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filed: May 4, 1987.


Appeal from the Order October 10, 1985 in the Court of Common Pleas of Bucks County, Criminal No. 2508 of 1985.


Stephen B. Harris, Assistant District Attorney, Warrington, for Com., appellant.

Martin J. King, New Hope, for appellee.

Cavanaugh, Olszewski and Tamilia, JJ. Cavanaugh, J., concurs in the result.

Author: Olszewski

[ 363 Pa. Super. Page 2]

In this matter, the Commonwealth appeals an order granting the appellee's motion to suppress. The suppression court found that the police obtained the results of a blood test performed on appellee pursuant to an improperly issued subpoena and then used that evidence as a basis for drunk driving charges subsequently filed. Finding a circumvention

[ 363 Pa. Super. Page 3]

    of established search and seizure procedures, the court suppressed the blood test information. Upon review, we conclude that the subpoena was invalid and therefore should have been vacated. Because we find, however, that the Commonwealth learned the results of the test prior to issuance of the invalid subpoena, and that this information was obtained lawfully and without violating appellee's rights, we reverse the suppression court's decision.

Preliminarily we note that the Commonwealth may appeal from a trial court's ruling on a suppression motion when the Commonwealth certifies in good faith that the suppression order terminates or substantially handicaps its prosecution. Commonwealth v. Dugger, 506 Pa. 537, 546-547, 486 A.2d 382, 386 (1985). Because the Commonwealth has so certified, this appeal is properly before us.

On April 4, 1985, appellee was charged with driving under the influence of alcohol. Appellee subsequently filed omnibus pre-trial motions to suppress the results of a blood alcohol test. The motions were heard by the Honorable William H. Rufe, III, on October 10, 1985 on a stipulated set of facts. Following the hearing, Judge Rufe ordered that the blood test information be suppressed.*fn1 Thereafter, Judge Rufe filed an opinion in which he recited the agreed facts as follows:

On April 2, 1985, the defendant was involved in a one car accident in this County at 12:10 a.m. At 12:15 a.m. the arresting officer arrived on the scene, ascertained that defendant was the driver and detected an odor of alcohol on his breath. However, because of other duties

[ 363 Pa. Super. Page 4]

    involved in investigating the accident and clearing the wreckage, the arresting officer did not administer any field sobriety tests, or note any other indicia of intoxication on or about the defendant.

Defendant was removed to the Doylestown Hospital where hospital personnel removed a vial of blood at 1:21 a.m. for their purposes in treating him. At that time defendant had not been arrested and was not informed of the implied consent law. At 2:00 a.m. the arresting officer arrived at the hospital and inquired of hospital personnel "under color of his authority as Police Officer investigating this accident, as to what the results had been of the earlier blood test of Mr. Haynos" (N.T. 4). At that time he was verbally advised by hospital personnel that the results were .148, later corrected to .147.

Thereafter, at 2:50 a.m., he requested the defendant to sign a written consent to withdraw blood for criminal purposes, which the defendant signed. Hospital personnel withdrew two vials of blood from the defendant at 2:55 a.m. which the arresting officer transported for analysis to the Bucks County Crime Laboratory. However, because of contaminents within the vials, the Crime Laboratory declined to analyze the blood.

Later that very same morning, the arresting officer went to the local District Justice of the Peace where he requested and obtained a subpoena for the blood results taken by Doylestown Hospital for the defendant's medical purposes. Upon being presented with the subpoena, the Hospital released the written results to the officer, whereupon he then swore out the affidavit of probable cause for the arrest of the defendant.

Trial court opinion at 1-3.

Our review of a suppression court's ruling is limited primarily to questions of law. Commonwealth v. White, 358 Pa. Super. 120, 123, 516 A.2d 1211, 1212 (1986). We are bound by the suppression court's findings of fact which are supported by the record. Commonwealth v. Hamlin, 503 Pa. 210, 215,

[ 363 Pa. Super. Page 5469]

A.2d 137, 139 (1983). Factual findings wholly lacking in evidence, however, may be rejected. Id.

The trial court found, and in fact the Commonwealth concedes, that the subpoena for appellee's medical records was improper. We agree. As this Court noted in Commonwealth v. Jolly, 337 Pa. Super. 130, 132, 486 A.2d 515, 516 (1984), our Supreme Court has stated that "(A) prerequisite to the issuance of a subpoena (is) that there be some pre-existing matter or cause pending before the court." Id. quoting Commonwealth v. Polak, 438 Pa. 67, 263 A.2d 354 (1970). See also Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980) (subpoena concededly unlawful where, at time of issuance, there were no ongoing legal proceedings against appellant). In the present case, the subpoena was obtained when no arrest had been made, nor warrants or citations issued. Under these circumstances, the subpoena was invalid and should have been vacated.

Having found the subpoena to be improper, the trial court suppressed the blood test information obtained pursuant to that subpoena, the court indicating that "the subpoena was being used to obtain the evidence upon which to base the charges subsequently filed." Trial court opinion at 4. The record demonstrates, however, that the arresting officer, Officer Taylor, was advised of the test results by hospital personnel prior to issuance of the subpoena for the written results. The record also shows that the blood test evidence recited on Officer Taylor's affidavit of probable cause was based not upon the written results, but upon the verbal information proffered by the hospital. N.T. 10/10/85 at 7. The written results procured pursuant to the subpoena therefore played no role in Officer Taylor's determination of probable cause for appellee's arrest.*fn2 We

[ 363 Pa. Super. Page 6]

    must decide whether suppression of the blood test information was an appropriate remedy under these circumstances.

Guiding our decision is a principle applied by the United States Supreme Court in Maryland v. Macon, 472 U.S. 463, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985). In that case, a county detective, who was not in uniform, entered an adult bookstore, browsed for several minutes, and purchased two magazines from the sales clerk with a marked $50 bill. The detective then left the store and showed the magazines to fellow officers who were waiting nearby. Upon concluding that the magazines were obscene, the detectives returned to the store, arrested the sales clerk, and retrieved the marked $50 bill from the cash register. The trial court denied the respondent's motion to suppress the magazines and the $50 bill. The Supreme Court held that the allegedly obscene magazines were properly admitted into evidence as the detectives did not obtain them by means of an unreasonable search or seizure and they were not the fruit of an arrest, lawful or otherwise. Significant to the instant case, the Court concluded that even assuming that respondent's warrantless arrest after the purchase of the magazines was an unreasonable seizure in violation of the Fourth Amendment, it would not require exclusion of the magazines at trial as it yielded nothing of evidentiary value that was not already in the lawful possession of the police. The Court observed, "(t)he exclusionary rule enjoins the Government from benefitting from evidence it has unlawfully obtained; it does not reach backward to taint information that was in official hands prior to any illegality." Id. at 471, 105 S.Ct. at 2783 (quoting United States v. Crews, 445 U.S. 463, 475, 100 S.Ct. 1244, 1252, 63 L.Ed.2d 537 (1980) (Brennan, J., joined by Stewart and Stevens, JJ.)).

Instantly, the arresting officer was advised of the blood test information prior to any illegality associated with issuance of the subpoena. Under the foregoing principle, therefore, the invalidity of the subpoena does not necessarily require exclusion of the blood test evidence.

[ 363 Pa. Super. Page 7]

This does not end our inquiry, however. Specifically, we must determine whether the police obtained the blood test information lawfully and without violation of appellee's rights in the first instance, i.e., when Officer Taylor requested and received verbal advice as to the results.*fn3 Appellee contends that he had a reasonable expectation of privacy in the results of the blood test at the time Officer Taylor made this inquiry. The oral request, appellee argues, was made without any legal process and absent facts establishing probable cause and therefore violated his right to be protected from unreasonable searches and seizures. For the reasons which follow, we reject appellee's argument and conclude that Officer Taylor did not act improperly and otherwise violate appellee's rights when he verbally inquired of the blood alcohol test taken by the hospital.

It is clear that the taking of a blood sample is a search and seizure subject to the protections of the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Commonwealth v. Murray, 441 Pa. 22, 271 A.2d 500 (1970). For purposes of our discussion, we will assume without deciding that the verbal request for information involved here was a search subject to Fourth Amendment protections as well.*fn4 After reviewing the relevant case law, we find that this search may be justified under the "implied consent" provision of the Motor Vehicle Code, 75 Pa.C.S. Sec. 1547(a), Act of June 17, 1976, P.L. 162, No. 81, Sec. 1; as amended December 15, 1982, P.L. 1268, No. 289, Sec. 5.*fn5 This section provides in pertinent part:

[ 363 Pa. Super. Page 8]

    purposes in performing necessary tests. Subsequently, the nurse on duty learned from the police dispatcher that the police had requested a blood sample. She then went to appellant, told him that the police had requested a blood sample, and asked that he sign a consent form enabling her to give the blood sample to the police. She read the consent form to appellant*fn6 and he signed it. Thereafter, the police sergeant arrived to pick up the blood sample. Appellant was in the operating room. The nurse asked the sergeant to sign the consent form, which he did and she gave him the blood sample. Neither the sergeant nor any other police officer had spoken with appellant regarding his blood being tested for alcohol level. Police technicians subsequently conducted a test of appellant's blood which revealed a blood alcohol level of 0.11.

The appellant in Cieri argued that the test should have been suppressed since the withdrawal of his blood was undoubtedly a search, and was conducted without a warrant at a time when appellant was not under arrest. Moreover, appellant argued, the only possible exception to the warrant requirement applicable was consent and although he did sign the consent form, his consent was invalid both because of the extent of his injuries and because, having spoken with no police officer, he had no notice of the criminal investigative purpose of the blood test. The Commonwealth argued in response that there was implied consent to the search and that the search was therefore justified under Section 1547 of the Motor Vehicle Code.

In an opinion authored by the Honorable Edmund B. Spaeth, this Court set forth the applicable case law as follows:

[ 363 Pa. Super. Page 10]

We have held that under this provision -- more precisely, under the substantially identical predecessor of this provision -- police may constitutionally conduct a chemical test of a suspect's blood, without having arrested him and without transporting him from the scene in order to conduct the test, if they have probable cause to believe that the suspect has been driving under the influence of alcohol or a controlled substance. Commonwealth v. Quarles, 229 Pa. Super. 363, 324 A.2d 452 (1974) (plurality). While the statute speaks in terms of "implied consent," we concluded in Quarles that the constitutional basis for the test could not be to imply the suspect driver's consent to the test as a condition of operating a car, for that would constitute an "unconstitutional condition." Id., 229 Pa. Superior Ct. at 378-81, 324 A.2d at 460-62. Rather, we construed the term "reasonable grounds" to mean "probable cause," and concluded that the constitutional basis for the test was the existence of probable cause to believe that the suspect had been driving under the influence of alcohol or a controlled substance. Id., 229 Pa. Superior Ct. at 388, 324 A.2d at 466. In Commonwealth v. Funk, 254 Pa. Super. 233, 385 A.2d 995 (1978), we relied on Quarles to hold that where the police had such probable cause, they might constitutionally conduct a test even though the suspect was not conscious and could not therefore avail himself of his statutory right to refuse the test and have evidence of such refusal admitted at his trial. Id., 254 Pa. Superior Ct. at 239-41, 385 A.2d at 998-99.

Id., 346 Pa. Super. at 87, 499 A.2d at 322. We then concluded that the Commonwealth's claim of implied consent was justified, "for at the time the police received the sample of appellant's blood from Nurse Laird, they had probable cause to believe that appellant had been driving under the influence of alcohol or a controlled substance." Id., 346 Pa. Super. at 88, 499 A.2d at 323. Moreover, we noted that the test at issue there constituted less of an intrusion than

[ 363 Pa. Super. Page 11]

    that which might constitutionally have occurred at the accident scene on the basis of probable cause, "for the police neither invaded, nor seized and detained, appellant's person in order to administer the test." Id. We then held that the existence of probable cause, which would unquestionably suffice as a constitutional basis for a test administered at the scene, also suffices as a constitutional basis for a test administered at the hospital. Id. See also Commonwealth v. Pelkey, 349 Pa. Super. 373, 503 A.2d 414 (1985).

The principles set forth in Cieri are equally applicable here. Upon examination of the record, we find that Officer Taylor obtained probable cause to inquire of the blood test results after speaking to appellee at the scene of the accident. Probable cause to justify a warrantless search exists when the searching officer has knowledge of sufficient facts and circumstances, gained through trustworthy information, to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Commonwealth v. Bartlett, 486 Pa. 396, 406 A.2d 340 (1979); Commonwealth v. Palm, 315 Pa. Super. 377, 462 A.2d 243 (1983).

According to the stipulated facts, the officer arrived at the scene and observed a motor vehicle which had struck a tree. Appellee was standing outside of the vehicle and indicated to the officer that he had been the driver. While talking to appellee, the officer detected an odor of alcohol on appellee's breath. Pinned within the vehicle was a passenger who had sustained serious injuries. Both appellee and his passenger required medical treatment and were thereafter transported by a rescue squad to Doylestown Hospital. We believe these facts establish sufficient probable cause for Officer Taylor's inquiry regarding the results of the blood test taken by the hospital. See Commonwealth v. Guerry, 469 Pa. 20, 364 A.2d 700 (1976); Commonwealth v. Levesque, 469 Pa. 118, 364 A.2d 932 (1976).

[ 363 Pa. Super. Page 12]

Having found that probable cause existed prior to this inquiry, we hold that this search was valid under the implied consent statute and the principles outlined in Cieri.*fn7

Because the blood test information was obtained lawfully and without violating appellee's rights prior to issuance of the invalid subpoena, we reverse the suppression order and remand for proceedings consistent with this opinion.*fn8 Jurisdiction relinquished.


Jurisdiction relinquished.

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