Opinion
J-29-2019 No. 26 WAP 2018
10-31-2019
COMMONWEALTH OF PENNSYLVANIA, Appellee v. JEFFREY ALAN OLSON, Appellant
[MO: Wecht, J.] Appeal from the Order of the Superior Court entered February 14, 2018 at No. 158 WDA 2017, affirming the Order of the Court of Common Pleas of Somerset County entered December 22, 2016, at No. CP-56-CR-0000544-2015. CONCURRING OPINION JUSTICE MUNDY
I join the majority's holding that Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160 (2016), announced a new procedural rule that does not apply retroactively to matters on collateral review. I write to distance myself from the majority's discussion casting doubt on what it has indicated is the "potential applicability" of the exigent circumstances exception to the warrant requirement in the DUI arena. Majority Op. at 14-15.
As the majority notes, the Birchfield Court explicitly acknowledged the exigent circumstances exception was a viable exception to the Fourth Amendment warrant requirement when it noted the validity of a search "may be established by a demonstration of exigent circumstances." Id. at 15 (citing Birchfield, 136 S.Ct. at 2186 (noting "North Dakota has not presented any case-specific information to suggest that the exigent circumstances exception would have justified a warrantless test of Birchfield's blood[.]")). The Birchfield Court did not question the continuing validity of applying exigent circumstances analysis to Fourth Amendment warrant requirements in DUI cases, noting that Schmerber v. California, 384 U.S. 757 (1966), "adopted a case-specific analysis depending on 'all of the facts and circumstances of the particular case.'" Birchfield, 136 S.Ct. at 2173. The Court further reasoned, this approach was reaffirmed in Missouri v. McNeely, 569 U.S. 141 (2013), when the Court opted not to adopt a rule of per se exigency based solely on the dissipation of alcohol in the blood, and rather "refused to 'depart from careful case-by-case assessment of exigency[.]'" Id. at 2174 (citing McNeely, 569 U.S. 142). Further, in Mitchell v. Wisconsin, ___ U.S. ___, 139 S.Ct. 2525 (2019) (plurality), the Supreme Court reiterated that "an officer may conduct a BAC test if the facts of a particular case bring it within the exigent-circumstances exception to the Fourth Amendment's general requirement of a warrant." Id. at 2531.
Despite the concerns raised in this matter, the validity of the exigent circumstances exception to the warrant requirement and the interplay of the amendment to Section 3804 which criminalizes "refusing . . . testing of blood pursuant to a valid search warrant[,]" would be better left to a future discussion in an appropriate case. See Majority Op. at 15; Dissenting Op. (Saylor, C.J.) at 2 (citing 75 Pa.C.S. § 3804(c)). Accordingly, I distance myself from any analysis of the viability of the exigent circumstances exception. I join the majority in all other respects.