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HomeMy WebLinkAbout01-2508 CRIMINALCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. JAMES ALLEN HOCKENSMITH 01-2508 CRIMINAL TERM IN RE: MOTION OF DEFENDANT TO SUPPRESS EVIDENCE BEFORE BAYLEY, J. OPINION IN SUPPORT OF ORDER DATED APRIL 3, 2002 Bayley, J., April 18, 2002:-- Defendant, James Allen Hockensmith, is charged with counts of driving under the influence,~ driving while his operating privilege is suspended, DUI related,2 and operating a vehicle as an habitual offender? He filed a motion to suppress evidence upon which a hearing was conducted on April 2, 2002. On April 3, 2002, an order was entered denying the motion to suppress evidence. The order contained a statement that "based upon a totality of the circumstances, we are satisfied that Officer Lindsay observed erratic operation of a vehicle by defendant over a sufficient distance to justify an investigative stop on suspicion that the operator was driving while under the influence of alcohol." We find the following facts. At 12:40 a.m. on March 9, 2001, Officer Robert ~ 75 Pa.C.S. § 3731(a)(1) & (4). 2 75 Pa.C.S. § 1543(b). 3 75 Pa.C.S. § 6503.1. 01-2508 CRIMINAL TERM Lindsay of the Silver Spring Township Police was on patrol in New Kingstown, in Silver Spring Township. He saw a blue Chevrolet stop at a stop sign on Locust Point Road at the intersection of two lanes of northbound U.S. Route 11. The Chevrolet then went across Route 11 to where Locust Point Road continues at approximately a one-car offset from the point of entry onto Route 11. As the vehicle re-entered Locust Point Road, the middle of the car straddled a double yellow line dividing the two lanes of travel. The vehicle then went back into its lane of travel. It then veered toward the fog line, and then back toward the center of the road. A short distance later the vehicle again veered toward the fog line, and then back toward the center of the road. The vehicle then crossed a railroad track which was .5 miles from Route 11. It continued for .4 miles, then turned right onto two-lane Kost Road. When the vehicle made that ninety-degree turn it crossed into the oncoming lane of the road. Officer Lindsay decided to stop the vehicle. As he was about to turn on his overhead lamps, the vehicle went into a driveway at 22 Kost Road. Officer Lindsay stopped, and went up to the car. The driver was defendant, James Hockensmith. Officer Lindsay asked defendant for his cards. Defendant did not have a driver's license. He told the officer that it was suspended for driving under the influence. Defendant's eyes were glassy, and Officer Lindsay smelled an odor of alcohol on his breath. He saw some beer bottles on the front floor of the vehicle, one of which was in a "Huggy." Defendant told the officer he had drunk "about four beers." Officer Lindsay conducted field sobriety tests, which defendant failed. The officer arrested defendant for driving under the -2- 01-2508 CRIMINAL TERM influence. He transported defendant to a booking center where defendant submitted to an Intoxilyzer 5000 test. Claiming that the stop of his vehicle was unlawful, defendant sought to suppress all evidence gained by Officer Lindsay after the stop. A lawful investigative stop of a vehicle may be based on an observation of erratic driving. Commonwealth v. Starr, 739 A.2d 191 (Pa. Super. 1999). In Commonwealth v. Gleason, 785 A.2d 983 (Pa. 2001), the Supreme Court of Pennsylvania granted an allowance of appeal to determine: [w]hether an arresting officer possesses reasonable and articulable grounds to believe that a licensee violated a provision of the Vehicle Code, warranting the stop of the licensee's car, based upon his observations that the licensee's vehicle crossed the berm line by six to eight inches on two occasions for a period of a second or two over a distance of approximately one quarter of a mile. (Emphasis added.) The Supreme Court reversed an order of the Superior Court of Pennsylvania and reinstated an order of the trial court granting the defendant's motion to suppress evidence. The Supreme Court concluded that there was a lack of any evidence that the defendant's driving created a safety hazard which would have supported a stop under the Vehicle Code at 75 Pa.C.S. Section 3309(1), which requires that a vehicle shall be driven as nearly as practicable entirely within a single lane. In contrast to the facts in Gleason, in the case sub judice defendant's vehicle (1 straddled a double yellow line of Locust Point Road after crossing Route 11, (2) twice siqnificantly veered within its lane of travel within .5 miles, and (3) .4 miles later -3- 01-2508 CRIMINAL TERM made a right turn onto Kost Road into the oncominq lane of travel. Defendant's driving did constitute a safety hazard and, based upon the totality of circumstances, constituted erratic operation of his vehicle over a sufficient distance to justify an investigative stop on articulable and reasonable grounds to suspect that the operator was driving while under the influence of alcohol. (Date) Edgar B. Bayley, J. Kara Haggerty, Esquire For the Commonwealth Aria Waller, Esquire For Defendant :saa -4-