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Home My WebLink About97-2088 CriminalCOMMONWEALTH Vo DOUGLAS S. BLACK OTN: F042397-5 ' IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · CHARGE: DUI · No. 97-2088 IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., April 2, 1998. In this driving under the influence case, the Commonwealth has appealed from a pretrial order of this court suppressing evidence resulting from a stop of Defendant's vehicle. This opinion in support of the court's order is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS On June 14, 1997, Defendant was stopped while driving in Lower Allen Township, Cumberland County, Pennwlvania, and arrested for driving under the influence of alcohol.~ On February 17, 1998, Defendant filed an omnibus pretrial motion in the form of a motion to suppress. The basis for the motion to suppress was that the stop of Defendant's vehicle was without a lawful basis? A hearing on Defendant's motion was held on Thursday, March 5, 1998. The evidence at the hearing consisted of the testimony of a township police officer who stopped and arrested Defendant. At 2:40 mm. on Saturday, June 14, 1997, the officer was on duty in the township in a police car traveling east on Carlisle Road? He observed "a silver or dark colored car" exit a mall parking lot on his le~ make a "wide" right turn onto Carlisle Road, and proceed west N.T. 4, 7, Suppression Hearing, March 5, 1998 (hereinafter N.T. See N.T. 3. 3 N.T. 4. on the highway.4 The vehicle eventually turned onto another street, which led into a development, making another "wide" mm.5 The officer felt no need to investigate the driver at this point, and parked in a service station area to complete some paperwork.6 At a later 6me, the vehicle appeared at the intersection where the service station was located and, after hesitating at the light, proceeded into another development.7 The officer testified as follows: A ... So now it's going across into a completely separate development. I followed the car, and at the same time I called in the registration to find out if it was stolen, where it belonged, who owned it, and so on.' Q And what did that indicate to you? A We have car entries and burglaries at night; and so I checked that car to see if it belonged to that development, if the registration came back to that development or the vehicle was stolen. Q What was the result of that check? A It came back to a gentleman, Douglas Black [the Defendant], from, I believe it was, Lemoyne Ia neighboring borough].' The officer's suspicions concerning the car were further suggested by his response to a question as to whether such registration checks were routine: A It all depends upon the circumstances, time of day. 2:30 in the morning, with vehicle entries, break-ins, it's not uncommon for us to run plates. We see a car go through a 4 N.T. 5. 5 N.T. 5, 8. 6Id. 7 N.T. 5-6. 8 N.T. 6. 2 development, and then we see it in another development, it's not uncommon for us to nm the license plate to make sure the car is not stolen and we don't have a violation of a criminal law. Q So this behavior, had it taken place earlier in the day, not late at night, might not have necessitated -- A That's correct.9 At this point, the officer had not observed any moving violations that he would have cited the driver for.l° He decided to follow the car because of "the combination of seeing the vehicle pull into one development and then seeing it go into another development.''at The officer followed the vehicle for an unspecified distance, for an unspecified period of time, on roads with unspecified characteristics. During the course of this travel, the vehicle proceeded under an unspecified speed limit.22 Among the turns that it negotiated, the officer described two as "wide.m3 On two occasions, a wheel or wheels of the vehicle crossed the center line of a road of unspecified width in a dark area? No vehicles were approaching f~om the opposite direction on these occasions;2~ no traffic offenses were ultimately charged in the case.26 The officer eventually stopped the vehicle, which was being driven by Defendant. 17 N.T. 9-10. N.T. 11. N.T. 6. Id. N.T. 16. ./d. N.T. 14. N.T. 7. Among other things, he asked Defendant, "[W]hy did I see you one minute in this development and another minute in another development ...?,,as At the conclusion of the suppression hearing, the court took the matter under advisement, t9 After carefully reviewing the evidence which had been presented, the court entered the following order, from which the Commonwealth has appealed: AND NOW, this 5th day of March, 1998, upon consideration of Defendant's Motion To Suppress, and following a hearing, the motion is granted, and evidence obtained following the stop of Defendant's vehicle on June 14, 1997, is suppressed. DISCUSSION At a suppression hearing, the burden of proof is upon the Commonwealth to show that the challenged evidence was legally obtainec[ Pennsylvania Rule of Criminal Procedure 323(h) provides as follows: The Commonwealth shall have the burden of going forward with the evidence and of establishing that the challenged evidence was not obtained in violation of the defendant's fights .... Under Section 6308(b) of the Vehicle Code, a police officer who "has articulable and reasonable grounds to suspect a violation of [the Code] ... may stop a vehicle ... 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 [the Code].''2° See Commonwealth v. McElroy, 428 Pa. Super. 69, 76, 630 A.2d 35, 39 ~8 N.T. 12. ~9 Order of Court, March 5, 1998. 20 Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §6308(b). The statute also provides that a stop may be made "[w]henever a police officer is engaged in a systematic program of checking vehicles or drivers." Id. 4 (1993), appeal denied, 543 Pa. 729, 673 A.2d 335 (1996); cf Commonwealth v. Whitrnyer, 542 Pa. 545, 668 A.2d 1113 (1995). "An officer who effects, prolongs or resumes a [vehicle] stop 'must have more than a hunch.'In the interest ofS. D., 429 Pa. Superior Ct. 576, 579, 633 A.2d 172, 174 (1993); see Commonwealth v. Bennett, [412.Pa. Superior Ct. 603,] 622, 604 A.2d [276,] 285 [(1992)]; Commonwealth v. Espada, 364 Pa. Superior Ct. 604, 607, 528 A.2d 968, 969 (1987).''2~ A "[p]oliceman's intuition" is not sufficient to support a stop of a vehicle. See Commonwealth v. Lopez, 415 Pa. Super. 252, 262, 609 A.2d 177, 182 (1992). Section 373 l(a) of the Vehicle Code provides, in pertinent part, as follows: A person shall not drive, operate or be in actual physical control of the movement of a vehicle in any of the following circumstances: (1) while under the influence of alcohol to a degree which renders the person incapable of safe driving .... (4) while the mount of alcohol by weight in the blood of: (i) an adult is 0.10% or greater; .... 22 A police stop of a vehicle implicates competing governmental and individual interests. See Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973). The rules governing such stops are the result of a balancing of those interests. Id In the present case, it was the court's view after carefully considering the evidence presented at the suppression hearing (which was somewhat obscure on a number of points, such as the officer's defin fion of a "wide" turn, distances traveled, times elapsed, and 22 Commonwealth v. Leius, 43 Cumberland L.J. 459, 468 (1994). 22 Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. 3731(a)(1), (4)0) (Supp. 1997). 5 roadway characteristics), that this was a case in which Defendant's vehicle was stopped on the basis of an experienced police officer's intuition that criminal activity might be afoot in the Defendant's seemingly random excursions into developments where he did not live at 2:40 a.m. The court was not persuaded that the Commonwealth had met its burden of proof of showing that the stop of Defendant:s vehicle was justified by more than such a hunch. For these reasons, and based upon the foregoing authority, the court granted Defendant's motion to suppress. Jaime M. Keating, Esq. Chief Deputy District Attorney Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Attorney for the Commonwealth Timothy T. Engler, Esq. 4407 North Front Street P.O. Box 5320 Harrisburg, PA 17110 Attorney for the Defendant