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HomeMy WebLinkAbout97-2080 CriminalCOMMONWEALTH DOUGLAS E. GAST OTN: E8629902 : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : No. 97-2080 CRIMINAL TERM : CHARGES: (1) UNL. POS. SM. AMT. MARIJ. (2) UNL. POS. DRUG PARA. (3) D.U.I. IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., November 13, 1998. In this criminal case, Defendant has appealed to the Superior Court from a judgment of sentence for possession of a small amount of marijuana, unlawful possession of drug paraphernalia, and driving under the influence.~ The sole basis for the appeal is that the court erred in denying Defendant's pretrial motion to suppress evidence.2 The motion to suppress, as argued to this court, related to the legality of a municipal police officer's actions outside of his municipality.3 In a statement of matters complained of on appeal, Defendant has listed the following issues as now being pursued: 1. The arrest of the Defendant outside the jurisdiction of the Mount Holly [Borough] police officer was illegal because it was without probable cause and not pursuant to any lawfully or properly prepared arrest warrant and was therefore in violation of Defendant's constitutional rights under the Fourth and Fourteenth amendments of the U.S. Constitution and Article I, ~ Defendant was found guilty as charged following a bench trial before the Honorable George E. Hoffer of this court on July 1, 1998. On July 21, 1998, Defendant was sentenced to pay a fine of $100 for possession of the marijuana, to pay a fine of $100 for possession of the drag paraphernalia, and to pay a fine of $300 and to undergo imprisonment for a period of not less than 30 days nor more than 23 months for driving under the influence. 2 See Defendant's Matters Complained of on Appeal, filed September 3, 1998. 3 N.T. 12, Hearing on Defendant's Motion To Suppress, February 23, 1998 (hereinafter N.T. ~). {}8 of the Pennsylvania Constitution. 2. The mere crossing of the centerline or the right side of the road does not constitute probable cause to indicate that criminal activity is afoot. Commonwealth v. Whitmyer, 415 Pa. Super. $93, 609 A.2d 809 (1992); Commonwealth v. Malone, 42 Cumb. 591 (1993). 3. The stop and arrest of the Defendant outside of the jurisdiction of the Mount Holly Police Department City [sic] limits was a violation of the Municipal Police Jurisdiction Act (MPJA), 42 Pa. CSA {}8953, because there was no criminal violation observed within the officer's primary jurisdiction. 4. In order to be an exception to the MPJA, the hot and fresh pursuit requirement of the MPJA necessitates a finding that the police officer had met the immediate, continuous and uninterrupted pursuit standard and that he had met the additional requirement of some sort of "chase", neither of which occurred. 42 Pa. CSA {}8953 (a)(2); Commonwealth v. McPeak, 708 A.2d 1263 (Pa. Super. 1998); Commonwealth v. Futchko, to 363 Criminal (Bucks County 1997) (Attached) As will be noted hereafter, the issue of probable cause was not preserved at the suppression hearing. In addition, a factual "stipulation" appended to Defendant's Notice of Appeal was not presented to the suppression court.4 This opinion in support of the pretrial ruling which denied Defendant's motion to suppress is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS Shortly after 12:30 a.m. on Sunday, June 23, 1997, Officer Troy Wiser, a member of the police department of the Borough of Mount Holly, Cumberland County, Pennsylvania, 4 This document does not appear as an item on the docket. Defendant did not direct that the notes of testimony of the trial be transcribed and filed for purposes of his appeal, and there is no indication that the trial court was asked to review the suppression court's ruling on the basis of the stipulation. Cf Commonwealth v. DeMichel, 442 Pa. 553,559-60, 277 A.2d 159, 162 (1971). 2 was on duty in the borough in a marked patrol car and in full uniform? Officer Wiser observed Defendant driving a vehicle east on a street which intersected with North Baltimore Avenue.6 He watched Defendant make a right turn onto North Baltimore Avenue, a two-lane roadway divided by a double-yellow line, proceeding southward.7 In executing the turn, Defendant crossed the double-yellow line and nearly struck parked cars.g Officer Wiser began to follow the vehicle down North Baltimore Avenue? During a course of about 1.2 miles within the borough on North Baltimore Avenue,l° Officer Wiser observed Defendant's vehicle cross the double-yellow center line three times and drive off the right side of the road six times.~ The vehicle crossed the borough's boundary line and almost immediately, in a turn, trespassed by three-fourths of its width into the opposite lane of traffic, accelerating as Defendant acted to correct its course.~2 At this point, which was about 1500 feet beyond the borough line, Officer Wiser activated his lights and siren and, after some difficulty, succeeded in getting the vehicle stopped.~3 Defendant was eventually charged with driving under the influence, possession of marijuana, and possession of drug paraphernalia. On June 13, 1998, Defendant filed a motion to suppress "all evidence seized by the s N.T. 4-5. 6N.T. 6, 8. 7N.T. 5-6, 11. 8N.T. 5. 9Id. lo See N.T. 8-9. ~ N.T. 6. ~2 N.T. 7. ~3 N.T. 7-8. police," contending that "[t]he arrest of the defendant was illegal because it was without probable cause and not pursuant to any lawful or properly prepared arrest warrant," and that "It]he arrest of the defendant was illegal because it was made outside the jurisdiction of the Mount Holly Police Department territorial limits." A hearing was held on Defendant's motion by the writer of this opinion on February 23, 1998. At the hearing, Defendant's counsel argued that suppression was warranted on the ground that the officer had exceeded his authority under the Municipal Police Jurisdiction Act.ia Defendant's counsel expressly disavowed any claim that the officer had lacked probable cause to stop the vehicle? In view of Defendant's erratic and unsafe driving, a 14 Act of June 15, 1982, P.L. 512, § 4, as amended, 42 Pa. C.S. § 8953 (1998 Supp.); N.T. 12.. ~5 In this regard, the following exchange occurred between the court and Defendant's counsel during argument on the motion: MR. ABELN: Your Honor, I submitted to the Court for your review, Commonwealth v. Futchko, which I've also given a copy to the prosecution for their review. And we would ask that this Court suppress the evidence that was taken in this case as a violation of the Jurisdictional Act, specifically 42 Pa. C.S.A. Section 8953(A)(2), and in conjunction with Commonwealth v. Ma?rood and McGrady, that has been cited in the opinion. THE COURT: All right. You're not suggesting that there was not probable cause to stop? MR. ABELN: No, sir. The weaving would have given the officer probable cause to stop him three times and six times during the course of the time that he was observed in Mount Holly. But instead, he continued to follow him out of Mount Holly when he could have pulled him over, and waited until he was outside the jurisdiction to actually culminate in what he believed was probable cause for the arrest. N.T. 12. contrary position--that the stop was constitutionally defective--would have been untenable. 16 Following the hearing, the court entered this order: AND NOW, this 23rd day of February, 1998, upon consideration of the Defendant's Motion To Suppress Evidence, and following a hearing held on this date, the motion is denied. Defendant's appeal from the eventual judgment of sentence, assigning the court's ruling as error, was filed on August 19, 1998. The Municipal Police Jurisdiction Act provides, in pertinent part, as follows: Any duly employed municipal police officer who is within this Commonwealth, but beyond the territorial limits of his primary jurisdiction, shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office as if enforcing those laws or performing those functions within the territorial limits of his primary jurisdiction.., where the officer is in hot pursuit of any person for any offense which was committed, or which he has probable cause to believe was committed, within his primary jurisdiction and for which offense the officer continues in fresh pursuit of the person after the commission of the offense. ~? This statute "does not fall within the class of statutes which are to be strictly construed ... and therefore, it must be liberally construed to effect its objects and to promote justice." Commonwealth v. Fetsick, 342 Pa. Super. 264, 267, 572 A.2d 793,794 (1990). "The general purpose of the statute is to restrict the jurisdiction of police to their own municipalities, on the one hand, while allowing certain practical and policy exceptions to the general rule on ~6 See, e.g., Commonwealth v. Lawrentz, 453 Pa. Super. 118, 683 A.2d 303 (1986), appeal denied 548 Pa. 645, 695 A.2d 784 (1987) (where police officer observed defendant's vehicle weaving for a mile to a mile and a half, and vehicle crossed center line twice, legally sufficient basis to stop for unsafe driving existed); cf. Commonwealth v. Carlson, 705 A.2d 468 (Pa. Super. Ct. 1998). 17 Act of June 15, 1982, P.L. 512, § 4, 42 Pa. C.S. § 8953(a)(2). 5 the other hand." Commonwealth v. Merchant, 385 Pa. Super. 264, 268, 560 A.2d, 796-97 (1989). "Hot pursuit," in this context, includes "both classic 'hot pursuit' and 'fresh' or 'continuous' pursuit." Commonwealth v. Magood, 503 Pa. 169, 177, 469 A.2d 115, 119 (1983) (interpreting prior statute on "intrastate hot pursuit"). In some circumstances, an officer's pursuit for an offense committed within his or her primary jurisdiction may occur entirely outside of that jurisdiction. Commonwealth v. Fetsick, 392 Pa. Super. 264, 572 A.2d 793 (1990) (observation of offense within primary jurisdiction by officer located outside of jurisdiction, and subsequent pursuit). The Commonwealth Court has upheld the legality of a stop outside of an officer's primary jurisdiction in the following circumstances: [Officer] Ressler observed Licensee's erratic driving within Marietta Borough, his own jurisdiction. He followed Licensee who crossed the township line into East Donegal Township and exhibited more erratic driving. Licensee was stopped in East Donegal Township and an arrest and request for chemical testing followed. Ressler had the authority to follow and arrest Licensee outside his jurisdiction based on his observations of an offense inside his jurisdiction, under 42 Pa. C.S. § 8952(a)(2). Commonwealth of Pennsylvania, Department of Transportation v. Park, 143 Pa. Commw. 19, 24, 598 A.2d 575, 578 (1991). Based upon the foregoing authority, the court was of the view that in the present case Officer Wiser's conduct in following the erratically-driven vehicle of Defendant within his primary jurisdiction and stopping it a few hundred yards beyond the borough line was authorized by the Municipal Police Jurisdiction Act? ~8 This case is distinguishable, in the court's view, from Commonwealth v. Futchko, No. 2363/1997, Court of Common Pleas of Bucks County (slip op. October 23, 1997) (William H. Rule, J.), af~d, ~ A.2d .., ~ (Pa. Super. Ct., April 14, 1998) (No. 3468 Philadelphia 1997) (memorandum opinion). In Futchko, a member of the Newtown Borough Even if it were to be assumed that Officer Wiser exceeded his authority under the Municipal Police Jurisdiction Act, suppression would not have been appropriate in these circumstances. The Pennsylvania Superior Court has held that suppression is, as a general rule, an inappropriate remedy for an unauthorized arrest made by a Pennsylvania municipal police officer outside his or her primary jurisdiction. Commonwealth v. Saul, 346 Pa. Super. 155, 161,499 A.2d 358, 361 (1985). Stated more precisely, if the officer would have had the power to perform the duty that he or she performed had the officer been within his or her primary jurisdiction, and if no constitutional rights were violated,~9 suppression has been viewed as too harsh a remedy for the impropriety. Commonwealth v. Bienstack, 449 Pa. Super. 299, 305,673 A.2d 952, 955 (1996). Police Department observed an incident of careless driving and speeding within his primary jurisdiction, followed the vehicle into another jurisdiction, and stopped the vehicle in that jurisdiction. The officer in Futchko made a conscious decision while in his primary jurisdiction to stop the vehicle, but chose not to do so at that time. He allowed the vehicle to leave his primary jurisdiction without observing any further violations, and without considering himself to be in hot pursuit of the vehicle. His purpose, as found by the suppression court, in allowing the driver to leave the jurisdiction and to proceed for another mile was to obtain evidence for a prosecution for an additional charge of driving under the influence--not, as the officer had testified, to secure a safe place for the stop. Under these circumstances, the Futchko court found as a fact that the officer "was not in 'pursuit,' hot, fresh or otherwise." Id. at 6. In the present case, the court did not perceive that Officer Wiser had made a conscious decision to stop Defendant's vehicle upon his initial observation of speeding and careless driving violations, or that he felt that he was not in pursuit of Defendant's vehicle within the meaning of the Municipal Police Jurisdiction Act, or that the extension of the pursuit for a few hundred yards into an adjoining township was a subterfuge to obtain enough evidence to make an arrest for driving under the influence. These distinctions render Defendant's position in the present case with regard to the Municipal Police Jurisdiction Act far less compelling than that of the defendant in Futchko. ~9 See notes 15-16 supra and accompanying text. CONCLUSION For the foregoing reasons, it is believed that the ruling of the court denying Defendant's pretrial motion to suppress evidence was proper. John A. Abom, Esq. Assistant District Attorney Gregory B. Abeln, Esq. Attorney for Defendant