The URL can be used to link to this page

Home My WebLink About93-0418 Criminal COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : 418 CRIMINAL 1993 : : CHARGE: (A) D.U.I. : (B) ENDANG. WELFARE OF CHILDREN : (C) RESTRAINT SYSTEMS SANDRA L. PEALER : (D) DRIVING VEH. AT SAFE SPEED OTN: E024325-0 : AFFIANT: PTL. MICHAEL HOPE IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION BEFORE OLER, J. ORDER OF COURT AND NOW, this 1st day of February, 1994, upon consideration of the Defendant's omnibus pretrial motion for relief in the form of a motion to suppress, following a hearing, and for the reasons stated in the accompanying Opinion, the Defendant's motion is DENIED. By the Court, '--~ I / .? ./ / '" Michael Schwoyer, Esquire Assistant District Attorney Austin F. Grogan, Esquire Assistant Public Defender COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : 418 CRIMINAL 1993 : : CHARGE: (A) D.U.I. : (B) ENDANG. WELFARE OF CHILDREN : (C) RESTRAINT SYSTEMS SANDRA L. PEALER : (D) DRIVING VEH. AT SAFE SPEED OTN: E024325-0 : AFFIANT: PTL. MICHAEL HOPE IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION BEFORE OLER, J. OPINION AND ORDER OF COURT Oler, J. In the present Crimes Code and Vehicle Code case involving charges of driving under the influence, endangering welfare of children, driving at an unsafe speed, and failure to employ a restraint system, the Defendant has filed an omnibus pre-trial motion for relief in the form of a suppression motion. In the motion, she seeks the suppression of evidence resulting from the stop of her vehicle on the ground that the officer lacked a sufficient basis to make a legal stop and arrest. A hearing was held on the motion on Tuesday, February 1, 1994. STATEMENT OF FACTS On Sunday, November 15, 1992, at approximately 2:00 a.m., the affiant in this case, Patrolman Michael Hope of the Camp Hill Borough Police Department, was on routine patrol in uniform and in a marked police car, traveling south on the Camp Hill Bypass in the Borough of Camp Hill, Cumberland County, Pennsylvania. officer Hope was traveling at a speed of approximately 35 miles per hour, which was the posted speed limit of the said roadway. In the vicinity of the intersection of the Bypass with Country Club Road, Officer Hope observed in his rear-view mirror a vehicle approaching at a high rate of speed, and he watched as it passed by him. He estimated its speed to be between 55 and 60 miles per hour. The vehicle then made a right turn from the Bypass onto Country Club Road. Patrolman Hope, a veteran of seven years with the borough's police department, with extensive experience in making traffic stops and judging the speed of vehicles, put on his emergency lights and stopped the vehicle which he had seen pass him. The vehicle stopped in the middle of the street. Patrolman Hope approached the vehicle, which the Defendant, Sandra L. Pealer, was operating, and observed a can of beer in a cup holder in the vehicle. He also observed a child of the Defendant in the vehicle. The Defendant proceeded to spill the cup of beer. The officer detected a strong odor of an alcoholic beverage on the Defendants's breath, observed that her eyes were bloodshot and glassy, and perceived that her speech was slurred. He a preliminary breath test, and attempted unsuccessfully to administer two standard field sobriety tests. However, the Defendant insisted upon holding her child during the tests, and was consequently unable to complete them. In the opinion of the officer, the Defendant was under the influence of alcohol to a degree which rendered her incapable of safe driving. At 3:07 a.m. on that morning, the Defendant submitted to a blood alcohol test, the result of which was .159 percent. STATEMENT OF LAW "Encounters with police may be classified as mere encounters, non-custodial detentions, custodial detentions and formal arrests." Commonwealth v. Ellis, 379 Pa. Super. 337, 354, 549 A.2d 1323, 1331 (1988).1 "The classification of the encounter determines the applicability and scope of the constitutional protections .... "Id. "An individual has not been arrested when he is stopped briefly for questioning. Thus, an 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 1 Non-custodial detentions "are also commonly referred to as Terry stops, traffic stops, investigatory detentions and intermediate detentions." Commonwealth v. Ellis, 379 Pa. Super. 337, 354 n.5, 549 A.2d 1323, 1331 n.5 (1988). activity is afoot. These brief investigatory stops are not considered to be arrests." 1 Wasserbly, Pennsylvania Criminal Practice Section 6.01 (1991). "A policeman who lacks the requisite level of information for probable cause is not required to simply shrug his shoulders and allow a crime to occur or a criminal to escape." I__d. Section 6.02. Even in the absence of probable cause, an investigating police officer may stop and briefly detain an individual, as long as the officer can point to specific and articulable facts, which, in conjunction with the natural inferences derived from these facts, warrant the intrusion.2 With respect to driving under the influence, erratic or unsafe driving is a common ground for initiating an investigatory stop.3 "An investigative detention, of course, may ripen into an arrest based upon probable cause when police uncover additional information confirming earlier suspicions." 1 Wasserbly, Pennsylvania Criminal Practice Section 6.02 (1991); see, e.q., 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 2 i Wasserbly, Pennsylvania Criminal Practice Section 6.02 (1991). 3 See Commonwealth v. Hamme, 400 Pa. Super. 537, 583 A.2d 1245 (1990); Pokrandt v. Shields, 773 F. Supp. 758 (E.D. Pa. 1991). man in the belief that a crime has been committed and that the individual arrested was the probable perpetrator." Commonwealth v. Harper, 485 Pa. 572, 583, 403 A.2d 536, 542 (1979). Indicia of being under the influence have been held by this Court to include "excessive speed and impaired judgment, as well as the odor of an alcoholic beverage, bloodshot eyes, and unkempt condition .... " Commonwealth v. McClellan, 42 Cumb. L.J. 312, 318 (1993). Additional factors present in this case include parking of the vehicle in the street, the presence of an alcoholic beverage in the vehicle, the spilling of alcohol by the Defendant, and her unwillingness to submit to the field sobriety tests in the proper manner. APPLICATION OF LAW TO FACTS In the present case, the Court finds that the officer had a clearly sufficient basis to stop the Defendant's vehicle for a traffic violation, and that, following execution of the stop, the officer perceived sufficient indicia of the Defendant's being under the influence to warrant his arrest of her for driving under the influence. It follows that he also had a sufficient basis for requesting that the Defendant submit to a blood alcohol test. For these reasons, Defendant's motion to suppress evidence based upon the illegality of the vehicle's stop and her subsequent allegedly unlawful arrest must be denied. For the foregoing reasons, the following Order of Court will be entered: ORDER OF COURT AND NOW, this 1st day of February, 1994, upon consideration of the Defendant,s omnibus pre-trial motion for relief in the form of a motion to suppress, following a hearing, and for the reasons stated in the accompanying Opinion, the Defendant's motion is DENIED. BY THE COURT, J. Wesley Ole~, Jr. ' j. Michael Schwoyer, Esquire Assistant District Attorney Austin F. Grogan, Esquire Assistant Public Defender