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HomeMy WebLinkAboutCP-21-CR-0002602-2009COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHARGES: (1) UNLAWFL DELIVERY, MANUFACTURE, POSSESS. WITH INTENT TO DELIVER SCHED. I CONTROLLED SUBSTANCE (2) DUI, CONTROLLED SUBSTANCE V. (3) DUI, COMBINATION (4) UNLAWFUL POSSESS. OF DRUG PARAPHERNALIA (5) DRIVING UNDER SUSPENSION (6) MINOR PROHIBITED FROM OPERATING WITH ALCOHOL IN SYSTEM (7) DISPLAY OF REGIS. PLATE JORDAN KEIR HILL OTN: L486955-0 : CP -21 -CR -2602-2009 IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., May 6, 2011. In this criminal case in which Defendant was found guilty following a non jury trial by the Honorable Albert H. Masland of various Vehicle Code and drug offenses,' Defendant has filed an appeal to the Pennsylvania Superior Court from the judgment of sentence .2 Among the bases for the appeal as expressed in Defendant's statement of errors complained of on appeal are the following, relating to a suppression motion which was decided adversely to Defendant by the undersigned judge: 1. The court erred when it found that the traffic stop of Mr. Hill was supported by reasonable suspicion based on Officer Fink's unreasonable assertion that the registration plate was obscured. 2. The court erred when it found that the traffic stop of Mr. Hill was supported by reasonable suspicion based on Officer Fink's unreasonable assertion that Mr. Hill was driving while impaired by stopping at stop signs. ' Order of Court, January 11, 2011 (Masland, J.). 2 Notice of Appeal, filed March 18, 2011; see also Order of Court, January 11, 2011 (Masland, J.); Order of Court, In re: Sentence, February 22, 2011 (Masland, J.). 3. The trial court erred when, at the motion to suppress, over defense counsel's objection, it allowed the prosecution to question Officer Fink about the amount of DUI related stops made by police in the area that Mr. Hill was stopped.' This opinion in support of the court's denial of Defendant's suppression motion and the evidentiary ruling complained of is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS As the result of an incident of driving on May 27, 2009, Defendant was charged with possession with intent to deliver marijuana, driving under the influence of marijuana, driving under the influence of a combination of alcohol and marijuana, possession of drug paraphernalia, driving under suspension, minor prohibited from operating with alcohol in system, and registration plate illegible or obscured .4 At a non - jury trial the evidence included a stipulation that a blood test following Defendant's operation of his vehicle revealed the presence of marijuana and a BAC level of .125%.5 Prior to trial, Defendant filed an omnibus pretrial motion in the form of a motion to suppress,6 premised upon the purported illegality of the stop of his vehicle.' A hearing was held on the motion by the undersigned judge on April 7, 2010. At the hearing, the Commonwealth presented the testimony of the affiant, Pennsylvania State Trooper Rodney Fink,8 and the defense presented one exhibit, in the form of a photograph of Defendant's license plate as it was mounted on his vehicle.9 ' Concise Statement of the Errors Complained of on Appeal, ¶¶1-3, filed March 25, 2011. 4 Criminal Complaint, filed July 6, 2009; Commonwealth's Exhibit 1, (stipulation of counsel) admitted at Trial, January 7, 2011 (hereinafter "Com.'s Ex. 1, Trial, January 7, 2011"). ' Com's Ex. 1, Trial, January 7, 2011. 6 Defendant's Omnibus Pre -Trial Motion, filed February 4, 2010. 7 Notes of Testimony, 4, Suppression Hearing, April 7, 2010 (hereinafter "N.T. Suppression Hearing, April 7, 2010"); see also Defendant's Omnibus Pre -Trial Motion, ¶11, filed February 4, 2010. ' N.T. 4-20, Suppression Hearing, April 7, 2010. 9 See N.T. 16-20, Suppression Hearing, April 7, 2010; Defendant's Exhibit 1, admitted at Suppression Hearing, April 7, 2010 (hereinafter "Def 's Ex. 1, Suppression Hearing, April 7, 2010). 2 The testimony of Trooper Fink, whom the court found to be credible, may be summarized as follows. The trooper had been a member of the Pennsylvania State Police since May of 2005, and his training with respect to driving under the influence cases he described as follows: I have taken training at the Pennsylvania State Police Academy on the detection of impaired driving. I had a 48 hour class in advanced roadside impairment detection. I am a certified practitioner in standardized field sobriety. I am an instructor in standardized field sobriety, and I have also been certified by the National Highway Traffic Safety Administration as a drug recognition expert.'o The trooper's experience included thousands of traffic stops." At 12:30 a.m. on Wednesday, May 27, 2009, Trooper Fink was on patrol in the Shippensburg Township area of Cumberland County, Pennsylvania, when he found himself behind a Toyota Camry automobile being driven by Defendant on an "alley - type" roadway known as Fort Street. 12 As the vehicle reached three successive stop intersections, it waited at each stop sign for five to seven seconds for no apparent reason before proceeding, 13 causing the trooper to suspect that the driver was impaired: Q So when you saw these stops, what were you concerned about? A Well, I grew up in that town and I also patrolled there. I followed thousands of cars at that stretch of roadway, and for a car to stop for that long at each of those stop signs, I thought that the driver could be impaired somehow. 14 The roadway in question was situated between two drinking establishments, the Hot Point Tavern and Wibs Bar, 15 which were about a mile from each other. 16 Over a 'o N.T. 10, Suppression Hearing, April 7, 2010. " N.T. 13, Suppression Hearing, April 7, 2010. 12 N.T. 6, Suppression Hearing, April 7, 2010. " N.T. 7-9, Suppression Hearing, April 7, 2010. 14 N.T. 11, Suppression Hearing, April 7, 2010. 15 N.T. 10, Suppression Hearing, April 7, 2010. 16 N.T. 11, Suppression Hearing, April 7, 2010. 3 defense objection on grounds of relevance, 17 the trooper was permitted to testify that "this [was] an area of high incidence of both DUI and public drunkenness." 18 Trooper Fink's decision to run the license plate on Defendant's vehicle was frustrated by the fact that from his vantage point behind the Camry he could not discern the state that issued it.19 In this regard, a mounting around the plate advertising a car dealership named Millennium Motors left only the bottom portions of the letters of the state of registration showing and almost completely covered the legend at the bottom of the plate.20 While conceding that he could have narrowed the inquiry for the name of the state by comparing the number of letter fragments visible on the plate with the number of letters in other state names, the trooper noted that this was "not something I would typically do in a patrol car behind a vehicle."21 The standard Pennsylvania license has changed more than once over the years.22 According to the trooper, the form currently being produced "has Pennsylvania written across the top and some type of website lettering across the bottom, visit PA or something to that effect. ,23 A defense photograph of the plate taken head-on and from an apparent distance of a couple of feet,24 while showing that both the state name at the top of the plate and the legend at the bottom were significantly obstructed ,25 failed to convey the full degree of difficulty which the obstruction presented to an observer, such as a 17 N.T. 10, Suppression Hearing, April 7, 2010. " N.T. 11, Suppression Hearing, April 7, 2010. 19 N.T. 11, 12, Suppression Hearing, April 7, 2010. 20 N.T. 8, 16, Suppression Hearing, April 7, 2010; Def 's Ex. 1, Suppression Hearing, April 7, 2010. 21 N.T. 15, Suppression Hearing, April 7, 2010. 22 See N.T. 13, Suppression Hearing, April 7, 2010. 23 N.T. 13, Suppression Hearing, April 7, 2010. 24 N.T. 19, Suppression Hearing, April 7, 2010; Def 's Ex. 1, Suppression Hearing, April 7, 2010. 2s Def 's Ex. 1, Suppression Hearing, April 7, 2010. 4 police officer, traveling in a vehicle behind the Defendant's car and viewing the plate through a windshield at night.26 Based on the foregoing, the trooper stopped Defendant's vehicle and as a result of an ensuing investigation that included the perception of the odor of an alcoholic beverage emanating from Defendant's person 27 the smell of burnt marijuana coming from the vehicle ,28 the presence of a bag of marijuana on the vehicle's center console ,29 Defendant's inability to perform field sobriety tests,30 and his admission of recent alcohol consumption and drug use ,31 he was arrested .32 Following the suppression hearing, the court entered an order denying Defendant's motion to suppresS.33 At a non jury trial conducted by the Honorable Albert H. Masland, the parties submitted a stipulated set of facts which included the following: 26. The defendant did unlawfully display on any vehicle a registration plate which was otherwise illegible at a reasonable distance or was obscured in any manner in violation of Section 1332(b)(3) of the Pennsylvania Vehicle Code. 14 However, in closing argument Defendant's counsel, presumably upon further reflection, made the argument that the aforesaid photograph of Defendant's mounted license plate showed that "it[ was] a minimal obstruction view" and requested the court "to find him not guilty of the display of registration plate."35 Ultimately, Judge Masland, while agreeing that the trooper "on the evening in question may have had some difficulty 26 See N.T. 8, 11, 19, 20, Suppression Hearing, April 7, 2010. 27 N.T. 12, Suppression Hearing, April 7, 2010; Notes of Testimony, 2, Stipulated Nonjury Trial, January 7, 2011 (hereinafter "N.T. Trial, January 7, 2011"). 28 Com. Ex. 1, at 2, Trial, January 7, 2011. Defendant was the sole occupant of the vehicle. See N.T. 9, Suppression Hearing, April 7, 2010. 29 Com.'s Ex. 1, at 2, Trial, January 7, 2011. so Com.'s Ex. 1, at 2, 3, Trial, January 7, 2011. 31 Com.'s Ex. 1, at 2, 3, Trial, January 7, 2011. 32 Com.'s Ex. 1, at 3, Trial, January 7, 2011. " Order of Court, In re: Motion to Suppress, April 7, 2010. 34 Com.'s Ex. 1, at 5, Trial, January 7, 2011. ss N.T. 5, Trial, January 7, 2011. 5 observing or discerning the plate"36 and "may have had some question" with respect "to what the issuing state was,"37 concluded that the Commonwealth had not proven Defendant guilty beyond a reasonable doubt at trial of that charge .38 On the other charges, Defendant was found guilty.39 He received an aggregate county sentence which made him eligible for immediate parole.40 DISCUSSION Statement of law. Driving under the influence, in various forms, is proscribed by Section 3802 of the Vehicle Code.41 Displaying an obstructed license plate is proscribed by Section 1332(b) of the Code, which reads in part as follows: It is unlawful to display on any vehicle a registration plate which ... is ...illegible at a reasonable distance or is obscured in any way. 42 Under Section 6308 of the Vehicle Code, it is provided that [w]henever a police officer ... has reasonable suspicion that a violation of [the Vehicle Code] is occurring or has occurred, he may stop a vehicle, upon request or signal, ... to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of [the Vehicle Code].43 This section establishes a standard below the level of probable cause for a traffic stop where the suspected offense is one which would call for further investigation, such as driving under the influence. See Commonwealth v. Feczko, 2010 PA Super 239, 10 A.3d 1285. On the other hand, where the offense is one that is so self-evident that an investigative purpose could not fairly be imputed to the stop, a traffic stop must be based upon probable cause to be constitutionally sound. Id. In such an instance, it is [i]ncumbent . . . upon the officer to articulate specific facts possessed by him, at the time of the questioned stop, which would provide probable 36 N.T. 7, Trial, January 7, 2011. 37 N.T. 7, Trial, January 7, 2011. " N.T. 7, Trial, January 7, 2011; Order of Court, January 7, 2011 (Masland, J.). 39 Order of Court, January 7, 2011 (Masland, J.). 40 Order of Court, In re: Sentence, February 22, 2011 (Masland, J.). 41 75 Pa. C.S. §3802. 42 75 Pa. C.S. §1332(b)(3) (emphasis added). 43 75 Pa. C.S. §6308(b). 6 cause to believe that the vehicle or the driver was in violation of some provision of the Code. Id. at 239, 10 A.3d at 1291 (emphasis added) (citation omitted). In the case of driving under the influence, irregular driving, even if not technically violative of the law, can represent a specific and articulable fact contributing to a reasonable suspicion that the offense is occurring. See generally Commonwealth v. Anderson, 2005 PA Super 407, 889 A.2d 596 (inexplicable stops at uncontrolled intersections). "The reasonable suspicion standard does not require an officer to see a motorist violating a traffic law or to rule out every potential innocent excuse for the behavior in question before stopping a vehicle for investigation."44 Thus, it has been held that a prolonged pause at an intersection can be an important factor in analyzing whether reasonable suspicion existed to make a traffic stop. See Kappel v. Director, ND Department of Transportation, 1999 ND 213, 602 N.W.2d 718. Surrounding circumstances, including a high incidence of the suspected offense in the area, are also factors to be considered in determining whether a law enforcement officer had a sufficiently reasonable suspicion to warrant an investigative stop. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 676 (2000) (area known for heavy narcotics trafficking). Finally, the fact that a defendant may ultimately be found not guilty of an offense upon which his or her stop was predicated does not in itself compel a conclusion that the stop was unlawful. See Commonwealth v. McElroy, 428 Pa. Super. 69, 630 A.2d 35 (1993); Commonwealth v. Wilkins, 8 Pa. D. & C. 5th 404, 2009 WL 2952804. Application of law to facts. In the present case, where Defendant made inexplicable prolonged stops at three successive intersections on an area of roadway located between two bars and known for a high incidence of drunk driving and public drunkenness, at 12:30 a.m., the court was of the view that Trooper Fink was in possession of specific and articulable facts warranting a reasonable suspicion that Defendant was driving under the influence and justifying a stop of his vehicle on that basis for further 44 Kappel v. Director, ND Department of Transportation, 1999 ND 213, ¶10, 602 N.W. 2d 718, 721. 7 investigation. In addition, where Defendant's license plate was obstructed by a mounting to the extent described, frustrating the trooper's decision to run a check of the plate, the court was of the view that Trooper Fink was in possession of probable cause to believe that Defendant was in violation of Section 1332(b) of the Vehicle Code, justifying a stop of the vehicle on that basis as well. Finally, given the principle that a high incidence of similar crime in the geographical area of a defendant's activity can be a factor in a determination of whether a law enforcement officer's suspicion of the defendant's involvement in criminal conduct was reasonable, the court was unable to agree with Defendant that such evidence in this case on the issue of suppression was inadmissible on relevancy grounds. For the foregoing reasons, it is believed that the denial of Defendant's motion to suppress was proper. Matthew P. Smith, Esq. Chief Deputy District Attorney Brian O. Williams, Esq. Assistant Public Defender 3 BY THE COURT, J. Wesley Oler, Jr., J.