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HomeMy WebLinkAbout96-1690, 96-1692 CriminalCOMMONWEALTH Ve TERRI LYNN STOUFFER OTN: E7572272 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHARGE: DUI NO. 96-1690 CRIMINAL TERM COMMONWEALTH Ve JULIE ANN OTT OTN: E7572316 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHARGE: DUI NO. 96-1692 CRIMINAL TERM IN RE: DEFENDANTS' OMNIBUS PRETRIAL MOTIONS BEFORE OLER, J. ORDER OF COURT AND NOW, this ~ ~ ~ day of June, 1997, after careful consideration of Defendants' omnibus pretrial motions in the form of motions-to suppress, following a hearing and for the reasons stated in the accompanying opinion, Defendants' motions are,DENIED. Thomas A. Placey, Esq. Assistant District Attorney H. Anthony Adams, Esq. Assistant Public Defender BY THE COURT, : rc V® TERRI LYNN STOUFFER OTN: E7572272 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHARGE: DUI NO. 96-1690 CRIMINAL TERM COMMONWEALTH Ve JULIE ANN OTT OTN: E7572316 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHARGE: DUI NO. 96-1692 CRIMINAL TERM IN RE: DEFENDANTS' OMNIBUS PRETRIAL MOTIONS BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J., June , 1997. In the present criminal cases, Defendants are each charged with driving under the influence of alcohol in violation of Sections 3731(a)(1) and 3731(a)(4) of the Vehicle Code.~ Defendants have filed omnibus pretrial motions, in the form of motions to suppress. The motions are based upon an allegedly unconstitutionally conducted checkpoint, an alleged lack of a sufficient factuai basis to further detain, and an allegedly illegal exercise of police authority beyond territorial boundaries. A joint hearing was held on Defendants' motions on March 18, 1997. Based upon the evidence presented at the hearing, the motions to suppress will be denied. ~ Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S.§§ 3731(a)(1), 3731(a)(4) (1997 Supp.). NO. 96-1690 CRIMINAL TERM NO. 96-1692 CRIMINAL TERM STATEMENT OF FACTS In the early morning hours of Sunday, September 1, 1996, a DUI task force that had been formed by police departments from a number of municipalities conducted a DUI checkpoint on North Earl Street, in the Borough of Shippensburg, Cumberland County, Pennsylvania.2 This location was the third site at which the task force had established a checkpoint that night.3 location lasted approximately one hour.4 were predetermined by Sergeant Robert The checkpoint at each Although the locations Van Scyoc of the Mid- Cumberland Valley Regional Police Department (Shippensburg Borough and Shippensburg Townships) and Officer Prohaska of the Washington Township Police Department,6 the time to be spent at each location was not predetermined.? The DUI task force was a cooperative effort of the Mid- Cumberland Valley Regional Police Department, Chambersburg Borough Police Department, Waynesboro Borough Police Department, Washington Township Police Department, and Mercersburg Borough Police 2 (hereinafter N.T. N.T. 9. N.T. 47. N.T. 6-7. N.T. 11-12. ? N.T. 47. Notes of Testimony 5-7, 12, Hearing, March 18, 1997. NO. 96-1690 CRIMINAL TERM NO. 96-1692 CRIMINAL TERM Department.8 This particular checkpoint utilized officers from the Mid-Cumberland Valley Regional Police Department, Washington Township Police Department, Waynesboro Borough Police Department, and Mercersburg Borough Police Department.9 The officers from Washington Township, Waynesboro Borough, and Mercersburg Borough were not operating within their primary jurisdictions when assisting in the operation of the checkpoint; the officers from the Mid-Cumberland Valley Regional Police Department were operating within their primary jurisdiction.~° The checkpoint was supervised by Mid-Cumberland Regional Police Sergeant Robert Van Scyoc.~ No mutual aid pacts existed among Shippensburg Borough and Shippensburg Township (Mid-Cumberland Valley Regional Police Department) and the other municipalities with police departments participating in the task force.~2 However, the background of the force was related by the Mid-Cumberland Valley chief as follows: I had entered into an agreement with several other police departments nearby. Even though we're located primarily in Cumberland County, the closest neighboring police departments to us are in Franklin County. On several occasions I wrote a letter of support for a 8 N.T. 30. N.T. 9-10. Id. N.T. 5. N.T. 34-35. NO. 96-1690 CRIMINAL TERM NO. 96-1692 CRIMINAL TERM grant application that was made by Chief Braun of the Washington Township Department.~3 Q So as part of a cooperative effort with who now, who else? A With neighboring police departments, Chambersburg, Waynesboro, Washington Township, Mercersburg, we work together, because to put together a checkpoint is manpower intensive. Smaller police departments, such as ours, don't have the adequate manpower to do it on our own, so we request assistance from the neighboring police departments to help us out. We, in turn, help them out when they do.TM Q And the grant you identified comes from who? A It comes from the Commonwealth to the Task Force in Franklin County, and then officer's salaries are reimbursed. Q With regard to this checkpoint, is this covered under your request for assistance from those other departments? A Yes, sir. Q And you are specifically the one making that request? A Yes, sir. Q Now was this request a general request or a specific request for this particular day? A It was a blanket request. The first year ~3 N.T. 30. ~ Id. NO. 96-1690 CRIMINAL TERM NO. 96-1692 CRIMINAL TERM into it, we came up sort of short sheeted. The departments that we assisted did the bulk of the checkpoints, and I think we only got to have one during the year. So the second time the grant was put together, I put in a request that I'd like to have equal distribution, and that's how the number of checkpoints were distributed.~5 Q Chief, is your agreement with the other police departments of the DUI Sobriety Checkpoint Team a written agreement? A It's a written letter of support for the grant application. The grant application spells out the cooperation and the task of the combined effort, and then each year I'm required to submit a letter of support to that.~6 Q Again, Chief, just so I'm clear about this, on the night in question, had you made a written request for assistance by any of these various police departments we talked about? A Not on that specific night in question. There was a written agreement prior to that, and annually I write a letter of support requesting that assistance.~? The checkpoint at issue was positioned after an examination of statistics concerning DUI arrests in the previous three years.~s The checkpoint was the subject of news releases sent to The Herald, N.T. 30-31. N.T. 32-33. N.T. 34. Commonwealth's Exhibit 4, submitted at hearing of March 18, 1997. 5 NO..96-1690 CRIMINAL TERM NO. 96-1692 CRIMINAL TERM a Hagerstown, Maryland, newspaper, The Record Herald, a Waynesboro, Pennsylvania, newspaper, and The Public Opinion, a Chambersburg, Pennsylvania, newspaper on August 26, 1996.~9 These newspapers had a wide circulation in the Shippensburg area.2° Although the specific location and time of the checkpoint was not specified, the week-long period during which area checkpoints would be conducted was announced.2~ · A four-foot by four-foot road sign reading "Police Sobriety Checkpoint Ahead" was located approximately a quarter mile from the checkpoint in order to warn motorists of the impending stop.22 The checkpoint was obvious and the physical layout included several additional indicia of authority, in the form of traffic cones, flares, and mini-cades preceding the actual stopping point.23 Before the participating officers went into the field, a pre- checkpoint meeting was held to instruct the members of the checkpoint team. on proper procedures.24 Although no copy was available for the hearing, the instructions to the officers were N.T. 39. N.T. 40. Commonwealth's Exhibit 5, submitted at hearing on March 18, 1997. N.T. 41. Id. Id. 6 NO. 96-1690 CRIMINAL TERM NO. 96-1692 CRIMINAL TERM included in a written policy for the checkpoints.2~ Ail northbound vehicles on North Earl Street were stopped,26 and drivers who displayed signs of intoxication were asked to pull over into a pull-off area, as were drivers of vehicles having license, registration, or equipment violations.27 At 2:20 a.m. on Sunday, September 1, 1996, Julie Ann Ott drove into the checkpoint area.28 Officer Gebhart of the Waynesboro Borough Police Department approached Ms. Ott's vehicle and detected the odor of an alcoholic beverage on her breath.~9 Officer Gebhart then asked Mid-Cumberland Valley Regional Police Officer Jeffrey M. Shubert to evaluate Ms. Ott.3° Ms. Ott produced her registration card but failed to produce her driver's license.3~ When asked, Ms. Ott admitted to having had a few beers.3~ Following field sobriety testing Officer Shubert formed the opinion that Ms. Ott was driving N.T. 43. N.T. 13. N.T. 10. Commonwealth's Exhibit 2, Hearing, March 18, 1997. Id. Id. Id. Id. NO. 96-1690 CRIMINAL TERM NO. 96-1692 CRIMINAL TERM under the influence of alcohol.TM At about 2:35 a.m. on the same morning, Terri Lynn Stouffer drove into the checkpoint area.34 An unidentified officer directed Ms. Stouffer to the pull-off area.~5 Mid-Cumberland Valley Regional Police Officer Eric S. Varner talked to Ms. Stouffer and detected the odor of an alcoholic beverage on her breath.~6 Following field sobriety testing, Officer Yarner formed the opinion that Ms. Stouffer was driving under the influence of alcohol.~7 Both individuals were taken into custody and later submitted samples of their breath for purposes of chemical tests of their blood alcohol content.TM The tests indicated that Ms. Ott's BAC level was .118 percent,39 and that Ms. Stouffer's BAC level was .170 percent.48 DISCUSSION Burden and standard of proof. In a suppression hearing, the Id. Commonwealth's Exhibit 1, Hearing, March 18, 1997. Id. Id. Id. Commonwealth's Exhibits 1-2, Hearing, March 18, 1997. Commonwealth's Exhibit 2, Hearing, March 18, 1997. Commonwealth's Exhibit 1, Hearing, March 18, 1997. 8 NO. 96-1690 CRIMINAL TERM NO. 96-1692 CRIMINAL TERM 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). Legality of checkpoint. The Pennsylvania Supreme Court has considered the constitutionality of vehicle checkpoints in Commonwealth v. Tarbert, 517 Pa. 277, 535 A.2d 1035 (1987), and Commonwealth v. Blouse, 531 Pa. 167, 611 A.2d 1177 (1992). A plurality of the court in Tarbert opined that checkpoints, when statutorily authorized, do not offend the United States COnstitution or the Pennsylvania Constitution if conducted in accordance with certain guidelines. Commonwealth v. Tarbert, 517 Pa. 277, 293, 535 A.2d 1035, 1043 (1987). A majority of the court in Blouse adopted those guidelines. Commonwealth v. Blouse, 531 Pa. 167, 172, 611 A.2d 1177, 1180 (1992). The 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, .... To avoid unnecessary surprise to motorists, the existence of a roadblock can be so conducted as to be ascertainable from a distance or otherwise made knowable in advance. The possibility of arbitrary roadblocks can be significantly curtailed by the institution of certain safeguards. First, the very decision to hold a drunk-driver roadblock, as well as the decision as to its time and place, should be matters reserved for prior administrative approval, thus removing the determination of those matters from officers in the field. In this connection it is essential that the route NO. 96-1690 CRIMINAL TERM NO. 96-1692 CRIMINAL TERM selected be one which, based on local experience, is likely to be travelled by intoxicated drivers. The time of the roadblock should be governed by the same consideration. Additionally, the question of which vehicles to stop should not be left to the unfettered discretion of police officers at the scene, but instead should be in accordance with objective standards prefixed by administrative decision. Id., quoting Commonwealth v. Tarbert, 517 Pa. 277, 293, 535 A.2d 1035, 1043 (1987). "Substantial compliance with the guidelines is all that is required to reduce the intrusiveness of the search to a constitutionally acceptable level." Id. The Pennsylvania legislature has authorized a police officer, when engaged in a systematic program of checking vehicles, to stop a vehicle, upon request or signal, for the purpose of checking the vehicle's registration, the driver's license and certain other matters, or to secure such other information as the officer reasonably believes is necessary to enforce the provisions of the Vehicle Code. Act of June 17, 1976. P.L. 162, §1 as amended, 75 Pa. C.S. §6308(b). The Pennsylvania Superior Court has held that the existence of an odor of an alcoholic beverage, coupled with an admission of drinking alcohol, is a "sufficient reason for [an officer] to direct [a driver] to the pull-off area for further questioning and tests." Commonwealth v. Ziegelmeier, Pa. Super. · , 685 A.2d 559, 563 (1996). An officer need not have probable cause to believe that a crime has been committed to detain 10 NO. 96-1690 CRIMINAL TERM NO. 96-1692 CRIMINAL TERM a driver during a valid checkpoint stop; it is sufficient that he or she has a reasonable suspicion, based upon specific and articulable facts, that criminal activity may be afoot. See Commonwealth v. Ragan, 438 Pa. Super. 505, 652 A.2d 925 (1995). The checkpoint in this case was planned in advance. The supervisors of the Task Force, Sergeant Robert Van Scyoc and Officer Prohaska, reviewed DUI statistics and predetermined the locations of the checkpoints.4~ The chief of police of the jurisdictions where the checkpoints were operating requested the operation of the checkpoints42 and was notified of the time period and locations."3 The possibility of checkpoints from August 25~ 1996, until September 4, 1996, was made known to newspapers circulated in the Shippensburg area."~ The operation of the checkpoint was conducted pursuant to a written policy4s that was communicated to the officers immediately prior to their deployment into the field.46 The physical setup of the checkpoint was established within N.T. 11-12. N.T. 31. N.T. 32. N.T. 39. N.T. 43. N.T. 41. 11 NO. 96-1690 CRIMINAL TERM NO. 96-1692 CRIMINAL TERM the guidelines established by a supervisor of the task force. The checkpoint was well marked and apparent to drivers approaching it.47 The appropriate markings sufficed to ensure the safety of both the officers and the drivers. All the vehicles travelling north were stopped and only those drivers who displayed obvious signs of alcohol consumption or who evidenced a license, registration, or equipment violation were requested to pull over into the pull-off area.48 As the checkpoint's operation "substantially complied" with the Tarbert guidelines, the checkpoint did not represent an intrusion of such magnitude as to be unconstitutional. Factual basis for investiqative detention. In each of these cases, the investigating officers detected an odor of an alcoholic beverage on a driver's breath at a DUI checkpoint.49 In Ms. Ott's case, the driver also admitted to having consumed alcohol and did not have a driver's license in her possession; and in both cases the odor of the alcoholic beverage was clearly perceptible. Under these circumstances the court is of the view that the officers acted upon a reasonable suspicion, arising out of specific and articulable facts, that criminal activity might be afoot, warranting a brief period of detention for further investigation. Id. Id. Commonwealth's exhibits 1-2, Hearing, March 18, 1997. 12 NO. 96-1690 CRIMINAL TERM NO. 96-1692 CRIMINAL TERM ~Therefore, the claim that the evidence should be suppressed due to lack of a sufficient factual basis for investigative detention is without merit. Participation of police officers from different municipalities in checkpoint. The Pennsylvania legislature has provided for a duly employed police officer to exercise his or her authority beyond his or her own territorial limits "where the officer has been requested to aid or assist any local, state or Federal law enforcement officer or park police officer or otherwise has probable cause to believe that the other officer is in need of aid or assistance." Act of July 1, 1987, P.L. 180, §4, as amended, 42 Pa. C.S. S8953(a)(3). In this case, the aid of officers from neighboring municipalities, for the operation of checkpoints, was agreed upon in advance of the operation of the checkpoint. The legislature has authorized the operation of checkpoints,5° and has authorized police officers to operate extra-jurisdictionally when requested.5~ The conduct of the police officers in this case falls within the purview of these statutes; therefore, Defendants' claims on this point are not on their face compelling. In addition, the formal arrests in these cases were effected 50 Act of June 17, 1976, P.L. 162, 21, as amended, 75 Pa. C.S.A. ~6308(b). 5~ 42 Pa. C.S.A. ~8953(a)(3). 13 N0.~96-1690 CRIMINAL TERM NO. 96-1692 CRIMINAL TERM by officers of the Mid-Cumberland Valley Regional Police Department.52 The territory within which the checkpoint was located lay within the territorial jurisdiction of the Mid-Cumberland Valley Regional Police Department.53 Finally, the Pennsylvania Superior Court has held that suppression is generally an inappropriate remedy for an arrest made by Pennsylvania police officers outside their immediate jurisdictions. Commonwealth v. Saul, 346 Pa. Super. 155, 161, 499 A.2d 358, 361 (1985). If the officer would have had the power to perform the duty that he or she performed had the officer been within his or her home jurisdiction, and if no constitutional rights were violated, suppression has been viewed as too harsh a remedy for the impropriety. Commonwealth v. Bienstack, 449 Pa. Super. 299, 305, 673 A.2d 952, 955 (1996). CONCLUSION The checkpoint in this case was conducted in substantial compliance with the standard discussed in Tarbert. The officers had a reasonable suspicion, based upon specific and articulable facts, that the drivers might be driving under the influence of alcohol, and this suspicion warranted further investigative detention. The utilization and participation of officers from Commonwealth's Exhibits 1-2, Hearing, March 18, 1997. N.T. 49. 14 NO. 96-1690 CRIMINAL TERM NO. 96-1692 CRIMINAL TERM other jurisdictions in the checkpoint does not require suppression. For these reasons, the following order will be entered: ORDER OF COURT AND NOW, this /~ day of June, 1997, after careful consideration of Defendants' omnibus pretrial motions in the form of motions to suppress, following a hearing and for the reasons stated in the accompanying opinion, Defendants' motions are DENIED. BY THE COURT, J. We~ey Oler, Jr.,-J. Thomas A. Piacey, Esq. Assistant District Attorney H. Anthony Adams, Esq. Assistant Public Defender : rc 15