Commonwealth v. Geary, 209 A.3d 439 (2019)

May 6, 2019 · Superior Court of Pennsylvania · No. 1393 EDA 2017
209 A.3d 439

COMMONWEALTH of Pennsylvania, Appellant
v.
Alfred Lamont GEARY

No. 1393 EDA 2017

Superior Court of Pennsylvania.

Submitted March 11, 2019
Filed May 6, 2019

Lawrence J. Goode, Assistant District Attorney, Michael L. Erlich, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

William R. Spade, Jr., Philadelphia, for appellee.

BEFORE: LAZARUS, J., NICHOLS, J., and PELLEGRINI,* J.

OPINION BY LAZARUS, J.:

The Commonwealth of Pennsylvania appeals from the order, entered in the Court of Common Pleas of Philadelphia County, granting Alfred Lamont Geary's motion to suppress the results of his blood test.1 After careful review, we reverse and remand.

The Honorable Roxanne Covington summarized her findings of fact underlying the stop of Geary's vehicle, his arrest, and the subsequent blood draw at issue from his suppression hearing as follows:

On October 22, 2016[,] at approximately 10:00 a.m., Police Officers [Gerard] Brennan and [his partner Officer] Young were on routine patrol [and] stopped at a red light on the 2200 block of Diamond Street. [Geary's] car drove by at such a high rate of speed that it shook their car. Officers Brennan and Young stopped the car approximately two blocks away. [Geary] was the only occupant inside the vehicle, located in the driver's seat. When Officer Brennan requested [Geary's] driver's license, registration, and insurance, [Geary] laughed and did not comply. Officer Brennan testified that this happened at least twice[.] Officer Brennan noticed [Geary's] eyes were bloodshot and dilated. Officer Brennan inquired whether [Geary] was diabetic[2 ] and based on *441[Geary's] answers and actions, and Officer Brennan's four years of experience as a police officer[, Geary] was arrested for suspicion of DUI. Police Officer Brennan requested a blood draw and [Geary] was taken to the police station.
At the police station, Officer [Shawn] Hughes[,] who was assigned to the accident investigation district at the time[,] observed [Geary] with alcohol on his breath, glassy eyes, and slurred speech. [Geary] was read his O'Connell [w]arnings[3 ] and signed the warnings in the presence of other police officers, as well as Officer Hughes.

Pa.R.A.P. 1925(a) Opinion, 9/21/18, at 2 (citations to the record omitted).

At his suppression hearing on March 20, 2018, Geary challenged the voluntariness of his consent to give a blood sample for chemical testing under Birchfield v. North Dakota , --- U.S. ----, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016).4 N.T. Suppression Hearing, 3/20/18, at 4-5. Specifically, Geary argued the consent form used was invalid because it stated that "his refusal could be used in subsequent legal proceedings.[5 ]" Id. (quoting Commonwealth Ex. 2, at 1). In support, Geary cited the Supreme Court's conclusion that "motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense." Id. at 49 (quoting Birchfield , supra at 2186 ).

Though the suppression court found Officer Brennan credible, the vehicle stop occasioned by reasonable suspicion, and Geary's arrest supported by probable cause, Judge Covington granted Geary's motion to suppress the results of his blood draw, finding the Philadelphia Police Department's blood testing consent form facially invalid under Birchfield . See Pa.R.A.P. 1925(a) Opinion, 9/21/18, at 2-3. The court agreed that the consent form violated Birchfield because of its "use of the phrase 'subsequent legal proceedings' [which neither informs] the driver [of]

*442whether evidence of his refusal will be used in a civil or a criminal proceeding, nor does it provide accurate information concerning the status of the law." Id. at 4-5. Under the totality of the circumstances, the court held that Geary "believed he had no other choice but to sign" where he "was in a small area, surrounded by police, and given misleading instruction regarding his right to refuse [blood] testing." Id. at 5.

The Commonwealth filed a timely notice of appeal on April 25, 2017, and both the Commonwealth and the suppression court complied with Rule 1925.

The Commonwealth presents one issue for our review:

Did the lower court err by concluding as a matter of law that the police coerced [Geary's] consent by informing him that the refusal to submit a blood test may be admitted into evidence in subsequent legal proceedings?

Brief of Appellant, at 3.

Our standard for reviewing the Commonwealth's appeal from a motion to suppress is well-settled.

When reviewing the grant of a suppression motion, we must determine whether the record supports the [suppression] court's factual findings and whether the legal conclusions drawn from those facts are correct. We may only consider evidence presented at the suppression hearing. In addition, because the defendant prevailed on this issue before the suppression court, we consider only the defendant's evidence and so much of the Commonwealth's evidence as remains uncontradicted when read in the context of the record as a whole. We may reverse only if the legal conclusions drawn from the facts are in error.

Commonwealth v. Ennels , 167 A.3d 716, 720 (Pa. Super. 2017) (quotations and citations omitted).

It is black letter law that a criminal defendant can only validly consent to a search or seizure when that consent is given voluntarily and knowingly, as contemplated by the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. Commonwealth v. Smith , 621 Pa. 218, 77 A.3d 562, 568-69 (2013). In 2016, the United States Supreme Court refined the notion of consent in the context of intoxicated driving, concluding that "motorists cannot be deemed to have consented to submit a blood test on pain of committing a criminal offense." Birchfield , supra at 2186. Notably, the Birchfield court limited its holding to a prohibition against imposing additional criminal penalties for refusing a blood test, noting "prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to reply.... [N]othing we say here should be read to cast doubt on them." Id. at 2185 (emphasis added).

This Court applied Birchfield to Pennsylvania law under circumstances where drivers suspected of DUI consented to a warrantless blood draw after being told that withholding consent would result in enhanced criminal penalties.6 See Commonwealth v. Evans , 153 A.3d 323, 331 (Pa. Super. 2016). Our current scheme of civil and evidentiary penalties,7 however, is *443not precluded by Birchfield . See Commonwealth v. Johnson , 188 A.3d 486, 490 (Pa. Super. 2018) ("[T]he threat of civil penalties and evidentiary consequences is permissible under implied consent laws; however, a threat of added criminal sanctions is not.").

In light of the foregoing, we find the suppression court erred by concluding that the Philadelphia Police Department's consent form was facially invalid. Though the language of the consent form threatens penalties for refusing consent, they are exclusively either civil or evidentiary in nature.8 See Commonwealth Ex. 2, at 1. The suppression court conflated the impermissible practice of threatening additional criminal penalties to coerce consent with the permissible practice of informing motorists suspected of intoxicated driving of the civil and evidentiary consequences of refusing a blood test. See Johnson , supra at 490. The ostensibly offending language falls squarely within conduct permitted by Birchfield and sanctioned by this Court. Commonwealth v. Robertson , 153 A.3d 323, 444 (Pa.Super.2018). Whatever subjective misunderstandings Geary held as to the meaning of the civil and evidentiary penalties described in the consent form is of no import with respect to Birchfield . See Commonwealth v. Johnson , 188 A.3d 486, 491 (Pa. Super. 2018) (finding defendant's ignorance of constitutional law did not render consent involuntary).

Having found the consent form used by the Philadelphia Police Department facially valid, we now consider the totality of the circumstances to determine whether Geary's consent to a blood draw was voluntary. In explicating voluntariness under similar circumstances, we have stated:

While there is no hard and fast list of factors evincing voluntariness, some considerations include: 1) the defendant's custodial status; 2) the use of duress or coercive tactics by law enforcement personnel; 3) the defendant's knowledge of his right to refuse to consent; 4) the defendant's education and intelligence; 5) the defendant's belief that no incriminating evidence will be found; and 6) the extent and level of the defendant's cooperation with the law enforcement personnel.

Robertson , supra at 447 (quotation omitted).

The first factor weighs against voluntariness, as Geary was under arrest. With respect to the second factor, Geary stated he did not feel as if he had a choice regarding whether or not to give a blood sample. N.T. Suppression Hearing, 3/20/18, at 26. The record, however, reveals that Geary was taken to the standard room9 *444used by the accident investigation district for DUI issues, where he was read all five warnings on the consent form by a police officer.10 Id. at 26, 45-47. Geary's complaint, therefore, boils down to discomfort with his arrest. Consequently, both the second factor, duress, and third factor, being informed of one's right to withhold consent,11 weigh in favor of voluntariness. The fourth and fifth factors are neutral because there was no evidence presented regarding Geary's education and intelligence, or his belief that there was incriminating evidence in his blood. Finally, Geary cooperated with police. Accordingly, the sixth factor weighs in favor of voluntariness. In light of these factors, we find Geary's consent was voluntarily given. See Robertson , supra (finding "no reasonable fact-finder" could find consent involuntarily given when only factor weighing against voluntariness was custody of defendant). Accordingly, we reverse the trial court's suppression order and remand for further proceedings consistent with this decision.

Order reversed. Case remanded. Jurisdiction relinquished.