HomeMy WebLinkAboutCP-21-CR-0003501-2017
COMMONWEALTH
v.
IN THE COURT OF COMMON PLEAS
OF THE NINTH JUDICIAL DISTRICT
LEAH CHAMBERLAIN CP-21-CR-3501-2017
IN RE: MOTION TO SUPPRESS EVIDENCE
OPINION AND ORDER OF COURT
PLACEY, C.P.J., ___ JULY 2018
PROCEDURAL HISTORY
This Driving Under the Influence (DUI) prosecution began by arrest following a
traffic stop on April 29, 2017, in Southampton Township, Cumberland County. A
Criminal Complaint was filed on August 4, 2017, and the case sent to Central Court for
disposition that occurred on October 20, 2017, by waiver of the preliminary hearing.
Thereafter, Arraignment occurred on December 21, 2017, on two counts of DUI and a
1
summary count of Driving on Roadways Laned for Traffic. An Omnibus Pretrial Motion,
denominated as Motion to Suppress Evidence, was filed on February 22, 2018, to which
the Commonwealth filed an Answer on March 16, 2018, and a hearing held on the
Motion on April 3, 2018. This Opinion is in support of the simultaneously filed Order of
Court.
1
75 Pa.C.S. §§ 3802(d)(1)(ii), (d)(2) and 3309(1), respectively.
CP-21-CR-3501-2017
FACTS FROM HEARING
1. A four-year veteran officer (Trooper) with the Pennsylvania State Police
was on regular patrol in the north Shippensburg area of Cumberland
County during the evening of April 29, 2017.
2. Trooper, specifically trained in standardized field sobriety tests (SFST)
and advanced roadside impaired driving enforcement (ARIDE), had made
approximately 35 DUI arrests at the time of this incident.
3. At approximately 10:30 p.m., Trooper observed and began to follow a
Honda SUV traveling in Southampton Township on the Newburg Road in
a northerly direction.
4. Newburg Road is a classic rural two-lane road that joins two historically
settled areas as it meanders between farmlands, which has been
widened, as needed, and now has some homes nestled amongst the
farms.
5. At this time, and in the direction being traveled by Trooper, the vehicles
were just past the Shippensburg University’s athletic fields and at the
vicinity of the conference center.
6. Trooper testified that he observed a jerking steering motion, i.e. not
smooth, and, in the conference center area, saw the vehicle hit the double
yellow center lines twice and cross over it completely with two wheels.
7. A vehicle stop was made for a potential DUI based on the Trooper’s
witnessing the vehicle not being controlled fully within a lane of travel and
no known compelling reason for the abrupt, sharp, and sudden vehicle
2
CP-21-CR-3501-2017
movements within the lane, e.g. no deer, pedestrians, or oncoming traffic
to avoid.
8. The traffic stop was recorded by Trooper’s in car mobile video recorder
(MVR), which was introduced as Commonwealth’s exhibit one, and it fairly
and accurately depicts the almost 25 minute roadside encounter.
9. The vehicle stop occurs at time marker 2:11 of the recording.
10. Prior to the stop, the recording shows the drive on the road out of
Shippensburg and begins following a dark colored vehicle.
11. The described vehicle’s abrupt movement is unseen in the two-
dimensional view of the MVR – the vehicle does not jerk or swerve when
encountering oncoming traffic or a pedestrian walking on the shoulder of
the road; however, the vehicle driver’s side wheels are run on top of the
double yellow lines on two occasions, but unseen in the MVR is the full
crossing over the yellow lines and into the oncoming lane of travel.
12. Immediately upon emergency light activation, the driver reacted by braking
and then pulling over to the narrow shoulder, which Trooper described as
unsafe parking – apparently Trooper believed vehicle should have been
driven fully onto the grassy area as was done by Trooper after the arrest.
13. Trooper initiated contact at the driver’s door and was told in response to
his queries that Defendant had been to Arooga’s, a local chain restaurant
and bar, and had one alcoholic drink that night.
14. After Trooper reported in via radio while in the police cruiser, Trooper went
back out and had Defendant step outside the vehicle, where it was
3
CP-21-CR-3501-2017
learned Defendant wears contacts and took a “Prozac” antidepressant that
morning.
15. Trooper had Defendant perform the horizontal gaze nystagmus (HGN),
walk and turn (WAT), one leg stand (OLS), and Romberg’s tests;
additionally, Trooper obtained a breath sample via a portable breath test
(PBT).
16. Trooper testified Defendant appeared nervous, anxious, and shaking.
17. Trooper also noted that Defendant had bloodshot eyes, an odor of an
alcoholic beverage, balance issues and slow steps.
18. No grading was given for the HGN; however, on the WAT, Defendant fell
out of place, raised arms, took too many steps, and stopped walking; and
on the OLS Defendant started early, put foot down, and swayed.
19. Thereafter, a PBT was given that resulted in no presence of alcohol being
detected, which gave rise to Trooper focusing in on drugs and asking
Defendant, “What are you on?”
20. A Romberg’s test was performed, during which Trooper observed
Defendant sway with tremors, but the MVR was partially blocked by
Trooper and the entire test could not be seen on video.
21. Trooper advised Defendant and she was placed under arrest for DUI after
testing.
22. Trooper indicated at the arrest that Defendant was stating she was not on
anything, but Trooper stated her body movements indicated differently to
him.
4
CP-21-CR-3501-2017
DISCUSSION
Statement of Law – Cause to stop: The law is clear that “before the government
may single out one automobile to stop, there must be specific facts justifying this
intrusion. To hold otherwise would be to give the police absolute, unreviewable
discretion and authority to intrude into an individual's life for no cause whatsoever.”
Commonwealth v. Swanger, 307 A.2d 875, 878 (Pa. 1973). The stop justification
standard in an impaired driver situation is found in Section 6308(b) of the Vehicle Code
provides that:
\[w\]henever a police officer ... has reasonable suspicion that a
violation of this title is occurring or has occurred, he may stop a
vehicle, upon request or signal, for the purpose of checking the
vehicle's registration, proof of financial responsibility, vehicle
identification number or engine number or driver's license, or to
secure such other information as the officer may reasonably
believe to be necessary to enforce the provisions of this title.
75 Pa.C.S. § 6308(b).
“In order to demonstrate reasonable suspicion, the police officer must be able to point to
specific and articulable facts and reasonable inferences drawn from those facts in light
of the officer’s experience.” Commonwealth v. Cook, 735 A.2d 673, 677 (Pa. 1999)
(citing Commonwealth v. Jackson, 698 A.2d 571, 573 (Pa. 1997)). See also
Commonwealth v. Anthony, 1 A.3d 914, 919 (Pa. Super. 2010), and Commonwealth
v. Reppert, 814 A.2d 1196, 1203 (Pa. Super. 2002) (citing Cook for the reasonable
suspicion standard). “Therefore, the fundamental inquiry of a reviewing court must be
an objective one, namely, whether the facts available to the officer at the moment of the
stop warrant a man of reasonable caution in the belief that the action taken was
5
CP-21-CR-3501-2017
appropriate.” Anthony, 1 A.3d at 919–20 (internal citations, brackets and quotation
marks omitted).
Section 3309(1) of Title 75, the Vehicle Code (Code), provides, in relevant part,
“(1) Driving within single lane. - A vehicle shall be driven as nearly as practicable
entirely within a single lane and shall not be moved from the lane until the driver has
first ascertained that the movement can be made safely.” The Code provides for driving
on the right side of roadway; specifically on “all roadways of sufficient width, a vehicle
shall be driven upon the right half of the roadway” with exceptions for hazards and traffic
flow. 75 Pa.C.S. § 3301(a). The Code further establishes a violation for driving under
influence of alcohol or controlled substance that provides, in everyday common terms, a
person may not drive a vehicle after drinking enough alcohol or while actively under the
influence of drugs such that the person is no longer able to safely drive. 75 Pa.C.S. §
3802.
Precedential case law supports the conclusion a vehicle stop for DUI may be
based on reasonable suspicion, as a post-stop investigation is normally feasible.
However, a vehicle stop based solely on offenses not “investigable” cannot be justified
by a mere reasonable suspicion, because the purposes of a Terry stop do not exist –
maintaining the status quo while investigating is inapplicable where there is nothing
further to investigate. An officer must have probable cause to make a constitutional
vehicle stop for such offenses. Commonwealth v. Chase, 960 A.2d 108, 116 (Pa.
2008).
Summary traffic stop violation case law articulates that probable cause does not
develop where a vehicle crossed the berm line by six to eight inches on two occasions
6
CP-21-CR-3501-2017
for a period of a second or two over a distance of approximately one quarter of a mile.
Commonwealth v. Gleason, 785 A.2d 983 (Pa. 2001). Indeed, “where a vehicle is
driven outside the lane of traffic for just a momentary period of time and in a minor
manner, a traffic stop is unwarranted.” Commonwealth v. Garcia, 859 A.2d 820, 823
(Pa. Super. 2004).
Cause to arrest: Our Superior Court summarized the assessment standard of
probable cause for an arrest in the following principles:
Probable cause to arrest exists when the facts and
circumstances within the police officer's knowledge and of which
the officer has reasonably trustworthy information are sufficient
in themselves to warrant a person of reasonable caution in the
belief that an offense has been committed by the person to be
arrested. Probable cause justifying a warrantless arrest is
determined by the totality of the circumstances.
\[…\] It is the facts and circumstances within the personal
knowledge of the police officer that frames the determination of
the existence of probable cause. See, e.g., Commonwealth v.
Lawson, 309 A.2d 391, 394 (Pa.1973) (Probable cause exists if
the facts and circumstances known to the officer warrant a
prudent man in believing that an offense has been committed.).
Commonwealth v. Weaver, 76 A.3d 562, 565 (Pa. Super. 2013), aff'd, 105
A.3d 656 (Pa. 2014) (most internal citations and all quotation marks omitted).
The controlled substances portion of the DUI statute provides, in pertinent part:
An individual may not drive, operate or be in actual physical control
of the movement of a vehicle under any of the following
circumstances:
(1) There is in the individual's blood any amount of a \[non-
prescribed\]: …
(ii) Schedule II or Schedule III controlled substance … ; or
(iii) metabolite of a substance under subparagraph (i) or (ii).
7
CP-21-CR-3501-2017
(2) The individual is under the influence of a drug or combination of
drugs to a degree which impairs the individual's ability to safely
drive, operate or be in actual physical control of the movement of
the vehicle. …
75 Pa.C.S. § 3802(d).
Controlled substances and certain chemicals thereof that are used to make drugs
are classified into five (5) schedules depending upon the drug’s acceptable medical use
and the drug’s abuse or dependency potential. “Schedule I drugs, substances, or
chemicals are defined as drugs with no currently accepted medical use and a high
2
potential for abuse.” “Schedule II drugs, substances, or chemicals are defined as
drugs with a high potential for abuse, with use potentially leading to severe
3
psychological or physical dependence. These drugs are also considered dangerous.”
“Schedule III drugs, substances, or chemicals are defined as drugs with a moderate to
low potential for physical and psychological dependence. Schedule III drugs abuse
4
potential is less than Schedule I and Schedule II drugs but more than Schedule IV.”
In Commonwealth v. Griffith, 32 A.3d 1231 (Pa. 2011), the Pennsylvania
Supreme Court unanimously held that the nexus between drugs and the impairment of
a person's ability to drive safely was within the knowledge of laypersons, especially
police officers, and that the Commonwealth was not required to produce expert
testimony to establish that the impairment of a defendant's ability to safely drive was
due to the amount of a prescription medication or controlled substance in the
defendant's system. Id. at 1240. Griffith specifically held:
2
www.dea.gov/druginfo/ds.shtml
3
Id.
4
Id.
8
CP-21-CR-3501-2017
\[A\]nalogously to subsection 3802(a)(1) for alcohol intoxication,
subsection 3802(d)(2) prohibits driving if one is “under the
influence of a drug or combination of drugs to a degree which
impairs \[one's\] ability to safely drive.” This provision by its plain
text does not require that a drug be measured in the defendant's
blood, nor does it specify any particular manner by which the
Commonwealth is required to prove that the defendant was
under the influence of a drug. Like subsection 3802(a)(1), \[…\]
subsection 3802(d)(2) does not limit, constrain, or specify the
type of evidence that the Commonwealth can proffer to prove its
case.
Id., at 1239 (internal citations omitted).
Application of Law to Facts – Cause to stop: Trooper’s stop of the vehicle for the
reported crossing over the center line is not supported by probable cause because no
evidence established that Defendant’s driving “created a safety hazard.” Gleason, 785
A.2d at 989. Applying the “momentary and minor” standard of Gleason to the facts of
this case, it is found that probable cause is lacking. See also Garcia, 859 A.2d at 823.
The uncharged, but introduced via testimony, driving within single lane section of the
Code requires motorists to maintain a single lane “as nearly as practicable.” The
statutory language does not foreclose minor deviations from the single lane. Application
of the driving on right side of roadway section provides for exceptions that are not in
evidence; additionally, it is unseen in the video that the vehicle crossed over the double
yellow lines so these facts too do not rise to probable cause. Commonwealth v.
Enick, 70 A.3d 843, 847-48 (Pa. Super. 2013). The facts and circumstances as known
to Trooper and as articulated and shown at the hearing do not warrant belief that either
summary traffic offense had been committed.
Thus, not having found probable cause to stop, it is necessary to review the facts
under a reasonable suspicion standard to determine if the stop was based upon an
9
CP-21-CR-3501-2017
officer’s articulated specific facts, known at the time of the made stop, which would
provide reasonable suspicion to believe that the vehicle or the driver was in violation of
some provision of the entire Code. An objective review of the facts stated by Trooper –
who articulated: (1) observing a jerking steering motion, (2) seeing the vehicle hit the
center line twice and cross over it completely with two wheels, and (3) overall observed
the vehicle not being controlled fully within a lane of travel and no known compelling
reason for the abrupt, sharp, and sudden vehicle movements within the lane for the
approximately two minutes the vehicle was followed – would allow for a reasonable use
of caution at 10:30 at night to believe that some confirmatory action was appropriate, to
include a stop for suspicion of chemically impaired driving.
Cause to arrest: Though a process of elimination, as done in the field by
Trooper, Defendant is described and shown having classic signs of alcohol impairment,
including an odor of an alcoholic beverage, bloodshot eyes, balance issues, difficulty
following instructions, and tremors. Alcohol impairment was ruled out by the lack of
presence of alcohol as determined by the PBT. Defendant admitted having taken
“Prozac” in the morning and having one alcoholic drink while at Arooga’s. The arrest
Trooper made was based on probable cause of DUI of a drug under Section 3802(d)(2).
The variety of drugs that may impair a person's ability to drive safely is much
broader than the non-medically prescribed Schedule II controlled substances that are
the subject of the Section 3802(d)(1)(ii) charge. Unlike alcohol that applies to any type
of alcohol, Section 3802(d)(1) applies only to a finite set of controlled substances,
specifically a Schedule I, II, or III controlled substance or a metabolite thereof. There is
no testimony as to which class of controlled substance was believed to produce the
10
CP-21-CR-3501-2017
indicators described by Trooper that lead to his opinion that Defendant was drug
impaired.
Clearly this Trooper has the aptitude to recognize and quickly assess potentially
impaired drivers as evidenced by the MVR. Trooper can easily identify and describe the
classic signs of alcohol intoxication; however, Trooper could not identify or describe the
5
indicators of use of schedule I, II, or III controlled substances on this specific driver.
What controlled substance, if any, was causing the symptoms seen by Trooper is
unknown and it cannot be deduced from the information presented. Alas, constrained
by the facts, it cannot be said that this Trooper had probable cause that the impairment
was caused by a Schedule II controlled substance at the time the arrest was made in
the field.
The final query into probable cause to arrest involves the non-specific drug
impaired driving found at Section 3802(d)(2). The Commonwealth need only show that
the defendant's ability to drive safely was merely impaired by the influence of a drug or
combination of drugs. Commonwealth v. Hutchins, 42 A.3d 302, 307 (Pa. Super.
2012). A historical comparison shows Section 3802(d)(2) has a significantly lower
threshold of criminal liability than does former Section 3731(a)(2) and is thus a much
easier burden for the Commonwealth to satisfy.
“Prozac” is the brand name for Fluoxetine, a “class of drugs called selective
serotonin reuptake inhibitors (SSRIs). This class of drugs is used to treat depression,
5
The education, training, and experience of officers in other reported cases have explained cues or
symptoms of the active influence of a class of substances. An example of this is mydriasis or miosis
of the pupils of the eyes, which can include, as a result from taking a substance, a lack of response to
light. There are numerous other indicia of the active effects of controlled substances on a person’s
central nervous system, but none are identified herein.
11
CP-21-CR-3501-2017
6
anxiety, and other mood disorders.” Fluoxetine is not listed as a Schedule I, II, or III
7
controlled substance by the Drug Enforcement Administration and the impairment
effects are not of record.
In review of the facts presented, there is indicia of Defendant’s compromised
driving skills; an admission to non-schedule I, II, or III drug use – albeit in the morning;
difficulty in following instructions and balance issues; which in total forms the question
for the jury of whether or not Defendant’s ability to drive safely was impaired by the
influence of a drug under Section 3802(d)(2), albeit not for a specific drug known at the
time of the arrest. The pointed issue herein is that Trooper could not articulate what
drug, schedule of drug, or class of drugs was impairing Defendant, only that she was
impaired based on her recognized body signals, which contravenes standard DUI officer
opinion testimony that requires a judgement statement of being under the influence of
alcohol and or chemical stimulants or depressants. However, “\[s\]ection 3802(d)(2)\]
does not require proof of a specific amount of a drug in the driver's system. It requires
only proof that the driver was under the influence of a drug or combination of drugs to a
degree that the ability to drive is impaired.” Commonwealth v. Tarrach, 42 A.3d 342,
8
345 (Pa. Super. 2012)(citation omitted). Thus, this Section 3802(d)(2) arrest was
based on probable cause.
6
www.fda.gov/drugs/drugsafety/postmarketdrugsafetyinformationforpatientsandproviders
/ucm109352.htm
7
www.deadiversion.usdoj.gov/schedules/orangebook/c_cs_alpha.pdf, which is current as of March 28,
2018.
8
Unfortunately for this Defendant, while based solely on the probable cause facts presented on the
Section 3802(d)(2) charge it is likely that a finder of fact might acquit, the other charge under Section
3802(d)(1)(ii) tells the reader that the Commonwealth likely has evidence of a Schedule II controlled
substance found in her system for which she has no prescription and is therefore prohibited from
operating a vehicle with any amount of that medication in her blood. Hence the need for suppression.
12
CP-21-CR-3501-2017
ORDER OF COURT
AND NOW, this ___ day of July 2018, upon consideration of the Motion to
Suppress Evidence, the Commonwealth’s Response thereto, and in review of the
testimony and video exhibit, the Motion to Suppress is DENIED. In review of the facts
presented, the summary traffic offense at Count 3 is sua sponte DISMISSED as there is
no evidence that Defendant’s driving created a safety hazard.
By the Court,
________________________
Thomas A. Placey C.P.J.
Distribution:
John C. Dailey
Joshua M. Yohe, Esq.
13