Argued May 8, 2012
Appeal from the Order of the Superior Court dated April 6, 2011at No. 944 EDA 2010 which Vacated & Remanded the Order of the Court of Common Pleas of Bucks County, Criminal Division, order dated March 29, 2010 at No. 09-CR-0003973-2009. Appeal allowed October 14, 2011 at No. 09-CR-0003973-2009. Trial Court Judge: Jeffrey L. Finley, Judge. Intermediate Court Judges: John T. Bender, Anne E. Lazarus, Gene Strassburger. JJ.
For Commonwealth of Pennsylvania, APPELLANT: Karen Ann Diaz, Esq., Stephen B. Harris, Esq., David Ward Heckler, Esq., Robert J. Salzer, Esq. Bucks County District Attorney's Office.
For Daniel Roger Smith, APPELLEE: John J. Kerrigan Jr., Esq.
BEFORE: MR. JUSTICE BAER. CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ. Former Justice Orie Melvin did not participate in the decision of this case. Mr. Justice Saylor, Madame Justice Todd and Mr. Justice McCaffery joined the opinion. Mr. Chief Justice Castille files a concurring opinion. Mr. Justice Eakin files a concurring opinion.
[621 Pa. 222] MR. BAER,
We accepted allowance of appeal in this case to examine whether the Superior Court erred in determining that police officers, when seeking consent from an individual for the testing of his blood for the presence of drugs or alcohol following a traffic accident, must inform the individual that the results of the test may be used for criminal or prosecutorial purposes. To the extent the Superior Court held that an officer must inform an individual that a positive result in a blood test may have criminal repercussions, and such failure renders any consent to the blood test invalid, the court erred. We further hold that the totality of the circumstances presented instantly support the trial court's conclusion that the suppression of blood test results was not warranted. Accordingly, we reverse the order of the Superior Court, and we remand this case to that court for consideration of issues that remain in abeyance.
During the evening of October 22, 2008, Appellee-Defendant, Daniel Roger Smith, consumed approximately eight beers while
watching the Philadelphia Phillies defeat the Tampa Bay Rays in Game 1 of the World Series. He finished drinking at 11:00 or 11:30 that night and went to bed. He awoke the next morning and, apparently feeling no ill effects from his drinking the night before, drove himself to work. Around 11:00 a.m., Appellee drove from his place of employment to deposit the receipts from the previous day at a local bank. His course of travel took him along Oxford Valley Road in Middletown Township, Bucks County. He approached the intersection with Frosty Hollow Road and attempted to make a left-hand turn onto Frosty Hollow Road.
[621 Pa. 223] When Appellee began the left-hand turn, however, his vehicle violently collided with a car driving the opposite direction on Oxford Valley Road, which was operated by Mary McHugh with her husband, Joseph McHugh, as a passenger. After impact, Mrs. McHugh's vehicle struck a third car on Frosty Hollow Road, driven by Robin Cunliffe, and only came to rest after striking a fence on the side of the road. While neither Appellee nor Ms. Cunliffe were injured, it was immediately apparent that the McHughs suffered severe injuries. Indeed, Mrs. McHugh succumbed to her injuries several days after the accident, and Mr. McHugh is now permanently disabled.
Middletown Township Police arrived on the scene of the accident within a short period of time, and, eventually, accident reconstruction expert Officer Brian Agostino was dispatched to investigate the incident. Officer Agostino, who had been off-duty at the time of the accident, arrived on-scene out of uniform but wearing a hat that said " Middletown Township Police Department." He immediately began speaking with Appellee concerning the circumstances of the accident. He then walked over to the McHughs' vehicle, to discover that Mrs. McHugh had been transported to a local hospital, and rescue workers were attending to Mr. McHugh. Accordingly, Officer Agostino returned to Appellee and " asked him due to the seriousness of the accident with a potential fatality if he would submit to a chemical blood test," the purpose of which was " to eliminate any possibility that alcohol or controlled substance was involved." Notes of Testimony, Suppression Hearing (N.T.), Sept. 24, 2009 at 10, 12. Officer Agostino further told Appellee that he could refuse the test. Id. at 12. While Appellee would subsequently dispute these facts, the trial court found the officer's versions of these events to be credible. N.T., Oct. 7, 2009 at 8.
[621 Pa. 224] Appellee agreed to the testing, and a second officer transported him to St. Mary's Hospital for the blood draw. Samples of Appellee's blood were submitted to a laboratory for testing, and two separate specimens indicated blood alcohol concentrations of 0.083 and 0.082 percent, respectively. Upon receiving the results of the chemical tests, Middletown Township Police arrested Appellee, and charged him with various crimes related to the accident, including DUI - general impairment/incapable of driving safely, DUI - general impairment (BAC of 0.08 - 0.10 percent), and homicide by vehicle while DUI.
Prior to trial, Appellee moved to suppress the results of the blood testing, contending that the consent given was not informed or knowing and thus was illegally obtained, because Officer Agostino did not advise him that the test results could be used against him in a criminal proceeding. Taking into consideration the totality of the circumstances surrounding Appellee's consent, as related above, the trial court determined that his permission was informed, and thus valid, and denied suppression. A jury trial thereafter commenced and on November 19, 2009, the jury found Appellee guilty of the above-stated charges. The trial court subsequently sentenced Appellee to a term of imprisonment of three to six years.
Appellee filed a timely appeal to the Superior Court, contending, inter alia, that the suppression court erred by admitting the blood test evidence, because the police did not obtain informed and actual consent for the test from Appellee, making the draw an invalid search. The Commonwealth conceded that Officer Agostino lacked the probable cause required to order Appellee to take a blood test, but continued to assert that Appellee's agreement to take the test at Officer Agostino's request constituted sufficient consent.
In an unpublished memorandum, the Superior Court vacated Appellee's convictions and remanded for a new trial. It [621 Pa. 225] noted that the taking of blood constitutes a search subject to the protections of the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. Commonwealth v. Smith, 944 EDA 2010 at *5 (Pa. Super. Apr. 6, 2011) (unpublished memorandum); accord Commonwealth v. Davenport, 453 Pa. 235, 308 A.2d 85, 87 (Pa. 1973). The court found that for consent to operate as a valid waiver of the right to remain free from warrantless searches, it must be voluntary and knowing. Smith, at *6 (citing Commonwealth v. Walsh, 314 Pa.Super. 65, 460 A.2d 767, 771-72 (Pa. Super. 1983)). The Superior Court had held in Walsh that consent to a blood test is invalid as unknowing where the defendant could show he had no notice or awareness of the criminal investigative purpose of the test. 460 A.2d at 772.
The court in this case determined that the rationale in Walsh discussed when the assent apparently given by a criminal defendant meets the knowledge requirement implicit in a valid consent. Smith, at *6. The court stated that it may have been reasonable to believe that Appellee might have " guessed" that police requested the blood test for a criminal investigation. Id. at *8. However, the panel found that the Superior Court's decision in Commonwealth v. Danforth, 395 Pa.Super. 1, 576 A.2d 1013 (Pa. Super. 1990) ( en banc ), constrained it from affirming the trial court's denial of suppression premised upon Appellee's surmisal, because officers " ha[ve] a duty to inform" defendants that results may be used as prosecutorial evidence. Id. at *12.
[621 Pa. 226] In Danforth, the defendant crashed her car in the early morning while returning from a bar, killing her passenger. The investigating officer did not suspect that the defendant was under the influence of alcohol, but encouraged her to go to the hospital to treat her injuries. At the hospital, the officer asked the defendant to take a blood test based on the severity of the accident. The officer told her the test was in furtherance of his accident investigation, but he did not give the defendant a Miranda warning, tell her that the blood test could be used against her in a criminal proceeding, or have her sign a written consent form. The officer further assured her that she was not under arrest when he requested the blood draw consent. The defendant gave her consent for the blood draw, and the results of the test revealed a BAC of 0.21 percent. The defendant was charged with and subsequently convicted of, inter alia, homicide by vehicle while DUI. Danforth, 576 A.2d at 1015-16.
On appeal, the Danforth Court held that the defendant's consent to the blood test was not actual and voluntary, and therefore invalid because the uncontradicted evidence showed that she had no notice of the criminal investigative purpose of the test. Id. at 1023 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). Specifically, the court considered the defendant's lack of understanding of constitutional rights or previous encounters with the judicial process; that she was not provided Miranda warnings; her reluctance to seek medical care for her injuries; and the officer requesting the test as a part of his " accident" investigation, all as being insufficient to put the defendant on notice of the potential criminal ramifications of the blood test, because the reasonable person would have no objective reason " to [621 Pa. 227] believe that the investigation was any different from a routine accident investigation."
Applying Danforth and Walsh to the instant case, the Superior Court examined the fact that Officer Agostino, in requesting the blood test, never explicitly informed Appellee that the results were in furtherance of, or could be used against him in, a criminal investigation. Smith, at *8-9 (citing Danforth, 576 A.2d at 1023); & *12 (citing Walsh, 460 A.2d at 772). The court continued by noting that Officer Agostino never related any reason that would cause Appellee to suspect that the test was intended for any purpose other than a routine accident investigation. On these bases, the court held that Appellee lacked notice or awareness of the criminal ramifications of the blood draw. Id. at *8-10 (citing Danforth, 576 A.2d at 1023).
Reasoning, then, that Officer Agostino would not have asked for the testing if he did not intend to use a positive result against Appellee criminally, the court held that Officer Agostino " had a duty to inform" Appellee of this fact when seeking his consent. Id. at *11. Accordingly, the court held that Officer Agostino's failure to inform Appellee of the criminal consequences of the blood test had the effect of misleading or coercing Appellee, rendering his consent unknowing and invalid. Id. at *12 (citing Walsh, 460 A.2d at 772 (" [C]onsent can be invalidated if the consenter did not understand what it was he was consenting to." )). Additionally, the Superior Court dismissed any factual differences between Danforth and this case as either not impacting, or even strengthening, its conclusion
that Appellee did not give knowing consent to the blood testing. Id. at *10-11.
[621 Pa. 228] The court therefore concluded that the blood test was administered in violation of Appellee's Fourth Amendment and Article I, Section 8 constitutional rights, and that the results of the test should have been suppressed at trial. Id. at *12. Thus, the court vacated the judgments of sentence and remanded for a new trial on all charges. The Commonwealth petitioned this Court for allowance of appeal, which we ...