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Home My WebLink About94-0545 Criminal COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : 94-0545 CRIMINAL TERM v. : CHARGE: DUI : GERALD R. CONYERS, JR. : AFFIANT: PTL. GREGORY MARTIN OTN: E003036-5 : IN RE: DEFENDANT'S MOTION TO SUPPRESS BEFORE OLER, J. ORDER OF COURT AND NOW, this 22~ day of August, 1994, upon careful consideration of Defendant's Motion To Suppress, following a hearing and for the reasons stated in the accompanying Opinion, the motion is DENIED. BY THE COURT, · _ Travis N. Gery, Esq. Assistant District Attorney H. Anthony Adams, Esq. Assistant Public Defender : rc COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : 94-0545 CRIMINAL TERM v. : CHARGE: DUI GERALD R. CONYERS, JR. : AFFIANT: PTL. GREGORY MARTIN OTN: E003036-5 : IN RE: DEFENDANT'S MOTION TO SUPPRESS BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J. In the present Vehicle Code case involving a charge of driving under the influence,~ Defendant has filed a Motion to Suppress. The motion is based upon the ground that "[t]here was no probable cause to stop the Defendant's vehicle.-2 A hearing on the motion was held by the undersigned judge on Friday, August 12, 1994. For the reasons stated in the accompanying Opinion, Defendant's motion must be denied. Findinqs of Fact 1. The Defendant and moving party is Gerald R. Conyers, Jr. 2. Defendant was arrested and charged with driving under the influence on Saturday, January 29, 1994. 3. Preceding Defendant's arrest, at about 11:15 p.m. on the said date, Defendant was driving an automobile in Franklin County on U.S. Route 11, between Chambersburg and Shippensburg, in a northerly direction, approaching Shippensburg. ~ Act of June 17, 1976, P.L. 162, 51, as amended, 75 Pa. C.S. 53731 (1994 Supp.). 2 Defendant's Motion To Suppress, paragraph 6; see Order of Court, August 12, 1994. 4. At the aforesaid time and place, Jeffrey Marvin Shubert, a Mid-Cumberland Valley Regional Police Officer who was off duty, was driving his personal motor vehicle behind the automobile being driven by Defendant. 5. Officer Shubert observed as he followed Defendant that Defendant's automobile was weaving in its lane between the yellow line on the left and the white "fog" line on the right. 6. As Officer Shubert continued to observe this erratic driving, he used his car phone to call the Mid-Cumberland Valley Regional Police Department; he advised Police Officer Gregory Martin, who was on duty at the station, that he was following a suspected intoxicated driver. 7. Officer Martin proceeded from the station to his patrol car with a view toward locating the vehicle being followed by Officer Shubert; the two officers communicated thereafter by car telephone. 8. Having entered the Borough of Shippensburg, Defendant's automobile was observed by Officer Shubert to swerve to the right, nearly striking a parked vehicle before being jerked to the left by the driver. 9. At the intersection of West King Street and North Fayette Street in the Borough, Defendant was observed by Officer Shubert to stop inexplicably within the intersection before proceeding to make a left turn. 2 10. Defendant eventually brought the automobile to a stop in a no-parking zone, in the vicinity of the residence of a female friend of a man who was a passenger in the car with him. 11. The aforesaid driving of Defendant was observed by Officer Shubert over a course of about three miles, the final portion of which was in Cumberland County. 12. Defendant did not exceed the speed limit during the events related, and he did obey several stop signs. 13. Officer Martin arrived on the scene and approached the stopped automobile, which was identified by Officer Shubert as the vehicle he had followed. 14. Officer Martin detected a strong odor of an alcoholic beverage emanating from the driver's window, which was partially rolled down; Defendant's eyes were bloodshot, his speech was slurred, his ability to divide his attention was impaired, and the car contained numerous beer cans. 15. Defendant attempted to pass cards requested by the Officer through the unopened portion of his window. 16. Upon emerging from the automobile, Defendant had difficulty with his balance and had to steady himself on the car. 17. Officer Martin placed Defendant under arrest for driving under the influence. 18. Field sobriety tests were not administered to Defendant because a confrontation precipitated by Defendant's passenger necessitated a redirection of police attention toward the passenger. 19. Defendant declined a request by Officer Martin that he submit to a chemical test to determine the alcoholic content of his blood. Statement of Law ~tops by police in qenera]. "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).3 "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 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." Id. 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 3 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). 4 inferences derived from these facts, warrant the intrusion.4 "An investigative detention, of course, may ripen into an arrest based on probable cause when police uncover additional information confirming earlier suspicions... 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 arrested was the probable perpetrator... Commonwealth v. Harper, 485 Pa. 572, 583, 403 A.2d 536, 542 (1979). Stops by police for Vehicle Code violations. Under Section 6308 of the Vehicle Code, it is provided that [w]henever a police officer ... has articulable and reasonable grounds to suspect a violation of [the Vehicle Code], 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 [the Vehicle Code]. Act of June 17, 1976, P.L. 162, Sl, as amended, 75 Pa. C.S. §6308 (1994 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 4 1Wasserbly, Pennsylvania Criminal Practice ~6.02 (1991). 5 v. Jumper, No. 1433 Criminal 1993 (Cumberland Co. May 18, 1994) (Hess, J.). Drivinq under the influence. Driving under the influence is a Vehicle Code violation. Act of June 17, 1976, P.L. 162, Sl, as amended, 75 Pa. C.S. S3731 (1994 Supp.). "With respect to driving under the influence, erratic or unsafe driving is a common ground for initiating an investigatory stop." Commonwealth v. Graham, 42 Cumberland L.J. 595, 597 (1993); see Commonwealth v. Hamme, 400 Pa. Super. 537, 583 A.2d 1245 (1990); Pokrandt v. Shields, 773 F. Supp. 758 (E.D. Pa. 1991). Impaired judgment in driving5 and inappropriate parking~ are also factors lending support to a reasonable belief that a driver is under the influence. Application of Law to Facts In the present case, the Defendant displayed erratic and unsafe driving over the course of several miles - weaving within his lane and nearly colliding with a parked vehicle. In addition, he displayed tentative judgment at an intersection and stopped the vehicle in a no-parking zone. Whether the action of Officer Martin in approaching Defendant's automobile and encountering him is viewed as a general investigatory stop, requiring "specific and articulable facts which reasonably warrant the belief that criminal activity is afoot" or a stop pursuant to Section 6308 of the Vehicle Code, requiring "articulable and reasonable grounds to ~ See Commonwealth v. McClellan, 42 Cumberland L.J. 312 (1993). ~ See Commonwealth v. Pealer, 418 Criminal 1993 (Cumberland Co. February 1, 1994). 6 suspect a violation of [the Vehicle Code]," it is believed that the facts recited above sufficed to support the initial detention. The validity of the initial stop being the limited issue to be decided by the Court, the following Order will be entered in conformity with this Opinion: ORDER OF COURT AND NOW, this ~2~ day of August, 1994, upon careful consideration of Defendant's Motion To Suppress, following a hearing and for the reasons stated in the accompanying Opinion, the motion is DENIED. BY THE COURT, J. Wesley Oler, Jr., J. Travis N. Gery, Esq. Assistant District Attorney H. Anthony Adams, Esq. Assistant Public Defender :rc