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HomeMy WebLinkAboutCP-21-CR-2046-2006 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-2046-2006 : OTN: L290190-5 : : CHARGES: (1) DRIVING UNDER THE : INFLUENCE, : GENERAL IMPAIRMENT : (2) DRIVING UNDER THE : INFLUENCE V. : C. S., SCH. I : (3) DRIVING UNDER THE : INFLUENCE : C. S., SCH. II OR III; : (4) DRIVING UNDER THE : INFLUENCE, : COMBINATION : BRIAN K. BROWN : AFFIANT: PTL. JAMES PETERSON ORDER OF COURT AND NOW , this 18th day of July, 2007, having considered the testimony and evidence IT IS HEREBY ORDERED AND DIRECTED presented by both parties, that the Defendant’s DENIED. Motion to Suppress Evidence is We further find that the Commonwealth’s Motions GRANTED. to Reopen and to Amend were properly By the Court, M. L. Ebert, Jr., J. Daniel J. Sodus, Esquire Senior Assistant District Attorney For the Commonwealth Michael Halkias, Esquire Assistant Public Defender COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-2046-2006 : OTN: L290190-5 : : CHARGES: (1) DRIVING UNDER THE : INFLUENCE, : GENERAL IMPAIRMENT : (2) DRIVING UNDER THE : INFLUENCE V. : CONTROLLED SUBSTANCE : SCH. I : (3) DRIVING UNDER THE : INFLUENCE : CONTROLLED SUBSTANCE : SCH. II OR III; : (4) DRIVING UNDER THE : INFLUENCE - ALCOHOL & : DRUG : BRIAN K. BROWN : AFFIANT: PTL. JAMES PETERSON IN RE: SUPPRESSION OF EVIDENCE OPINION and ORDER OF COURT Ebert, J., July 18, 2007:-- In this suppression case, Defendant Brian K. Brown contends 1.) that both the initial detention and the subsequent means by which incriminating information was gained were improper and thus any incriminating evidence should be suppressed; 2.) that this Court erred in granting the Commonwealth’s Motion to Reopen the case in chief; and 3.) that this Court should deny the Commonwealth’s Motion to Amend and Clarify the Criminal Information. For the reasons set forth within, we find that the evidence obtained should not be suppressed and that the granting of the Commonwealth’s motions was proper. 2 STATEMENT OF FACTS Around 12:24 p.m. on May 1, 2006, Patrolman James L. Peterson of the North Middleton 1st Township Police Department received a call from the Member’s 1 Bank in North Middleton 2 Township regarding an intoxicated person using obscene language at the bank. The caller from the bank told Peterson that the individual had entered a light blue Dodge Ram van, registration 34 GCV9050, and left the scene. As Peterson was responding to the call, he was informed by another officer that the described vehicle had been stopped on a nearby street about half a mile 5 from the bank. The stop was made within a minute of the initial call. The suspect was seated in the passenger seat of the van; the van was being driven by Defendant Brian Brown. Both men were asked to exit the vehicle; Officer Peterson testified that he noticed Defendant was staggering, had bloodshot eyes, slurred speech, and smelled of an intoxicating 6 beverage. Believing that Defendant was under the influence of alcohol, Peterson administered a 7 Preliminary Breath Test (PBT) which registered a .08 percent. Defendant admitted to drinking 8 earlier in the day around 6:00 a.m. Following the test, Peterson concluded that the Defendant 910 was incapable of safely operating a vehicle and arrested him for driving under the influence. While other officers were dealing with the individual accused of misconduct at the bank, Defendant was taken by Officer Wolfe, another responding officer, to the booking center at the 1 Notes of Testimony, March 5, 2007, (hereinafter “N.T. __”) at 10. Peterson has been a policeman for 22 years and has investigated hundreds of DUI charges. N.T. 13-14. 2 N.T. 11 3 Def. Ex. 2. 4 N.T. 11-12 5 N.T. 11 6 N.T. 13 7 N.T. 22 8 Def. Ex. 2. 9 N.T. 15-16 10 N.T. 24 3 11 Cumberland County Prison. On the way to the booking center, Officer Wolfe and Defendant 12 engaged in nonchalant conversation. At the booking center, Defendant was required to present all of his belongings for a routine inventory search. Among the items on his person was a small cardboard box of Zig-Zag Rolling Papers, which are commonly known to be used to roll 13 marijuana cigarettes. Officer Wolfe told Defendant that there was no need for him to charge 1415 him for the Zig-Zag papers and did not question him about his drug use. Officer Wolfe did lecture him about the dangers of drug use and driving. The Defendant then voluntarily told 16 Officer Wolfe that he was not a heavy user but that he had used marijuana that particular day. No Miranda warnings were given at any point during their conversations in transport or during 17 the inventory search. Defendant was not Mirandized until 1:24 before undergoing breath and 18 field testing for intoxication. Defendant then signed a consent waiver and took a breath test to measure his blood 19 alcohol level. Teresa Coyle, who administered the breath and field sobriety tests at the booking center, testified that she noticed no slurring or staggering in Defendant’s mannerisms but that his 20 eyes were a little glassy. The test results indicated that Defendant’s blood alcohol content 21 was .04 percent. Officer Wolfe told Officer Peterson about the Zig-Zag papers found on Defendant’s 2223 person and informed him that Brown admitted to smoking marijuana that day. Officer 11 N.T. 16 12 N.T. 34 13 N.T. 35 14 N.T. 36 15 N.T. 39 16 N.T. 36 17 N.T. 38 18 N.T. 49 19 N.T. 41 20 N.T. 49-50. Ms. Coyle also testified that field sobriety tests, such as line-walking, can be used to check for both alcohol and drugs, but that the eyes are generally a better indicator of drug ingestion. N.T. 51. 21 N.T. 25 4 Peterson, having already observed the Defendant with classic signs of intoxication at the arrest scene and noting the low blood alcohol level, took the Defendant to the Carlisle Regional 24 Medical Center for a blood test to determine the presence of marijuana in Defendant’s system. 25 The blood test revealed the presence of Delta 9 THC, the metabolite specific to marijuana. Expert testimony showed within a reasonable degree of medical certainty that the level of Delta 9 THC in the Defendant’s system exceeded the permissible limits set forth by the Department of 26 Health. Following the testimony of the Commonwealth’s expert, the government rested its case. 27 The March 5, 2007, hearing then closed due to the lateness of the hour. The hearing continued March 14, 2007, at which time, before the commencement of the Defense’s case, the Prosecution asked to reopen the case in order to clarify how Delta-9-Carboxy relates to the schedule of 28 controlled substances and the Drug, Device, and Cosmetic Act. The Commonwealth alternatively requested to amend and clarify the Criminal Information. The Information as originally filed listed two charges under Section 3802(d)(1) (i-ii) of the Vehicle Code. The Commonwealth claims that it originally intended to list one 29 charge under Subsections (d)(1)(i-ii) and one charge under Subsection (d)(1)(iii). Defendant has filed a Motion to Suppress the Defendant’s Blood Test and challenges the propriety of re-opening the Commonwealth’s case, and the propriety of allowing the Commonwealth to amend the Information. 22 N.T. 43 23 Def. Ex. 2. 24 N.T. 18 25 Notes of Testimony, March 14, 2007, (hereinafter “N.T. II __”) at 9 & 14. 26 N.T. 61 27 N.T. 67 28 N.T. II 3-4 29 Criminal Information, filed Sept. 1, 2006. 5 DISCUSSION Appropriateness of Initial Stop The Fourth Amendment provides that, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S.C. Const. Amend. 4Not every instance of police-citizen interaction constitutes a seizure . subject to Fourth Amendment restraints. The plain language and jurisprudence of the Fourth Amendment is clear that, “what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.” Terry v. Ohio, 392 U.S. 1, 9 (1968), citing Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669 (1960). Pennsylvania law is clear that when a police officer stops a vehicle for investigative purposes, that vehicle and its occupants are considered “seized” within the meaning of the Fourth Amendment. An investigative stop of an automobile is permissible only when it is based upon objective facts creating a reasonable suspicion that the occupants of the vehicle are presently involved in criminal activity. To meet the “reasonable suspicion” standard, a seizing officer must be able to present articulable facts which, together with the rational inferences logically deduced therein, reasonably warrant the intrusion. Police officers need not personally observe the suspicious or illegal conduct in order to satisfy the reasonable suspicion standard, but may rely on the information of third parties, including “tips” from citizens. Logically, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite amount of suspicion than would otherwise be necessary if the tip generated from a more reliable source. Com. v. Korenkiewicz, 743 A.2d 958, 966 (Pa. Super. 1999). 6 A warrant is generally required to make an arrest for a misdemeanor, unless the misdemeanor is committed in the presence of the police officer. Pa.R.Crim.P. Rule 502(2)(a)-(c); Comm. v. Freeman, 514 A.2d 884, 888 (1986); Com. v. Reeves, 297 A.2d 142, 143 (1972). Accordingly, the Defendants contend that the officers should merely have issued a summons to Matesky, rather than pull over the vehicle. However, in this case, we are convinced that the detention of the vehicle was in accordance proper police conduct. In the case of Commonwealth v. Barber, 889 A.2d 587 (Pa. Super. 2005), the Court found that the attending officers established reasonable suspicion to stop Defendant's van. In Barber, an identified caller informed the police of Defendant's public urination and drinking from an open container of beer while operating the van. From the caller, the police learned specific descriptions of Defendant and his van, including its license plate number and exact location. Within five to seven minutes the officers, who received this information via their radios, responded to the provided location and saw a van and driver matching the description in the radio bulletin at the location provided by informant. Akin to the officers in Barber, we believe that the officers here established the necessary reasonable suspicion that the driver of the vehicle was intoxicated. Officer Peterson testified that the officers stopped the vehicle because they believed that the driver was actually the intoxicated 30 individual who caused the incident at the bank. The officers had been advised only that the man who had caused the disturbance had entered a blue Dodge Ram van with a specific registration number. Within a minute the investigating officers spotted a vehicle fitting the description provided by the bank caller in make, color, and registration; they found the vehicle on a street approximately one half mile from the bank. The bank caller had proven credible in identifying the vehicle. Continuing then to act on the trustworthy information provided by the 30 N.T. 16 7 bank caller, the officers reasonably concluded that the intoxicated individual from the bank was in the car and potentially behind the wheel – a clear violation of the Vehicle Code – and proceeded to detain the vehicle. Had circumstances been different, the officers easily could have detained the vehicle, ensured that the driver was able to drive safely, issued a summons upon Matesky, and allowed Defendant to continue on his way. Unfortunately, upon stopping the vehicle, Officer Peterson became suspicious that the Defendant was intoxicated while driving the vehicle. Accordingly, we find that the initial stop of the vehicle was in keeping with the precautionary conduct expected of police officers. Appropriateness of Arrest While the initial stop of the vehicle was permissible under the Fourth Amendment, we must now consider whether the arrest of the Defendant was in accordance with existing constitutional provisions. It is well known that an officer must have probable cause to arrest a citizen without a warrant. Probable cause exists where the facts and circumstances within the knowledge of the officer at the time of the arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed or is committing a crime. In Pennsylvania, the standard for evaluating whether probable cause exists is the “totality of the circumstances” test. Com. v. Rodriguez, 585 A.2d 988, 990 (Pa. 1991). After considering all the factors, we conclude that the arresting officer, James Peterson, established the requisite probable cause to arrest the Defendant. In his Affidavit of Probable Cause, Peterson states that Defendant had bloodshot eyes, slurred speech, staggered as he walked, and registered a .08 percent on a PBT test. Further evidence to support probable cause 8 can be found in the fact that Defendant was driving with a visibly drunken passenger who had just caused a significant disturbance in a local bank. Additionally, Defendant admitted to drinking earlier in the day around 6:00 a.m. In light of his 22 years of experience and considering the totality of the factors, we believe that Officer Peterson was prudent in his assessment that Defendant was committing the crime of driving while under the influence. Failure to Issue Miranda Warnings As Brown was clearly in police custody at the time of his admission to marijuana use, the question before us now is whether the conversation between Brown and Officer Wolfe amounts to a “custodial interrogation” subject to Fifth Amendment protections. In an effort to protect the Fifth Amendment right against self-incrimination, the United States Supreme Court has held that confessions and other statements obtained during custodial interrogation are admissible in evidence only if the declarant is clearly advised of his rights before questioning. Miranda v. Arizona, 384 U.S. 436 (1966). After police have taken a suspect into custody, they are required to issue the well-known “Miranda” warnings when subjecting the suspect to a custodial interrogation. The Pennsylvania Supreme Court has held that a “custodial interrogation” occurs when a person is questioned either while he is in custody or while the object of an investigation of which he is the focus. Commonwealth v. McLaughlin, 379 A.2d 1056, 1057 (1977). Additionally, interrogation occurs when an officer should know that his words or actions are reasonably likely to elicit an incriminating response from the suspect. Com. v. Gwynn, 723 A.2d 143, 149 (Pa. 1998). An inculpatory statement not made in response to police interrogation, “is classified as a volunteered statement, gratuitous and not subject to suppression for lack of warnings.” Com. v. Ingram, 814 A.2d 264, 271 (Pa. Super. 2002), citing Commonwealth v. Hoffman, 589 A.2d 737, 745 (1991). 9 The specific facts of the encounter between Officer Wolfe and Defendant reveal that Brown was not subjected to a custodial interrogation requiring Miranda warnings. After the Defendant produced Zig-Zag papers during the inventory search, Officer Wolfe proceeded to “lecture” Defendant about the imprudence of driving while under the influence of drugs and of using drugs in general. No evidence suggests that the Officer ever specifically asked Defendant whether he had ingested marijuana recently or that he asked Defendant any questions at all. In fact, the Officer testified that he asked no questions at the time of the discovery. We find this fact significant. Any statements made by Officer Wolfe were not reasonably likely to elicit an incriminating response because the statements made were not reasonably likely to induce any response at all. One cannot be subjected to interrogation if no questions were asked and no response was expected. Officer Wolfe was simply processing the Defendant for his DUI arrest. He even told the Defendant he would not charge him for possession of drug paraphernalia based on the rolling papers. In response, the Defendant then voluntarily told the officer that he was not a heavy user and admitted that he had used marijuana that day. Because the voluntarily admission was not made in response to police interrogation, it should not be subject to suppression for lack of a warning. Permissibility of Subjecting Brown to a Blood Test Even if Defendant’s statements were induced by Officer Wolfe’s “lecture,” and the admissions of Defendant’s drug use were accordingly suppressed, we find that the blood test results would still constitute admissible evidence against Defendant. Pennsylvania law provides: (a) Any person who drives, operates or is in actual physical control of the movement of a vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled 10 substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a vehicle (1) in violation of section 1543(b)(1.1) (relating to driving while operating privilege is suspended or revoked), 3802 (relating to driving under influence of alcohol or controlled substance) or 3808(a)(2) (relating to illegally operating a motor vehicle not equipped with ignition interlock); or (2) which was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed. 31 75 P. S.C.A § 1547(a)(1-2) (emphasis added). Case law further provides that a police officer can reasonably seek another type of chemical test, if a licensee’s behavior or appearance indicates that the licensee might be under the influence of a substance which the first method of testing could not detect. Com. v. Matthews, 540 A.2d 349 (Pa. Cmwlth. 1988). This is a very practical approach, as we do not live in a society where alcohol is the only manner of driving while intoxicated. The mere fact that one test does not reveal the presence of a particular chemical in an individual displaying questionable behavior should not preclude the employment of other tests which may disclose the presence of another chemical. To hold otherwise would imply that an officer would be required to discern which chemical the suspect had ingested and endeavor to select the appropriate test which would reveal that supposed substance. We are not, however, suggesting that multiple tests should be permitted merely to enhance a previous test for the same chemical. We are merely stating that thorough testing often requires multiple testing methods. Therefore, even if the admission regarding the marijuana usage was obtained illegally (which we do not think it was), the finding of the rolling papers, the low blood alcohol content, 31 Though this law has been partially repealed, the substantive content in § 1547(a)(1-2) remain valid as evidenced through case law and proposed legislation. 11 along with Defendant’s classic displays of intoxication at the initial detention created the reasonable grounds necessary to believe that the Defendant had been driving under the influence of some type of chemical. The mere fact that the breathalyzer and field sobriety tests revealed only minimal traces of alcohol did not negate the possibility that the suspect was under the influence of some other controlled substance; in fact, the totality of the evidence suggested that very conclusion. Officer Peterson’s further investigation of the situation by taking the Defendant to get a blood test is therefore justified and the blood test results are admissible into evidence. Permitting re-opening of case Generally, a court may, in its discretion and prior to rendering its decision, permit either side to reopen its case to present additional evidence, Com. v. Campbell, 444 A.2d 155, 157 (Pa. Super. 1982),if doing so helps avoid a miscarriage of justice. Com. v. Rizzi, 586 A.2d 1380, 1482 (Pa. Super. 1991).The decision to permit the reopening of a case for the presentation of additional evidence is even more flexible where the issue is not guilt but rather the admissibility of evidence. Campbell, 444 A.2d at 157. In the current case, the Commonwealth rested its case-in-chief at the end of the trial day on March, 5, 2007, at which point the case was continued due to the late hour of the day. On March 14, 2007, trial resumed and the Commonwealth requested, before the Defense began to present their case, that they be permitted to reopen the case in order to present additional evidence which would provide further insight into blood testing analysis. Defendant was certainly not surprised by the new testimony because it did not involve new evidence but only further clarified that which had already been admitted to the record. In light of the lack of surprise to the Defendant, the fact that the closing of the case was a mere technicality because the Defense had not yet begun to present its case, and considering the 12 lower standard required for reopening the case to present additional evidence and the additional clarity the testimony provided, we hold that the reopening of the Commonwealth’s case was in accordance with the furtherance of justice. Permitting Amending of Criminal Information during the Presentation of the Case-in-Chief Pennsylvania Rule of Criminal Procedure 564 provides: “The court may allow an information to be amended when there is a defect in form, the description of the offense(s), the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense. Upon amendment, the court may grant such postponement of trial or other relief as necessary in the interests of justice.” In Commonwealth v. Bricker, the court stated that the purpose of Rule 564 “is to ensure that a Defendant is fully apprised of the charges, and to avoid prejudice by prohibiting the last minute addition of alleged criminal acts of which the defendant is uninformed.” Commonwealth v. Bricker, 882 A.2d 1008, 1019 (Pa. Super. 2005), citing Commonwealth v. Davalos, 779 A.2d 1190, 1194 (Pa. Super. 2001) (citation omitted). The test to be applied is: “[W]hether the crimes specified in the original indictment or information involve the same basic elements and evolved out of the same factual situation as the crimes specified in the amended indictment or information. If so, then the defendant is deemed to have been placed on notice regarding his alleged criminal conduct. If, however, the amended provision alleges a different set of events, or the elements or defenses to the amended crime are materially different from the elements or defenses to the crime originally charged, such that the defendant would be prejudiced by the change, then the amendment is not permitted.” Id., 779 A.2d at 1194 (citation omitted). The petitioned amendment at bar satisfies the requirements of the above-mentioned test. Initially, the Commonwealth charged Defendant with two identical counts of “Driving Under the Influence - Controlled Substance” under 75 P. S. § 3802(d)(1). Because there was only one factual event at issue, it was clear that the information was not intending to convict Defendant on two episodes of the same type of crime. The Commonwealth thus sought to amend these 13 identical charges to encompass all of the language contained in Section (d)(1) – i.e. a charge under the language of Sections (d)(1)(i-ii) and also a charge under Subsection (d)(1)(iii). The requested change merely encompasses the entirety of 75 P. S. § 3802(d)(1). The charges have the same basic elements and arise out of the same underlying facts. The Commonwealth sought to make this amendment prior to the conclusion of its evidence and the changes altered no underlying facts of the case. As the amended charges generate from the same subsection of the statute as the original charges, the government has by no means surprised or prejudiced the Defendant unnecessarily by amending the Information. Considering the fact that the amendment in no way prejudiced the Defendant by substantively altering the charges or by changing any underlying facts, and since the Commonwealth sought to make the amendment with due diligence which provided ample notice and preparation, we find that the Motion to Amend the Information was properly granted. CONCLUSION In light of the testimony and presented evidence, we find that (1) Officer Peterson had sufficient reasonable suspicion to initially detain Defendant Brian Brown, (2) Officer Peterson had sufficient probable cause to arrest Brown for driving under the influence, (3) Officer Wolfe did not subject Defendant Brown to a custodial interrogation, and (4) Officer Peterson had sufficient probable cause to continue the investigation into Brown’s apparent intoxication by conducting a blood test. Therefore, the incriminating evidence against Brown shall not be suppressed. We additionally find that the Motion to Re-open the government’s case and the Motion to Amend the Criminal Information were properly granted. Accordingly the following order is entered: 14 ORDER OF COURT AND NOW , this 18th day of July, 2007, having considered the testimony and evidence IT IS HEREBY ORDERED AND DIRECTED presented by both parties, that the Defendant’s DENIED. Motion to Suppress Evidence is We further find that the Commonwealth’s Motions GRANTED. to Reopen and to Amend were properly By the Court, M. L. Ebert, Jr., J. Daniel J. Sodus, Esquire Senior Assistant District Attorney For the Commonwealth Michael Halkias, Esquire Assistant Public Defender For the Defendant 15