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HomeMy WebLinkAboutCP-21-CR-0967-2005 COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. GLENN FARNSLER KENNEDY, III CP-21-CR-0967 -2005 IN RE: OMNIBUS PRE-TRIAL MOTION OPINION AND ORDER OF COURT Bayley, J., August 31, 2005:-- Defendant, Glenn Farnsler Kennedy, III, is charged with driving under the influence, general impairment, 2nd overall, 2nd mandatory,1 driving under the influence, highest rate of alcohol (.16+), 2nd overall, 2nd mandatory,2 and failing to drive on the right half of a roadway.3 He filed an omnibus pre-trial motion for relief upon which a hearing was conducted on August 16, 2005. We find the following facts. In the early morning hours of February 5, 2005, Lane Pryor, a police officer in the Borough of Camp Hill, was in uniform in a marked vehicle patrolling within the Borough. He heard a report on his radio that Officer O'Donnell, of the neighboring West Shore Regional Police Department, had stopped a vehicle in that jurisdiction, and was performing standardized field sobriety tests. Following the routine and the custom in the two municipal police departments, Officer Pryor started to drive to the location of Officer O'Donnell. His purpose was to ensure the safety of the officer if needed. While on his way, Officer Pryor saw Officer Maynard Ambrose, of the West Shore Regional 175 Pa.C.S. S 3802(a)(1). 275 Pa.C.S. S 3802(c). 375 Pa.C.S. S 3301 (a). CP-21-CR-0967 -2005 Police Department, driving toward the same location. After Officer O'Donnell radioed that he was okay, Officer Pryor, who was then within the jurisdiction of the West Shore Regional Police Department, started back to the Borough of Camp Hill. While still within that jurisdiction, he saw a car traveling at a high rate speed exit a highway from a bridge across the Susquehanna River. Three-fourths of the car crossed the double yellow line on a two-way street, and it would have struck the patrol car head-on if Officer Pryor had not turned quickly to avoid it. The officer made a U-turn, and saw the car turn onto River Street and enter a parking lot. Officer Pryor entered the parking lot. The car started moving backward toward him. The officer turned on his patrol lights to warn the driver. The driver pulled into a parking space. Officer Pryor called a dispatcher to report that he had a driver who was possibly under the influence of alcohol. He requested that Officer Ambrose come to the scene. Officer Pryor got out of his vehicle and approached the driver, who is defendant. The officer told him that he thought he was under the influence of alcohol, and that he should remain there until the arrival of a West Shore Regional police officer. Officer Ambrose arrived in approximately one minute. After being told of the events by Officer Pryor, Officer Ambrose went to the car. The officer smelled alcohol coming from inside the vehicle. Defendant's eyes were bloodshot and glassy. He had defendant get out of the car. The officer told defendant that he was suspected of driving while under the influence of alcohol. He asked defendant if he had been drinking. Defendant said, "two or three beers in a club in Harrisburg." The officer smelled alcohol on defendant's -2- CP-21-CR-0967 -2005 breath and asked him to perform field sobriety tests. The officer stopped the one-leg stand test before it was finished because defendant could not perform it. Defendant performed well on the walk-and-turn test. Officer Ambrose asked Officer Pryor, who had a preliminary breath test kit, if he would have defendant take the test. Officer Pryor did, and the results indicated a blood alcohol level of .15 percent. Officer Ambrose was of the opinion that defendant was under the influence of alcohol and incapable of safely driving. He arrested defendant at 3:00 a.m. He took him to a booking center, arriving at 3: 19 a.m. Implied Consent warnings were read to defendant at 3:45 a.m. He took a breath test on an Intoxilyzer 5000 within two hours of driving. Defendant seeks to suppress evidence obtained by the police on the following claims: (1) an unlawful stop, (2) a violation of the Municipal Police Jurisdiction Act, 42 Pa.C.S. SS 8951-8954, (3) lack of probable cause to arrest, (4) his not being provided an opportunity to speak to counsel before taking the Intoxilyzer test, and (5) there being no search warrant before the breath test was administered. Defendant further maintains that the charges of driving under the influence should be dismissed because the statute, 75 Pa.C.S. Section 3801-3817, is unconstitutional. THE STOP ISSUE Defendant seeks to suppress evidence, maintaining that Officer Pryor "stopped him without adequate, legal probable cause." Officer Pryor, however, did not stop defendant. After observing defendant's erratic and dangerous driving by unlawfully crossing the center line of a street and almost striking his patrol vehicle head-on, a -3- CP-21-CR-0967 -2005 violation of failing to drive on the right half of a roadway, 75 Pa.C.S. Section 3301 (a), he followed defendant to a parking lot. Officer Pryor then detained defendant until Officer Ambrose arrived. THE MUNICIPAL POLICE JURISDICTION ACT ISSUE Defendant seeks to suppress evidence, maintaining that, "At the time that he made the stop and seizure, Patrolman Pryor was acting outside of his territorial jurisdiction and in violation of the limited authority a police officer has outside his home jurisdiction under Pennsylvania's Municipal Police Jurisdiction Act. . .." In Commonwealth v. Lehman, 870 A.2d 818 (Pa. 2005), the Supreme Court of Pennsylvania addressed the question of whether the Municipal Police Jurisdiction Act is violated when a police officer leaves his primary jurisdiction to investigate a citizen's report of a motorist in distress in an adjacent municipality, finds probable cause to believe the motorist is intoxicated, and detains the motorist until an officer from that jurisdiction arrives. Citing the MPJA, the Court noted that it permits a police officer to enforce laws beyond the territorial limits of the officer's jurisdiction where the officer is on official business and views an offense, or has probable cause to believe that an offense has been committed. The Court concluded that: . . . the MPJA authorizes an extra jurisdictional detention whether the detaining officer is on-duty, outside his or her jurisdiction for a routine or customary reason including responding to an exigent circumstance, develops probable cause to believe that an offense has been committed, and limits out-of-jurisdiction activities to maintaining the status quo, including detaining the suspect, until officers from the appropriate jurisdiction arrive. -4- CP-21-CR-0967 -2005 The Court stated that the police officer: . . . was not engaged in an extrajurisdictional fishing expedition nor an attempt to expand his sphere of power. Had appellant in fact needed assistance, [the officer] was in the best position to provide it. Had appellant had a heart attack rather than been drunk, he would urge us to permit [the officer] to help him. Allowing officers to do their duty most effectively and beneficially to the public will sometimes put them in a position to see crimes and find drunken drivers -- such would be a poor reason to limit their ability to provide the full measure of service to the public that is possible. In the case sub judice, as in Lehman, Officer Pryor was not engaged in an extrajurisdictional fishing expedition nor an attempt to expand his sphere of power when, pursuant to the routine and the custom in two municipal police departments, he drove to the scene of Officer O'Donnell's traffic stop in the middle of the night to provide safety backup. As in Lehman, Officer Pryor's detention of defendant for a short time until Officer Ambrose arrived was not a violation of the Municipal Police Jurisdiction Act. THE PROBABLE CAUSE TO ARREST ISSUE Defendant seeks to suppress evidence maintaining that Officer Ambrose did not have probable cause to arrest him for driving under the influence. When Officer Ambrose arrested defendant, he had the following information: (1) He knew from Officer Pryor that defendant had driven his car in an erratic and dangerous manner, and had committed a summary offense of failing to drive on the right half of a two-way street marked with a double yellow line, 75 Pa.C.S. Section 3301 (a), by crossing into the on-coming lane and almost striking a patrol car head-on. -5- CP-21-CR-0967 -2005 (2) There was a smell of alcohol on the breath of defendant. (3) The eyes of defendant were bloodshot and glassy. (4) Defendant said that he had, "two or three beers in a club in Harrisburg." (5) Defendant could not perform a one-leg stand test. (6) A preliminary breath test registered that defendant had a blood alcohol level of .15 percent. 4 Probable cause exists where the officer has knowledge of sufficient facts and circumstances to warrant a prudent person to believe that the driver has been driving under the influence of alcohol. Commonwealth v. Simon, 440 Pa. Super. 428 (1995). Based on the information known by Officer Ambrose before arresting defendant, he had probable cause to believe that defendant had operated a car while under the influence of alcohol to a degree that rendered him incapable of safely driving. THE RIGHT TO COUNSEL ISSUE Defendant maintains that the results of the Intoxilyzer test must be suppressed because he was not allowed to seek the advice of counsel before he made the decision to take the test. This issue has been raised and rejected by this court in Commonwealth v. Nerat, 54 Cumberland L.J. 36 (2004). THE SEARCH WARRANT ISSUE Defendant maintains that the results of his Intoxilyzer test must be suppressed 4 The Superior Court of Pennsylvania has stated that while a preliminary breath test is not admissible at trial, it does serve as an aid to police in determining probable cause for arrest. Commonwealth v. Myrtetus, 397 Pa. Super. 299 (1990). -6- CP-21-CR-0967 -2005 because a search warrant was not obtained to secure a sample of his breath before he took the test. Defendant made an offer to introduce evidence that it would have been possible to obtain a search warrant from an on-call Magisterial District Judge. The offer was rejected. Defendant does not cite any authority for his legal position. The breath -7- CP-21-CR-0967 -2005 sample obtained after the arrest was based on probable cause that defendant was under the influence of alcohol to a degree rendering him incapable of safely driving, and upon his valid consent after being informed of the Implied Consent Warnings. No search warrant was required to seek his consent to provide a breath sample. THE CONSTITUTIONAL ISSUE Citing Commonwealth v. Barud, 681 A.2d 162 (Pa. 1996), defendant maintains that the driving under the influence statute under which he is charged, 75 Pa.C.S. Section 3801-3817, is unconstitutional because it violates substantive due process by being vague and over-broad. This issue has been raised and rejected by this court in Commonwealth v. Neufeld, 54 Cumberland L.J. 96 (2005). For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this day of August, 2005, the motion of defendant for omnibus pre-trial relief, IS DENIED. By the Court, Edgar B. Bayley, J. John Dailey, Esquire Assistant District Attorney Marlin L. Markley, Jr., Esquire F or Defendant :sal -8- COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. GLENN FARNSLER KENNEDY, III CP-21-CR-0967 -2005 IN RE: OMNIBUS PRE-TRIAL MOTION ORDER OF COURT AND NOW, this day of August, 2005, the motion of defendant for omnibus pre-trial relief, IS DENIED. By the Court, Edgar B. Bayley, J. John Dailey, Esquire Assistant District Attorney Marlin L. Markley, Jr., Esquire F or Defendant :sal