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HomeMy WebLinkAbout98-0779 criminalCOMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Vo JEFFREY CARBAUGH, Defendant NO. 98-0779 CRIMINAL TERM IN RE: DEFENDANT'S OMNIBUS PRE TRIAL MOTION AND NOW, this BEFORE GUIDO, J. ORDER day of JULY, 1998, the Defendant's Motion to Suppress evidence is DENIED. By the Edward E. Guido, J. District Attorney David E. Hershey, Esquire For the Defendant :sld COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : : JEFFREY CARBAUGH, : NO. 98-0779 CRIMINAL TERM Defendant : IN RE: DEFENDANT'S OMNIBUS PRE TRIAL MOTION BEFORE GUIDO, J. OPINION AND ORDER OF COURT The Defendant filed an Omnibus Pre Trial Motion on June 12, 1998. A hearing on his motion was held before this Court on June 29, 1998. Prior to the commencement of the hearing all issues were resolved except for the Motion to Suppress. The Defendant contends that the initial stop of his vehicle by the police was unlawful. Therefore, he has requested that we suppress all evidence obtained after said stop. In the alternative, if we find that the stop was lawful, the Defendant argues that there was no probable cause for his subsequent arrest. Therefore, he has asked us to suppress all evidence obtained after he was placed under arrest. This matter is now ready for disposition. FINDINGS OF FACT 1) Officer Herb of the Mid Cumberland Valley Regional Police force was on routine patrol in the Borough of Shippensburg, Cumberland County, Pennsylvania in the early morning hours of January 21, 1998. 2) At approximately 1:38 a.m. he observed a vehicle being operated by the Defendant fail to stop at a stop sign at the intersection of Fort and North Queen Street in the Borough of NO. 98-0779 CRIMINAL TERM Shippensburg. 3) He immediately activated his emergency lights to have the Defendant pull his vehicle over. It took the Defendant approximately two (2) blocks with the Officer following him before the Defendant finally stopped. 4) When the Defendant did stop, he stopped in the left hand turn lane at an intersection that was controlled by a flashing red light. 5) The Officer used his loud speaker to tell the Defendant to turn the corner and pull over to the curb so that the traffic stop would not have to be conducted in the intersection. 6) Upon approaching the vehicle, the Officer noted an odor of alcohol emanating from the Defendant's breath. 7) The Defendant seemed to have some difficulty providing the documents that were requested. According to the Officer the Defendant did not seem to fully comprehend. 8) The Defendant's eyes were bloodshot and glassy. 9) The Defendant admitted to having had one (1) beer to drink. 10) The Officer then asked the Defendant to submit to certain field sobriety tests. 11) The Officer administered the standard field sobriety tests consisting of the walk and turn test, the one legged stand test, and the horizontal gaze nysta~mus test. 12) The Defendant swayed during the instructional phase of each test. NO. 98-0779 CRIMINAL TERM 13) The Defendant passed the one legged stand test, although he did sway at some point during the performance of that test. 14) The Defendant failed the remaining two tests. CONCLUSIONS OF LAW 1) The initial stop of Defendant's vehicle was lawful. 2) The Officer had probable cause to place the Defendant under arrest for Driving Under the Influence. 3) The Defendant's Motion to Suppress should be denied. DISCUSSION The Officer witnessed the Defendant proceed through a stop sign without stopping. Section 6308(b) of the Vehicle Code provides, in relevant part, as follows: (b) Authority of police officer.--Whenever a police officer ... 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 reasonably believe to be necessary to enforce the provisions of this title. 75 Pa.C.S.A. § 6308(b). The Officer certainly had articulable and reasonable grounds to suspect a violation of Section 3323(b) of the Vehicle Code. 75 Pa.C.S.A. §3323(b).~ Therefore, the 3323. Stop signs and yield signs (b) Duties at stop signs.--Except when directed to proceed by a polico officor or appropriatoly attired persons authorizod to direct, control or regulate traffic, every driver of a vehicle approaching a stop sign shall stop at a clearly marked stop line or, if none, before entering a crosswalk on the near side of the intersection or, if none, then at the point nearest the intersecting roadway before entering. After having stopped, the NO. 98-0779 CRIMINAL TERM initial stop of Defendant's vehicle was appropriate.2 The Defendant took two full blocks before he responded to the flashing lights and stopped his vehicle. When he did stop his vehicle, he did so in an inappropriate place. As the Officer approached the vehicle, he noticed the odor of alcohol on Defendant's breath. The Defendant admitted to having consumed alcohol. His eyes were bloodshot and glassy. He had some trouble providing his documents. When he exited the vehicle he swayed. He continued to sway during the instruction phases of all of the Standard Field Sobriety Tests. These facts standing alone were sufficient to establish probable cause for Defendant's arrest on the charge of Driving Under the Influence.3 The fact that the Defendant failed two of the three field sobriety tests driver shall yield the right-of-way to any pedestrian in a crosswalk or to any vehicle in the intersection or approaching on another roadway so closely as to constitute a hazard during the time when the driver is moving across or within the intersection or junction of roadways. 2Defendant has drawn our attention to the recent Superior Court case of Com. v. Banellis, 452 Pa. Super. 478, 682 A.2d 383 (1996), which held that a defendant cannot be convicted of violating Section 3323(b) unless the Commonwealth presents evidence that there was no authorized person directing traffic at the stop sign. Defendant argues that since the Commonwealth did not present any such evidence in the instant case, we must rule that the stop was unlawful. We disagree. The "beyond a reasonable doubt" standard needed for a conviction of the statute is far different from the "articulable and reasonable grounds" necessary for an investigatory stop under 75 Pa.C.S.A. ~6308(b). 3It is not necessary to administer field sobriety tests in order to establish probable cause to arrest someone for Driving Under the Influence. Probable cause to arrest must be determined by the totality of the circumstances. Com. v. Chestnut, No. 97- 2466 Crim. (C.P. Cumberland June 9, 1998). NO. 98-0779 CRIMINAL TERM merely added to the probable cause that already existed. For the reasons set forth above, Defendant's Motion to Suppress is denied. ORDER day of JULY, 1998, the Defendant's Motion to Suppress evidence is DENIED. By the Court, /s/ Edward E. Guido Edward E. Guido, J. District Attorney David E. Hershey, Esquire For the Defendant :sld