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HomeMy WebLinkAboutCP-21-CR-0826-2004COMMONWEALTH ROBERT ALAN KIEHL IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CP-21-CR-826-2004 MOTION OF DEFENDANT TO SUPPRESS EVIDENCE BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., June 24, 2004:-- Defendant, Robert Alan Kiehl, is charged with a count of driving under the influence.~ He filed a motion to suppress evidence upon which a hearing was conducted on June 21, 2004. We find the following facts. On November 1, 2002, Officer Jeffrey O'Donnell of the West Shore Regional Police Force was on patrol at approximately 9:30 p.m. He saw a Jeep Wrangler in front of his patrol vehicle on Market Street in Lemoyne, Cumberland County. The Jeep continued on Market Street and made a left turn onto Third Street. In the 200 block both driver's side tires of the Jeep crossed the center double yellow line. The vehicle came back into the right lane, but in the 300 block the same thing happened again. The Jeep then turned right onto Lowther Street. Officer O'Donnell turned on his dashboard video camera. As shown on the film the driver's side tires then straddled the double yellow line separating two lanes as a vehicle was coming in the opposite ~ 75 Pa.C.S. § 3731(a). CR-21-CR-826-2004 lane. The Jeep then moved back into the right lane but as it crested a hill both of the driver's side tires again went over the double yellow line. Officer O'Donnell activated his patrol lights and stopped the Jeep. Defendant was the driver. Further investigation resulted in the charge of driving under the influence. The total distance Officer O'Donnell followed the Jeep was approximately one mile. It is approximately one-half mile from the turn onto Third Street to the turn onto Lowther Street. It was approximately four-tenths of a mile on Lowther Street to the point of the stop. Defendant seeks to suppress all evidence obtained by the police following the stop on a claim that the stop was illegal. For a traffic stop to be justified, a police officer must have probable cause to believe that a violation of the Vehicle Code has taken place. Commonwealth v. Mickley, 846 A.2d 686 (2004). In Mickley, the facts were: Trooper John Yunk of the Pennsylvania State Police encountered [Appellant's] vehicle at approximately 2:56 a.m. on the morning of November 4, 2001. [Appellant] was traveling south on [S]tate Route 34. The trooper was traveling directly behind her. His attention was drawn to her vehicle because she was weaving from side to side within her own lane of travel. As they approached the intersection with [S]tate Route 174, [Appellant] crossed the fog line onto the berm of the road. The berm is approximately three feet wide and is paved. Her entire rear wheel crossed over the line. While she was still on the paved portion of the berm, she was "well over" the fog line. During the next three-quarters of a mile, she crossed the fog line three more times. Each crossing was similar to the first[,] i.e., her entire rear wheel was over the fog line onto the paved berm. It is also noteworthy that the crossings occurred on a relatively straight stretch of road. Route 34 is a two lane highway. [Appellant] and the trooper encountered several vehicles traveling in the opposite direction. Two of the fog lane crossings were in response to that vehicular traffic. The officer testified that in his training and experience this is an "indicator for -2- CR-21-CR-826-2004 driving under the influence." In any event, after she crossed the fog line for the fourth time, the officer initiated a traffic stop in order to issue a citation for violation of Section 3309(1) of the Vehicle Code. [Trooper Yunk followed Appellant for a distance of approximately seven miles before effectuating the traffic stop.] The Superior Court of Pennsylvania stated: Appellant relies on Commonwealth v. Gleason, 567 Pa. 111,785 A.2d 983 (2001), to support her argument that the stop of her vehicle was unjustified. In Gleason, our Supreme Court found that there was not probable cause to stop the defendant after the officer observed the defendant's crossing of a berm line on two or three occasions over the distance of a quarter of a mile on a four-lane deserted roadway. In the instant case, the trial court fully acknowledged and distinguished Gleason. As the trial court points out, Appellant's erratic driving occurred on a two lane highway with opposing traffic, rather than on a four-lane deserted highway, and "posed a clear hazard to herself and the motoring public." Trial Court Opinion, 10/1/02, at 6. In addition, two of the crossings were made in response to oncoming traffic. Trooper Yunk testified that, in his experience, such crossings are an indicator that a driver may be under the influence of alcohol. Thus, we find that the trial court did not err when it determined that, at the time of the initial stop of Appellant's vehicle, Trooper Yunk had reasonable and articulable grounds to suspect a violation of the Vehicle Code sufficient to satisfy Pennsylvania law. See also Commonwealth v. Slonaker, 795 A.2d 397 (Pa. Super.2002) (explaining that probable cause for a traffic stop exists when a trooper followed Appellant's vehicle for five miles and observed the vehicle fully cross the white fog line three times and weave numerous times over the double yellow center line and the white fog line without fully crossing either line). The Vehicle Code at 75 Pa.C.S. Section 3309 provides: Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others not inconsistent therewith shall apply: (1) Driving within single lane.--A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that the movement can be made safely. -3- CR-21-CR-826-2004 In less than a mile on two lane streets with double yellow center lines, defendant drove: (1) three separate times with both left side tires across a center double yellow line, the last time as he was cresting a hill, and (2) once when the driver's side tires straddled the double yellow line as a vehicle was coming in the opposite direction. This failure to drive entirely within a single lane constituted a safety hazard giving Officer O'Donnell probable cause to believe that defendant had violated Section 3309(1) of the Vehicle Code. Furthermore, as in Mickley, Officer O'Donnell had probable cause based on reasonable and articulable grounds to suspect that defendant's erratic driving was caused by his being under the influence of alcohol. For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this suppress evidence, IS DENIED. day of June, 2004, the motion of defendant to By the Court, Michelle Sibert, Esquire Assistant District Attorney Ellen K. Barry, Esquire For Defendant :sal Edgar B. Bayley, J. -4- COMMONWEALTH ROBERT ALAN KIEHL IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CP-21-CR-826-2004 MOTION OF DEFENDANT TO SUPPRESS EVIDENCE AND NOW, this suppress evidence, IS DENIED. BEFORE BAYLEY, J. ORDER OF COURT day of June, 2004, the motion of defendant to By the Court, Michelle Sibert, Esquire Assistant District Attorney Ellen K. Barry, Esquire For Defendant :sal Edgar B. Bayley, J.