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HomeMy WebLinkAbout01-0649 criminalCOMMONWEALTH IN THE COURT Of COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SCOI I' VINCETT 01-0649 CRIMINAL TERM IN RE: MOTION OF DEFENDANT FOR OMNIBUS PRETRIAL RELIEF OPINION AND ORDER OF COURT. Bayley, J., July '16, 2001:-- Defendant, Scott Vincent, is charged with counts of driving under the influence,' unlawful possession of a small amount of marijuana? and driving the wrong way on a one-way street3 He filed an omnibus pretrial motion for relief upon which a hearing was conducted on July 5, 2001. The motion includes a motion to suppress all evidence obtained by the police as a result of defendant being stopped while driving in the Borough of Carlisle. We find the following facts. At approximately 2:30 a.m., on February 3, 2001, Officer Stephen Latshaw, of the Carlisle Borough Police, was driving a police vehicle south on North Pitt Street in the Borough of Carlisle. As he approached Dickinson Avenue, Officer Latshaw saw defendant drive a car (east), out of Dickinson Avenue, and turn right (south), onto ~ 75 Pa.C.S. § 3731(a)(1)(4). 2 35 P.S. § 780-113(a)(31). 3 75 Pa.C.S. § 3308(b). 01-0649 CRIMINAL TERM North Pitt Street. Officer Latshaw stopped defendant for a violation of the Vehicle Code at 75 Pa.C.S. Section 3308(b). Section 3308 provides: (a) Establishment and marking.-The Department and local authorities with respect to highways under their respective jurisdictions may designate any highway, roadway, part of a roadway, or specific lanes upon which vehicular traffic shall proceed in one direction at all or such times as shall be indicated by official traffic control devices. (b) Driving on one-way roadway.-Upon a roadway designated for one-way traffic, a vehicle shall be driven only in the direction designated at all or such times as shall be indicted by official traffic- control devices. (Emphasis added.) Defendant maintains that the part of Dickinson Avenue, where he was driving, is not a one-way street. Therefore, Officer Latshaw did not have probable cause to believe that he had committed a summary offense. Thus, there was no legal justification for the stop. The regulations of the Department of Transportation regarding signs for one-way streets provide at 67 Pa. Code § 211.201: (a) Justification. The Horizontal Right One-Way Sign, R6-1R, shall be authorized for use to indicate a street or roadway upon which vehicular traffic is permitted to travel in only one direction. (b) Placement. The R6-1R sign shall be placed on the near right hand and far left hand corners of the intersection so as to face traffic entering or crossing the one-way street. The regulations provide at 67 Pa. Code § 211.202: (a) Justification. The Horizontal Left One-Way Sign, R6-1L, shall be authorized for use to indicate a street or roadway upon which vehicular traffic is permitted to travel in only one direction. (b) Placement. The R6-1L sign shall be placed on the near right hand -2- 01-0649 CRIMINAL TERM and far left hand corners of the intersection so as to face traffic entering or crossing the one-way street. At 67 Pa. Code § 211.203, the regulations provide: (a) Justification. The Vertical Right One-Way Sign, R6-2R, shall be authorized for use only when lateral space is limited, in lieu of the Horizontal Right One-Way Sign, R6-1R, and for overhead installations. At 67 Pa. Code § 211.204, the regulations provide: (a) Justification. The Vertical Left One-Way Sign, R6-2L, shall be authorized for use only when lateral space is limited, in lieu of the Horizontal Left One-Way Sign, R6-1L. (b) Size. The size of R6-2L shall be governed by the minimum lateral space available, but the minimum size shall be 30 inches by 36 inches when mounted overheard. The section of Dickinson Avenue on which defendant was driving runs between North Pitt Street, at the east end, and North West Street, at the west end. Officer Latshaw testified that Dickinson Avenue is a one-way street westbound between North Pitt Street and North West Street. However, the officer acknowledged that there are no signs, markings, or other traffic control devices at the intersection of the east end of Dickinson Avenue with North Pitt Street, indicating that Dickinson Avenue is a one-way street. Approximately one-third of the way along Dickinson Avenue west of North Pitt Street, there is a one-way sign pointing west toward North West Street. There are other one-way west signs between that sign and North West Street, and there is a one-way west sign at that intersection. The one-way west sign that is one-third of the way along Dickinson Avenue west of North Pitt Street is not visible at the intersection of Dickinson 01-0649 CRIMINAL TERM Avenue and North Pitt Street. Nor is it visible at a driveway behind a building that sits on the southwest corner of the intersection of Dickinson Avenue and North Pitt Street. That driveway leads to a parking area behind a restaurant that is on North Pitt Street south of the intersection with Dickinson Avenue? The Vehicle Code at 75 Pa.C.S. Section 3111 provides: (b) Proper position and legibility of device.-No provision of this Title for which official traffic-control devices are required shall be enforced against an alleged violator if at the time and place of the alleged violation an official device is not in proper position and sufficiently legible to be seen by an ordinarily observant person. That part of Dickinson Avenue west of the intersection of North Pitt Street to where the first one-way sign west is located, which is approximately one-third of the distance to North West Street, is not marked with an official device in a proper position that is sufficiently legible to be seen by an ordinary observant person. Officer Latshaw did not see defendant drive on any part of Dickinson Avenue where a one-way west sign was located as required by Section 3111 in order to support a summary violation of Section 3308 of the Vehicle Code. Therefore, he did not have probable cause to believe that defendant was violating Section 3308. Commonwealth v. Whitmeyer, 4 John Thoman testified that he was in that restaurant with defendant. They left the restaurant together. Thoman, who was in a wheelchair, waited on North Pitt Street while defendant walked to the parking lot behind the restaurant to get his car. That means that defendant drove from the parking lot driveway to Dickinson Avenue, where he turned right and proceeded east to the intersection with North Pitt Street where he was seen by Officer Latshaw. No one-way west sign would have been visible to him on Dickinson Avenue. -4- 01-0649 CRIMINAL TERM 668 A.2d 1113 (Pa. 1995).s Because there was no legal basis to stop defendant, all evidence gained as a result of that stop must be suppressed.6 ORDER OF COURT AND NOW, this I, ~ day of July, 2001, the motion of defendant to suppress all evidence obtained by the police after he was stopped, IS GRANTED. Edga~.'BaCe¢ ! Edmund Zigmund, Esquire ( Assistant District Attorney David Hershey, Esquire For Defendant :saa s The Commonwealth argues that even if defendant drove east on the part of Dickinson Avenue that is not properly marked as a one-way west, Officer Latshaw still had probable cause to believe that to get to that part of the street he had driven on the part of Dickinson Avenue that is marked one-way west. That argument is disingenuous. The officer only saw defendant drive on the part of the street that is not marked one- way west. A person can drive on that part of the street and not have driven on the part which is marked one-way west. That is exactly what happened in this case. The officer may have been suspicious that defendant had driven from the marked one-way west part of Dickinson Avenue onto the unmarked part of the street. However, he did not have articulate and reasonable grounds to believe that occurred so as to justify the stop for a violation of Section 3308(b) of the Vehicle Code. 6 This resolution makes it unnecessary to address the other issues raised by defendant in his omnibus pretrial motion. -5-