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HomeMy WebLinkAboutCP-21-CR-0000901-2009 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-0901-2009 : : CALVIN ALFRED BARRICK : IN RE: OMNIBUS PRETRIAL MOTION BEFORE HESS, J. MEMORANDUM AND ORDER The question posed in this case is whether a police officer possesses the requisite probable cause to arrest the defendant where, after a valid stop for a violation of the Vehicle Code, the officer of twenty years’ experience immediately detects an odor of intoxicating beverage emitting from the defendant’s breath, notices bloodshot and glassy eyes, and administers a portable breath test which indicated a result of .09 percent. We are satisfied that the arrest in this case was lawful. With respect to the probable cause needed to effectuate an arrest in connection with driving under the influence, the Pennsylvania Superior Court has stated, “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 or a controlled substance.” Commonwealth v. Hilliar, 943 A.2d 984, 994 (Pa.Super. 2008) (citing Commonwealth v. Welshans, 580 A.2d 379, 381 (Pa.Super. 1990). “Additionally, ‘[p]robable cause justifying a warrantless arrest is determined by the “totality of the circumstances.” Furthermore, probable cause does not involve certainties, but rather the factual and practical considerations of everyday life on which reasonable and prudent [persons] act.’” CP-21-CR-0901-2009 Commonwealth v. Angel, 946 A.2d 115, 118 (Pa.Super. 2008) (citing Commonwealth v. Williams, 941 A.2d 14 (Pa.Super. 2008) (citations and internal quotation marks omitted)). In Angel, the officer stopped the appellant based on reasonable suspicion that the appellant had violated the Motor Vehicle Code. Upon speaking with him, the officer “detected classic signs of intoxication: an odor of alcohol together with Appellant’s slurred speech and glassy eyes.” Id. The court found that “under the totality of the circumstances, that the state trooper possessed the requisite probable cause to arrest Appellant for DUI in this case as he had knowledge of sufficient facts to warrant a belief that Appellant had been driving under the influence of alcohol or a controlled substance.” The court held, with very brief discussion, that the combination of the factors witnessed by the officer, and an examination of the totality of the circumstances, based on considerations of everyday life, would warrant a prudent person to believe that the driver had been under the influence of alcohol or controlled substance. Id. The defendant takes the position that because defendant’s actual driving itself was not the cause of the stop (i.e., no moving violations) that this weighs in his favor in the probable cause determination. This argument, however, is without merit. The Pennsylvania Superior Court has recently stated that: [e]xcept in extreme cases where the overwhelming circumstances give rise to probable cause of a DUI violation, it is the ensuing interaction between the officer and the driver that yields the information that gives rise to probable cause of a DUI violation, i.e., the slurred speech, the strong odor of alcohol, the blood shot eyes, and the generally disoriented and sometimes combative nature of the driver. Com. v. Hilliar, 943 A.2d at 991. 2 CP-21-CR-0901-2009 In this case, the facts are that on December 6, 2008, at approximately 2:35 a.m., Officer Troy L. Wiser of the Mt. Holly Springs Police Department observed a silver GMC pick-up truck traveling north on Mountain Street with an expired registration sticker. Officer Wiser activated his emergency lights and initiated a traffic stop. As the officer approached the driver and asked for the driver’s license, registration, and proof of insurance, he noticed that the driver’s eyes were bloodshot and glassy and detected an odor of intoxicating beverage emitting from the driver’s mouth. The driver’s license identified him as Calvin Barrick, and Mr. Barrick was able to produce a valid insurance card. He was unable, however, to produce a registration card. The officer testified that the driver was “fumbling through the entire paperwork and contents of the glove compartment in an attempt to find a registration card.” When Officer Wiser questioned the driver as to whether he had been drinking, his reply was that he and a friend had gone to the Three Pines (a local bar) for a “couple of beers.” At the scene, Barrick submitted to a portable breath test, the results of which produced a BAC of 0.090%. Defendant Barrick was then taken to the Carlisle Hospital for a blood test which produced a result of a BAC of .11%. Defendant was then taken to the booking center for processing. Although no Standardized Field Sobriety Tests were conducted on the night of the arrest, Officer Wiser testified that his reasons for taking the defendant to the Carlisle Hospital for a blood test included such things as “signs of an intoxicated driver, he admitted to drinking,” the odor of an intoxicating beverage, the driver had “fumbled through the whole contents of his glove compartment; more than once,” the result of the portable breath test, his experience in conducting “[p]robably 400-500” DUI arrests over “approximately twenty years,” and his ACT 3 CP-21-CR-0901-2009 120 training. We are satisfied that the totality of these circumstances warranted the arrest in this case. ORDER th AND NOW, this 6 day of November, 2009, the omnibus pretrial motion of the defendant in the nature of a motion to suppress evidence is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, J. Daniel J. Sodus, Esquire Sr. Assistant District Attorney Shawn M. Dorward, Esquire For the Defendant :rlm 4 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-0901-2009 : : CALVIN ALFRED BARRICK : IN RE: OMNIBUS PRETRIAL MOTION BEFORE HESS, J. ORDER th AND NOW, this 6 day of November, 2009, the omnibus pretrial motion of the defendant in the nature of a motion to suppress evidence is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, J. Daniel J. Sodus, Esquire Sr. Assistant District Attorney Shawn M. Dorward, Esquire For the Defendant :rlm