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HomeMy WebLinkAbout92-2011 Criminal (2)COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. 2011 CRIMINAL 1992 CHARGE: DUI FRANK E. MARQUART AFFIANT: OFC. JEFFREY O'DONNELL OTN: E024039-1 IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION MOTION TO SUPPRESS BEFORE OLER J ORDER OF COURT AND NOW, this 1st day of April, 1993, upon consideration of Defendant's Omnibus Pretrial Motion in the form of a Motion to Suppress, and following a hearing, the Defendant's Motion to Suppress is DENIED. MICHAEL S. SCHWOYER, ESQUIRE Assistant District Attorney WILLIAM G. BRAUGHT, ESQUIRE Assistant Public Defender wcy By the Court, JJ Wesley Ole , Jr., �. COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. 2011 CRIMINAL 1992 CHARGE: DUI FRANK E. MARQUART AFFIANT: OFC. JEFFREY O'DONNELL OTN: E024039-1 IN RE DEFENDANT'S OMNIBUS PRETRIAL MOTION (MOTION TO SUPPRESS) BEFORE OLER, J. OPINION AND ORDER OF COURT In the present criminal case in which the Defendant is charged with Driving Under the Influence, an Omnibus Pretrial Motion in the form of a Motion to Suppress has been filed on behalf of Defendant, seeking exclusion of all evidence resulting from his contact with the affiant, Officer Jeffrey O'Donnell, a police officer of the Borough of Wormleysburg. An evidentiary hearing in which the Commonwealth presented all of the evidence, with the exception of one exhibit, was held on Thursday, April 1, 1993. Based on the evidence submitted at the hearing, the following Findings of Fact, Discussion, and Order of Court are made and entered: FINDINGS OF FACT 1. On April 27, 1992, at approximately 5:10 a.m., Officer Jeffrey O'Donnell was in uniform and on duty in a police vehicle stationed at approximately 900 North Front Street, Borough of Wormleysburg, Cumberland County, Pennsylvania. 2. At the aforesaid time and place, Officer O'Donnell observed a red Ford Thunderbird automobile traveling south on Front Street (U.S. Routes 11 and 15). 3. At the aforesaid time and place, Officer O'Donnell observed the vehicle turn right onto Haldeman Street, which he knew to be a street leading to the American Legion headquarters in Wormleysburg, approximately 70 feet from Front Street, an establishment closed at that hour. 4. Officer O'Donnell was also aware that Haldeman Street ceases to be a two-way street at the place where it passes the American Legion, and that a vehicle heading in the direction the Thunderbird was traveling would not be able to pass beyond the point of the American Legion headquarters on Haldeman Street. 5. The area of the American Legion was one in which the police had encountered many problems with underage drinking and parking in the rear of the headquarters. 6. The officer followed the Thunderbird and discovered that it had passed to the rear of the American Legion headquarters by way of a driveway which encompassed the headquarters, and had come to a stop in the middle of the trafficway, extinguished its lights, and remained in that position with the motor running. 7. The officer approached the vehicle on foot, having observed a driver and female passenger therein, and shined his flashlight into the driver's side of the vehicle, through the driver's side window, which was closed. 8. The officer observed an open beer can in the hand of the driver, said driver being the Defendant herein, Frank E. Marquart. 9. The officer was aware of Section 3715 of the Pennsylvania Vehicle Code, which provides that "[i]t is unlawful for any person who is a driver in any vehicle to consume any alcoholic beverage or controlled substance ... in the vehicle while the vehicle is in operation on any highway in this Commonwealth." Act of December 15, 1982, P.L. 1268 Section 8, 75 Pa. C.S. Section 3715 (1992 Supp.) 10. The officer knocked on the driver's side window with his flashlight, and when the window was lowered by the driver the officer, who had seen other beer cans in the vehicle as well as that being held by the Defendant, asked the occupants to identify themselves and asked what they were doing. 11. The officer detected the odor of an alcoholic beverage on the breath of the driver, and perceived that the driver had bloodshot eyes and slurred speech. 12. Neither the driver nor the occupant of the vehicle had requested assistance from the officer. 13. The Defendant was thereafter asked to submit to field sobriety tests, was then arrested for driving under the influence, and was eventually given a blood alcohol test which yielded a result of .24 percent. DISCUSSION "Encounters between the public and the police that do not involve a formal arrest may be categorized as mere encounters, non-custodial detentions, and custodial detentions. Commonwealth v. Ellis, 379 Pa. Super. 337, 353, 549 A.2d 1323, 1331 (1988). The term 'mere encounter' refers to certain non -coercive interactions with the police that do not rise to the level of the seizure of the person under the fourth amendment. For example, a 'mere encounter' occurs if the police simply approach a person on a public street in order to make inquiries. See Commonwealth v. Hall, 475 Pa. 482, 488, 380 A.2d 1238, 1241 (1977)." Commonwealth v. Brown, 388 Pa. Super. 187, 189-90, 565 A.2d 177, 178 (1989); see Commonwealth v. Bennett, Pa. Super. , A.2d (No. 1120 Pittsburgh 1990) (March 3, 1992). Because it appears to the Court that the contact initiated by the officer in the present case is properly categorized as a mere encounter -- a non -coercive interaction which was appropriate under the circumstances and did not rise to the level of a seizure -- it is unable to agree with Defendant that the officer's action in establishing contact with Defendant constituted a violation of his constitutional rights. Pursuant to this encounter, the officer properly found that sufficient probable cause had developed to place the Defendant under arrest for driving under the influence and that reasonable grounds existed to request the Defendant, under the implied consent law of the Vehicle Code,l to submit to a chemical test of his blood. For these reasons, the following Order will be entered: ORDER OF COURT AND NOW, this 1st day of April, 1993, upon consideration of Defendant's Omnibus Pretrial Motion in the form of a Motion to Suppress, and following a hearing, the Defendant's Motion to Suppress is DENIED. By the Court, Js/ J Wesley Oler, Jr. J. MICHAEL S. SCHWOYER, ESQUIRE Assistant District Attorney WILLIAM G. BRAUGHT, ESQUIRE Assistant Public Defender wcy 1. Act of June 17, 1976, P.C. 162, Section 1, as amended, 75 Pa. C.S. Section 1547 (1992 Supp.).