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HomeMy WebLinkAbout98-0205 CriminalCOMMONWEALTH Vo JASON M. BOLAN OTN: F068706-1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-0205 CRIMINAL TERM CHARGE: (1) DUI (2) REQUIRED FINANCIAL RESPONSIBILITY (Sum.) IN RE: DEFENDANT'S MOTION TO SUPPRESS BEFORE OLER, J. ORDER OF COURT AND NOW, this ~ day of June, 1998, after careful consideration of Defendant's omnibus pretrial motion in the form of a motion to suppress, following a hearing, and for the reasons stated in the accompanying opinion, Defendant's motion is DENIED. BY THE COURT, Jonathan R. Birbeck, Esq. J.~l%yf~ O~er~, r7,~7 Chief Deputy District Attorney Timothy L. Clawges, Esq. Assistant Public Defender :rc COMMONWEALTH ro JASON M. BOLAN OTN: F068706-1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-0205 CRIMINAL TERM CHARGE: (1) DUI (2) REQUIRED FINANCIAL RESPONSIBILITY (Sum.) IN RE: DEFENDANT'S MOTION TO SUPPRESS BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J., June , 1998. In this criminal case, Defendant is charged with driving under the influence and a Vehicle Code summary offense (required financial responsibility). For disposition at this time is Defendant's omnibus pretrial motion in the form of a motion to suppress. A hearing on this matter was held on April 30, 1998. Based upon the evidence presented at the hearing, the following Findings of Fact, Discussion, Conclusions of Law, and Order of Court are made and entered. FINDINGS OF FACT Corporal Michael J. Dzezinski has worked for the Borough of Carlisle Police Department for three years.~ On September 28, 1997, at approximately 12:45 a.m., Corporal Dzezinski was on duty in the Borough of Carlisle.2 He was in full police uniform and driving a marked police vehicle.3 N.T. 4, Hearing, April 30, 1998 (hereinafter N.T. Id. o 3 N.T. 5. NO. 98-0205 CRIMINAL TERM Corporal Dzezinski stopped at a red light in the eastbound lane of Noble Boulevard, where it intersects with South Hanover Street.4 He observed a red Chevrolet pick-up truck driven by Defendant, Jason M. Bolan, traveling southbound on South Hanover Street, approaching the light,s There are two southbound lanes of traffic on South Hanover Street at this point; Defendant was driving in the right lane.6 The light had just turned green for Defendant's lane of travel.7 According to Corporal Dzezinski, at this time Defendant's vehicle "emitted a screeching sound from the rear tires and a small amount of smoke came out of the back end.''s Corporal Dzezinsk± assumed that the smoke came from the tires and not from the truck's exhaust system.9 The roadway was dry.l° Upon hearing the screeching sound, Corporal Dzezinski decided to stop Defendant's vehicleTM and "immediately activated" his emergency lights and siren.~2 He then proceeded to follow the Id. Id. N.T. 11. N.T. 5. Id. N.T. 6. Id. N.T. 10. N.T. 6 . 2 NO. 98-0205 CRIMINAL TERM Defendant's vehicle south on South Hanover Street.~3 The Defendant's vehicle was traveling approximately 15 miles per hour;TM the posted speed limit was 35 miles per hour.~5 As Corporal Dzezinski followed Defendant's vehicle, he observed that "the left wheels of the vehicle were making contact with ... the left lane markers''~6 which separated the boundary of the two southbound lanes of South Hanover Street-~7 Defendant's vehicle proceeded on for approximately a tenth of a mile, continuing to make contact with the left lane marker, and at points crossing over the lane marker; it then reached an on-ramp for Interstate 81.~s Up to this point, there had been no place for Defendant to bring his vehicle to a stop outside the lane of travel.TM As Defendant came abreast of the on-ramp, he abruptly swerved to the right to enter the ramp.2° Defendant had almost passed by the on-ramp at the time he made his turn, and, in order to ~3 Id. ~4 N.T. 7. ~s Id. ~6 Id. ~7 N.T. 1 1 . ~8 N.T. 7 . ~9 N.T. 13. 20 N.T. 7. NO. 98-0205 CRIMINAL TERM negotiate the turn onto the on-ramp, Defendant drove through an area of loose gravel and debris located at the point where the on- ramp and the road form a "v.''2~ Defendant traveled up the on-ramp a short distance, swerved abruptly to the right, and pulled over to the right side of the on- ramp.~ His vehicle came to rest with its right wheels on grass bordering the berm and its left wheels on the berm, about one or two feet from a traffic control sign.~3 Corporal Dzezinski pulled in behind Defendant's vehicle-24 Defendant was subsequently arrested for driving under the influence.25 Defendant contends that Corporal Dzezinski lacked probable cause or reasonable suspicion to believe that Defendant or his vehicle was in violation of the Vehicle Code or any other statute or ordinance. Defendant maintains, therefore, that the "traffic stop violated the Fourth Amendment of the United States Constitution and Article I, Section 8, of the Pennsylvania Constitution.''~6 Accordingly, Defendant requests that various inculpatory statements, a blood alcohol content test result, and N.T. 8. Id. Id. Id. 25 N.T. 9. Defendant's Omnibus Pretrial Motion, paragraphs 5-6. NO. 98-0205 CRIMINAL TERM all other evidence obtained in connection with the stop be suppressed.~7 Pursuant to an agreement of counsel, the sole issue to be resolved by the court with respect to Defendant's motion is the legality of the stop of Defendant's vehicle-~8 DISCUSSION In a suppression hearing, the Commonwealth has the burden of going forward with the evidence and the burden of persuasion. Pa. R. Crim. P. 323(h). The standard of proof is by a preponderance of the evidence. Commonwealth v. Benton, 440 Pa. Super. 441, 655 A.2d 1030 (~995). Following the hearing, the court is directed to "enter on the record a statement of findings of fact and conclusions of law as to whether the evidence was obtained in violation of the defendant's rights, or in violation of [the Rules of Criminal Procedure] or any statute and ... make an order granting or denying the relief sought." Pa. R. Crim. P. 323(i). "When Iai police [officer] stop[s] a vehicle ... for investigatory purposes, the vehicle, and its occupants, are considered 'seized' and this seizure is subject to constitutional constraints." Commonwealth v. Bowersox, 450 Pa. Super. ~76, ~80, 675 A.2d 718, 720 (1996), quoting Commonwealth v. Knotts, 444 Pa. Super. 60, [64], 663 A.2d 216, 218 (~995). Both the Fourth 27 Id., paragraphs 7-8. ~8 Order of Court, dated April 30, ~998; N.T. 3. NO. 98-0205 CRIMINAL TERM Amendment to the United States Constitution29 and Article I, Section 8, of the Pennsylvania Constitution~° provide that people are to be secure in their persons against unreasonable searches and seizures. See Commonwealth v. Wright, 448 Pa. Super. 621, 627, 672 A.2d 826, 828 (1996). As a general rule, evidence obtained in violation of this right is not admissible. See, e.g., id. For purposes of the present case, the court notes that the Pennsylvania Supreme Court has held that a police officer may stop a vehicle without violating the right to be free from unreasonable searches and seizures whenever the officer has "articulable and reasonable grounds to suspect that a violation of the Vehicle Code has occurred." Commonwealth v. Bowersox, 450 Pa. Super. 176, 181, 675 A.2d 718, 721 (1996), quoting Commonwealth v. Hamilton, 543 Pa. 612, 618, 673 A.2d 915, 918 (1996). The Pennsylvania Superior Court has noted that an actual violation need not be established; however, a reasonable basis for the officer's belief is required to validate the stop. Commonwealth v. Benton, 440 Pa. Super. 441, 29 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." ~0 Article I, Section 8, provides that "It]he people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant." NO. 98-0205 CRIMINAL TERM 446, 656 A.2d 1030, 1034 (1995). The Pennsylvania Superior Court has further noted that "in making traffic stops the police act to keep the highways safe and minimize accidents on the roads. However, in carrying out this important function an officer does not have unfettered discretion to stop cars for further investigation. [An officer may only] stop a vehicle based on ... the ... reasonable belief that a violation of the Motor Vehicle Code has occurred." Id. at 449, 655 A.2d at 1034. In the case sub judice, Corporal Dzezinski decided to stop Defendant's vehicle and immediately activated his emergency lights and siren upon hearing Defendant's tires squeal.3~ The fact that Defendant squealed his tires, without more, would not normally indicate a violation of the Vehicle Code. As the Pennsylvania Superior Court stated in Commonwealth v. Ward, 392 Pa. Super. 541, 573 A.2d 595 (1990), "[s]quealing tires alone does not necessarily lead to the conclusion that one is exhibiting speed or acceleration. Moreover, ..- road conditions, especially a loose gravel paving, or tire conditions, may cause inadvertent squealing." Id. at 547-48, 572 A.2d 598-99.3~ Therefore, the 3~ N.T. 6, 10. 3~ Ward involved violation of a statute prohibiting a person from driving a vehicle on the highway in any "exhibition of speed or acceleration" (75 Pa. C.S. §3367 (Racing on Highway))- In Ward, the Pennsylvania Superior Court held that rapid acceleration of a vehicle on a highway which causes the tires to spin and squeal, alone, does not support a conviction under the exhibition statute. 7 NO. 98-0205 CRIMINAL TERM initial impetus for the stop of Defendant's vehicle would not have produced a lawful seizure. After Corporal Dzezinski activated his emergency lights and siren, but before Defendant submitted to the officer's authority by stopping, Corporal Dzezinski observed Defendant driving erratically, swerving across lane markers and making an abrupt turn. These facts did constitute objective articulable and reasonable grounds for Corporal Dzezinski to suspect that a violation of the Vehicle Code had occurred. Therefore, although the initial impetus for the stop was improper, Corporal Dzezinski did observe conduct of the Defendant which constituted a proper basis for a stop before Defendant's vehicle stopped. In analyzing cases in which evidence was obtained following illegal police conduct, the Pennsylvania Supreme Court has noted that not all such evidence must be suppressed. Commonwealth w. Shaw, 476 Pa. 543, 554, 383 A.2d 496, 501-502 (1978). In this regard, the Pennsylvania Supreme Court has adopted the position of the United States Supreme Court in Wong Sun v. United States, 371 U.S. 47~, 83 S. Ct. 407, 9 L. Ed. 2d 44~ (1963). See, e.g., Commonwealth v. Shaw, 476 Pa. 543, 554, 383 A.2d 496, 50~-502 (1978). In Wong Sun, the United States Supreme Court noted that not all evidence obtained following illegal action by a police officer must be suppressed; instead, in such a case the court must consider "whether, granting establishment of the primary 8 NO. 98-0205 CRIMINAL TERM illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.''3~ Wong Sun, 371 U.S. at 487-88, 83 S. Ct. at 417, 9 L. Ed. 2d at 455 (1963), quoting Maguire, Evidence of Guilt 221 (1959). The Pennsylvania Supreme Court has also noted that Article I, Section 8, "provid[es] different, and broader, protections than its federal counterpart." Commonwealth v. Matos, 543 Pa. 449, 455, 672 A.2d 769, 772 (1996). While the purpose of the exclusionary rule under the Fourth Amendment is solely to deter police misconduct, its purpose under Article I, Section 8, is to protect the right to privacy as well. Id. The Pennsylvania Supreme Court has stated that Article I, Section 8, "is meant to embody a strong notion of privacy." Id. at 456, 672 A.2d at 773. In Commonwealth v. Matos, 543 Pa. 449, 672 A.2d 769 (1996), the Pennsylvania Supreme Court addressed the issue of whether evidence obtained while defendants were being pursued by police officers who did not have probable cause to arrest or reasonable suspicion to conduct a stop should be suppressed. Matos involved pedestrians who discarded contraband while fleeing police officers who attempted to stop them without probable cause or reasonable suspicion. The Court noted that, under an identical fact-pattern, 33 Wong Sun involved the suppression of a confession made by an illegally arrested person. 9 NO. 98-0205 CRIMINAL TERM the United States Supreme Court had concluded that the contraband should not be suppressed. The United States Supreme Court reasoned that fleeing pedestrians are not seized under the Fourth Amendment until the police apply physical force or the pedestrians yield to the police officers' authority. In holding that Article I, Section 8, of the Pennsylvania Constitution provides broader protections than the Fourth Amendment, the Pennsylvania Supreme Court observed that "the rights of individuals ... to be free from intrusive conduct by the police is implicated when the police pursue an individual, absent reasonable suspicion or probable cause. Id. at 456-57, 672 A.2d at 773. Noting that under Article I, Section 8, a court must be concerned with deterring police misconduct as well as protecting an individual's right to privacy, the Pennsylvania Supreme Court concluded that the contraband involved therein had to be suppressed because "the causative factor in the abandonment [of the contraband] ... was the unlawful and coercive action of the police in chasing [the defendants] in order to seize [them]" Id. at 458, 672 A.2d at 774, quoting Commonwealth v. Jeffries, 454 Pa. 320, 327, 311 A.2d 914, 918 (1973). While the case sub judice involves the conduct of Defendant while being pursued by Corporal Dzezinski following an improper initiation of a traffic stop, it is distinguishable from Matos in an important respect. In Matos, the defendants' conduct in l0 NO. 98-0205 CRIMINAL TERM discarding the contraband was directly attributable to the fact that they were being chased (illegally) by the police officers. The Pennsylvania Supreme Court in Matos was particularly concerned that if such contraband were not suppressed it would "encourage unlawful displays of force that will frighten countless citizens into surrendering whatever privacy rights they may still have." Id. at 462, 672 A.2d at 776 quoting California v. Hodari D., 499 U.S. 621, 646-47, lll S. Ct. 1547, ~561, qq3 L. Ed. 2d 690, 7~0 (199~) Stevens J., dissenting). In the case sub judice Defendant's conduct consisted of driving erratically, swerving across lane markers and making an abrupt turn. Such conduct was not the result of Corporal Dzezinski's initiation of a stop of Defendant's vehicle. Defendant did not drive erratically in an attempt to hide evidence of wrongdoing as the defendants in Matos did. Defendant's erratic driving was not the result of any improper, coercive actions on Corporal Dzezinski's part; therefore, it cannot be said that the causative factor in Defendant's erratic driving was Corporal Dzezinski's pursuit of him. For this reason, the court concludes that it would not serve the purpose of either the Fourth Amendment or Article I, Section 8, to suppress any evidence discovered after Corporal Dzezinski observed Defendant driving erratically. Additionally, the court notes that the fact that Corporal Dzezinski may have initially based the stop of Defendant's vehicle NO. 98-0205 CRIMINAL TERM on the subjective belief that the squealing tires violated the Vehicle Code would not, by itself, invalidate the stop in the presence of objective facts giving him articulable and reasonable grounds to suspect that a Vehicle Code violation had occurred. Cf. Commonwealth v. McElroy, 428 Pa. Super. 69, 630 A.2d 35 (1993). CONCLUSIONS OF LAW Because Corporal Dzezinski had articulable and reasonable grounds to suspect that a violation of the Vehicle Code had occurred when Defendant brought his vehicle to a stop, and Corporal Dzezinski did not exploit any illegality in obtaining such grounds, evidence obtained after Corporal Dzezinski observed Defendant driving erratically should not be suppressed. For the foregoing reasons, the following Order will be entered: ORDER OF COURT AND NOW, this ~7~ day of June, 1998, after careful consideration of Defendant's omnibus pretrial motion in the form of a motion to suppress, following a hearing, and for the reasons stated in the accompanying opinion, Defendant's motion is DENIED. BY THE COURT, j. ~Wesley Ole~'r, Jr., Jonathan R. Birbeck, Esq. Chief Deputy District Attorney Timothy L. Clawges, Esq. Assistant Public Defender 12