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LISA LEE BENDER
OTN: E230413-1
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 95-1256 CRIMINAL TERM
CHARGES: (A) DUI
(S) DUS
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Oler, J., May 30, 1996.
In this criminal case, Defendant was found guilty following a
bench trial before the Honorable Edgar B. Bayley of this court of
driving under the influence and driving under suspension. She
received the mandatory minimum sentence applicable to first
offenders for driving under the influence, and a fine of $200 for
driving under suspension.~
Defendant has appealed to the Superior Court from the judgment
of sentence. A basis for the appeal is an allegedly erroneous
pretrial ruling by the writer of this opinion on a defense
suppression motion. This opinion in support of the ruling is
written pursuant to Pennsylvania Rule of Appellate Procedure
1925(a).
PROCEDURAL HISTORY; STATEMENT OF FACTS
On Saturday, May 27, 1995, at 2:07 a.m., Defendant was stopped
by Pennsylvania State Troopers near the intersection of
Pennsylvania State Routes 11 and 233 in Cumberland County,
Pennsylvania.2 She was subsequently charged with driving under the
~ Order of Court, April 15, 1996 (Bayley, J.).
the sentence was stayed pending appeal. Id.
2 N.T. 5-6,
(hereinafter N.T.
Execution of
Suppression Hearing, October 25, 1995
).
NO. 95-1256 CRIMINAL TERM
influence and driving under suspension.
On October 13, 1995, Defendant filed an omnibus pretrial
motion in the form of a motion to suppress. The motion averred the
following:
On or about May 27, 1995, Defendant was
operating a motor vehicle on Route 233 in Penn
Township, Cumberland County, Pennsylvania. At
or about 2:07 a.m., the police received a
telephone call to look for a female in a
silver Nissan car and that a disturbance had
occurred and that she might be driving under
the influence. Without any further
information or observation, the Pennsylvania
State Police initiated a traffic stop.3
The motion contended that "[t]he stop was without reasonable
suspicion or probable cause."4 It requested that "[a]ll evidence
obtained as a result of the illegal detention of Defendant ... be
suppressed."s
A hearing on Defendant's motion to suppress was held on
October 25, 1995. Following the hearing, the court issued the
order presently at issue:
AND NOW, this 25th day of October, 1995,
upon consideration of the Defendant's omnibus
pretrial motion in the form of a motion to
suppress based upon an allegedly improper stop
of the Defendant's vehicle, and following a
hearing, the motion is denied.6
Defendant's Omnibus Pre-trial Motion, paragraphs 2-4.
Id., paragraph 5.
Id., paragraph 6.
N.T. 19-20; Order of Court, October 25, 1995.
NO. 95-1256 CRIMINAL TERM
The evidence at the suppression hearing established the
following facts: On the night and early morning in question,
Pennsylvania State Troopers Jeffrey Braid and William C. Palmero
were on patrol in a police car in Cumberland County.~ They
received a radio communication from the state police dispatcher
concerning a disturbance at a drive-in theater at the intersection
of Pennsylvania Routes 11 and 233.8
An employee of the drive-in had reported the incident to
police.9 The report transmitted to the troopers on patrol was that
an intoxicated female named Lisa Bender, with long, dark hair,
driving a silver Nissan bearing license plate number ASK-4949, had
been disorderly and created a disturbance at the drive-in by doing
"doughnuts in the gravel," becoming involved in a minor accident,
and tearing up the grass before leaving,i°
The troopers subsequently positioned themselves at a gas
station across the street from the drive-in.~ Within an hour or
so of the dispatch, they saw a silver Nissan at the intersection.~2
~ N.T. 4-5, 14.
8 N.T. 5, 7, 11-12.
9 N.T. 7-8.
~0 N.T. 4, 7, 9, 11-12.
~ N.T. 15.
~2 N.T. 12-13.
NO. 95-1256 CRIMINAL TERM
They followed the vehicle, which was being operated by
Defendant, ascertained that the license plate number on the vehicle
matched that reported by the employee, confirmed via radio that the
vehicle was registered to a Lisa Bender, and observed that the
vehicle was traveling about 20 miles per hour under the 55 mile-
per-hour speed limit.~3
The troopers stopped Defendant's car.TM Defendant appeared to
have been drinking.~ She was unable to produce a driver's license
or registration.~6 A piece of her car was lying in the grass at the
drive-in, and she admitted to having been at that location.~?
Trooper Braid secured Trooper Palmero's assistance with
respect to administration of field sobriety tests.~8 As noted
previously, Defendant was eventually charged with driving under the
influence and driving under suspension, found guilty following a
nonjury trial, and sentenced.
DISCUSSION
Defendant's suppression motion maintained that Defendant was
subjected by the troopers to an illegal stop. In general, "[a]
N.T. 9-14.
N.T. 14.
Id.
Id.
N.T. 7.
N.T. 14.
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NO. 95-1256 CRIMINAL TERM
police encounter with a suspect may properly be characterized as a
mere encounter, an investigative detention, a custodial detention,
or a formal arrest." Commonwealth v. Douglass, 372 Pa. Super. 227,
238, 539 A.2d 412, 417, appeal denied, 520 Pa. 595, 552 A.2d 250
(1988).
"An 'investigative detention' must be supported by reasonable
suspicion; it subjects the suspect to a stop and a period of
detention, but does not involve such coercive conditions as to
constitute the functional equivalent of arrest." Id. at 238-39,
539 A.2d at 41; cf. Commonwealth v. McElroy, 428 Pa. Super. 69, 630
A.2d 35 (1993) (adoption of "articulable and reasonable grounds"
standard for evaluation of propriety of traffic stop); Commonwealth
v. Jumper, No. 1433 Criminal 1993 (Cumberland Co. May 18, 1994)
(Hess, J.).
"[A]n officer may stop and briefly detain and question an
individual if the investigating officer can point to specific and
articulable facts which reasonably warrant the belief that criminal
activity is afoot." 1Wasserbly, Pennsylvania Criminal Practice
§6.01 (1991).
A valid investigative detention is not dependent upon an
officer's having viewed unlawful conduct himself or herself. See
Commonwealth v. Smith, 396 Pa. Super. 6, 577 A.2d 1387 (1990);
Commonwealth v. Janiak, 368 Pa. Super. 626, 534 A.2d 833 (1987);
Commonwealth v. Crawford, 42 Cumberland L.J. 169 (1991). Even an
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NO. 95-1256 CRIMINAL TERM
anonymous tip, if it has been
exhibits sufficient indicia of
investigative stop of a defendant.
sufficiently corroborated and
reliability, can justify an
Alabama v. White, 496 U.S. 325,
110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990).
The use of a police radio for purposes of communicating a
citizen's report of crime and dispatching an officer to investigate
is, of course, commonplace. See generally Commonwealth v. Prengle,
293 Pa. Super. 64, 437 A.2d 992 (1981).
Applying these principles, this court has in the past held
valid a police stop of a vehicle in response to a citizen's report
of an intoxicated driver which was relayed to the officer by way of
a police radio, where the officer noticed a car matching the
description provided by the citizen being operated in the vicinity
reported, shortly after the dispatch. Commonwealth v. Fry, No. 94-
1080 Criminal Term (Cumberland Co. September 1, 1994).
In the present case, (a) the report of an employee of a
business concerning disorderly, damaging and intoxicated activity
upon the premises, (b) his identification by name of the
perpetrator and his account as to her features, her car and its
license number, and (c) corroboration of the report in the form of
the appearance of a car matching the vehicle described, bearing the
license plate reported, registered to the individual identified and
being driven by a female at a slow speed in a 55 mile-per-hour zone
in the vicinity of the alleged misconduct within an hour or so
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NO. 95-1256 CRIMINAL TERM
after its reported occurrence represented, in the court's view,
specific and articulable facts reasonably warranting the belief
that criminal activity was afoot, and justifying a brief stop of
Defendant's vehicle by police for investigative purposes. For this
reason, the court denied Defendant's motion to suppress based upon
the legality of the stop.
The Honorable Edgar B. Bayley
Jonathan R. Birbeck, Esq.
Chief Deputy District Attorney
H. Anthony Adams, Esq.
Assistant Public Defender
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