HomeMy WebLinkAbout94-1080 Criminal COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : 94-1080 CRIMINAL TERM
:
JENNIFER MARIE FRY :
OTN: E331110-3 : AFFIANT: PTL. JEFFREY R. FRANKS
IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this [ ~ day of September, 1994, upon consideration
of Defendant ' s Omnibus Pretrial Motion and for the reasons
contained in the accompanying Opinion, the motion is DENIED.
BY THE COURT,
~.~esley Ole~ Jr., J.'
Travis N. Gery, Esq.
Assistant District Attorney
Samuel W. Milkes, Esq.
Assistant Public Defender
· rc
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : 94-1080 CRIMINAL TERM
:
JENNIFER MARIE FRY :
OTN: E331110-3 : AFFIANT: PTL. JEFFREY R. FRANKS
IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION
BEFORE OLER, J.
OPINION and ORDER OF COURT
Oler, J.
In the present case, Defendant is charged with driving under
the influence~ as a result of an incident occurring on Monday, May
2, 1994. For disposition at this time is an omnibus pretrial
motion for relief2 filed on her behalf.3 The motion is premised
upon the alleged illegality of a stop of Defendant's car,4 and the
relief sought is suppression of evidence and dismissal of the
information.5
A hearing on the motion was held on Thursday, August 25, 1994.
For the reasons stated in this Opinion, the motion will be denied.
FINDINGS OF FACT
1. Defendant and moving party is Jennifer Marie Fry.
2. On the evening of Monday, May 2, 1994, Defendant was
drinking with a friend at the Gingerbread Man, a bar and restaurant
~ See Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa.
C.S. ~3731(a)(4), (5) (1994 Supp.).
See Pa. R. Crim. P. 306.
Defendant's Omnibus Pre-Trial Motion, filed July 26, 1994.
Id., paragraphs 5-6.
Id., claim for relief.
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in the Borough of Wormleysburg, Cumberland County, Pennsylvania.
3. After Defendant had been served one margarita at the said
establishment, Assistant Manager Jennifer Everett was told by the
manager that Defendant was not to be served any more alcohol.
4. Defendant reacted to being flagged by responding "Fuck
you" and sticking her tongue out at the assistant manager while her
mouth was full of food.
5. Defendant's head bobbed as she spoke, she was very angry,
and the assistant manager, based upon six years of experience as a
bar-and-restaurant employee, perceived that she was intoxicated.
6. The assistant manager attempted to dissuade Defendant from
using her car to leave, offered to call her a cab, told her that
the establishment would pay for the cab, and warned her that the
police would be called if she attempted to drive herself from the
bar.
7. After some arguing, Defendant agreed to accept the offer
of a cab ride and a taxi was called for her.
8. Defendant, however, slipped into her car and drove away.
9. The assistant manager called Cumberland County Control and
reported that a "very intoxicated" female driver had just left the
Gingerbread Man, that she was operating a gray or silver Mazda RX-
7, and that the Pennsylvania license plate on her car was AEA7008.
10. This information was broadcast by Cumberland County
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Control on the police frequency at approximately 7:45 p.m.
11. Wormleysburg Borough borders Lemoyne Borough in
Cumberland County, and the Gingerbread Man in Wormleysburg is
approximately 500 feet from the border.
12. Wormleysburg Borough police were unable to respond to the
situation because the officers on duty were occupied with other
official business at that time.
13. Wormleysburg Borough, Lemoyne Borough, and Lower Allen
Township in Cumberland County, and Fairview Township in York
County, are among the parties to a mutual aid agreement, designed
to facilitate police assistance from other municipalities in
circumstances of the present type.
14. Lemoyne Borough Police Officer Jeffrey R. Franks, who was
in full uniform and in a marked patrol car, positioned his vehicle
approximately 2500 feet from the Wormleysburg Gingerbread Man, in
Lemoyne, with a view of traffic passing on one of two roads that
Defendant could be expected to be on.
15. Within seconds of the dispatch, Officer Franks spotted
Defendant's Mazda RX-7, bearing the license plate indicated; he
proceeded to follow the vehicle over a course of about two-and-a-
half miles, through Lemoyne Borough, Lower Allen Township, and into
Fairview Township, where he effectuated a traffic stop.
16. When stopped, Defendant sat staring ahead for a period of
time with the window rolled up; when she finally rolled the window
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down, she continued to stare ahead.
17. The officer detected an odor of an alcoholic beverage and
observed that Defendant's eyes were glassy and bloodshot.
18. The officer administered field sobriety tests to
Defendant, including the walk-and-turn test and the one-leg-stand
test.
19. With respect to the walk-and-turn test, Defendant was
unable to maintain her balance during the instructional phase,
started before being told to do so, did not walk heel-to-toe as
instructed, pivoted incorrectly, stepped off a straight course, and
raised her arms.
20. With respect to the one-leg-stand test, during the first
ten seconds Defendant swayed, raised her arms and put her foot
down; during the second ten seconds, she raised her arms and put
her foot down; and during the third and final ten seconds, she put
her foot down repeatedly and lifted her foot only an inch off the
ground. The officer terminated this test prior to its normal time
for completion.
21. A chemical test to determine blood alcohol content was
administered to Defendant at 8:45 p.m.; the test result was .19%.
22. During the course of his pursuit of Defendant, Officer
Franks received additional information concerning her, including
the fact that she had refused a cab; prior to the stop, he had also
received a description of Defendant.
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23. During the course of his pursuit of Defendant, Officer
Franks did not observe any violations of the rules of the road by
Defendant and her driving did not appear abnormal.
Statement of Law
Stops by police in qeneral. "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).6 "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 S6.01 (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. §6.02.
Even in the absence of probable cause, an
investigating police officer may stop and
6 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).
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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.7
"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, is it 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, §1, as amended, 75 Pa. C.S. ~6308
7 1 Wasserbly, Pennsylvania Criminal Practice §6.02 (1991).
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(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
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,, §1, as
amended, 75 Pa. C.S. §3731 (1994 Supp.). On the issue of the
propriety of a stop of a vehicle in connection with this offense
based upon a radio dispatch containing the report of a private
citizen, where the police themselves do not observe any criminal
activity, the case of Commonwealth v. Janiak, 368 Pa. Super. 626,
534 A.2d 833 (1987), is instructive.
[I]n Commonwealth v. Janiak, .. [the
Pennsylvania Superior] Court affirmed'a ruling
that police officers were justified in making
an investigative stop of an automobile when
they were informed via police radio of a
report by a private citizen that an individual
was driving while under the influence near
their position, they only observed one vehicle
on the roads described, and the only
observation they had made was that the vehicle
was traveling about 15 to 20 miles per hour.
Commonwealth v. Smith, 396 Pa. Super. 6, 14, 577 A.2d 1387, 1391-92
(1990).
The fact that an officer who effectuates a stop has not
personally observed conduct of the Defendant tending to confirm the
report of intoxication - i.e., has not "personally observed ...
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criminal conduct from the vehicle" - is not dispositive of the
issue of the validity of a traffic stop for investigatory purposes.
Commonwealth v. Janiak, 368 Pa. Super. 626, 631, 534 A.2d 833, 835
(1987) (emphasis omitted).8
Dismissal of information as result of illegal stop. "As a
general rule the effect of an illegal arrest is the exclusion of
resultant evidence, as opposed to a direct discharge of the
defendant. See Commonwealth v. Hamme, 400 Pa. Super. 537, 583 A.2d
1245 (1990)." Commonwealth v. Barndt, No. 94-0247 Criminal Term,
at 8 (Cumberland Co., July 12, 1994).
APPLICATION OF LAW TO FACTS
In the present case, the officer who effectuated a stop of
Defendant's vehicle had received a report via police radio from an
identified citizen with special knowledge in the area of
intoxicated persons that Defendant was "very intoxicated" and that
she was at that moment driving in his vicinity. Within moments, he
spotted what was unmistakably the vehicle described by the citizen,
being driven by Defendant. By the time of the stop, the officer
was aware of the driver's description and the fact that she had
8 The Pennsylvania Superior Court has also stated, in the
context of a vehicle stop and arrest following a police radio
broadcast, that "a police officer may rely upon information which
is broadcast over a police radio in order to justify an
investigatory stop and subsequent arrest where the Commonwealth can
establish either (1) that probable cause existed for issuing the
bulletin or (2) that new information disclosed during the stop gave
rise to probable cause for arrest." Commonwealth v. Prengle, 293
Pa. Super. 64, 68, 437 A.2d 992, 994 (1981).
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allegedly driven from a bar in spite of the offer of a cab.
Whether the action of Officer Franks 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 suspect a violation of [the
Vehicle Code]," it is believed that the facts recited above
sufficed to support the initial detention. The circumstance that
the officer did not himself observe unsafe driving is not per se
dispositive of the validity of the stop.9
The validity of the initial stop being the limited issue to be
decided by the Court, the following Order will be entered in
9 It should also be noted that inability to drive a vehicle
safely is not an element of every form of driving under the
influence. Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa.
C.S. §3731(a)(4), (5) (1994 Supp.). According to Defendant's
omnibus pretrial motion, she was in fact charged only with the
forms of the offense relating to blood alcohol content.
Defendant's Omnibus Pre-Trial Motion, paragraph 3 and claim for
relief.
94-1080 CRIMINAL TERM
accordance with this Opinion:~°
ORDER OF COURT
AND NOW, this /~day of September, 1994, upon consideration
of Defendant's Omnibus Pretrial Motion and for the reasons
contained in the accompanying Opinion, the motion is DENIED.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Travis N. Gery, Esq.
Assistant District Attorney
Samuel W. Milkes, Esq.
Assistant Public Defender
:re
~0 At the hearing on Defendant's omnibus pretrial motion,
Defendant's counsel raised orally the question of whether the
Lemoyne Borough officer's action was compatible with Section
3731(c) of the Vehicle Code. This section provides as follows:
Certain arrests authorized. -- In
addition to any other powers of arrest, a
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police officer is hereby authorized to arrest
without a warrant any person who the officer
has probable cause to believe has violated the
provisions of this section, regardless of
whether the alleged violation was committed in
the presence of such officer. This authority
to arrest extends to any hospital or other
medical treatment facility located beyond the
territorial limits of the police officer's
political subdivision at which the person to
be arrested is found or was taken or removed
to for purposes of emergency treatment
examination or evaluation provided there is
probable cause to believe that the violation
of this section occurred within the police
officer's political subdivision.
Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S.
S3731(c) (1994 Supp.)
Implicated by this statute are issues concerning an officer's
authority to arrest without a warrant and a municipal police
officer's territorial jurisdiction. These matters will be
discussed seriatim.
With respect to an officer's authority to arrest without a
warrant, it is well settled that such an arrest may be made for a
Vehicle Code misdemeanor committed in the officer's presence.
Commonwealth v. Streater, 422 Pa. Super. 502, 619 A.2d 1070 (1993).
Under Section 3731(c) of the Vehicle Code, an arrest without a
warrant for the Vehicle Code misdemeanor of driving under the
influence may also be permissible when the act was not committed in
the officer's presence.
With respect to the general power of a municipal police
officer to act beyond the territorial limits of his or her primary
jurisdiction, such authority is described in Section 8953 of the
Judicial Code. In pertinent part, this section provides as
follows:
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(a) ~eneral rule. - Any duly employed
municipal police officer who is within this
Commonwealth, but beyond the territorial
limits of his primary jurisdiction, shall have
the power and authority to enforce the laws of
this Commonwealth or otherwise perform the
functions of that office as if enforcing those
laws or performing those functions within the
territorial limits of his primary jurisdiction
in the following cases: ...
(2) Where the officer is in hot
pursuit of any person for any
offense which was committed, or
which he has probable cause to
believe was committed, within his
primary jurisdiction and for which
offense the officer continues in
fresh pursuit of the person after
the commission of the offense.
(3) Where the officer has been
requested to aid or assist any local
· .. law enforcement officer ... or
otherwise has probable cause to
believe that the other officer is in
need of aid or assistance.
(4) Where the officer has
obtained the prior consent of the
chief law enforcement officer, or a
person authorized by him to give
consent, of the organized law
enforcement agency which provides
primary police services to a
political subdivision which is
beyond that officer's primary
jurisdiction to enter the other
jurisdiction for the purpose of
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conducting official duties which
arise from official matters within
his primary jurisdiction.
(5) Where the officer is on
official business and views an
offense, or has probable cause to
believe that an offense has been
committed, and makes a reasonable
effort to identify himself as a
police officer and which offense is
a felony, misdemeanor, breach of the
peace or other act which presents an
immediate clear and present danger
to persons or property ....
(e) Existing and future municipal police
service agreements preserved. - Nothing in
this section shall be construed to restrict
the authority of any municipality to maintain
current or to enter into new cooperative
police service agreements with another
municipality or municipalities for purposes
including, but not limited to, describing
conditions of mutual aid, assigning liability
and determining appropriate costs of these
cooperative efforts.
Act of June 15, 1982, P.L. 512, S4, as amended, 42 Pa. C.S. S8953
(Main Vol. & 1994 Supp.) (emphasis added).
Mutual aid compacts of the type entered into by the officer's
borough with adjacent or nearby municipalities are authorized by
statute. Act of February 1, 1966, P.L. (1965) , No. 581, 53
P.S. ~1202(35).
In the present case, the Defendant's conduct of driving while
allegedly under the influence was committed, for a period, in the
presence of the arresting officer within his primary jurisdiction,
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a second jurisdiction and the jurisdiction where Defendant was
stopped. It is unnecessary to determine whether an arrest without
a warrant might have been permissible under Section 3731(c) of the
Vehicle Code, relating to arrests for such an offense committed
outside the presence of the arresting officer.
As to the officer's authority to pursue and eventually stop
Defendant beyond his primary jurisdiction, it has been noted that
Defendant was reliably reported to be driving under the influence
in a municipality with which the officer's municipality had a
mutual assistance agreement, under circumstances necessitating his
assistance; and that while still in his municipality the officer
saw the allegedly intoxicated person driving, followed her through
another participating municipality, and stopped her in a third.
The officer's authority can be supported under the rule of
municipal police authority respecting pursuit of one believed, with
probable cause, to have committed an offense within the officer's
primary jurisdiction; on the basis of the municipalities, mutual
assistance agreement; and under the rule respecting an officer's
view of a misdemeanor while on official business. As to probable
cause based on a radio broadcast, see Note 8 supra.
It is unnecessary to further support this result on grounds of
waiver.
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