HomeMy WebLinkAboutCP-21-CR-0001044-2009
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
vs. : CP-21-CR-1044-2009
:
:
HAROLD R. FAHNESTOCK, JR. :
IN RE: DEFENDANT’S OMNIBUS PRETRIAL MOTION FOR RELIEF
BEFORE HESS, P.J.
OPINION AND ORDER
The defendant has filed an omnibus pretrial motion for relief seeking to suppress
evidence of a blood/alcohol test. The test results are included in medical records which were
obtained pursuant to a search warrant. There is little dispute that the search warrant affidavit
contains a misstatement of a material fact. The affidavit states, specifically, that EMT Keith
Murray of the West Penn Fire Company told the trooper affiant that he could smell alcohol on
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the breath of the defendant. We believe the trooper misheard the EMT and that the
misstatement in the affidavit was unintentional. Nonetheless, we are not at liberty to disregard it.
Our courts have declared that search warrants are invalid where an affidavit is based on a
misstatement even if the police office relied in good faith on the information. See
Commonwealth v. Clark, 602 A.2d 1323 (Pa.Super. 1992). The fact that we must disregard that
statement in the search warrant affidavit does not, however, end the inquiry. In cases such as this
one, where we do not believe that the misstatement was intentional, we believe that the question
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The EMT apparently told the trooper that “I can’t” smell alcohol instead of “I can.” Apparently the EMT’s
olfactory senses are such that he is unable to smell alcohol.
CP-21-CR-1044-2009
then becomes whether the remaining information in the search warrant affidavit is sufficient to
support a finding of probable cause.
The remaining information in the affidavit was to the effect that the affiant, Trooper
Johnston, was dispatched to a situation involving the defendant who had become pinned
underneath his truck. The trooper properly concluded that Mr. Fahnestock, the defendant, was
the operator and sole occupant of the vehicle. He was the only person at the scene. Although
Fahnestock provided a name of a person he claimed to be the driver, that person was interviewed
and denied being with the defendant. The defendant’s vehicle, a blue Ford pick-up truck, was
registered to the defendant who was then serving a DUI-related driver’s license suspension. A
glance of the interior of the vehicle revealed a plastic bag of empty beer cans behind the driver’s
seat. In addition,
... a box on the passenger’s seat also contained two
empty cans of Busch beer. The front of the vehicle
contained a large dent in the middle of the bumper.
Believing that the vehicle may have recently struck
an object, this officer canvassed the area checking
for signs of damaged property. Approx. ½ mile
down Creek Rd., this officer observed a mailbox at
980 Creek Rd. that appeared as if it had been run
over by a large vehicle. Muddy tire tracks on the
roadway show that a vehicle made a wide U turn,
struck the mailbox, over-compensated after
returning to the roadway and traveled a short
distance into a muddy field before heading back
east on Creek Rd. The muddy tire tracks led right
up to the Ford in question. All four tires on the
Ford were mud-covered.
Affidavit of Probable Cause.
In summary, the officer saw evidence of the consumption of a substantial amount of beer
as well as evidence of wildly erratic driving with every reason to believe that the two were
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CP-21-CR-1044-2009
linked. In short, even if no one at the scene had smelled the defendant’s breath, we believe that
the officer had probable cause to believe that the defendant was operating his vehicle while
under the influence of alcohol. Accordingly, we enter the following order.
ORDER
th
AND NOW, this 19 day of January, 2010, the omnibus pretrial motion of the defendant
in the nature of a motion to suppress evidence is DENIED.
BY THE COURT,
_______________________________
Kevin A. Hess, P. J.
Jonathan Birbeck, Esquire
Chief Deputy District Attorney
Patrick F. Lauer, Jr., Esquire
For the Defendant
:rlm
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COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
vs. : CP-21-CR-1044-2009
:
:
HAROLD R. FAHNESTOCK, JR. :
IN RE: DEFENDANT’S OMNIBUS PRETRIAL MOTION FOR RELIEF
BEFORE HESS, P.J.
ORDER
th
AND NOW, this 19 day of January, 2010, the omnibus pretrial motion of the defendant
in the nature of a motion to suppress evidence is DENIED.
BY THE COURT,
_______________________________
Kevin A. Hess, P. J.
Jonathan Birbeck, Esquire
Chief Deputy District Attorney
Patrick F. Lauer, Jr., Esquire
For the Defendant
:rlm