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HomeMy WebLinkAbout97-1781 criminalCOMMONWEALTH OF PENNSYLVANIA Ve REED ATVILLE STARR :IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : 97-1781 CRIMINAL :CHARGES: DRIVING UNDER THE : INFLUENCE, DRIVING ON : ROADWAYS LANED FOR : TRAFFIC AND NOW, this ORDER ~day of MAY, 1998, after a hearing on the Defendant's Omnibus Pre-Trial Motion, his request to suppress evidence is DENIED. By the C Edward E. Guido, J. District Attorney John F. Lyons, Esquire Attorney for Defendant COMMONWEALTH OF PENNSYLVANIA Ve REED ATVILLE STARR IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA 97-1781 CRIMINAL CHARGES: DRIVING UNDER THE INFLUENCE, DRIVING ON ROADWAYS LANED FOR TRAFFIC IN RE: DEFENDANT'S OMNIBUS PRE-TRIAL MOTION BEFORE GUIDO, J. OPINION AND ORDER OF COURT The Defendant filed an Omnibus Pre-Trial Motion alleging that his arrest was illegal and requesting that all evidence obtained thereafter be suppressed. A hearing on said motion was held before this court on April 3, 1998. At the outset of the hearing, the parties agreed that the only issue to be decided by the Court is whether or not the police officer's initial stop of the Defendant's vehicle was appropriate. If it was, Defendant concedes that his subsequent arrest for DUI was lawful and that his request to suppress evidence must fail. On the other hand, if the initial stop was not appropriate, the subsequent arrest was unlawful and the evidence should be suppressed. Pursuant to Pa. Rule of Criminal Procedure 323[i] the Court makes the following findings of fact and conclusions of law. FINDINGS OF FACTS 1. Patrolman Strayer of Upper Allen Township was on routine patrol in a marked police car on August 15, 1997. 2. He was working the midnight shift, 9:45 p.m. to 5:45 a.m. 3. At 9:51 p.m. he received a call from county control. The substance of the call was as follows: A citizen was following a Ford Explorer, license # SCL 531 for several miles over several different roads. He reported that it was a possible DUI. The driving was poor and erratic, the vehicle was weaving back and forth, and the citizen was concerned for the public's safety. 4. Officer Strayer spotted the Defendant's vehicle at 9:59 p.m. It was a Ford Explorer, license # SCL 531. 5. The officer proceeded to follow the Defendant's vehicle. 6. The officer's patrol vehicle was equipped with a video camera. 7. The officer activated the video camera at 10:00 p.m. 8. The 9:51 p.m. time of the citizen's call was taken from county control records. The other two times were taken by the officer from the clock in his patrol vehicle. In addition, there were times listed on the video tape itself. The video tape indicates that filming started at 9:57 p.m. Obviously, the various clocks were not synchronized and there may be a few minutes discrepancy among them. 9. The officer followed the Defendant for about five blocks with the video camera being activated for exactly one minute and forty-five seconds. 10. The weather was clear and dry. 11. The area was very dark with a narrow berm. There are many mailboxes and several roadsigns along the side of the road. 12. Since this Court had the unique benefit of viewing the video tape~, we were able to form our own conclusions as to the Defendant's driving. Based upon the video tape we find the ~The video tape was admitted into evidence as Commonwealth Exhibit #1. following additional facts: (a) The Defendant's vehicle weaved constantly during the ~taping. (b) Its wheels were on the right berm line numerous times and completely crossed it on at least one occasion. (c) At one point the Defendant nearly struck a traffic sign. (d) The Defendant's driving was erratic. CONCLUSION OF LAW At the very least, the officer had reasonable and articulable grounds to suspect a violation of Section 3731 of the Vehicle Code. 75 Pa.C.S.A. §§ 3731, 6308(b). Therefore, the stop was appropriate. DISCUSSION The Defendant argues that based upon the officer's testimony he did not have a reasonable and articulable suspicion that a violation of the Vehicle Code had taken place. The officer indicated that he stopped the Defendant for a violation of Section 3309(1) of the Vehicle Code. 75 Pa.C.S.A. § 3309 While we agree with the Defendant that the officer did not have a basis to stop his vehicle for a violation of Section 33093, for 2Section 3309 provides in relevant part: 3309. Driving on roadways laned for traffic Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others not inconsistent therewith shall apply: (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 with safety. 3We base this decision on Judge Bayley's opinion in Com. v. Malone, 19 D & C 4th 41, (C.P. Cumberland 1993). "Section 3309(1) does not require perfect adherence to driving entirely within a the reasons hereinafter set forth, we do not agree that the stop was improper. Rather, we feel that with all of the circumstances present in this case, the officer had, at the very least, a reasonable and articulable basis to stop the Defendant to investigate a possible Driving Under the Influence offense. 75 Pa.C.S.A. § 37314. Section 6308(b) of the Vehicle Code provides: 6308. Investigation by police officers (b) Authority of police officer.--Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has articulable and reasonable grounds to suspect a violation of this title, 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 the driver's license, or to secure such other information as the officer may rasonably believe to be necessary to enforce the provisions of this title. 75 Pa.C.S.A. § 6308(b). The reasonable basis necessary to justify a stop is less stringent than probable cause, but the detaining officer must have more than a hunch as the basis for single marked lane on all occasions." 19 D & C 4th at 44. As in Malone, there were no other vehicles on the road during the time the officer followed Defendant. 4Defense Counsel has submitted a presuasive brief asking us not to substitute our judgment for that of the arresting officer. He analogizes this case to those involving search warrants where the suppression court is confined to the four corners of the probable cause affadavit in determining the sufficiency thereof. However, that analogy does not apply to the instant case. We were able to see exactly what the officer saw on the night in question, and through the testimony of the witness, to know precisely what the officer knew at the time of the stop. Our job is to determine whether the officer had articulable and reasonable grounds to suspect a violation of the Vehicle Code, not whether his articulated reason was appropriate. By way of further comment, the officer did state that the violation of Section 3309(1) was not the only basis for his stop. He said it was based on all of the circumstances existing that night. the stop. Com. v. Bowersox, 450 Pa. Super. 176, 675 A.2d 718 (1996). Our appellate courts have consistently held that erratic driving provides a sufficient reasonable basis to perform an investigatory stop-. See Com. v. Lymph, 372 Pa. Super. 97, 538 A.2d 1368 (1988) and Com. v. Hamme, 400 Pa. Super 537, 538 A.2d 1245 (1990). In the instant case, the officer not only had his own observation of the Defendant's erratic driving, but he had received information of erratic driving from a citizen witness. The parties had agreed that if the initial stop was appropriate, the subsequent arrest of the Defendant for Driving Under the Influence was lawful. Since we conclude that the initial stop was justified, Defendant's Motion to Suppress Evidence must be denieds. AND NOW, this 7~ ORDER day of MAY, 1998, after a hearing on the Defendant's Omnibus Pre-Trial Motion, his request to suppress evidence is DENIED. By the Court, /s/ Edward E. Guido Edward E. Guido, J. District Attorney John F. Lyons, Esquire Attorney for Defendant SDefendant's Omnibus Pre-Trial Motion also contained a Motion to Compel Discovery. The parties advised the Court that they could resolve the issues raised therein. Therefore, we need not address that motion.