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HomeMy WebLinkAbout98-1971 criminalCOMMONWEALTH THOMAS JAMES O'BRIEN · 98-1971 CRIMINAL TERM IN RE: MOTION TO SUPPRESS EVIDENCE OPINION AND ORDER OF COURT Bayley, J. January 29, 1999:-- Defendant, Thomas O'Brien, is charged with a count of driving under the influence of alcohol under 75 Pa.C.S. § 3731(a) (4).~ He filed a motion to suppress evidence upon which a hearing was conducted on January 25, 1999. We find the following facts. Defendant, who lives in Holicong, PA, has been the boyfriend of Dinah Wright for five years. On June 6, 1998, defendant was visiting Wright at her home at 7 Kensington Drive, Lower Allen Township. Defendant, Wright and her sister, Mindy Hawk, went out to dinner and then went to some clubs. Defendant became intoxicated so one of the women drove defendant's car when they returned to Wright's home. When home, defendant started arguing with Wright over an incident that had occurred in one of the clubs. Wright asked defendant to leave. He said he did not want to drive because he had too much to drink. When he would not leave, Hawk called 911. She told the dispatcher that defendant was inside Wright's house, drunk, and that she and Wright wanted him leave but he would not. Defendant then went outside and the door was locked. Defendant did not have his car keys and he IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 1. "While the amount of alcohol by weight in his blood at the time he was driving was 0.10% or greater." 98-1971 CRIMINAL TERM pounded on the door. When he would not stop pounding on the door one of the women threw his keys outside. Defendant then drove away. Hawk called 911 and told the dispatcher that defendant was highly intoxicated and had driven away from the house. At 2:10 a.m., while Office Troy McNair of the Lower Allen Township Police was on patrol, he was dispatched to 7 Kensington Drive for an "active domestic." At 2:11 a.m., the dispatcher informed the officer that Thomas O'Brien was at 7 Kensington Drive, and was trying to kick down a door. As Officer McNair was nearing the residence, he received another dispatch that O'Brien was highly intoxicated and was leaving the scene in his Jaguar. The dispatcher told the officer the Pennsylvania registration of the Jaguar. When Officer McNair was approximately one hundred yards from 7 Kensington Drive, the Jaguar passed him. The officer saw Thomas O'Brien driving. He knew O'Brien from having responded to prior incidents at 7 Kensington Drive? Officer McNair made a U-turn, activated his emergency lights and O'Brien stopped. The officer did not see any erratic driving or vehicle code violations in the short distance he had observed O'Brien driving the car. O'Brien was visibly intoxicated, and Officer McNair arrested him for driving under the influence of alcohol. In his motion to suppress evidence, defendant raises a single claim that Officer McNair did not have a legal basis to stop his vehicle on the morning of June 7, 1998. 2. Officer McNair and other Lower Allen Township police officers had been dispatched to 7 Kensington Drive on several prior occasions when defendant was intoxicated. On each occasion defendant was driven by a police officer to a hotel. -2- 98-1971 CRIMINAL TERM Information from a private citizen can constitute sufficient grounds for an investigatory stop of one suspected of driving under the influence. Commonwealth v. Janiak, 368 Pa. Super. 626 (1987); see, Commonwealth v. Smith, 396 Pa. Super. 6 (1990). In Commonwealth v. Ellis, 662 A.2d 1043 (Pa. 1995), the facts set forth by the Supreme Court of Pennsylvania were: On September 30, 1991, at approximately 2:00 a.m., Officer Thomas Neibel of the McCandless Police received a radio dispatch stating that the Pine Township Police had received a burglar alarm call at a business, Perma Ceram, on Route 19 in their township. Route 19 is a major four lane highway that runs, in part, from the south of the City of Pittsburgh, to the north, through several municipalities including McCandless and Pine Townships. Upon hearing the dispatch and a subsequent request for assistance, Officer Neibel proceeded north on route 19 toward the Pine Township line. While en route he was advised that two actors, who were described as white or possible 'Mexican', were leaving the scene of the burglary. As Neibel closed to within a half mile of the burglary scene, he spotted a vehicle traveling south which fit the radioed description of the vehicle seen leaving the area of the burglary. In addition, the vehicle's location corresponded to the position where a car would be found had it left the burglary site at the time of the broadcast. Officer Neibel then made a U-turn and proceeded to follow the vehicle for three-quarters of a mile before pulling it over. After two other McCandless police officers arrived on the scene, Officer Neibel approached the vehicle and ordered Appellant, who was driving, and his companion, both of whom are African-American, to exit the vehicle. The officer then patted down the two men and searched the passenger compartment of the car for weapons. (Emphasis added.) Citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court noted that "an 'investigative detention' must be supported by a reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an -3- 98-1971 CRIMINAL TERM arrest." In Ellis, the Supreme Court concluded: There is no doubt that the initial stop by Officer Neibel constituted an investigative detention and was supported by a reasonable suspicion that Appellant was engaged in criminal activity. Appellant, however, contends that trial counsel was ineffective for failing to allege that his confinement after this initial stop was not supported by reasonable suspicion and, thus, constituted an illegal investigative detention. Specifically, Appellant argues that any suspicions the officer possessed concerning the identity of the burglars should have been allayed when he realized that Appellant and his companion were African-American and not white or 'Mexican'. Hence, he contends that his continued detention after the initial stop was unsupported by a reasonable suspicion. We disagree. As previously noted, Officer Neibel's stop of Appellant was based on the following articulable facts which created a reasonable suspicion that Appellant was engaged in criminal activity: (1) Appellant's vehicle was the only vehicle on the roadway near the burglary scene at that hour; (2) the car was in the area a vehicle would have been if it left the area of the burglary when the call was broadcasted; and (3) the car matched the description of the one seen at the crime. We are unable to conclude that the existence of a single fact contradictory to the police radio broadcast required an officer to ignore these other incriminating factors. Thus, Appellant's first claim of ineffectiveness lacks arguable merit since Officer Neibel's continued detention of Appellant was supported by reasonable suspicion. (Emphasis added.) In the case sub judice, we conclude that Officer McNair had reasonable grounds to detain defendant while he further investigated (1) whether he was driving under the influence of alcohol, and (2) whether he committed any criminal acts during what was reported to him as an "active domestic." As to the officer's reasonable suspicion that defendant was operating his Jaguar while under the influence of alcohol, not only had that information been reported by a private citizen from 7 Kensington Drive, the officer knew of the reliability of the report because he knew that every other occasion when the police had been dispatched to 7 Kensington Drive, -4- 98-1971 CRIMINAL TERM defendant was present and intoxicated. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this day of January, 1999, the motion of defendant to suppress evidence, IS DENIED. Jaime Keating, Esquire For the Commonwealth By the Court,. f/'/~ Edgar B. Bayley, Ji Robert Mulderig, Esquire For Defendant :saa -5-