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HomeMy WebLinkAbout98-2079 criminalCOMMONWEALTH VS. DAVID STRANGE · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA ·98-2079 CRIMINAL IN RE: OMNIBUS PRETRIAL MOTION BEFORE HESS, J... ORDER AND N OW, this day of June 1999, the omnibus pretrial motion in the nature of a motion to suppress evidence is DENIED. BY THE COURT, Mary-Jo Mullen, Esquire Assistant District Attorney ess, J. Timothy Clawges, Esquire Assistant Public Defender :rlm COMMONWEALTH VS. DAVID STRANGE · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · 98-2079 CRIMINAL · IN RE: OMNIBUS PRETRIAL MOTION BEFORE HESS, J. OPINION AND ORDER In this case, the defendant has filed a motion to suppress evidence questioning the legality of an encounter between the defendant and a police officer that ultimately led to the defendant being arrested for disorderly conduct and driving under the influence. On September 25, 1998 at roughly 3:00 a.m., Cpl. Mark Williams of the Lower Allen Township Police Department was standing outside of his marked police cruiser, in front of the Lower Allen Township Emergency Medical Services Building (EMS). Off-duty Lower Allen Township Officer Thomas Gelnett and EMS employee Jeanne Weber accompanied Cpl. Williams. Williams, Gelnett, and Weber witnessed a car driven by the defendant pull into the parking lot of Stephenson's Tire and Service Center; the three were roughly sixty feet away from the defendant' s car. Williams testified that he watched the defendant get out of his car, and while facing Williams's direction, place his hands at his groin area and assume a position that led Williams to believe that the defendant was urinating. The area where the defendant stood was relatively unlit, and Cpl. Williams testified that he did not see the defendant's genitalia, nor did he hear any sounds which contributed to his belief that the defendant was urinating. Williams did testify that in his opinion, given the sixty-foot distance between the parties, the defendant should have seen Gelnett, Weber, and himself, and should also have recognized that Weber, given her long red hair, was a female. Cpl. Williams entered his cruiser and approached the defendant without turning on his emergency lights, and as Williams pulled up, the defendant entered his vehicle. Williams then proceeded to pull his cruiser behind the defendant's vehicle, effectively blocking the defendant's vehicle. Cpl. Williams exited his cruiser, and as he was approaching the defendant's car, Williams notice a large wet spot on the asphalt by the defendant's vehicle. Cpl. Williams asked the defendant to exit his car, and the defendant removed his keys from the ignition and did so. Williams testified that the defendant was apologetic about what he did, and that the defendant said he badly had to relieve himself. Williams noticed that the defendant had an odor of alcohol and glassy eyes, and Williams testified that the defendant admitted he had been drinking. The defendant failed two field sobriety tests and was placed under arrest for disorderly conduct for his having urinated in public, and for driving under'the influence. The defendant's motion to suppress states that Cpl. Williams pulling his car in behind the defendant represented an investigative detention that required reasonable suspicion on the part of Cpl. Williams that the defendant was in fact urinating in public and therefore engaging in disorderly conduct in violation of 18 Pa.C.S.A. Section 5503(a)(4). The defendant argues that Williams had no reasonable suspicion that the defendant was in fact in violation of Section 5503(a)(4), that the investigative detention therefore violated the defendant's Fourth Amendment fights, and that all evidence obtained after Cpl. Williams blocked the defendant's car, including evidence as to the defendant's intoxicated state, should be suppressed. It is true that, in order to engage in a non-custodial detention, an officer must be able to point to specific and articuable facts that, when taken together with rational inferences from the facts, show that the officer had a reasonable suspicion that the defendant was engaging in criminal activity. Commonwealth v. Di~, 442 Pa. Super. 228,252, 659 A.2d 563, 570 (1995). The section of the Crimes Code dealing with disorderly conduct, 18 Pa.C.S.A. Section 5503(a)(4), provides: (a) that a person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he' (4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor. In Commonwealth v. Williams.., 390 Pa. Super. 493,506, 568 A.2d 1281, 1288 (1990), the court stated that the defendant's urinating in public, as witnessed by the arresting officer, "incontrovertibly constitutes disorderly conduct." However, in Commonwealth v. Mcquire, Judge Bayley of this court found that the defendant's urinating in a public at 1:54 a.m. was not disorderly conduct, as only the defendant's companions and the arresting officer had witnessed the defendant's act and that the officer had acted surreptitiously. Commonwealth v. Mca_uire, 98-1078, slip. op. at 4. (Cumberland County April 22, 1999). The court thus found that the defendant had not recklessly risked public inconvenience or harm. Id__:. However, the facts of Mcquire are distinguishable from the situation at bar, because not only did the arresting officer, Cpl. Williams, witness the defendant, but off-duty Officer Gelnett and Ms. Weber also witnessed the defendant's acts. Moreover, they felt that the defendant should have seen them. Therefore, as Pennsylvania courts have in some instances found public urination to represent disorderly conduct, see Williams., 390 Pa. Super. at 506, 568 A.2d at 1288, Cpl. Williams did have reasonable suspicion to believe that the defendant was recklessly engaged in an activity that would cause public annoyance or alarm. Given that there was only a sixty-foot distance between the parties, that the defendant was facing Williams and his companions, that Williams was in uniform and standing near his marked police cruise.r, and that Williams saw the defendant assume a position consistent with the act of urination, it seems clear that an officer of Williams's experience could have reasonably suspected that Strange was urinating in public and therefore in violation of 18 Pa.C.S.A. Section 5503(a)(4). ORDER AND NOW, this /8'~ day of June, 1999, the omnibus pretrial motion in the nature of a motion to suppress evidence is DENIED. BY THE COURT, Mary-Jo Mullen, Esquire Assistant District Attorney Timothy Clawges, Esquire Assistant Public Defender · Hess, J. / :rim