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HomeMy WebLinkAbout02-107 CriminalCOMMONWEALTH VS. ANDREW T. STEWART IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-107 CRIMINAL CHARGE: DUI AFFIANT: PTL. RYAN PARTHEMORE OPINION PURSUANT TO RULE 1925 The defendant has appealed from his conviction and sentence on a count of driving under the influence. He was sentenced on April 1, 2003, to a prison sentence of not less than ninety days nor more than twenty-three months, a fine of $300.00 and other costs. He has remained on bail pending consideration of his appeal. The defendant's statement of matters complained of on appeal contends that we erred in refusing to suppress evidence. The case against the defendant stemmed from his stop at a police sobriety checkpoint. The facts adduced at the suppression hearing were as follows. David Freed, First Assistant District Attorney of Cumberland County, approved a Driving Under the Influence (DUI) checkpoint to be run in Upper Allen Township on the night of October 26 into the early morning hours of October 27, 2001. (N.T. 15) The location of the checkpoint on South Market Street had been used as a checkpoint since the early 1990' s. (N.T. 29) In that area there had been thirty-two DUI arrests as well as twenty-six citations for underage drinking, all in the previous six years. (N. T. 31) Under the supervision of Mr. Freed, the police set up and conducted a roadblock between 11:00 p.m. and 3:30 am. It was conducted on a Friday night into a Saturday morning because the number of drivers who would have frequented nearby Mechanicsburg. (N. T. 30) The operation of the checkpoint ran past the 2:00 a.m. closing time for Pennsylvania drinking establishments. (N. T. 43) 02-0107 CRIMINAL Drivers were alerted to the roadblock with appropriately erected signs and drivers could have turned around before entering the checkpoint. (N.T. 29) The police, using a predetermined and objective standard, stopped every car and requested to see each driver's license, registration and insurance. Only if an officer detected a sign of drug or alcohol use was a driver directed to a nearby parking lot for field sobriety testing. According to a stipulation of facts, filed by the parties for the purpose of the trial of this case, the defendant, Andrew Stewart, drove into the checkpoint at around 2:20 a.m. on the morning of October 27th. The police officer who spoke with Stewart noted an "overwhelming odor of alcohol" from the vehicle and from Stewart's breath. Stewart failed to produce his license and registration when requested and his eyes appeared bloodshot and "glassy." Stewart was directed to a nearby parking lot where other police officers administered a field sobriety test. There is no dispute that Mr. Stewart was not free to leave nor was he given Miranda warnings before performing the tests. Based on the officers' observations, the defendant was placed under arrest for driving under the influence. He was sub sequently charged with violating Section 3731 (a)(1) and (a)(4) of the Motor Vehicle Code, 75 Pa.C.S.A. 3731. At a preliminary hearing, held on January 12, 2002, the district justice dismissed the (a)(1) charge but found a prima facie case with respect to (a)(4) to the effect that the defendant was operating his motor vehicle at a time when his blood/alcohol content exceeded one-tenth of one percent. Though the district attorney added back a violation of (a)(1), that count was withdrawn prior to trial. The defendant's contention is that the sobriety checkpoint, erected in this case, does not pass constitutional muster. Accordingly, he contends that all evidence gathered as a result of the 2 02-0107 CRIMINAL stop of his vehicle should be suppressed. He also claims that he should have been given Miranda warnings prior to the field sobriety test and advised, specifically, of his right to counsel. This is based on a suggestion that an attorney would have advised him that he could have refused the field sobriety test. In Commonwealth v. Tarbert, 535 A.2d 1035, 1043 (1987), the Pennsylvania Supreme Court offered the following guidelines to insure the constitutionality of a DUI roadblock: The conduct of the roadblock itself can be such that it requires only a momentary stop to allow the police to make a brief but trained observation of a vehicle driver, without entailing any physical search of the vehicle or its occupants. To avoid unnecessary surprise to motorists, the existence of the roadblock can be so conducted as to be ascertainable from a reasonable distance or otherwise made knowable in advance. The possibility of arbitrary roadblocks can be significantly curtailed by the intrusion of certain safeguards. First, the very decision to hold a drunk driver roadblock, as well as a decision as to its time and place, should be matters reserved for prior administrative approval, thus removing the determination of those matters from the discretion of police officers in the field. In this connection it is essential that that the route selected for the roadblock be one which, based on local experience, is likely to be traveled by intoxicated drivers. The time of the roadblock should be governed by the same consideration. Additionally, the question of which vehicles to stop at the roadblock should not be left to the unfettered discretion of police officers at the scene, but instead should be in accordance with the objective standards prefixed by administrative decision. Following Tarbert, the Supreme Court, in Commonwealth v. Blouse, held that systematic, nondiscriminatory, nonarbitrary roadblocks established to detect registration, licensing, and equipment violations are constitutional. In order to be held constitutional, DUI checkpoints must, therefore, comply with the Tarbert-Blouse guidelines. In Commonwealth v. Etheredge, 794 A.2d 391,394 (Pa. Super. 2002), the Superior Court upheld a trial court's decision to deny a defendant's motion to suppress evidence from a 3 02-0107 CRIMINAL defendant's DUI arrest. The defendant alleged the evidence was the result of an illegal DUI checkpoint. 794 A.2d at 393. IN upholding the trial court's decision not to suppress, the court found that the checkpoint in question substantially complied with the Tarbert-Blouse guidelines. Id. at 394. The court noted there had been a number of accidents and arrests in the area of the checkpoint. Id. at 394. Adequate notice was provided by a news release and a sign placed a quarter mile ahead of the checkpoint. Id. at 394. Also, motorists were only stopped for a period of thirty seconds. Id. at 394. IN Commonwealth v. Yastrop, 768 A.2d 318 (Pa. 2001), the Pennsylvania Supreme Court upheld the constitutionality of a questioned checkpoint because the roadblock substantially complied with the Tarbert-Blouse guidelines. The court noted that the area was one where a number of drunk driving accidents and arrests had occurred in the past. Id~. at 324. The roadblock had received administrative authorization. Id~. at 323-324. Large signs alerted drivers of the roadblock ahead. Id. at 324. IN addition, drivers were stopped for approximately thirty seconds and detained for field testing only if they smelled of alcohol. Id. at 324. The roadblock in the present case, like the roadblocks in Etheredge and Yastrop, was constitutional because it substantially complied with the Tarbert-Blouse guidelines. The location, date and time of the checkpoint received the administrative approval of the District Attorney. The location of the roadblock was a known route for drunk drivers. Not only had the area been the location of DU! checkpoints since the early 1990's, but there had been 32 DUI arrests in that area in the previous six years. Signs were erected to notify drivers that there was a checkpoint ahead. Every car was briefly stopped and sobriety tests were administered only to those drivers who appeared to have been using drugs or alcohol. 4 02-0107 CRIMINAL The defendant argues that empirical information provided in this record establishes that the roadblock was unconstitutional based on a balancing test. This involves a contention that, because roadblocks are no more effective than conventional law enforcement techniques, the state's interest in preventing drunk driving does not outweigh an individual's interest against a general suspicionless search. This question, in turn, must be reviewed in light of the enhanced privacy interests under Article I, Section 8 of the Pennsylvania Constitution. The concurring opinions in Yastrop suggested that the Pennsylvania Supreme Court would consider this issue when presented with a case with a more fully developed factual record. 768 A. 2d at 326. This may be such a case. At our suppression hearing in this matter, considerable testimony was adduced concerning the statistical effectiveness of roadblocks. It is not for this court, however, to decide a question which the Supreme Court has reserved for itself. Instead, we must review the matter in light of existing case law. Having done so, we are satisfied that the roadblock in this case was constitutional. Stewart also argues that the result of his field sobriety test should be suppressed because he was placed in a position where he was not free to leave and was never advised of his Miranda rights. However, even if Stewart was in custody, no requirement exists that Miranda rights be given prior to field sobriety testing. Commonwealth v. Hayes, 674 A.2d 677 (Pa. 1996). In Hayes, a defendant claimed that his constitutional rights were violated when an arresting officer failed to advise him of his right to refuse to perform field sobriety tests. 674 A.2d at 678. In finding that Miranda rights were not required, the Pennsylvania Supreme Court noted that field sobriety tests are non testimonial. Id. at 681. The Court made special note of the fact that all of the states that have addressed the issue have unanimously decided that Miranda warnings are not 02-0107 CRIMINAL required before field sobriety testing. Id. at 681 (citing Stone v. City of Huntsville, 656 So.2d 404 (Ala. 1994); Coates v. State, 216 Ga. App. 93,453 S.E.2d 35 (1994); Allred & DiAndrea v. State, 622 So.2d 984 (Fla. 1993); State v. Zummach, 467 N.W.2d 745 (N.D.1991); State v. Erickson, 802 P.2d 111 (Utah 1990); McAvoy v. State, 314 Md. 509, 551 A.2d 875 (1989); Dixon v. State, 103 Nev. 272, 737 P.2d 1162 (1987); People v. Boudreau, 115 A.D.2d 652, 496 N.Y.S.2d 489 (1985); State v. Lombard, 146 Vt. 411,505 A.2d 1182 (1985); Commonwealth v. Brennan, 386 Mass. 772, 438 N.E.2d 60 (1982); Trail v. State, 526 S.W.2d 127 (Tenn. Crim. 1975); State v. Arsenault. 115 N.H. 109, 336 A.2d 244 (1975); Flynt v. State, 507 P.2d 586 (Okl. Crim. 1973); Heichelbech v. State, 258 Ind. 334, 281 N.E.2d 102 (1972); State v. Strickland, 276 N.C. 253, 173 S.E.2d 129 (1970); Whalen v. Alhambra, 274 Cal. App.2d 809, 79 Cal. Rptr. 523 (1969); State v. Faidley, 202 Kan. 517, 450 P.2d 20 (1969); City of Mercer Island v. Walker, 76 Wash.2d 607, 458 P.2d 274 (1969)). Because police officers are not required to give Miranda warnings before administering a field sobriety test, there is no reason to suppress the results of Stewart's test. June ,2003 Daniel Sodus, Esquire Senior Assistant District Attorney P. Richard Wagner, Esquire For the Defendant Probaion Kevin A. Hess, J. 6