Summary
reversing this Court's sua sponte finding of waiver
Summary of this case from Commonwealth v. DabneyOpinion
No. 23 WAP 2019
07-21-2020
COMMONWEALTH of Pennsylvania, Appellee v. Kaitlyn N. WOLFEL, Appellant
OPINION
This interlocutory appeal concerns whether evidence of a blood alcohol test performed on an arrestee under suspicion of driving while intoxicated should be suppressed. The main, substantive arguments center on the recent ruling, by the Supreme Court of the United States, that the Fourth Amendment proscribes warrantless blood draws secured on pain of enhanced criminal penalties for refusal. This Court's present resolution, however, ultimately turns on issue preservation considerations.
While driving a vehicle in December 2014, Appellant struck two pedestrians, killing one and injuring the other. She was arrested on suspicion of driving under the influence, and police transported her to a local health center for blood testing. Prior to the blood draw, police advised Appellant that, if she refused to submit to the test, she would be subject to enhanced criminal penalties pursuant to the Implied Consent Law. See 75 Pa.C.S. § 1547(b)(2)(ii). See generally Commonwealth v. O'Connell , 521 Pa. 242, 252, 555 A.2d 873, 878 (1989) (charging law enforcement officers with a duty, in connection with requests for chemical testing, to explain the consequences of a refusal). Appellant consented to the procedure, and the test yielded a blood alcohol content of .178 percent. Petitioner was charged with numerous criminal offenses, including homicide by vehicle while driving under the influence. See 75 Pa.C.S. § 3735(a).
Act of June 17, 1976, P.L. 162, No. 81, § 1 (as amended 75 Pa.C.S. § 1547 ).
In 2016, while the present case remained at the pretrial stage, the Supreme Court of the United States issued its decision in Birchfield v. North Dakota , ––– U.S. ––––, 136 S. Ct. 2160, 195 L.Ed.2d 560 (2016). Birchfield held, among other things, that consent to a warrantless blood draw is vitiated when such assent follows the administration by police of a warning of enhanced criminal penalties upon refusal of the testing. See id. at ––––, 136 S. Ct. at 2186 ("[M]otorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense"). Appellant then lodged a motion contending, in very general terms, that Birchfield required suppression of the blood evidence. See Motion to Suppress in Commonwealth v. Wolfel dated July 25, 2016, No. CP-12-CR-40-2015 (C.P. Cameron), at 1 ("[T]he United States Supreme Court, in Birchfield v. North Dakota , held that the Fourth Amendment does not permit warrantless blood tests.").
Parenthetically, Appellant's initial claim for relief was facially overbroad, since the Birchfield Court explicitly allowed that warrantless blood testing might be valid if an exception to the warrant requirement applied. See Birchfield , ––– U.S. at ––––, 136 S. Ct. at 2184 ("Nothing prevents the police from ... relying on the exigent circumstances exception to the warrant requirement" when there is insufficient time to secure a warrant).
At a hearing before the suppression court, Appellant's position was refined to encompass Birchfield ’s recognition of the heightened coerciveness when an arrestee is warned of enhanced criminal penalties inuring upon a refusal of chemical testing. See N.T., Aug. 12, 2016, at 20. The Commonwealth, on the other hand, asserted that Birchfield shouldn't be retroactively applied to Appellant's circumstances, particularly given that police acted in good faith by merely advising her of the enhanced-penalty provisions embedded in the governing statutory regime. See id. at 4-5, 21-23.
The suppression court nonetheless awarded the exclusionary remedy, and the Commonwealth lodged an interlocutory appeal as of right. See Pa.R.A.P. 311(d). In an ensuing opinion, the suppression court found the contested legal issue to be one of first impression. The court noted, however, that retroactive application had been assumed in the Superior Court's decision in Commonwealth v. Evans , 153 A.3d 323 (Pa. Super. 2016) (awarding a new trial based on a Birchfield violation). Additionally, the suppression court reasoned as follows:
In the instant case, the suppression hearing was held after Birchfield had been decided and had become the law of the land. Therefore, this Trial Court based its decision on the holding of Birchfield and knew to consider all the circumstances of the arrest, warnings, and blood draw. This Court had before it all the evidence which could come under the term, "totality of the circumstances." ...
It is also significant that the decision was based on the fundamental constitutional right of an individual to be free from unreasonable searches and seizures under the Fourth Amendment to the United States Constitution and Pa. Const. Art. 1, § 8 . It would be unconscionable for this court to hold that defendants who were deprived of such a fundamental right prior to June 23, 2016, and had not yet been tried, were not protected by the Fourth Amendment and that only those whose warrantless search took place after said date would be protected by its safety net.
Commonwealth v. Wolfel , No. CP-12-CR-40-2015, slip op. at 2-3 (C.P. Cameron Feb. 21, 2017) (emphasis added).
In the appeal proceedings, the Commonwealth discarded its position that Birchfield should be applied only prospectively. Instead, it presented a different argument that allowed for the retroactive application of Birchfield but would nonetheless avoid suppression, if credited. Specifically, the Commonwealth invoked the federal good-faith exception to the exclusionary rule.
See Brief for Appellant dated June 9, 2017, in Commonwealth v. Wolfel , No. 1357 WDA 2016 (Pa. Super.), 2017 WL 4682501, at *12 ("The United States Supreme Court has consistently refused to mandate suppression of evidence where the evidence was obtained pursuant to a valid statute or controlling precedent, even if that statute or precedent is later overturned or declared unconstitutional." (citing, inter alia , United States v. Leon , 468 U.S. 897, 922, 104 S. Ct. 3405, 3420, 82 L.Ed.2d 677 (1984) ("[T]he marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalided search warrant cannot justify the substantial costs of exclusion."), and Illinois v. Krull , 480 U.S. 340, 349-53, 107 S. Ct. 1160, 1167-69, 94 L.Ed.2d 364 (1987) (holding that the federal exclusionary rule does not apply to evidence obtained by law enforcement officers who acted in objectively reasonable reliance on a statute authorizing warrantless administrative searches, which was later held to be constitutionally infirm))).
Notably, the Commonwealth's brief before the Superior Court offered the following circumspection:
It would be disingenuous of the Commonwealth to fail to acknowledge the Pennsylvania Supreme Court in Commonwealth v. Edmunds , , 586 A.2d 887 (Pa. 1991) rejected Leon as an Article 1, Section 8 matter, and holding that Section 8 "does not incorporate a ‘good faith’ exception to the exclusionary rule." Edmunds , 586 A.2d at 905-06.
Brief for Appellant in Wolfel , No. 1357 WDA 2016 (Pa. Super.), 2017 WL 4682501, at *13 (recognizing that, in Edmunds , "the exclusionary remedy was deemed available even in a situation where police acted in good faith"). The Commonwealth, however, then made a point to clarify that it was in no way seeking an overruling of Edmunds . See id.
Instead, the Commonwealth urged that Edmunds ’ holding simply should not be applied in the present circumstances. Because Pennsylvania's implied consent regime had been repeatedly upheld by the courts prior to Birchfield ’s issuance, the Commonwealth submitted, "interjection of Article I, Section 8 analysis and authority into this matter is unwarranted and this case should instead be viewed through the lens of the Fourth Amendment and its related caselaw." Id. at *14. According to the Commonwealth's brief, "[t]he alternative would be to hold that all of Pennsylvania's prior decisions finding that the Commonwealth's DUI testing regime did not run afoul of Article I, Section 8 were retroactively incorrect as a matter of state law." Id. The argument continued as follows:
The Commonwealth submits that it would make much more sense to view Birchfield as holding that the prior state court decisions were incorrect under the Fourth Amendment and proceed accordingly, rather than interpret Birchfield as requiring the application of the more stringent and explicitly privacy-oriented Article I, Section 8 authority.
Id.
It is important to note that these contentions reflect an attempt to garner a broad-based legal ruling that Birchfield violations do not implicate Pennsylvania's variant of the exclusionary rule per Edmunds . In other words, the Commonwealth did not present a case-specific claim that Appellant had failed to advance a challenge under the Pennsylvania Constitution.
The Superior Court nonetheless raised this issue preservation concern of its own accord and reversed in a non-precedential opinion. See Commonwealth v. Wolfel , No. 1357 WDA 2016, slip op. , 2017 WL 6629411, at *4 (Pa. Super. Dec. 29, 2017). Initially, the court repeatedly highlighted that, at the time at which Appellant lent her consent to the testing, the warnings about increased criminal penalties were "legally correct." Id. at *3 ; cf. Commonwealth v. Olson , ––– Pa. ––––, ––––, 218 A.3d 863, 868 (2019) (treating Birchfield as having announced a new rule of law). But again, the intermediate court decided the case based on issue-preservation considerations rather than on the merits.
In this respect, the Superior Court explained that Appellant had never sought suppression under Article I, Section 8 of the Pennsylvania Constitution, and therefore, the only relevant protections were those available under the Fourth Amendment to the United States Constitution. See id. at *4 (citing Commonwealth v. Updike , 172 A.3d 621, 626-27 (Pa. Super. 2017) ("When a defendant moves to suppress evidence only under the federal constitution, he or she waives any argument that the evidence should be suppressed under the state constitution." (citing Commonwealth v. Rosa , 734 A.2d 412, 420 (Pa. Super. 1999) )). In such circumstances, the Superior Court found, the good-faith exception to the federal exclusionary rule clearly applied. Accord id. (citing, inter alia , Kansas v. Schmidt , 53 Kan.App.2d 225, 385 P.3d 936, 943 (2016) ).
Appeal was allowed to consider the issue, as framed by Appellant, of: "Whether the Superior Court of Pennsylvania disregarded the controlling authority of Birchfield v. North Dakota , ––– U.S. ––––, 136 S. Ct. 2160, 195 L.Ed.2d 560 (2016), by reversing the trial court's decision suppressing the results of the testing of Petitioner's blood." Commonwealth v. Wolfel , ––– Pa. ––––, 206 A.3d 491 (2019) (per curiam ). Presently, Appellant argues, among other things, that the Superior Court erred in reversing the suppression court's ruling based on a sua sponte finding of waiver. See Brief for Appellant at 13 ("[T]he Commonwealth lost at the suppression hearing and waived any newly inserted arguments." (citing Commonwealth v. Fant , 637 Pa. 135, 157-58, 146 A.3d 1254, 1267-68 (2016) (Wecht, J., concurring))). Moreover, Appellant explains that, regardless of any failure on her part to invoke the Pennsylvania Constitution, the trial judge did so specifically in the opinion explaining his ruling. Accord Brief for Amicus Defender Ass'n of Phila. at 2 ("[T]he suppression court did rely on the state constitution (irrespective of appellant's presentation) ...").
This issue is somewhat improvidently framed, given that the Superior Court decided the case based on waiver rather than "disregard[ing] the controlling authority of Birchfield ." Id. Nevertheless, the Commonwealth does not object to consideration of the Superior Court's actual holding; indeed, as developed below, the government now premises its own argument on a waiver claim. In these circumstances, we will read the question presented as being sufficiently broad to subsume issue preservation concerns.
Appellant's amicus , the Defender Association of Philadelphia, proceeds to more closely develop the discussion about issue preservation. First, consistent with Appellant's lead argument, the Defender Association highlights the trial court's invocation of the Pennsylvania Constitution. The Defender Association further criticizes the Commonwealth's substitution, before the intermediate court, of reliance on the good-faith exception to the warrant requirement for its previous argument, in the suppression court, that the warrant requirement had never attached in the first instance. See id. at 9 ("Simply stated, retroactive application of Birchfield is a distinct issue from the remedial consequence (suppression or non-suppression) of an acknowledged Birchfield violation."). More broadly, the Defender Association argues that Edmunds ’ rejection of a good-faith exception to the warrant requirement should be enforced regardless of whether a defendant invokes the state charter. See id. at 13 ("Pennsylvania litigants should not be at peril of foregoing all meaningful remedial relief for failing to specifically allege a violation of the Pennsylvania Constitution.").
The Commonwealth, for its part, presently shifts its position once again, this time to a defense of the Superior Court's sua sponte waiver disposition. See Brief for Appellee at 10 ("The crux of this matter is ... the simple fact that Appellant Wolfel never invoked Article I, Section 8 of the Pennsylvania Constitution[.]"). Furthermore, the Commonwealth complains -- also for the first time in this litigation -- that "[t]he suppression court's apparent belief that [a claim under the Pennsylvania Constitution] was properly before it was factually incorrect." Id. at 16. Conveying no apparent appreciation of its own troubles with issue preservation, the Commonwealth emphasizes that "[i]ssues not raised in the lower court are obviously waived and cannot subsequently be raised for the first time on appeal." Id. (citing Pa.R.A.P. 302(a) ). Ultimately, there are several suggestions, in the Commonwealth's brief, that Birchfield itself should be left entirely to the federal arena. See, e.g. , id. (urging that we should "view Birchfield as holding that the prior state court decisions affirming Pennsylvania's implied consent and DUI enforcement regime were incorrect under the Fourth Amendment ..., rather than interpret Birchfield as requiring the retroactive application of the more stringent and explicitly privacy-oriented Article I, Section 8 authority").
The Fourth Amendment rulings of the Supreme Court of the United States, however, establish the baseline for the protections afforded by Article I, Section 8 of the Pennsylvania Constitution. See, e.g. , In re Fortieth Statewide Investigating Grand Jury , 647 Pa. 489, 514 n.23, 190 A.3d 560, 575 n.23 (2018) ("[A]nalogous provisions of the federal Constitution establish a minimum floor for the protection due under the state charter."). Accordingly, any suggestion that Article I, Section 8 does not subsume Birchfield ’s substantive constraints must be disapproved.
On the other hand, we also reject the Defender Association's premise that this Court should apply principles arising under Article 1, Section 8 to claims predicated solely on the Fourth Amendment to the United States Constitution. While, unfortunately, criminal defense attorneys are sometimes remiss in failing to apprehend the material distinctions in the application of the respective federal and state charters, the relevant, controlling difference -- i.e. , the expanded application of the state exclusionary rule -- is now apparent and manifest. Moreover, this Court has no power to alter settled Fourth Amendment law as announced and maintained by the Supreme Court of the United States.
Ultimately, however, we agree with Appellant and her amicus that the Commonwealth waived its challenge to Appellant's failure to raise a claim under Article I, Section 8, by failing to challenge the suppression court's explicit invocation of that provision before the Superior Court. Notably -- upon the Commonwealth's entreaty -- this Court recently enforced waiver against a criminal defendant for failing to properly raise and preserve a Birchfield -related issue. See Commonwealth v. Hays , ––– Pa. ––––, ––––, 218 A.3d 1260, 1266-67 (2019). Here, we afford evenhanded treatment to the Commonwealth.
Accord Commonwealth v. Williams , 636 Pa. 105, 145 n.23, 141 A.3d 440, 464 n.23 (2016) (concluding that the Commonwealth's waiver argument itself was waived pursuant to Rule 302(a), where it was advanced for the first time on appeal, with the Commonwealth in the position of an appellant); In re J.M. , 556 Pa. 63, 83, 726 A.2d 1041, 1051 (1999) (finding waiver on the part of an appellee, who previously had been the appellant in the Superior Court, where that party had failed to raise a particular issue in the intermediate court).
Since the Superior Court's sua sponte finding of waiver on Appellant's part is unsustainable, we will remand for that court to effectuate the alternative resolution to which the intermediate court itself referred. See Wolfel , No. 1357 WDA 2016, slip op. , 2017 WL 6629411, at *4 n.8 (explaining that, absent the asserted waiver on Appellant's part, "we would have affirmed the suppression court's Order"). The order of the Superior Court is reversed, and the matter is remanded for further proceedings consistent with this Opinion.
According to Justice Dougherty, the waiver doctrine should not apply, because the Commonwealth's brief in the Superior Court specifically noted that Appellant had couched her suppression motion solely as a Birchfield issue and submitted, therefore, that "interjection of Article I, Section 8 analysis and authority into this matter is unwarranted and this case should instead be viewed through the lens of the Fourth Amendment and its related caselaw." Dissenting Opinion, op. at 794 (quoting Brief for Appellant in Commonwealth v. Wolfel , No. 1357 WDA 2016, 2017 WL 4682501 (Pa. Super.), at *14 ). That brief, however, made it immediately apparent that this observation was part and parcel of the Commonwealth's overarching focus on securing a broad-based ruling that Birchfield violations do not implicate Pennsylvania's variant of the exclusionary rule per Edmunds .
In this regard, immediately after the language quoted by Justice Dougherty, the Commonwealth urged that, "[t]he alternative," to viewing the case through the lens of the Fourth Amendment, "would be to hold that all of Pennsylvania's prior decisions finding that the Commonwealth's DUI testing regime did not run afoul of Article I, Section 8 were retroactively incorrect as a matter of law." Id. at *14. This, of course, would not have been the alternative at all, had the Commonwealth meant merely to raise a case-specific objection to the trial court's sua sponte reference to Article I, Section 8. Instead, the matter would have represented a garden-variety waiver claim having nothing to do with the validity of any previous decision by any court.
The Commonwealth's brief continued to urge that "it would make much more sense to view Birchfield as holding that the prior state court decisions were incorrect under the Fourth Amendment and proceed accordingly, rather than interpret Birchfield as requiring the application of the more stringent and explicitly privacy-oriented Article I, Section 8 authority." Id. Along these lines -- beginning with the summary of its argument and continuing throughout its brief -- the Commonwealth consistently pursued a rule permitting a good-faith exception to the exclusionary rule for Birchfield violations in spite of Edmunds , not a ruling that the trial court erred in its sua sponte reliance on the Pennsylvania Constitution. There simply are no arguments, in the brief, stated in the alternative.
Justices Todd, Donohue and Mundy join the opinion.
Justice Wecht files a concurring opinion in which Justice Baer joins.
Justice Dougherty files a dissenting opinion.
JUSTICE WECHT
In concluding that the Commonwealth waived its argument that Kaitlyn Wolfel had failed to raise a claim under Article I, Section 8 of the Pennsylvania Constitution, the Majority narrowly reads the Commonwealth's timely objection to the suppression court's sua sponte invocation of unraised grounds for relief in its briefing below and overlooks significant procedural irregularities in that court's resolution of Wolfel's motion. Nonetheless, while I disagree with the route the Majority takes, I concur in today's result, inasmuch as I, too, would find waiver, albeit on alternative grounds. Additionally, I write to highlight the suppression court's failure to adhere to our Rules of Criminal Procedure.
The duties of Pennsylvania trial courts when faced with suppression motions are clear. Pa.R.Crim.P. 581(I) commands that, "[a]t the conclusion of" a suppression hearing, the court "shall enter on the record a statement of findings of fact and conclusions of law as to whether the evidence was obtained in violation of the defendant's rights, or in violation of these rules or any statute, and shall make an order granting or denying the relief sought." Notwithstanding the Rule's plain language, in Commonwealth v. Millner , 585 Pa. 237, 888 A.2d 680 (2005), this Court "recognize[d] that ... it is not uncommon for suppression judges to fail to comply with [the Rule's] directive." Id. at 688. We "stress[ed] ... the essential purposes served by the Rule" and explicitly "disapprove[d] of non-compliance with its unambiguous mandate ." Id. (emphasis added). The suppression court proceedings here did not adhere to those strictures. The consequences of that non-compliance are readily apparent.
The parties do not dispute that Wolfel failed explicitly to invoke Article I, Section 8 as a basis for suppressing the evidence of her blood draw either in her omnibus pre-trial motion or in her post- Birchfield motion to suppress. Nor did Wolfel raise any state constitutional grounds for suppression at the August 12, 2016 hearing. Although the suppression court indicated that it was inclined to grant Wolfel's second motion, that court did not contemporaneously make specific findings of fact or conclusions of law as required by Rule 581(I). See Notes of Testimony ("N.T."), 8/12/2016, at 27. One week later, the court entered an order formally granting Wolfel's motion "for reasons stated on the record," Order, Morgan, S.J., 8/19/2016, despite the absence from those proceedings of any stated rationale for affording relief. Consequently, it was not until the suppression court issued its Pa.R.A.P. 1925(a) opinion on February 21, 2017, that the court revealed that its decision to suppress Wolfel's blood draw "was based on" Article I, Section 8 of the Pennsylvania Constitution, in addition to the Fourth Amendment to the United States Constitution, the latter of which was the sole basis for suppression asserted by Wolfel. Opinion, Morgan, S.J., 2/21/2017, at 3. By waiting more than six months after the suppression hearing to announce an alternative justification for its ruling that the defendant had not raised herself, the court effectively prevented the Commonwealth from objecting after it already had filed its statement of errors complained of on appeal.
Birchfield v. North Dakota , ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016).
As recognized by Justice Wecht, the suppression court failed to comply with Pa.R.Crim.P. 581(I) by failing to state its findings of facts and conclusions of law on the record when it granted appellant's motion and did not file its Rule 1925(a) opinion until six months later; both failures hindered the Commonwealth's ability to properly challenge the suppression court's invocation of Article I, Section 8 until the filing of its Superior Court brief. See Concurring Opinion, op. at 791–92.
In its principal brief in the Superior Court—the first opportunity to challenge the suppression court's erroneous sua sponte invocation of Article I, Section 8—the Commonwealth expressly "noted that Wolfel couched her suppression motion solely as a Birchfield issue," and further "submit[ted] that interjection of Article I, Section 8 analysis and authority into this matter is unwarranted." Commonwealth's Brief, Docket No. 1357 WDA 2016, at 14. Although the Commonwealth could have been more precise in highlighting the fact that the suppression court belatedly rendered its decision upon grounds that Wolfel had not raised, the Commonwealth sufficiently communicated Wolfel's failure to preserve her Article I, Section 8 claim such that the Superior Court ably discerned that she had waived it. See Commonwealth v. Wolfel , 1357 WDA 2016, 2017 WL 6629411, at *3-4 (Pa. Super. Dec. 29, 2017) (unpublished). Thus, I do not share the Majority's view that the Commonwealth's treatment of Wolfel's waived claim in its briefing itself constituted a waiver, and I would not disturb the Superior Court's resolution of that issue.
That being said, the Commonwealth failed to preserve its present claim that the good-faith exception to the federal exclusionary rule should be applied here. At the suppression hearing, and as the appellant below, the Commonwealth bore the burden of establishing that the evidence derived from the coerced blood draw was admissible despite the facially unconstitutional means by which it was obtained. Commonwealth v. Enimpah , 630 Pa. 357, 106 A.3d 695, 701-02 (2014). That burden necessarily includes raising for timely consideration by the suppression court any applicable exceptions to the exclusionary remedy in order to preserve those issues for appeal. Here, the record reflects that the Commonwealth's "chief argument" at the suppression hearing was that Birchfield did not apply retroactively to cases pending at the time the Supreme Court of the United States issued its decision in June 2016. See N.T., 8/12/2016, at 4. Indeed, the entirety of the Commonwealth's argument, and of the suppression court's questions and commentary, concerned the retroactivity of that decision. See id. at 21-23, 24-27.
To be fair, in disputing defense counsel's view that Wolfel was entitled to retroactive application of the rule announced in Birchfield , the Commonwealth briefly commented that the Pennsylvania State Trooper who had read the invalid implied consent warning to Wolfel "was proceeding according to his training[,] doing what he would have been trained was required, acting totally in good faith. Nobody's claimed otherwise." Id. at 21-22. But that fleeting remark, read in context, was insufficient to preserve for appellate review the weighty issue now relied upon. And the record contains no other indication that the Commonwealth sought to preempt an unfavorable ruling on Fourth Amendment grounds by invoking the good-faith exception, which this Court rejected as a matter of Pennsylvania constitutional law nearly thirty years ago. See Commonwealth v. Edmunds , 526 Pa. 374, 586 A.2d 887 (1991) ; see also Commonwealth v. Johnson , 624 Pa. 325, 86 A.3d 182 (2014). For these reasons, I conclude that the Commonwealth waived its extant assertions of that exception, and I would remand the matter to the Superior Court with instructions to reinstate the order of suppression.
Echoing its approach before the suppression court, in its Pa.R.A.P. 1925(b) statement the Commonwealth raised a single claim that the court erred in granting Wolfel's suppression motion because, "[w]hen the police acted in good faith reliance on the legal authority that was in effect at the time of the collection of the blood sample, Birchfield should not be applied retroactively to exclude evidence obtained prior to its decision." Pa.R.A.P. 1925(b) Statement, 10/4/2016, at ¶ 1. Having failed to put the issue squarely before the suppression court at the hearing on Wolfel's motion, the Commonwealth's effort to shoehorn its unpreserved good-faith exception argument into its preserved non-retroactivity claim by conflating the two concepts is unavailing. Whether or not police "acted in good faith" when they violated a person's constitutional rights has no bearing on whether a decision by the U.S. Supreme Court announcing a new rule of constitutional magnitude must be applied retroactively to criminal cases then-pending in state courts. Nor do defendants in those circumstances have the burden of proving that police acted in "bad faith" to secure the benefits of those rulings when seeking suppression of unlawfully obtained evidence. In any event, notwithstanding the Commonwealth's singular focus upon the retroactivity question at the suppression hearing and in its sole claim of error raised on appeal, it abandoned that claim by not pressing it in the Superior Court. See Commonwealth v. McGill , 574 Pa. 574, 832 A.2d 1014, 1018 n.6 (2003).
The Majority instead penalizes the Commonwealth for making a "broad-based" argument to the Superior Court "that Birchfield violations do not implicate Pennsylvania's variant of the exclusionary rule[.]" Majority Opinion, op. at 790 n.6. In doing so, however, the Commonwealth clearly distinguished the Fourth Amendment, the exclusionary rule, and its good faith exception from Article I, Section 8, which does not recognize such an exception. In my view, our case law supports a finding that arguments distinguishing the Fourth Amendment from Article I, Section 8 are sufficient to preserve the claim. In Commonwealth v. Bishop , ––– Pa. ––––, 217 A.3d 833 (2019), this Court held a defendant must distinguish Article I, Section 9 from the Fifth Amendment to preserve his claim for additional protection under the state charter. Id . at 841. The same should be true when the Commonwealth contends additional protections should not apply. Thus, in making its "broad-based" claim, the Commonwealth distinguished between the Fourth Amendment and Article I, Section 8 and preserved its claim that "interjection of Article I, Section 8 ... is unwarranted." Commonwealth's Superior Court Brief at 14.
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Whether, in light of Edmunds , Pennsylvania's trial and intermediate appellate courts, which are bound by the Pennsylvania Constitution and decisions from this Court interpreting it, may apply the good-faith exception to the federal exclusionary rule in state prosecutions involving standalone Fourth Amendment violations has not yet been addressed by this Court. Because that issue was not raised by the parties, I take no position on the views expressed by the Majority and Dissent as to its applicability here. See Maj. Op. at 789–90; Diss. Op. at 794 (Dougherty, J.).
Accordingly, I concur in the result reached by the Majority.
Justice Baer joins this concurring opinion.
JUSTICE DOUGHERTY
I respectfully dissent because I disagree with the Majority's holding "that the Commonwealth waived its challenge to [a]ppellant's failure to raise a claim under Article I, Section 8, by failing to challenge the suppression court's explicit invocation of that provision before the Superior Court." Majority Opinion, op. at 790. I would instead hold the Commonwealth preserved its "good faith exception" argument, see United States v. Leon , 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (Fourth Amendment does not require exclusion of evidence where officer conducts search upon good faith reliance the search was constitutional), at each level of proceedings below.
Beginning at the suppression hearing, the Commonwealth contended appellant's blood test results should not be suppressed, notwithstanding Birchfield v. North Dakota , ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016) (consent to warrantless blood testing invalid for purposes of Fourth Amendment if obtained on pain of criminal consequences), because the "trooper was proceeding according to his training doing what he would have been trained was required, acting totally in good faith." N.T., 8/12/2016 at 21-22. The Commonwealth continued, "the exclusionary rule should not be applied in a case like this. There's no point to it. It does not deter improper police conduct when it's applied retroactively" and "it would not be appropriate to suppress this evidence at this stage." Id . at 22. The Commonwealth made this good faith exception argument in direct response to appellant's claim suppression of her blood test results was required under Birchfield , i.e. the Fourth Amendment. See Motion to Suppress, 7/25/2016 at 1, citing Birchfield .
Nevertheless, the suppression court granted appellant's motion to suppress, which was specifically based on the Fourth Amendment, and supported its decision with "reasons stated on the record[.]" Suppression Order, 8/19/2016 at 1. Moreover, the suppression court's "reasons" could not have included Article I, Section 8 since there were no references to Article I, Section 8 at the suppression hearing. See N.T., 8/12/2016 at 3-29. Only after the Commonwealth filed its notice of appeal and Pa.R.A.P. 1925(b) statement, in which it renewed its good faith exception argument, did the suppression court invoke Article I, Section 8 in its Pa.R.A.P. 1925(a) opinion as support for its decision. See Suppression Court Op., 2/21/2017 at 3.1
The Majority finds the Commonwealth failed to challenge this "explicit invocation of [ Article I, Section 8 ] before the Superior Court." Majority Opinion, op. at 790. In my view, the following passage from the Commonwealth's Superior Court brief makes it evident the Commonwealth objected to any insertion of Article I, Section 8 into the case:
At the risk of stating the obvious, Birchfield was decided solely on the basis of federal Fourth Amendment jurisprudence and Article I, Section 8 of the Pennsylvania Constitution played no part in the decision. It should also be noted that [appellant] couched her suppression motion solely as a Birchfield issue. The Commonwealth therefore submits that interjection of Article I, Section 8 analysis and authority into this matter is unwarranted and this case should instead be viewed through the lens of the Fourth Amendment and its related caselaw.
Commonwealth's Superior Court Brief at 14 (emphasis added). Thus, I have no difficulty concluding the Commonwealth preserved its challenge to the suppression court's "explicit invocation" of Article I, Section 8, and would affirm the Superior Court's determination that appellant failed to seek suppression under Article I, Section 8.2 Under the circumstances, I would hold the Fourth Amendment's good faith exception to the exclusionary rule applied.