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HomeMy WebLinkAbout01-2203 CRIMINALCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 01-2203 CRIMINAL MATTHEW C. BOOKS IN RE: OPINION PURSUANT TO RULE 1925 In this case, the defendant was found guilty of a count of driving under the influence following a nonjury trial before the Honorable J. Wesley Oler, Jr., on August 5, 2002. He was subsequently sentenced and now appeals. According to his statement of matters complained of on appeal, the sole issue involves a contention that the undersigned erred in failing to deny his motion to suppress evidence. Specifically, the defendant contends that there was not a sufficient basis for the stop of his vehicle, which stop led to his subsequent arrest for his driving under the influence. The defendant was observed operating his vehicle at around 12:30 a.m. on August 23, 2001. Officer Troy L. McNair of the Lower Allen Police Department was following the defendant in the 2300 block of Gettysburg Road. In that area, Gettysburg Road is a five-lane highway consisting of two lanes heading in each direction and a center turn lane. At the suppression hearing, the officer described the operation of the defendant's vehicle as follows: A At that time ! saw that the vehicle was swerving back and forth but staying within its lane of travel. Q Can you describe the swerving? A It would go swerve fairly quickly to the left like it was going to go off the left side of the lane of traffic, but prior to hitting the dotted center line it would swerve back to the right. And prior to hitting the fog line area or the curb area it would then go back into the center lane of travel -- or ! 01-2203 CRIMINAL should say into the center of its lane of travel. It would just continue the swerving back and forth. Q And how many times did this occur? A Prior to me actually seeing it cross a lane of traffic, it was probably 300 yards I followed it. Q And what did you note next? A As we entered into the approximate 2400 block of Gettysburg Road, at that time I saw the vehicle' s driver's side tires cross the lane of traffic by approximately one foot. And then it quickly turned back to the right and was back into the lane of traffic. And it continued to drive westbound on Gettysburg Road. And as ! followed it, it still continued to be noticeably swerving back and forth within its lane of travel. Q What happened then? A I followed the vehicle. Gettysburg Road turns into Simpson Ferry Road. I continued to follow the vehicle through the Borough of Shiremanstown, back into Lower Allen Township. And in the 5100 block of Simpson Ferry Road once again the vehicle's driver's side wheels swerved to the left, crossed the yellow line, crossed that line by approximately one foot and then again swerved back to the right or steered back to the right into the lane that it was driving in. After Officer McNair observed the defendant swerve across the lines on the roadway for the second time, he activated his emergency lights. Prior to the stop, he had not counted the number of times the vehicle had swerved. He indicated, however, that the vehicle had swerved "numerous times. It was a steady weave back and forth, crossing out of its lane of traffic only two times." N.T. 7-8. 2 01-2203 CRIMINAL Since our order of February 15, 2002, denying the defendant's motion to suppress, the Superior Court has dealt with the question of erratic driving and automobile stops in Com. v. Battaglia, 802 A.2d 652 (Pa. Super. 2002). In that opinion, filed June 25, 2002, the court dealt with a situation where the police officer observed a vehicle "weaving from side to side" within its lane of travel. The police officers, in Battaglia, also observed the defendant make a wide turn while negotiating an on-ramp. The Superior Court concluded that these observations by the police did not afford a basis to stop the defendant's vehicle. In Battaglia, the Superior Court traces the recent development of the law in this area. The court noted that the legislature has vested police officers with authority to stop a vehicle when they have "articulable and reasonable grounds to suspect a violation" of the Vehicle Code 75 Pa.C.S.A. 6308(b). The court then went on to note: Quite recently, our Supreme Court reversed this Court's decision in Commonwealth v. Baumgardner, 767 A.2d 1065 (Pa. Super. 2001). See Commonwealth v. Baumgardner; 796 A.2d 965 (Pa. 2002). In Baumgardner, we held that where an automobile exhibits "excessive," "pronounced," or "exaggerated" intra-lane weaving over a period of sufficient duration (in this case, over the course of two miles), such a display serves to justify a police officer's suspicion of D.U.I., and therefore a traffic stop. The Supreme Court reversed Baumgardner on the basis of its decision in Commonwealth v. Gleason, 567 Pa. 111,785 A.2d 983 (2001). In Gleason, a police officer executed a traffic stop when, while following an automobile for 4¼ of a mile, he observed the auto "... cross the solid fog line on two or three occasions..." Id at 985. This incident transpired late at night, with no other vehicles on the road. 01-2203 CRIMINAL The Superior Court summarized the Supreme Court's holding in Baumgardner and then reached a conclusion of its own: The court found that in permitting a traffic stop, despite recognizing that there was no evidence presented to support a violation of the Vehicle Code, that this Court had impermissibly "... lowered the standard for a proper vehicle stop." Id. at 989. The court reiterated that the correct standard requires a showing of probable cause to believe that a violation of the Code has occurred. From these cases, we might extract the conclusion that there is no basis for "profiling" a suspected drunk driver merely on the basis of observing undisciplined operation of a vehicle which does not form the basis for a conclusion that there has been a violation of the Vehicle Code. It is arguable that our order of February 15, 2002, is contrary to the holding in Battaglia. Battaglia seems to suggest a shift in the law requiring the demonstration of a violation of the Vehicle Code rather than "articulable and reasonable grounds to suspect" a violation. But then again, could not the sole violation "suspected" be driving under the influence? We acknowledge that the operation of the defendant's vehicle, in this case, could be consistent with a phenomenon other than an intoxicated driver; for example, a broken steering column or the operation of the vehicle by a small child. Regardless of the cause, we are hard- pressed to imagine a scenario which would not have warranted a police investigation. In any event, the driving observed in this case is like none of the cases referred to in Battaglia. Unlike Battaglia, the defendant, in this case, not only crossed over the line for his lane of traffic but at one point crossed the yellow line causing his vehicle to be in the lane of oncoming traffic. In Gleason, the middle of the roadway was not implicated and here, the police 4 01-2203 CRIMINAL observed not only weaving within the lane of travel but also a crossing over into the lane of oncoming traffic. November ,20002 Kevin A. Hess, J. The Honorable J. Wesley Oler, Jr. Jaime Keating, Esquire Chief Deputy District Attorney Timothy Clawges, Esquire Assistant District Attorney :rlm