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HomeMy WebLinkAboutCP-21-CR-0001305-2011 (2) COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : IRA I. NELSON : NO. CP-21-CR-1305-2011 IN RE: OMNIBUS PRE-TRIAL MOTION OPINTION AND ORDER For consideration at this time is Defendant’s Omnibus Pre-Trial Motion. (Omnibus Pre- Trial Motion, filed Jul. 25, 2011). Subsequent to a traffic stop, Defendant was charged with the nd following: Count 1: Driving Under the Influence, General Impairment, (2); Count 2: Driving nd Under the Influence – Highest rate of Alcohol (.16+), (2); Count 3: Driving on Roadways Landed for Traffic; and Count 4: Restraint Systems. (Information, filed Jun. 29, 2011). Defendant has filed the instant motion asserting that the stop of his vehicle was unconstitutional as it was without probable cause and/or reasonable suspicion. As a result, Defendant requests that all evidence obtained as a result of the stop be suppressed and that the charges against him therefore be dismissed. All of the charges stem from a traffic stop that was initiated in the early morning hours of February 10, 2011. (Notes of Testimony, 5-6, Hearing, In Re: Omnibus Pre-Trial Motion, Sept. 16, 2011 (hereinafter N.T. __)). On that date, Trooper Rodney Fink of the Pennsylvania State Police was in uniform and driving a marked state police vehicle on State Route 641 in the area of Newville, Cumberland County, Pennsylvania. (N.T. 6). At that location, State Route 641 is a two lane highway with a double yellow dividing line. (N.T. 7). At a hearing on the motion sub judice, Tpr. Fink testified that he was traveling westbound on 641 when he first observed Defendant’s yellow Ford pickup truck from approximately one hundred yards away. (N.T. 6-8). The trooper testified that, while there was no oncoming traffic, he noticed the vehicle had “drift[ed] to the left” and “onto the double yellow lines on 641.” (N.T. 6-8). Tpr. Fink testified that after he noticed that the truck had drifted to the left, he did not see “any kind of movement back in the lane. [The truck] continued to drive that way until it made the right turn onto Stamy Road.” (N.T. 8). Tpr. Fink testified that the distance which the truck drove with its left wheels touching the State Route 641 yellow line was approximately thirty to forty yards. (N.T. 6). The trooper testified that when Defendant made the right turn onto Stamy Road, the “vehicle swung wide as it made the turn, and it was in the oncoming lane.” (N.T. 9). Tpr. Fink testified that the intersection of State Route 641 and Stamy Road is a “blind right-hand corner” which makes a driver unable to “see the road until you make the turn, and it also falls away. . . . [A driver] wouldn’t be able to see traffic coming up from the other direction.” (N.T. 9). Once Defendant made the right turn onto Stamy Road, the exact positioning of the truck within the bounds of that road is unclear. At the hearing, a video recording taken from Tpr. Fink’s police vehicle was entered into the record and played for the court. The video indicates that Stamy Road is a quiet country lane which is, at best, a road divided by a single yellow line that begins at some point not immediately after the turn is made from State Route 641. Tpr. Fink also testified that the video does not clearly indicate the location or existence of the yellow line immediately following the turn. (N.T. 16-17). Nonetheless, Tpr. Fink testified that it was his estimation and opinion that following the turn from 641, Defendant was “straddling the line. He was probably left of center at that point actually. He was well into the oncoming lane.” (N.T. 10). Tpr. Fink testified that Defendant continued in this manner for approximately one hundred yards before the trooper initiated the traffic stop. (N.T. 10). 2 The trooper testified that the reason for the traffic stop was twofold: first, for a violation of the Vehicle Code, 75 Pa.C.S.A. § 3309(1), Driving on Roadways Laned for Traffic; and secondly, for the investigation of what he believed to be an intoxicated driver. (N.T. 15-16). The Defendant asserts, however, that the trooper did not have probable cause to believe that he had violated 75 Pa.C.S.A. § 3309(1), nor did the trooper have reasonable suspicion to believe that Defendant was driving under the influence. As a result, Defendant requests that all evidence obtained as a result of the stop be suppressed and that the charges against him be dismissed. 75 Pa.C.S. § 6308(b) of the Vehicle Code is the relevant statutory provision and provides as follows: (b) Authority of police officer.-- Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle's registration, proof of financial responsibility, vehicle identification number or engine number or the driver's license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title. 75 Pa.C.S. § 6308(b). The issue of the amount and type of cause needed for a police officer to initiate a traffic stop was recently addressed in Commonwealth v. Feczko, 2010 PA Super 239, 10 A.3d 1285, and that case is instructive on the issues presented herein. In that case, the Superior Court examined the recent changes to § 6308(b) and engaged in a thorough review of the statute’s evolution. The Superior Court provided a succinct summary of the current legal standard surrounding traffic stops, and found as follows: In light of our Supreme Court's interpretation of the current language of Section 6308(b), we are compelled to conclude that the standards concerning the quantum of cause necessary for an officer to stop a vehicle in this Commonwealth are settled; notwithstanding any prior diversity on the issue among panels of this Court. Traffic stops based on a reasonable suspicion: either of criminal activity or 3 a violation of the Motor Vehicle Code under the authority of Section 6308(b) must serve a stated investigatory purpose. Chase, 960 A.2d at 116. In effect, the language of Section 6308(b)—“to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title”—is conceptually equivalent with the underlying purpose of a Terry stop. Id. (quoting 75 Pa.C.S. § 6308(b)). Mere reasonable suspicion will not justify a vehicle stop when the driver's detention cannot serve an investigatory purpose relevant to the suspected violation. In such an instance, “it is encumbent [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.” Gleason, 785 A.2d at 989 (citation omitted). See also Chase, 960 A.2d at 116 (reaffirming Gleason's probable cause standard for non-investigative detentions of suspected Vehicle Code violations). Feczko, 10 A.3d 1290-91 (emphasis original). Thus, the Superior Court delineated between those instances where reasonable suspicion alone will serve as a valid basis for a stop and those where it will not. Where there exists reasonable suspicion to believe (1) that criminal activity is afoot, or (2) that a stop will serve an investigatory purpose in determining whether there has been a violation of the vehicle code, then in those instances reasonable suspicion is the minimum quantum of cause needed to initiate a traffic stop. Id. Where a stop would serve no further investigatory purpose in relation to the suspected violation, then in those situations reasonable suspicion will not justify the detention; instead, an officer must have probable cause to believe that a violation of the vehicle code has occurred in order for a stop to be proper. Id. (see also Commonwealth v. Chase, 599 Pa. 80, 960 A.2d 108 (2008) (holding that probable cause of a Vehicle Code violation is needed for a non- investigatory stop)). In determining whether reasonable suspicion exists, the analysis is the same under both Article I, § 8 of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution. Commonwealth v. Goodwin, 561 Pa. at 351, Fn. 3; See also Commonwealth v. 4 Leonard, 2008 Pa. Super. 127, ¶ 8, 951 A.2d 393, 396. The essence of the analysis is an objective one: whether “‘the facts available to the officer at the moment of the [intrusion] “warrant a man of reasonable caution in the belief” that the action taken was appropriate.’” Id. The analysis, similar to that of probable cause, requires an examination of the totality of the circumstances, with a lesser showing required to determine reasonable suspicion in terms of both quantity or content and reliability. Commonwealth v. Zhahir, 561 Pa. 545, 751 A.2d 1153, 1156 (2000). “The question of whether reasonable suspicion existed at the time of a detention must be answered by examining the totality of the circumstances to determine whether there was a particularized and objective basis for suspecting the detainee of criminal activity.” Commonwealth v. Freeman, 563 Pa. 82, 90, 757 A.2d 903, 908 (2000) (emphasis added). Conversely, a determination of probable cause is supported where an officer is able to articulate specific facts possessed by him at the time of the questioned stop, which would lead a reasonable person to believe that it is more probable than not that a violation of the Vehicle Code has occurred. Commonwealth v. Lindblom, 2004 PA Super 270, ¶ 4, 854 A.2d 604, 607; Commonwealth v. Battaglia, 2002 PA Super 209, 802 A.2d 652; Commonwealth v. Cook, 2004 PA Super 449, 865 A.2d 869. “The officer must be able 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 some violation of some provision of the Vehicle Code.” Lindblom, 2004 PA Super 270, ¶ 4. Probable cause is not a determination which requires certainty; rather, it exists “when criminality is one reasonable inference, not necessarily even the most likely inference.” Id. (citing Commonwealth v. Stroud, 699 A.2d 1305, 1308 (Pa. Super. 1997). Whether an officer possesses probable cause to stop a vehicle for a violation of § 3309 depends 5 “largely upon whether a driver’s movement from his lane is done safely.” Cook, 2004 PA Super 449, ¶ 6. Section 3309(1) of the Vehicle Code, entitled “Driving on Roadways Laned for Traffic,” provides as follows: “(1) Driving within single lane. -- A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that the movement can be made with safety.” 75 Pa.C.S. § 3309(1). Pennsylvania courts have come to differing results when asked to determine whether a police officer had the required probable cause to believe that a violation of this subsection occurred. This is largely because the probable cause determination is a facts and circumstances analysis. In Feczko, supra, the Superior Court upheld a trial court’s finding that an officer possessed the requisite probable cause to believe that a violation of § 3309(1) had occurred where the trooper observed the defendant’s vehicle touch the white fog line on numerous occasions, cross a double yellow center line while negotiating a curve, drift over the white fog line on the opposite side of the traffic lane, and all while on-coming traffic was visible. Feczko, 10 A.3d at 1291-92. In Commonwealth v. Slonaker, 795 A.2d 397 (Pa. Super. 2002), the Superior Court affirmed a finding of probable cause where an officer observed a defendant’s vehicle weaving “erratically” for five miles, accelerating and decelerating at night, and going outside the lane of travel on more than one occasion. Additionally, the Superior Court in Cook, supra, affirmed a finding of probable cause for a violation of § 3309(1) where an officer received a call that a vehicle was being driven in an erratic manner, where the officer observed a defendant’s vehicle cross over a fog line three times to such an extent that one half of the vehicle was across the line, where those forages across the fog line resulted in a rapid and unsafe jerk back into the lane of travel, and where the officer followed the defendant’s vehicle for a distance of one mile. Cook, 2004 PA 6 Super 449, ¶ 8. It is clear, therefore, that all of these instances appear to have included some type of serious and dangerous driving infraction so as to warrant a proper finding of probable cause. Conversely, the applicable case law indicates that where there exists a more minor and momentary infraction of the proper lanes of travel, courts have found a lack of probable cause. In Commonwealth v. Gleason, 567 Pa. 111, 785 A.2d 983 (2001), the Court found that, “[g]iven the earning morning hour, the fact that there was no other traffic on the roadway and the rather momentary nature of defendant’s vehicle crossing the fog line. . ., the officer erred in believing 1 he had justification to stop defendant’s vehicle.” In Commonwealth v. Battaglia, 2002 PA Super 209, 802 A.2d 652, the Superior Court upheld a trial court’s finding that a motorist’s drifting onto the berm of the highway two or three times within a short distance was not, in and of itself, sufficient to warrant a finding of probable cause. Lastly, in Commonwealth v. Garcia, 2004 PA Super 372, 859 A.2d 820, the Superior Court held that an officer lacked probable cause where the motorist drove over the right berm line of the road only twice. As described above, a traffic stop is proper where an officer has reasonable suspicion to believe either that criminal activity is afoot, or that the stop will serve an investigatory purpose in determining whether there has been a violation of the vehicle code. Our Supreme Court has specifically upheld the constitutionality of the reasonable suspicion standard in DUI investigatory stops. Chase, 99 Pa. at 93, 960 A.2d at 115 (citing Commonwealth v. Sands, 2005 PA Super 372, 887 A.2d 261) (“Sands distinguished a vehicle stop for suspected DUI, noting that such a stop was ‘a scenario where further investigation almost invariable leads to the most 1 While Gleason has been abrogated by a change in the wording of 75 Pa.C.S. § 6308(b), the analysis of probable cause is still instructive on the issue sub judice, as it applied the probable cause standard to facts involving an alleged violation of 75 Pa.C.S. § 3309(1). 7 incriminating type of evidence, i.e., a strong odor of alcohol, slurred speech, and blood shot eyes. This type of evidence can only be obtained by a stop and investigation.’”). In determining whether an officer has reasonable suspicion to believe a motorist is DUI, Pennsylvania courts continue to apply the traditional reasonable suspicion standard. That is, “[a] police officer is justified in conducting a stop of a person if the officer can point to specific facts which create reasonable suspicion that the person is involved in criminal activity.” Commonwealth v. Anthony, 2009 PA Super 133, ¶ 14, 977 A.2d 1182, 1187. To determine whether reasonable suspicion exists, the officer must be able to point to specific and articulable facts that would lead the officer to believe that criminal activity may be afoot. Id. In Anthony, the Superior Court found that an officer was justified in conducting a traffic stop on suspicion of DUI when that officer received information from a dispatcher, via a 911 call from an identified caller, that a driver of an automobile of a specific color and make had almost struck a bridge, had driven onto a sidewalk, and had run a stop sign at a specified intersection. Id. at ¶ 15. Similarly, in Commonwealth v. Hughes, 2006 PA Super 266, ¶ 11, 908 A.2d 924, 928, the Superior Court upheld a finding of reasonable suspicion of DUI where an experienced officer observed a motorist driving erratically, where the officer observed the vehicle swerve right onto the berm, then back into the right lane, and then left across the dotted white line into the lane that the officer was traveling in. The officer then followed the vehicle for one-half to three quarters of a mile and observed the driver swerve into the other lane two more times. Id. Based upon the totality of the circumstances presented therein, the Superior Court found that the officer possessed a sufficient basis of information for reasonable suspicion of DUI. Id. Applying the foregoing, we find that Trooper Fink had neither probable cause to believe that Defendant had violated 75 Pa.C.S. § 3309(1), nor did he have reasonable suspicion to 8 believe that Defendant was DUI at the time he initiated the traffic stop of Defendant’s vehicle. The video recording of the traffic stop is approximately thirty seconds long from the time it begins until the time the trooper’s overhead lights are turned on and Defendant’s vehicle is stopped. No testimony or evidence was presented at the hearing regarding any prior findings or observations that may have been witnessed, so the body of cause from which Tpr. Fink had to draw on was that which was contained in the video. The video begins with a timestamp of 23:58:43 on February 9, 2011. Defendant’s vehicle can be seen on State Route 641 directly ahead of Tpr. Fink’s police vehicle at a distance of, at a minimum, one hundred yards, as testified to by Tpr. Fink. By the 23:58:50 mark, Defendant’s brake lights illuminate, and his right turning signal flashes in the distance as he prepares to turn onto Stamy Road. Between the time the video begins, and the time Defendant’s brake lights illuminate, his tail lights can be seen ahead, and there is no indication that Defendant weaved, jerked, swayed, or touched the white fog line on State Route 641. If Defendant touched the double yellow lines on 641, it cannot be determined from the video. At 23:58:55, Defendant has made what could potentially be defined as a “wide right turn” onto Stamy Road. Tpr. Fink’s police vehicle makes the same right-hand turn at the 23:59:04 mark, and the beginning of Stamy road can be seen. The road is a quiet country lane with no apparent dividing line immediately following the turn from 641. Directly after Tpr. Fink makes the right turn onto Stamy Road, at timestamp 23:59:06, Defendant’s vehicle can be seen to be slightly left of what would constitute a lane if there were to exist a dividing line at that location. At this point, however, Defendant’s vehicle is passing over a small concrete bridge which appears to be a more narrow section of the roadway. At 23:59:07, a single yellow dividing line emerges, and the left wheels of Defendant’s truck can be seen to be touching, or just over, that single yellow line. Immediately thereafter, the truck becomes aligned 9 in the proper lane of travel, and at 23:59:14 Tpr. Fink’s overhead lights turn on, and Defendant begins to make his way to the side of the roadway. We will first address the alleged violation of 75 Pa.C.S. § 3309(1), Driving on Roadways Laned for Traffic. After thorough review of the applicable case law, we are satisfied that, where there exists a minor and momentary infraction of the proper lanes of travel, no probable cause exists to believe there has been a violation of § 3309(1). We do not have before us a case where an officer observed Defendant’s vehicle touch the white fog line on numerous occasions, cross a double yellow center line while negotiating a curve, drift over the white fog line on the opposite side of the traffic lane, and all while on-coming traffic was visible. See Feczko, 10 A.3d at 1291- 92. Defendant’s truck did not jerk one direction or another or weave between the white fog line and the yellow dividing lines. Quite simply, Defendant’s truck did not exhibit the serious and dangerous type of driving infraction that would warrant a proper finding of probable cause. At best, the video indicates that following the turn onto Stamy Road, and after passing over a narrow bridge, Defendant’s left tires touched a single yellow dividing line before becoming realigned with the proper traffic lane. We do not find this momentary entry into the oncoming lane, under these circumstances, to be sufficient probable cause to believe there has been a violation of § 3309(1). Turning to the Commonwealth’s assertion that Tpr. Fink had reasonable suspicion to believe that Defendant was DUI, for largely the same reasons as described above, we find that he did not. Acknowledging that Tpr. Fink is a highly experienced officer in the field of DUI, nothing other than Defendant’s momentary touching of the Stamy Road line, and possibly the 641 yellow lines, was offered into the record as evidence that Defendant was driving under the influence. No testimony was offered that this stretch of roadway is a common location for drunk 10 driving, that the roadway is situated between drinking establishments, or that Tpr. Fink had made any prior DUI stops in the area. There was nothing to indicate that Tpr. Fink had any reason to suspect that Defendant was intoxicated other than the time of night and that Defendant’s tires momentarily touched a yellow line. We do not find these observations and circumstances to be sufficient to support a finding of reasonable suspicion of DUI. ORDER th AND NOW, this 11 day of October, 2011, upon consideration of Defendant’s Omnibus Pre-Trial Motion, and following a suppression hearing held on September 16, 2011, Defendant’s Motion is GRANTED, and any and all evidence obtained as a result of the stop and/or arrest is hereby suppressed. BY THE COURT, Kevin A. Hess, P.J. 11 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : IRA I. NELSON : NO. CP-21-CR-1305-2011 IN RE: OMNIBUS PRE-TRIAL MOTION ORDER th AND NOW, this 11 day of October, 2011, upon consideration of Defendant’s Omnibus Pre-Trial Motion, and following a suppression hearing held on September 16, 2011, Defendant’s Motion is GRANTED, and any and all evidence obtained as a result of the stop and/or arrest is hereby suppressed. BY THE COURT, Kevin A. Hess, P.J. John Dailey, Esquire Sr. Assistant District Attorney Edward Spreha, Esquire For the Defendant rlm