driving license should he refuse a breathalyzer. No testimony supports an inference that this dilemma faced appellant and influenced his deliberations. We are not inclined to read into the fact situation something that is not present. Furthermore, when this inference is adopted, our case law regarding
[ 235 Pa. Super. Page 303]
the effect of uncoerced consent is nullified. Consequently, absent clear evidence of coercion, as we see in the Hobson's choice presented to the defendant in Commonwealth v. Modich, 233 Pa. Superior Ct. 92, 334 A.2d 717 (1975), we are not willing to accept this finding of implied coercion.
Judgment of sentence affirmed.
Judgment of sentence affirmed.
Dissenting Opinion by Spaeth, J.:
Appellant was tried by a judge sitting without a jury on November 29, 1973, and was found guilty of operating a motor vehicle while under the influence of intoxicating liquor.*fn1 The only issue raised on this appeal is whether the results of a breathalyzer test were properly admitted into evidence.
On November 23, 1972, at about 5:00 p.m., a Warminster Township police officer was dispatched by police radio to the scene of a three car accident. When he arrived he asked the persons standing around the cars whether anyone was injured. Several bystanders responded in the negative. He then asked who had been driving the Chevrolet, and appellant identified himself as the driver of that car. Appellant did not seem injured to the police officer, but the officer noted that he appeared "wobbly," his speech was slow, and his breath smelled of alcohol. From these observations the officer concluded that appellant was under the influence of alcohol in violation of The Vehicle Code, supra. The officer then arrested appellant, placed him in the back of the patrol car, gave him the warnings required by Miranda v. Arizona, 348 U.S. 436 (1966), and asked him whether he would consent to a breathalyzer test. Appellant said he would take the test. After the officer had completed his accident report, he took appellant to the State Police Barracks.
[ 235 Pa. Super. Page 304]
There appellant was again given the Miranda warnings, and once again he agreed to take the breathalyzer test. The test was then administered, approximately forty-five minutes after the officer's first contact with appellant. The results indicated that the amount of alcohol by weight in appellant's blood was .19.*fn2 Appellant filed a motion to suppress these results, but after a hearing the motion was denied.
Schmerber v. California, 384 U.S. 757 (1966), and Commonwealth v. Murray, 441 Pa. 22, 271 A.2d 500 (1970), make it clear that the administration of a blood test constitutes a search and seizure within the meaning of the Fourth Amendment. Likewise, the administration of a breathalyzer test must be considered a search and seizure. Commonwealth v. Quarles, 229 Pa. Superior Ct. 363, 377 n. 4, 324 A.2d 452, 460 n. 4 (1974). Thus, before the results of a breathalyzer test may be admitted into evidence the requirements of the Fourth Amendment must be satisfied. "As a general rule the Fourth Amendment requires as a prerequisite to [a search and seizure] the issuance of a search warrant by a magistrate who has made an independent judgment as to probable cause." Commonwealth v. Maione, 227 Pa. Superior Ct. 239, 243, 324 A.2d 556, 558 (1974). When, as here, there is no search warrant, the warrant requirement may be dispensed with if the search was conducted incident to a lawful arrest, pursuant to valid consent, or in circumstances falling within one of the recognized exceptions to the warrant requirement. Commonwealth v. Quarles, supra at 377, 324 A.2d at 460; United States v. Mapp, 476 F.2d 67, 76 (2d Cir. 1973).
[ 235 Pa. Super. Page 305]
The Commonwealth concedes that in the present case the admission of the test results cannot be justified as a search incident to a lawful arrest. In Commonwealth v. Reeves, 223 Pa. Superior Ct. 51, 52-53, 297 A.2d 142, 143 (1972), this court said that "[a] police officer may only make a warrantless arrest for a misdemeanor 'where he has probable cause to believe that a misdemeanor is being committed in his presence.'" Here, since appellant committed no offense in the officer's presence, his arrest was unlawful. The results of the breathalyzer test therefore could not be admitted as incident to a lawful arrest. Commonwealth v. Kirkutis, 234 Pa. Superior Ct. 18, 334 A.2d 682 (1975); Commonwealth v. Jacoby, 226 Pa. Superior Ct. 19, 311 A.2d 666 (1973); Commonwealth v. Brown, 225 Pa. Superior Ct. 289, 302 A.2d 475 (1973); Commonwealth v. Reeves, supra. The Commonwealth argues, however, that the test results were properly admitted because appellant consented to the test. Appellant, in contradiction, argues that this case is controlled by the decision in Commonwealth v. Quarles, supra, and that that decision requires suppression of the test results.
In Commonwealth v. Quarles, supra, the issue was whether the results of a breathalyzer test could be admitted into evidence as a search and seizure pursuant to defendant's implied consent under the provision of the "implied consent law," that "[a]ny person who operates a motor vehicle . . . shall be deemed to have given his consent to a chemical test of his breath. . . ." The Vehicle Code, supra at § 624.1(a), 75 P.S. § 624.1(a). There a policeman was dispatched to the scene of an automobile accident. When the officer arrived, the defendant identified himself as one of the drivers. After observing the defendant, the officer arrested him for drunken driving, read him his Miranda warnings, and, after the defendant agreed to submit to a breathalyzer test, took him to the police barracks where the test was administered. The hearing court granted the defendant's motion to suppress
[ 235 Pa. Super. Page 306]
the test results, and this court affirmed.*fn3 In construing the implied consent statute, we held that the results of a blood or breathalyzer test are admissible if administered without transporting the person and if the requesting officer has reasonable grounds to believe that the person had been driving while intoxicated. When, however, the person is transported to the place where the test is to be conducted, a lawful arrest is necessary before the results will be allowed into evidence. In Quarles, the defendant had been illegally arrested and transported twenty-two miles to the police barracks for the breath test. As a result, the test results were suppressed. Here, as was true of the defendant in Quarles, appellant was illegally arrested and transported to the police barracks. Appellant is therefore correct insofar as he says that Quarles prevents his test results from being admitted into evidence on the basis of implied consent. The Commonwealth, however, is arguing more than implied consent; it contends that appellant actually consented to the seizure and the test.
Quarles did not directly concern an issue of actual consent.*fn4 Nevertheless, it was noted in the opinion that "[i]t is possible that a driver may actually consent to a seizure of his person and the administration of a test of his breath or blood. Actual consent may then provide a constitutional basis for the seizure and test. Such consent [though] must appear . . . to have been voluntary. . . . Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973)." Id. at 377-378, 324 A.2d at 460. Thus if appellant did
[ 235 Pa. Super. Page 307]
actually consent to the seizure and test, the test results would be admissible. The question whether consent to a search is in fact voluntary or is the product of duress or coercion, express or implied, is a question of fact to be determined from all the circumstances. Schneckloth v. Bustamonte, supra; People v. Michael, 45 Cal. 2d 751, 753, 290 P.2d 852, 854 (1955). When the prosecution seeks to rely upon consent, it has the burden of proving that the consent was in fact freely given, Bumper v. North Carolina, 391 U.S. 543, 548-549; Commonwealth v. Davenport, 453 Pa. 235, 308 A.2d 85 (1973), and the proof must be by clear and positive testimony, Judd v. United States, 190 F.2d 649 (D.C. Cir. 1951).
In the present case, the Commonwealth established that appellant orally consented to the breathalyzer test on two distinct occasions, and that he did so after being given the Miranda warnings. Counterbalancing these facts, however, is the fact that appellant had been unlawfully arrested. The issue, therefore, is whether appellant's illegal arrest presented sufficient coercion to vitiate his consent. This court recently dealt with this issue in Commonwealth v. Modich, 233 Pa. Superior Ct. 92, 334 A.2d 717 (1975). There the defendant was involved in an automobile accident. Two police officers arrived after the accident and illegally arrested the defendant for driving while intoxicated and gave him his Miranda warnings. The officers then took the defendant to the police station, where he was again advised of his rights. The defendant was unwilling to take a chemical breath test without talking to his attorney. His attorney explained to him over the telephone that if he refused to take a breath test, his license would be suspended. The defendant took the test. On appeal this court held that the defendant's consent was not voluntary and granted him a new trial.*fn5 We reasoned as follows. Evidence
[ 235 Pa. Super. Page 308]
obtained as the result of an illegal arrest must be suppressed as the fruit of the poisonous tree, Wong Sun v. United States, 371 U.S. 471 (1963), unless the evidence to be introduced has been obtained "'by means sufficiently distinguishable to be purged of the primary taint' rather than 'by exploitation of that illegality.' Betrand Appeal, 451 Pa. 381, 389, 303 A.2d 486, 490 (1973) citing Wong Sun, supra, at 488." Commonwealth v. Modich, supra at 97, 334 A.2d at 719. The Commonwealth Court, in construing Section 624.1 of The Vehicle Code, supra,*fn6 held that a person arrested for drunken driving may have his license suspended if he refuses to submit to a chemical breath test, no matter how unlawful the arrest. Commonwealth v. Miles, 8 Pa. Commonwealth Ct. 544, 304 A.2d 704 (1973). Therefore, when the defendant was asked to take the breathalyzer test, he was faced with the dilemma of submitting to the test or losing his license. This dilemma was the product of his unlawful arrest. We concluded that the defendant "should not be forced to make such a choice solely because of an unlawful arrest. . . . [The defendant's] 'free' choice, on a closer examination, turn[ed]out to be Hobson's choice, and the inadmissible fruit of the illegal arrest." [Footnote omitted]
[ 235 Pa. Super. Page 309]
Commonwealth v. Modich, supra at 97-98, 334 A.2d at 719-720.
In the present case, as in Modich, appellant's illegal arrest forced him to choose between submitting to the breathalyzer test or having his license suspended.*fn7 Thus under Modich appellant's decision to consent to the breathalyzer test cannot be considered free and voluntary, and it was constitutional error to admit the results into evidence.
The judgment of sentence should be reversed and a new trial granted.