HomeMy WebLinkAbout97-0228 CriminalCOMMONWEALTH
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KEVIN J. STEELE
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-0228 CRIMINAL TERM
CHARGE: APPEAL FROM SUMMARY:
PURCHASE, CONSUMPTION,
POSSESSION OR
TRANSPORTATION OF ALCOHOLIC
BEVERAGE BY MINOR
IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this Z[~ day of May, 1997, after careful
consideration of Defendant's Omnibus Pretrial Motion in the form of
a motion to suppress, following a hearing and for the reasons
stated in the accompanying opinion, Defendant's motion is GRANTED.
BY THE COURT,
Jr., J.
Jaime M. Keating, Esq.
'Assistant Public Defender
Daniel J. Menniti, Esq.
Attorney for Defendant
: rc
COMMONWEALTH
V®
KEVIN J. STEELE
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-0228 CRIMINAL TERM
CHARGE: APPEAL FROM SUMMARY:
PURCHASE, CONSUMPTION,
POSSESSION OR
TRANSPORTATION OF ALCOHOLIC
BEVERAGE BY MINOR
IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION
BEFORE OLER, J.
OPINION and ORDER OF COURT
Oler, J., May 21, 1997.
In this appeal from summary conviction, Defendant was cited
for underage drinking in violation of Section 6308 of the Crimes
Code.~ Defendant has filed an omnibus pretrial motion, in the form
of a motion to suppress, based upon an allegedly unlawful
detention.2
A hearing was held on Defendant's motion on April 1, 1997.
Based upon the evidence presented at the hearing, the motion to
suppress will be granted.
STATEMENT OF FACTS
On Saturday, October 12, 1996, a vehicle in which Defendant
was a passenger was stopped at a DUI checkpoint on North Earl
~ Act of December 6, 1972, P.L. 1482, ~1, as amended, 18 Pa.
C.S. §6308 (1997 Supp.).
2 See Commonwealth v. Trunzo, 404 Pa. Super. 15, 21 n.3, 589
A.2d 1147, 1149-50 n.3 (1991) (procedure for raising suppression
issue in summary cases).
NO. 97-0228 CRIMINAL TERM
Street in Shippensburg Township, Cumberland County, Pennsylvania.3
After a brief survey, no cause was found to detain the driver.4
However, an officer, whose identity is not known to the
prosecution,~ took the occasion to investigate whether Defendant,
who was nineteen,6 may have been drinking.7 Defendant, who,
according to unrebutted testimony, had nothing in his hands,8 was
not acting in a strange way9 and was "just sitting in the car,''~°
was told by the officer to lower his window~ and was then
questioned by the officer.~2 Eventually, the officer directed the
vehicle to a "containment area," where Defendant was further
detained for investigation of underage drinking.~3
In the containment area, Officer Shawn Fraker of the Mid
Cumberland Valley Regional Police Department detected an odor of an
N.T. 5, 7-8, Hearing, April 1, 1997 (hereinafter N.T.
N.T. 18.
N.T. 8-9, 39.
N.T. 10.
N.T. 20.
Id.
N.T. 21-22·
N.T. 22.
Id.
Id.
N.T. 8.
NO. 97-0228 CRIMINAL TERM
alcoholic beverage on Defendant's breath and noticed that his eyes
were glassy and bloodshot.TM Officer Fraker administered Miranda
warnings to Defendant.~s Defendant admitted that he was nineteen~6
and, having previously denied it, that he had been drinking.~?
Officer Fraker issued a citation to Defendant for underage
drinking.~8 Defendant was then released.~9
DISCUSSION
In a suppression hearing, the Commonwealth has the burden of
going forward with the evidence and the burden of persuasion. Pa.
R. Crim. P. 323(h). The standard of proof is by a preponderance of
the evidence. Commonwealth ex. rel. Butler v. Rundle, 429 Pa. 141,
239 A.2d 426 (1968).
Although vehicle checkpoints have been held to be
constitutional under certain circumstances,2° the intrusion involved
is intended to be "minimal" and the focus of the stop is a narrow
one:
Id.
N.T. 10.
Id.
N.T. 31.
N.T. 12.
N.T. 13.
Commonwealth v. Blouse, 531 Pa. 167, 611 A.2d 1177 (1992).
3
NO. 97-0228 CRIMINAL TERM
[T]he conduct of the roadblock itself can be
such that it requires only a momentary stop to
allow the police to make a brief but trained
observation of a vehicle's driver, without
entailing any physical search of the vehicle
or its occupants.
Commonwealth v. Tarbert, 517 Pa. 277, 293, 535 A.2d 1035, 1043
(1987), quoted with approval in Commonwealth v. Blouse, 531 Pa.
167, 172, 611 A.2d 1177, 1180 (1992); cf. Maryland v. Wilson, 519
U.S. __, 117 S. Ct. __, 137 L. Ed. 2d 41 (1997) (authority of
police to remove passenger pending completion of vehicle stop).
For a passenger to be detained and the detention prolonged for
a purpose unrelated to the checkpoint and beyond the time of
completion of its function, an officer would normally need
"specific and articulable facts which reasonably warrant the belief
that criminal activity is afoot."2~ A "[p]oliceman's intuition"22
or "hunch''23 is insufficient for such purposes.
In the present case, the court can not find that the detention
of Defendant and prolongation thereof beyond the time of completion
of the checkpoint function by the unidentified officer has been
shown to have been based upon specific and articulable facts which
2~ 1 Wasserbly, Pennsylvania Criminal Practice §6.01 (1991);
see Commonwealth v. Leius, 43 Cumberland L.J. 459 (1994) (unlawful
prolongation of proper traffic stop).
~ Commonwealth v. Lopez, 415 Pa. Super. 252, 262, 609 A.2d
177, 182 (1992).
~3 In the Interest of S.D., 429 Pa. Super. 576, 579, 633 A.2d
172, 174 (1993).
NO. 97-0228 CRIMINAL TERM
reasonably warranted the belief that criminal activity was afoot.
This is particularly true in the absence of any testimony by the
officer in question on the subject.24 For this reason, the
following order will be entered:
ORDER OF COURT
AND NOW, this 21st day of May, 1997, after careful
consideration of Defendant's Omnibus Pretrial Motion in the form of
a motion to suppress, following a hearing and for the reasons
stated in the accompanying opinion, Defendant's motion is GRANTED.
BY THE COURT,
Jaime M. Keating, Esq.
Assistant Public Defender
Daniel J. Menniti, Esq.
Attorney for Defendant
: rc
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
24 Cf. Commonwealth v. Queen, 536 Pa. 315, 639 A.2d 443
(1994).
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