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HomeMy WebLinkAboutCP-21-CR-2481-2004 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. DAVID A. ROTH CP-21-CRIMINAL 2481-2004 IN RE: DEFENDANT'S MOTION TO SUPPRESS BEFORE GUIDO, J. OPINION AND ORDER OF COURT Before us is defendant's Omnibus Pretrial Motion in the form of a Motion to Suppress Evidence. He has raised the following two issues: 1.) All evidence should be suppressed because police officer did not have probable cause necessary to warrant the stop of his vehicle. 2.) The results of his blood test should be suppressed because he did not knowingly, voluntarily and intelligently waive the right to counsel before agreeing to submit to chemical testing. For the reasons hereinafter set forth the motion will be denied. FINDINGS OF FACT On September 11, 2004, Officer Powers of the Upper Allen Township Police Department was on routine patrol in a marked vehicle. He was patrolling along US. Route 15 within his jurisdiction. The relevant portion of Route 15 is a 4 lane divided highway with two southbound and two northbound lanes. The officer was traveling southbound, as was the defendant. The officer first noticed the defendant's vehicle traveling in the right lane. His attention was drawn to the vehicle when it crossed NO. CP-21-CRIMINAL 2481 - 2004 significantly over the fog line onto the berm. 1 The vehicle then righted itself, weaving back into the right lane of travel. At that point, Officer Powers activated his video recorder. Over the next two miles he observed (and captured on tape) the vehicle weaving almost continuously within its own lane of traffic. When he observed it cross about two feet into the south bound passing lane, he initiated a traffic stop. The articulated basis for the stop was a violation of Section 3309 (1) of the Vehicle Code.2 Vehicle Stop Defendant has obviously drawn our attention to Commonwealth v. Gleason, 567 Pa. Ill, 785 A.2d 983 (2001) and its progeny. In Gleason the Supreme Court held that a vehicle crossing the solid white fog line two or three times by 6 to 8 inches over a quarter mile stretch of road did not justify a stop. The maj ority concluded "the lack of any evidence at the suppression hearing that appellant's driving created a safety hazard leads us to agree with the trial court that there was insufficient evidence to support a Section 3309 (1) violation." 785 A.2d at 989. Quoting from Commonwealth v. Whitmeyer, 542 Pa. 545, 668 A.2d 1113, at 1116, it went on the rearticulate the standard necessary for a proper vehicle stop: If the alleged basis of a vehicular stop is to permit a determination whether there has been compliance with the Motor Vehicle Code of this Commonwealth, it is incumbent [sic] upon the officer to articulate specific facts possessed by him, at the time of the questioned stop, which would provide probable cause to believe that the vehicle or the driver was in violation of some provision of the Code. (emphasis in original) 785 A.2d at 989. 1 The officer noted that fully Y2 of the vehicle was straddling the fog line onto the berm. 275 Pa. C.S.A. ~ 3309(1). 2 NO. CP-21-CRIMINAL 2481 - 2004 Shortly before the Supreme Court's decision in Gleason, the Superior Court had held that a vehicle weaving within its own lane was sufficient to "raise a reasonable suspicion that the driver was intoxicated and, thus, to justify a stop of the vehicle." Commonwealth v. Baumgardner, 767 A.2d 1065 at 1067 (Pa.Super 2001)3 However, in Commonwealth v. Baumgardner, 568 Pa. 324, 796 A.2d 965 (2002) the Supreme Court summarily overruled the decision of the Superior Court based upon Gleason. In Commonwealth v. Garcia, 859 A.2d 820 (Pa. Super. 2004) the Superior Court recognized "the complexity of the Gleason issue, and the range of results possible under the case" 859 A.2d at 822. After reviewing the numerous appellate decisions after Gleason, we are satisfied that the officer's observations in this case were sufficient to justify the stop. The defendant significantly crossed the fog line onto the berm, he consistently weaved within his own lane of travel for two miles and he partially crossed into the passing lane. The combination of the vehicle leaving its lane of travel and weaving consistently within its own lane distinguishes this case from both Gleason and Baumgardner. The weaving provides the evidence of a "safety hazard" that was missing in Gleason, while the crossing of the lane lines provides the Vehicle Code violation that was absent in Baumgardner. 4 3 As in the instant case, the officer in Baumgardner had witnessed "in lane" weaving for approximately two miles. 4 This case is factually similar to Commonwealth v. Cook, 2004 WL 2698908. (Pa.Super.2004). In that case, the officer had received a radio report of a red Cavalier driving erratically. He then came upon the red Chevy Cavalier, observed it significantly cross the fog line three times, rapidly jerking back into its own lane. The Superior Court held that the stop was appropriate based upon a suspected violation of Section 3309(1) of the Vehicle Code. It noted that the driver's actions were "significantly less benign" than those in Gleason. We reach the same conclusion in the case at bar. While the articulated basis for the stop was a violation of Section 3309(1) of the Vehicle Code, these facts also provide probable cause to believe that the defendant may have been driving under the influence. 3 NO. CP-21-CRIMINAL 2481 - 2004 Suppression of the Blood Test The defendant has also asked us to suppress the results of his blood test on the grounds that he was not advised of his right to counsel before agreeing to submit to it. He contends that the enhanced penalties he faces based upon a refusal or the BAC results makes his decision to submit to chemical testing a critical stage of the proceedings. Therefore, a voluntary, knowing, and intelligent waiver of his right to counsel must be made. Defense counsel concedes that this identical argument was addressed and decided adversely to his position in Commonwealth v. Nerat, CP-21-Criminal 983 - 2004. We are bound by Judge Bayley's decision in that case and we adopt his reasoning as our own. ORDER OF COURT AND NOW, this 3RD day of MARCH, 2005, for the reasons set forth in the accompanying opinion the Defendant's Omnibus Pretrial Motion in the form of a Motion to Suppress Evidence is DENIED. By the Court, Isl Edward E. Guido Edward E. Guido, J. Michael W. Mervine, Esquire Timothy L. Clawges, Esquire :sld 4