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HomeMy WebLinkAbout95-0748 CriminalCOMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : : NO. 95-0748 CRIMINAL TERM DANNY LEE EDWARDS : OTN: 3779226-0 : CHARGE: DUI IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION BEFORE OLER, J. ORDER OF COURT AND NOW, this ~ day of November, 1995, upon consideration of Defendant's Omnibus Pretrial Motion in the form of a motion to suppress for lack of probable cause to stop and a motion to suppress for lack of probable cause for arrest, following a hearing and for the reasons stated in the accompanying Opinion, the Motion is DENIED. BY THE COURT, Jaime M. Keating, Esq. Assistant District Attorney Patrick F. Lauer, Jr., Esq. 2108 Market Street Aztec Building Camp Hill, PA 17011 Attorney for Defendant : rc COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : : NO. 95-0748 CRIMINAL TERM DANNY LEE EDWARDS : OTN: 3779226-0 : CHARGE: DUI IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J. In this case, Defendant has been charged with driving under the influence of alcohol to a degree which rendered him incapable of safe driving~~ For disposition at this time is an omnibus pretrial motion filed by Defendant in the form of a motion to suppress for "lack of probable cause to stop" and a motion to suppress for "lack of probable cause for arrest." A hearing on the motion was held on October 20, 1995. Based upon the evidence presented at the 'hearing, the omnibus pretrial motion will be denied. STATEMENT OF FACTS At about 2:00 o'clock in the morning of Thursday, February 2, 1995, Officer Peter Castle of the North Middleton Township Police Department in Cumberland County observed Defendant driving a Chevrolet S-10 truck west on North Middleton Road past the township building. Defendant appeared to Officer Castle to be traveling at a speed of about 50 miles per hour in what was a 35 mph zone. In addition, Defendant's truck twice crossed substantially over the center line of the two-lane road as the officer watched. ~ 75 Pa. C.S. §3731(a)(1). NO. 95-0748 CRIMINAL TERM Officer Castle, who was in full uniform, got into a marked police car and drove after Defendant, without attempting to stop him. About a quarter of a mile down the road, Defendant backed into a driveway and entered a residence. Officer Castle parked his police car along the road, went to the door and asked Defendant to come outside. At this point, it was the officer's intention to give Defendant a warning about his driving. In speaking with Defendant, Officer Castle noticed that his eyes were glassy and bloodshot, and he detected a strong odor of an alcoholic beverage. When he asked Defendant where he had been, Defendant mentioned a local bar. He initially denied that he had had anything to drink, but then conceded that he had had "two beers." This conversation between the officer and Defendant was completed within a minute or two of their contact. Officer Castle then asked Defendant to perform several field sobriety tests. Defendant was able to recite the alphabet, although slowly during parts of it. He was unable, however, to perform the one-leg-stand test. He declined to perform the walk- and-turn test. Officer Castle summoned to the scene a second North Middleton Township police officer, James Peterson, who, unlike Officer Castle, was certified in the administration of field sobriety tests. When asked, Defendant refused to perform the one-leg-stand and walk-and-turn tests for Officer Peterson. He did attempt the 2 NO. 95-0748 CRIMINAL TERM index-finger-to-nose test, but failed it by touching his lip. Defendant was placed under arrest for driving under the influence by Officer Castle, and transported to Carlisle Hospital for a blood test to determine the alcoholic content of his blood. At the hospital, however, he refused to submit to the test. DISCUSSION With respect to Officer Castle's initial contact and interaction with Defendant, several principles of law are pertinent. First, one type of contact between a police officer and an individual may be classified as a "mere encounter." This is a non-coercive interaction which does not rise to the level of a seizure under the fourth amendment. An example of a mere encounter is an officer's approach of a person on a street to make inquiries. Commonwealth v. Brown, 388 Pa. Super. 187, 189-90, 565 A.2d 177, 178 (1989). Second, a more intrusive contact which falls short of custodial detention or formal arrest, but nevertheless implicates the fourth amendment, is an investigative detention - also known as a Terry stop, a traffic stop, or an intermediate detention. Commonwealth v. Ellis, 379 Pa. Super. 337, 549 A.2d 1323 (1988). An investigative detention, if properly commenced, may continue for a certain limited duration. In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently 3 NO. 95-0748 CRIMINAL TERM pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the [suspect]. A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second guessing. Id. at 355, 549 A.2d at 1332. Third, the type of investigative detention known as a traffic stop under the Vehicle Code is permissible when "a police officer ... has articulable and reasonable grounds to suspect a violation of [the Vehicle Code] .... " Act of June 17, 1976, P.L. 162, Sl, as amended, 75 Pa. C.S. S6308 (1995 Supp.); see 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. Reedy, No. 94-2075 Criminal Term (Cumberland Co., March 9, 1995) (Sheely, P.J.); Commonwealth v. Jumper, No. 1433 Criminal 1993 (Cumberland Co., May 18, 1994) (Hess, J.). Finally, speeding, failing to remain on the right side of the highway and driving under the influence are Vehicle Code offenses.2 The propriety of a stop for a Vehicle Code offense is not dependent upon an officer's having the quantum of evidence necessary to convict the driver. Commonwealth v. McElroy, 428 Pa. Super. 69, 77, 630 A.2d 35, 40 (1993); Commonwealth v. Reedy, No. 94-2075 2 75 Pa. C.S. ~§3362, 3301, 3731. 4 NO. 95-0748 CRIMINAL TERM Criminal Term (Cumberland Co., March 9, 1995) (Sheely, P.J.) In this case, it is debatable whether the initial contact and conversation between Officer Castle and Defendant can properly be characterized as more than a mere encounter - more than an approach for the purpose of making an inquiry, under non-coercive circumstances. Even should Officer Castle's conduct be regarded as equivalent to a vehicle stop or other form of intermediate seizure, it appears to the court that the officer's observations of speeding and failure to remain on the right side of the highway, followed by his detection of the odor of an alcoholic beverage upon Defendant and perception of Defendant's glassy and bloodshot eyes, represented "articulable and reasonable grounds to suspect a violation of [the Vehicle Code]," warranting the initial contact with Defendant and the limited period of continued investigation discussed above. With respect to Officer Castle's subsequent arrest of Defendant, it has been observed that "[a]n investigative detention, of course, may ripen into an arrest based on probable cause when police uncover additional information .... " 1 Wasserbly, Pennsylvania Criminal Practice §6.02 (1991); see, e.g., Commonwealth v. Hamme, 400 Pa. Super. 537, 583 A.2d 1245 (1990). Probable cause is "those facts and circumstances available at the time of the arrest which would justify a reasonable prudent man in the belief that a crime has been committed and that the individual 5 NO. 95-0748 CRIMINAL TERM arrested was the probable perpetrator." Commonwealth v. Harper, 485 Pa. 572, 583, 403 A.2d 536, 542 (1979). In this case, the foregoing circumstances of erratic and unsafe driving, odor of an alcoholic beverage, glassy and bloodshot eyes, and admission of alcohol consumption, in conjunction with an inability to perform the two field sobriety tests undertaken, constituted "facts and circumstances available at the time of the arrest which would justify a reasonable prudent man in the belief that" Defendant had committed the offense of driving under the influence of alcohol to a degree that rendered him incapable of safe driving. For these reasons,3 the following Order will be entered. ORDER OF COURT AND NOW, this 9th day of November, 1995, upon consideration of Defendant's Omnibus Pretrial Motion in the form of a motion to suppress for lack of probable cause to stop and a motion to suppress for lack of probable cause for arrest, following a hearing 3 To the extent that Defendant can be deemed to have preserved a Miranda issue in connection with the initial contact, conversation and alphabet recitation with Officer Castle, it is believed that the Pennsylvania Supreme Court's decision in Commonwealth v. Peth, 522 Pa. 136, 560 A.2d 139 (1989), rev'g Commonwealth v. Peth, 374 Pa. Super. 265, 542 A.2d 1015 (1988), renders Defendant's argument untenable. 6 NO. 95-0748 CRIMINAL TERM and for the reasons stated in the accompanying Opinion, the Motion is DENIED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Jaime M. Keating, Esq. Assistant District Attorney Patrick F. Lauer, Jr., Esq. 2108 Market Street Aztec Building Camp Hill, PA 17011 Attorney for Defendant :re 7