from the Order Entered January 19, 2017 In the Court of
Common Pleas of Cumberland County Criminal Division at No(s):
BEFORE: DUBOW, RANSOM, and STRASSBURGER, [*] JJ.
Commonwealth appeals from the order entered January 19, 2017,
granting the motion to suppress filed by Appellee, Gregory
Alan Kurtz. We affirm.
suppression court made the following findings of fact, which
are in turn supported by the record.
On December 2, 2015, at approximately 23:13 hours, Trooper
Cummings of the Pennsylvania State Police stopped [Kurtz] on
I-81 near mile marker 49.5, Middlesex Township, Cumberland
County[, ] Pennsylvania. Trooper Cummings called for back-up
because he had someone else in the back of his vehicle in
custody for DUI. Trooper Caley arrived as back-up, Trooper
Cummings apprised Trooper Caley of observations he made of
[Kurtz] and Trooper Cummings left the scene.
Trooper Caley approached [Kurtz], who was in his vehicle and
immediately detected the odor of an alcoholic beverage
emanating from the vehicle. The [T]rooper asked [Kurtz] for
his driver's license, registration, insurance and
explained to [Kurtz] the reason for the stop. In addition to
the smell of an alcohol beverage, the [T]rooper noticed that
[Kurtz] had bloodshot  and glassy eyes, sleepy or sluggish
behavior and was having difficulty retrieving the requested
documents. Trooper Caley noted that in talking to [Kurtz]
that there was a strong odor of alcohol coming from [Kurtz]
Trooper Caley asked [Kurtz] to step out of the vehicle to do
field sobriety tests. As [Kurtz] did so, [he] struggled with
his footing[, ] staggered[, ] and stumbled as he walked.
[Kurtz's] clothes were disheveled. [Kurtz's] speech
was slurred and at times incoherent. Trooper Caley had
[Kurtz] do the Standardized Field Sobriety tests.
[Kurtz's] performance on all the tests was poor.
Trooper Caley had [Kurtz] take a Portable Breath Test, which
clearly showed that [Kurtz] had imbibed alcohol. Trooper
Caley was of the opinion that [Kurtz] was under the influence
of alcohol and incapable of safely operating his vehicle, and
he placed [Kurtz] under arrest.
Trooper Caley took [Kurtz] to the Carlisle Regional Medical
Center for legal blood to be drawn. At 23:45 hours, Trooper
Caley read the entire DL-26 Implied Consent Form to [Kurtz]
before asking for consent to submit a blood sample. The
implied consent warning read to [Kurtz] contained a statement
which warned [Kurtz] that, "If you refuse to submit to
the chemical test…because of your refusal, you will be
subject to more severe penalties…[.]" On December
2, 2014, at approximately 23:48 hours [Kurtz's] blood was
drawn and the kit was collected for testing.
of Fact in Support of Order Granting Defendant's Pretrial
Motion to Suppress Evidence of Blood Results, 1/19/2017, at
¶¶ 1-18 (formatting modified, citations omitted).
Thereafter, Kurtz was charged with driving under the
influence (DUI) - general impairment, DUI - high rate of
alcohol, DUI - highest rate of alcohol, and failure to regard
traffic lane while driving on roadways laned for
filed a motion to suppress the blood results. Within his
motion to suppress, Kurtz argued that his blood test was
obtained in violation of the Fourth and Fourteenth Amendments
of the United States Constitution, and Article 1, Section 8
of the Pennsylvania Constitution because his consent to the
test was coerced under threat of enhanced criminal penalties.
See Kurtz's Motion to Suppress, 9/26/2016, at
¶¶ 6-7 (citing Birchfield v. North Dakota,
136 S.Ct. 2160, 2185 (2016)).
a hearing in November 2016, the suppression court granted
Kurtz's motion and suppressed the results of the blood
test, finding that Kurtz "did not knowingly and
voluntarily consent to the blood draw." See
Suppression Order, Findings of Fact, and Conclusions of Law,
1/19/2017, at ¶¶ 1-2.
Commonwealth timely filed a notice of appeal and
court-ordered Pa.R.A.P. 1925(b) statement. The suppression
court issued a responsive opinion.
appeal, the Commonwealth raises the following issues:
I. Should the exclusionary rule be applied in Pennsylvania in
limited circumstances where suppression is not the proper
remedy where police were following valid ...