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HomeMy WebLinkAbout01-0188 CRIMINAL COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 01-0188 CRIMINAL PETER JAMES SPEAKER IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION BEFORE HESS, 1. OPINION AND ORDER Before the court is the omnibus pretrial motion of the defendant to suppress evidence. According to the motion, on March 17, 2000, the defendant was stopped by Officer Warren Scott Cornelious of the Camp Hill Borough Police Department at the 2100 block of Route 11/15 in the Borough of Camp Hill, Cumberland County, Pennsylvania. Officer Cornelious testified, at the suppression hearing, that he paced the defendant's vehicle after noticing it pull away from his patrol car and turn its lights off and on once while driving. The officer clocked the vehicle traveling fifty-five miles per hour in a thirty-five-mile-per-hour speed zone. Officer Cornelious turned on his emergency lights to signal the defendant to pull over at the 2600 block of 11/15. The defendant did not stop until the 2100 block. Upon stopping the defendant, the officer approached the driver's side of the vehicle and requested the driver to exhibit his driver's license, registration and insurance card. The license provided had expired. Officer Cornelious observed that the defendant had bloodshot eyes and had difficulty placing the key in the keyhole of the glove box. Officer Cornelious then asked the defendant from where he was coming. When the defendant answered, he could detect an odor of 01-0188 CRIMINAL alcohol emanating from the defendant. The officer then asked the defendant if he had been drinking, to which the defendant answered he had consumed one drink. After retrieving all the documentation, the officer asked the defendant to step from the vehicle so that he could administer a field sobriety test. The defendant complied with the officer's request. The following testimony was given by Officer Cornelious: A .. . During the walk and turn test for Mr. Speaker, I noted that he could not keep balance during the instruction stage. I noted that he missed his heel to toe between steps three and four on the way back. I noted that he spun on his front foot rather than taking the small steps, turning around as he was instructed. And I also noted that he did not count out loud as he was instructed. Q And did you administer the one-leg stand test? A Yes, I did. Q And how did he perform on that? A I noted that Mr. Speaker swayed between twenty-one to thirty seconds, raised his arms as if to balance between twenty-one to thirty seconds. Put his foot down twice between zero to ten seconds. Once between eleven to twenty-one seconds, twice between twenty-one to thirty seconds. I also noted that he counted repetitively during that test. Officer Cornelious went on to testify that based on the circumstances he observed in the car, the odor of the alcoholic beverage, the bloodshot eyes and the field sobriety tests, he believed that the defendant was under the influence of alcohol. He then placed the defendant in the rear of the patrol car. While in the back of the police car, the defendant was asked to submit to a preliminary breath test. The defendant responded by asking Officer Cornelious if he could "just give him a 2 01-0188 CRIMINAL ride home like the old days". The defendant then admitted that he was probably speeding. He said that he turned his headlights off and on to see if they were on. According to his testimony, Officer Cornelious did not ask the defendant any questions that elicited any of the above statements. After submitting to a preliminary breath test the defendant was arrested and secured in the rear of the patrol car at 2:20 a.m. The affidavit states that the defendant was then taken by Cornelious to the West Shore Booking Center, arriving at or about 2:28 a.m. There he was released to agents Kathy Cook and Ralph Smith. After Officer Cornelious informed the defendant that his refusal of a chemical test would be used against him and result in a one-year suspension of his license, the defendant submitted to the test. Cook administered the first set of chemical tests using the Itoxilyzer 5000 at 2:46 a.m. Both tests determined that the defendant had a blood alcohol concentration of .132%. Approximately one-half hour later, the defendant consented to a second set of blood tests, both resulting in a blood alcohol concentration of .111%. The defendant has been charged with driving under the influence, a violation of section 3731 of the Pennsylvania Motor Vehicle Code. In the defendant's pre-trial motion, he urges that the evidence against him should be suppressed or excluded and charges dismissed in numerous counts: I. Motion to suppress/exclude, 75 Pa.C.S. s3731(a)(4). II. Motion to suppress evidence of second set of breath tests. III. Motion to suppress/exclude breath results. IV. Motion to suppress evidence and/or exclude based on Pa.R.E. 104(a). 3 01-0188 CRIMINAL V. Motion to preclude the Commonwealth from referring to the field sobriety tests as "test", pursuant to Pa.R.E. 104. VI. Motion to exclude introduction of videotape and observations and request for a ruling under Pa.R.E. 104. VII. Motion to suppress statements from patrol car. VIII. Motion to suppress/exclude statements from defendant's car. IX. Motion to suppress/exclude all Pre-Miranda statements and fruits thereof. X. Motion to dismiss based upon violation ofPa.R.Crim.P. 600. XI. Motion to dismiss based upon lack of probable cause. XII. Motion to suppress/exclude breath test results. We will deal with these issues by their general subject matter. 1. The "20 minute" rule was not violated in this case and therefore the results should not be suppressed. Section 3731(a)(4) of Title 75 of the Pennsylvania Consolidated Statutes Annotated states that "a person shall not drive, operate or be in actual physical control of the movement of a vehicle in any of the following circumstances: (4) While the amount of alcohol by weight in the blood of (i) an adult is 0.10 % or greater; or (ii) a minor is 0.02% or greater." In this case, of course, the results were above the adult level of 0.10%. The defendant contends, however, that the chemical test given to him on March 17, 2000, violated the "20 minute rule" and therefore the results of that test should be suppressed. 4 01-0188 CRIMINAL The 20 minute rule is found in Section 77.24 of Title 67 of the Pennsylvania Administrative Code. It states: (a) Observation. The person to be tested with breath test equipment shall be kept under observation by a police officer or certified breath test operator for at least 20 consecutive minutes immediately prior to administration of the first alcohol breath test given to the person, during which time the person may not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten or smoked. Custody of the person may be transferred to another officer or certified breath test operator during the 20 consecutive minutes or longer period as long as the person to be tested is under observation for at least 20 consecutive minutes prior to initial administration of the alcohol breath test. In a case involving chemical tests, the admissibility of the results of such tests depends on the strict compliance with the regulation in 67 Pa. Code 77.24. Com. v. Stoops, 723 A.2d 184, 196 (Pa.Super. 1998). In Com. v. Starkey, 48 Chester 282,288 (2000), the court held that police troopers had failed to comply with the observation section of Title 67, Section 77.24. In Starkey, the defendant was secured in a patrol car at 9:27 p.m. and taken to a booking center. The alcohol breath test was taken at or about 9:54 p.m. The court reasoned that it was not possible for the officer to drive his patrol car safely and at the same time continuously observe the defendant in the back seat. Thus, the court excluded from the twenty-minute observation period from that period of time which the defendant was in the patrol car. The court also excluded certain other periods of time during which the intoxilyzer was being prepared. Finding that the total observation period was less than twenty minutes, the test results were suppressed. A subsequent Superior Court case seems to take a somewhat different view of the matter. The court in Com. v. Barlow, 776 A.2d 273 (Pa.Super. 2001) opines that "observation" does not mean "eyes on his mouth 100% of the time." Id. at 275. In the opinion of Judge Eakin, the 5 01-0188 CRIMINAL Commonwealth need only prove, by a preponderance of the evidence, that the defendant did not ingest or regurgitate any substance during that period and, provided the defendant is in the presence of law enforcement personnel, that burden can be met without those personnel looking at the defendant "100% of the time." The opinion of the court goes on to note, however, that because the defendant's conviction was based on a violation of75 Pa.C.S. Section 3731(a)(1) and was not dependent upon the breath test result but upon numerous other observations indicating that the defendant was incapable of safe driving, even if the breathalyzer results had been admitted in error, that error would have been harmless. Arguably, therefore, the Superior Court's description of an adequate twenty-minute observation period is dictum. Nonetheless, the Superior Court was most specific when it addressed the observation requirement and we find Judge Eakin's rationale, in any event, compelling. In this case, the defendant was secured in the patrol vehicle at 2:20 a.m. and arrived at the booking center at 2:28 a.m. The chemical test at issue was administered at 2:46 a.m. Assuming that the entire elapsed time is included, the observation period amounted to twenty-six minutes. Obviously, the police officer did not closely watch the defendant during the time he was being transported to the booking center and questions may be raised before the fact-finder at trial. We will, however, not suppress evidence based on this issue since we are satisfied that the Commonwealth has met its burden of proof, at least as far as the suppression hearing is concerned. 2. The defendant consented to the second set of breath tests, making the results of the second test admissible. 6 01-0188 CRIMINAL The next contention argued by the defendant is that the second set of breath tests should be suppressed. The defendant cites Com. v. McFarren, which held that a police officer must offer sufficient evidence to establish reasonableness of a request for a second chemical test. Com. v. McFarren, 514 Pa. 411, 417,525 A.2d 1185, 1188 (1987). That case involved a defendant who refused a second chemical test and his license was, for that reason, suspended by the Department of Transportation. The present case differs from McFarren because the defendant did not refuse the second test. He, in fact, consented. In Com. v. Dunne III, the defendant was arrested for driving under the influence and submitted to a blood test. After the blood test he was asked to take a urine test, to which he consented. Com. v. Dunne 111,456 Pa.Super. 523, 528, 690 A.2d 1233, 1235 (1997). The defendant was found guilty of driving under the influence and appealed, arguing that the court erred in admitting the urine test result. The Superior Court determined that Dunne III was distinguishable from McFarren since the defendant voluntarily consented to the second chemical test. This case is likewise distinguishable from McFarren. 3. Officer Cornelious had probable cause to arrest the defendant. Another contention in the defendant's omnibus motion is that evidence in the case was tainted by unlawful arrest. The defendant, in fact, asserts that his "arrest should be suppressed for lack of probable cause." His motion, in this regard, arguably violates the provision of the Pennsylvania Rules of Criminal Procedure which requires that grounds for suppression be set forth with "particularity." See Pa.R.Crim.P. 574(B)(2). We will, nonetheless, touch briefly on this issue. 7 01-0188 CRIMINAL In Com. v. Klingensmith, the defendant was convicted of driving under the influence and subsequently appealed. Com. v. Klingensmith, 437 Pa.Super. 453, 457, 650 A.2d 444,446 (1994). He claimed, specifically, that the police did not have probable cause to arrest him. In that case, the police stopped the defendant for driving a car without a license plate. During the stop, the police observed that defendant's eyes were bloodshot and that he smelled of alcohol. Suspecting that the defendant was driving under the influence of alcohol, the police conducted field sobriety tests which the defendant failed. Id. at 457, 650 A.2d at 445. The court was satisfied that these circumstances combined to support probable cause for an arrest. The facts in the instant matter are similar. Officer Cornelious lawfully stopped the defendant for speeding. He noticed several things which led him to believe the defendant was under the influence of alcohol. These included difficulty when putting a key in the glove box, bloodshot eyes and the odor of alcohol. Officer Cornelious also conducted field sobriety tests. Applying the rationale of the Klingensmith case to the instant matter, it is clear that there was probable cause for an arrest. 4. The lower results of the two separate tests are both admissible. The defendant urges the court to suppress all breath results that were above the lowest of the four readings obtained in this case. The defendant bases his argument on Section 77.24 of Title 67 of the Pennsylvania Administrative Code, asserting that the lowest of all the tests should be the only result allowed for prosecution. The defendant has clearly misinterpreted the rule. Section 77.24(b)(1) and (2) of Title 67 of the Pennsylvania Administrative Code states: (b) Procedures. Alcohol breath tests shall be conducted by a certified breath test operator. Accuracy inspection tests and calibrations conducted using breath test equipment shall be performed by a certified breath test operator, the manufacturer or 8 01-0188 CRIMINAL its authorized representative or a person who has received comparable training or instruction. Alcohol breath tests, accuracy inspection tests and calibrations conducted using breath test equipment shall be performed in accordance with accepted standard procedures for operation specified by the manufacturer of the equipment or comparable procedures. The procedures for alcohol breath testing shall include, at a minimum: (1) Two consecutive actual breath tests, without a required waiting period between the two tests. (2) One simulator test using a simulator solution designed to give a reading of .10%, to be conducted immediately after the second actual alcohol breath test has been completed. The lower of the two actual breath test results will be the result used for prosecution. . . . The rule above clearly states that there are to be two consecutive breath tests taken, and the lower of those two will be the one used in prosecution. In this case, the defendant was given his first set of breath tests, both of which were .132%, at 2:46 a.m. Therefore, the lower of the two results in that breath test would be .132%. The defendant then consented to another breath test, independent of the first test, which resulted in two readings of .111 %. The lowest result in that test was therefore .111 %. The two results were obtained in two completely separate tests. The initial test was given based on probable cause to believe that the defendant was driving under the influence, while the second test was given after the defendant consented to take another test. We are satisfied that the results of both tests are admissible. 5. The defendant's statements at the scene are admissible. The defendant's motion to suppress evidence contains a contention that his statements to Officer Cornelious were obtained in violation of the Miranda rule. When Officer Cornelious approached the defendant's vehicle, he asked the defendant for his driver's license, registration and insurance card. After Mr. Speaker produced this documentation, the officer asked him about his route of travel. After detecting an odor of alcohol on the defendant's breath, the officer asked 9 01-0188 CRIMINAL the defendant how much he had to drink. At no point prior to this questioning was the defendant told that he was under arrest nor, otherwise, placed in custody. In order for Miranda warnings to be applicable, there must be a custodial interrogation of the defendant. "By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966). In Commonwealth v. Gonzalez, the court concluded that a defendant in a driving under the influence case has not been the subject of a custodial interrogation. Commonwealth v. Gonzalez, 519 Pa. 116, 124,546 A.2d 26,30 (1988). In that case, the defendant was in an accident with another car after running a stop sign. When the police arrived at the accident scene, they approached the defendant and asked him if he was hurt and what had happened. The defendant made various statements which, later, he argued should have been suppressed. The court found that the defendant was not under arrest and was asked a minimal number of questions at the scene of an accident on a public street. Id. That court reasoned that the defendant was not in custody for purposes of Miranda warnings. Id. Similarly, in Commonwealth v. Toanone, the court stated that: In summary, the United States Supreme Court has clarified that police need only give Miranda warnings while detaining a suspect by the side of a public highway when the suspect is actually placed under arrest or when the questioning of the suspect is so prolonged or coercive as to approximate the atmosphere of a station house interrogation. Thus, in the typical situation in which a motorist is temporarily ordered to remain by the side of his car, Miranda warnings are not essential. Commonwealth v. Toanone, 381 Pa.Super. 336, 346, 553 A.2d 998, 1003 (Pa.Super. 1989). 10 01-0188 CRIMINAL The facts in this case are similar to those in Gonzalez. A minimal number of questions were asked following the traffic stop. The defendant remained in his vehicle and there was certainly nothing about the questioning which was "so prolonged or coercive as to approximate the atmosphere of a station house interrogation." The defendant further contends that the court should suppress the statements he made while in the patrol car. It may well be that the defendant may have reasonably believed that he was not free to leave once he was placed in the back of a police vehicle. The statements made are, nonetheless, admissible as they were not the result of police interrogation. In Commonwealth v. Washington, the court noted that Miranda warnings are only required when an individual is undergoing custodial interrogation. Commonwealth v. Washington, 438 Pa.Super. 131, 139,651 A.2d 1127, 1131 (1994). "Where there is absent any notion of interrogation, the statement is classified as a volunteered statement, gratuitous and not subject to suppression for lack of warnings." Id. (quoting Commonwealth v. Whitley, 500 Pa. 442, 445, 457 A.2d 507, 508 (1983)). As the statements made by Mr. Speaker were volunteered, no Miranda warnings were necessary. 6. Matters which are moot or better left for another day. The defendant has moved, inter alia, for dismissal of this case because the matter has not been brought to trial within the time limits prescribed by the Pennsylvania Rules of Criminal Procedure. The record is clear, however, that the defendant has several times waived his rights under Pa.R.Crim.P. 600 (formerly 1100), the first time being when he sought consideration for ARD. 11 01-0188 CRIMINAL Finally, the defendant's omnibus pretrial motion, perhaps out of an abundance of caution, raises issues which are better left to the trial judge. We understand that Rule 578 of the Rules of Criminal Procedure provide that "all pretrial requests for relief shall be included in one omnibus motion." Pa.R.Crim.P. 578. A comment to the Rule, however, lists nine specific requests which would constitute relief under the Rule and goes on to provide that the omnibus pretrial motion rule "is not intended to limit other types of motions, oral or written, . . . including those traditionally called motions in limine, which may affect the admissibility of evidence or the resolution of other matters." See comment to Rule Pa.R.Crim.P. 578. The defendant raises four matters which we decline to resolve in the context of his omnibus pretrial motion. They are as follows. In Count IV, the defendant contends that the field sobriety tests administered by Officer Cornelious lack scientific validity and that no foundation for that validity can be established in a "Frye/Daubert analysis." In Count V of his motion, the defendant asserts that the Commonwealth and its witnesses should be precluded from referring to the field sobriety test as a "test" and that the witnesses should, similarly, be precluded from using words referring to the defendant's efforts as "fail," "results," "indicates," and "score." In Count VI, the defendant seeks an order in limine with respect to the audio/visual recordings and other observations at the booking center. Count XIII of the motion contends that complete discovery has not been obtained from the District Attorney's Office regarding the intoxilyzer 500 and puts the court on notice that additional arguments concerning the operability of the breath test machine may be 1 There are actually two counts "XI." The second is obviously a typographical error. 12 01-0188 CRIMINAL made following additional discovery in the case.2 The foregoing counts are better resolved outside of the context of an omnibus pretrial motion. ORDER AND NOW, this day of November, 2001, a decision with regard to the matters raised in Counts IV, V, VI, and XII of the defendant's omnibus pretrial motion are reserved to the trial judge. With those exceptions, the omnibus pretrial motion of the defendant is DENIED. BY THE COURT, Kevin A. Hess, 1. Edmund Zigmund, Esquire Assistant District Attorney Matthew Gover, Esquire F or the Defendant :r1m 2 It is expected that any and all disagreements concerning discovery will be brought to the court's attention no later than the pretrial conference. 13 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 01-0188 CRIMINAL PETER JAMES SPEAKER IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION BEFORE HESS, 1. ORDER AND NOW, this day of November, 2001, a decision with regard to the matters raised in Counts IV, V, VI, and XII of the defendant's omnibus pretrial motion are reserved to the trial judge. With those exceptions, the omnibus pretrial motion of the defendant is DENIED. BY THE COURT, Kevin A. Hess, 1. Edmund Zigmund, Esquire Assistant District Attorney Matthew Gover, Esquire F or the Defendant :r1m