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HomeMy WebLinkAboutCP-21-CR-0001042-2012 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : LAWRENCE EDWARD YOUCH, JR. : NO. CP-21-CR-1042-2012 OTN: L657145-6 : IN RE: OMNIBUS PRE-TRIAL MOTION OPINTION and ORDER For consideration at this time is Defendant’s Omnibus Pre-Trial Motion. (Omnibus Pre- Trial Motion, filed Aug. 30, 2012). Subsequent to a traffic stop, Defendant was charged with the following: at Count I – Driving Under the Influence of Alcohol or Controlled Substance (General Impairment), a violation of 75 Pa.C.S.A. § 3802(a)(1); at Count II – Driving Under the Influence of Alcohol or Controlled Substance (High Rate of Alcohol), a violation of 75 Pa.C.S.A. § 3802(b); and at Count III – Driving on Roadways Laned for Traffic, a violation of 75 Pa.C.S.A. § 3309(1). (Criminal Complaint, filed Oct. 31, 2011). Defendant has filed the instant motion asserting that the stop of his vehicle was unconstitutional in that it was without probable cause and/or reasonable suspicion; as a result, Defendant requests that all evidence obtained as a result of the stop be suppressed. The facts of this case may be summarized as follows. All of the charges stem from a traffic stop that was initiated in the early morning hours of September 11, 2011. (Notes of Testimony, 6, Hearing, In Re: Transcript of Proceedings Omnibus Pretrial Motion, Dec. 13, 2012 (hereinafter “N.T. __”)). At a hearing on the motion sub judice, Trooper Rodney Fink testified that, at approximately 1:00 a.m. on that date, he was driving a marked state police vehicle on State Route 74, known as York Road, in Cumberland County when he first observed Defendant’s white Mitsubishi Eclipse. (N.T. 6). Trooper Fink testified that Defendant’s vehicle was traveling north on York Road ahead of a silver pickup truck and that his police vehicle was approximately “a car length or two” behind the pickup. (N.T. 7). The trooper testified that he made the decision to initiate a traffic stop of Defendant’s vehicle after observing the vehicle adjusting its speed, drifting onto the white fog line and back over to touch the double yellow line, and because the vehicle was in an area with a “high likelihood” of impaired drivers. (N.T. 7-9). The record was unclear as to how long Defendant’s vehicle either touched or remained on either the fog line or the double yellow line. Trooper Fink did testify, however, that at one point oncoming traffic was visible and that no evasive action was required by drivers as they passed Defendant’s vehicle. (N.T. 10). The trooper further testified that at no time was the pickup truck, immediately behind Defendant’s vehicle, required to take corrective action because of Defendant’s driving. (N.T. 10). On cross-examination, Trooper Fink testified that there was no indication that Defendant was speeding; at no point was Defendant’s vehicle straddling the center lines nor following too closely to another vehicle; and that Defendant promptly pulled his vehicle to the side of the road once the traffic stop had been initiated. (N.T. 23). At the hearing, a video recording taken from Trooper Fink’s police vehicle was entered into the record and played for the court. The video indicated that the night in question was overcast and there was rain in the area requiring motorists to utilize their windshield wipers. The video showed Trooper Fink’s vehicle approximately 3/10 of a mile behind Defendant’s vehicle and the pickup truck. This is consistent with the trooper’s testimony. (N.T. 19). Despite the proximity, much of the view of Defendant’s vehicle from the police camera was obstructed by a combination of the pickup truck, rain, and a variety of hills in the roadway that caused the vehicle to fall in and out of the camera’s line-of-sight. 2 The trooper testified that the reason for the traffic stop was twofold: first, for a violation of the Vehicle Code, 75 Pa.C.S.A. § 3309(1), Driving on Roadways Laned for Traffic; and secondly, for the investigation of what he believed an intoxicated driver. (N.T. 25). Trooper Fink was unable, however, give the exact location at which he believed the violation of § 3309 to have occurred. (N.T. 26). After the trooper initiated the traffic stop, Defendant was requested to exit the vehicle, and Trooper Fink administered a variety of field sobriety tests. (Affidavit of Probable Cause, Criminal Complaint). As a result of those tests, Trooper Fink placed Defendant under arrest for DUI. (Affidavit of Probable Cause, Criminal Complaint). Defendant was subsequently charged with the following: at Count I – Driving Under the Influence of Alcohol or Controlled Substance (General Impairment), a violation of 75 Pa.C.S.A. § 3802(a)(1); at Count II – Driving Under the Influence of Alcohol or Controlled Substance (High Rate of Alcohol), a violation of 75 Pa.C.S.A. § 3802(b); and at Count III – Driving on Roadways Laned for Traffic, a violation of 75 Pa.C.S.A. § 3309(1). Defendant has filed the instant motion asserting that the stop of his vehicle was unconstitutional as the trooper did not possess the requisite quantum of cause needed to initiate a traffic stop of his vehicle. Specifically, Defendant asserts that the trooper did not have probable cause to believe that he had violated 75 Pa.C.S.A. § 3309(1), nor did the trooper have reasonable suspicion to believe that Defendant was driving under the influence. As a result, Defendant has requested that all evidence obtained as a result of the stop be suppressed. 75 Pa.C.S. § 6308(b) of the Vehicle Code is the relevant statutory provision and provides as follows: (b) Authority of police officer.-- Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle, 3 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 this title. 75 Pa.C.S. § 6308(b). The issue of the amount and type of cause needed for a police officer to initiate a traffic stop was recently addressed in Commonwealth v. Feczko, 2010 PA Super 239, 10 A.3d 1285. In that case, the Superior Court examined the recent changes to § 6308(b) and engaged in a thorough review of the statute’s evolution. The Superior Court provided a succinct summary of the current legal standard surrounding traffic stops, and found as follows: In light of our Supreme Court's interpretation of the current language of Section 6308(b), we are compelled to conclude that the standards concerning the quantum of cause necessary for an officer to stop a vehicle in this Commonwealth are settled; notwithstanding any prior diversity on the issue among panels of this Court. Traffic stops based on a reasonable suspicion: either of criminal activity or a violation of the Motor Vehicle Code under the authority of Section 6308(b) must serve a stated investigatory purpose. Chase, 960 A.2d at 116. In effect, the language of Section 6308(b)—“to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title”—is conceptually equivalent with the underlying purpose of a Terry stop. Id. (quoting 75 Pa.C.S. § 6308(b)). Mere reasonable suspicion will not justify a vehicle stop when the driver's detention cannot serve an investigatory purpose relevant to the suspected violation. In such an instance, “it is encumbent [sic] upon the officer to articulate specific facts possessed by him, at the time of the questioned stop, which would provide probable cause to believe that the vehicle or the driver was in violation of some provision of the Code.” Gleason, 785 A.2d at 989 (citation omitted). See also Chase, 960 A.2d at 116 (reaffirming Gleason's probable cause standard for non-investigative detentions of suspected Vehicle Code violations). Feczko, 10 A.3d 1290-91 (emphasis original). Thus, the Superior Court delineated between those instances in which reasonable suspicion alone will serve as a valid basis for a stop and those where it will not. Where there exists reasonable suspicion to believe (1) that criminal activity is afoot, or (2) that a stop will 4 serve an investigatory purpose in determining whether there has been a violation of the vehicle code, then in those instances reasonable suspicion is the minimum quantum of cause needed to initiate a traffic stop. Id. Where a stop would serve no further investigatory purpose in relation to the suspected violation, then in those situations reasonable suspicion will not justify the detention; instead, an officer must have probable cause to believe that a violation of the vehicle code has occurred in order for a stop to be proper. Id. (see also Commonwealth v. Chase, 599 Pa. 80, 960 A.2d 108 (2008) (holding that probable cause of a Vehicle Code violation is needed for a non-investigatory stop)). In determining whether reasonable suspicion exists, the analysis is the same under both Article I, § 8 of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution. Commonwealth v. Goodwin, 561 Pa. 346, fn. 3, 750 A.2d 795, fn. 3 (2000); See also Commonwealth v. Leonard, 2008 Pa. Super. 127, ¶ 8, 951 A.2d 393, 396. The essence of the analysis is an objective one: whether “‘the facts available to the officer at the moment of the [intrusion] “warrant a man of reasonable caution in the belief” that the action taken was appropriate.’” Id. The analysis, similar to that of probable cause, requires an examination of the totality of the circumstances, with a lesser showing required to determine reasonable suspicion in terms of both quantity or content and reliability. Commonwealth v. Zhahir, 561 Pa. 545, 751 A.2d 1153, 1156 (2000). “The question of whether reasonable suspicion existed at the time of a detention must be answered by examining the totality of the circumstances to determine whether there was a particularized and objective basis for suspecting the detainee of criminal activity.” Commonwealth v. Freeman, 563 Pa. 82, 90, 757 A.2d 903, 908 (2000) (emphasis added). Conversely, a determination of probable cause is supported where an officer is able to articulate specific facts possessed by him at the time of the questioned stop, which would lead a 5 reasonable person to believe that it is more probable than not that a violation of the Vehicle Code has occurred. Commonwealth v. Lindblom, 2004 PA Super 270, ¶ 4, 854 A.2d 604, 607; Commonwealth v. Battaglia, 2002 PA Super 209, 802 A.2d 652; Commonwealth v. Cook, 2004 PA Super 449, 865 A.2d 869. “The officer must be able to articulate specific facts possessed by him at the time of the questioned stop, which would provide probable cause to believe that the vehicle or the driver was in some violation of some provision of the Vehicle Code.” Lindblom, 2004 PA Super 270, ¶ 4. Probable cause is not a determination which requires certainty; rather, it exists “when criminality is one reasonable inference, not necessarily even the most likely inference.” Id. (citing Commonwealth v. Stroud, 699 A.2d 1305, 1308 (Pa. Super. 1997). Whether an officer possesses probable cause to stop a vehicle for a violation of § 3309 depends “largely upon whether a driver’s movement from his lane is done safely.” Cook, 2004 PA Super 449, ¶ 6. Section 3309(1) of the Vehicle Code, entitled “Driving on Roadways Laned for Traffic,” provides as follows: “(1) Driving within single lane. -- A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that the movement can be made with safety.” 75 Pa.C.S. § 3309(1). Pennsylvania courts have come to differing results when asked to determine whether a police officer had the required probable cause to believe that a violation of this subsection occurred. This is largely because the probable cause determination is a fact-sensitive analysis. In Feczko, supra, the Superior Court upheld a trial court’s finding that an officer possessed the requisite probable cause to believe that a violation of § 3309(1) had occurred where the trooper observed the defendant’s vehicle touch the white fog line on numerous occasions, cross a double yellow center line while negotiating a curve, drift over the white fog line on the opposite side of the 6 traffic lane, and all while on-coming traffic was visible. Feczko, 10 A.3d at 1291-92. In Commonwealth v. Slonaker, 795 A.2d 397 (Pa. Super. 2002), the Superior Court affirmed a finding of probable cause where an officer observed a defendant’s vehicle weaving “erratically” for five miles, accelerating and decelerating at night, and going outside the lane of travel on more than one occasion. Additionally, the Superior Court in Cook, supra, affirmed a finding of probable cause for a violation of § 3309(1) where an officer received a call that a vehicle was being driven in an erratic manner, where the officer observed a defendant’s vehicle cross over a fog line three times to such an extent that one half of the vehicle was across the line, where those forages across the fog line resulted in a rapid and unsafe jerk back into the lane of travel, and where the officer followed the defendant’s vehicle for a distance of one mile. Cook, 2004 PA Super 449, ¶ 8. It is clear, therefore, that all of these instances appear to have included some type of serious and dangerous driving infraction so as to warrant a proper finding of probable cause. Conversely, case law indicates that where there exists a more minor and momentary infraction of the proper lanes of travel, courts have found a lack of probable cause. In Commonwealth v. Gleason, 567 Pa. 111, 785 A.2d 983 (2001), the Court found that, “[g]iven the earning morning hour, the fact that there was no other traffic on the roadway and the rather momentary nature of defendant’s vehicle crossing the fog line. . ., the officer erred in believing 1 he had justification to stop defendant’s vehicle.” In Commonwealth v. Battaglia, 2002 PA Super 209, 802 A.2d 652, the Superior Court upheld a trial court’s finding that a motorist’s drifting onto the berm of the highway two or three times within a short distance was not, in and of itself, 1 While Gleason has been abrogated by a change in the wording of 75 Pa.C.S. § 6308(b), the analysis of probable cause is still instructive on the issue sub judice, as it applied the probable cause standard to facts involving an alleged violation of 75 Pa.C.S. § 3309(1). 7 sufficient to warrant a finding of probable cause. Lastly, in Commonwealth v. Garcia, 2004 PA Super 372, 859 A.2d 820, the Superior Court held that an officer lacked probable cause where the motorist drove over the right berm line of the road only twice. As noted above, a traffic stop is also proper where an officer has reasonable suspicion to believe either that criminal activity is afoot, or that the stop will serve an investigatory purpose in determining whether there has been a violation of the vehicle code. Our Supreme Court has specifically upheld the constitutionality of the reasonable suspicion standard in DUI investigatory stops. Chase, 99 Pa. at 93, 960 A.2d at 115 (citing Commonwealth v. Sands, 2005 PA Super 372, 887 A.2d 261) (“Sands distinguished a vehicle stop for suspected DUI, noting that such a stop was ‘a scenario where further investigation almost invariable leads to the most incriminating type of evidence, i.e., a strong odor of alcohol, slurred speech, and blood shot eyes. This type of evidence can only be obtained by a stop and investigation.’”). In determining whether an officer has reasonable suspicion to believe a motorist is DUI, Pennsylvania courts continue to apply the traditional reasonable suspicion standard. That is, “[a] police officer is justified in conducting a stop of a person if the officer can point to specific facts which create reasonable suspicion that the person is involved in criminal activity.” Commonwealth v. Anthony, 2009 PA Super 133, ¶ 14, 977 A.2d 1182, 1187. In Anthony, the Superior Court found that an officer was justified in conducting a traffic stop on suspicion of DUI when that officer received information from a dispatcher, via a 911 call from an identified caller, that a driver of an automobile of a specific color and make had almost struck a bridge, had driven onto a sidewalk, and had run a stop sign at a specified intersection. Id. at ¶ 15. Similarly, in Commonwealth v. Hughes, 2006 PA Super 266, ¶ 11, 908 A.2d 924, 928, the Superior Court upheld a finding of reasonable suspicion of DUI where an experienced officer observed a 8 motorist driving erratically, where the officer observed the vehicle swerve right onto the berm, then back into the right lane, and then left across the dotted white line into the lane that the officer was traveling in. The officer then followed the vehicle for one-half to three quarters of a mile and observed the driver swerve into the other lane two more times. Id. Based upon the totality of the circumstances presented therein, the Superior Court found that the officer possessed a sufficient basis of information for reasonable suspicion of DUI. Id. In this case, we are compelled to the conclusion that Trooper Fink had neither probable cause to believe that Defendant had violated 75 Pa.C.S. § 3309(1), nor did he have reasonable suspicion to believe that Defendant was DUI at the time he initiated the traffic stop of Defendant’s vehicle. We turn first to the alleged violation of 75 Pa.C.S. § 3309(1), Driving on Roadways Laned for Traffic. Because a violation of that subsection is not a Vehicle Code infraction which can be further investigated by a traffic stop (either there was or there was not a violation), Trooper Fink was required to have probable cause to believe that Defendant had indeed violated § 3309(1) in order to initiate a proper traffic stop. The applicable case law makes it clear that, where there exists a minor and momentary infraction of the proper lanes of travel, no probable cause exists to believe that there has been a violation of § 3309(1). Trooper Fink testified that Defendant’s vehicle made contact with the white fog line and the double yellow line, but the record is unclear as to the duration of those infractions or their severity. Moreover, the police video indicates that the night was dark and wet, and that the roadway contained hills and turns. At best, the video and testimony indicates that Defendant’s tires touched either the white or yellow lines, but did not straddle the yellow line, and that the road conditions that night were less than ideal. This momentary touching of the lines and not 9 uncommon braking is simply not sufficient to warrant the initiation of a traffic stop as a perceived violation of § 3309(1). Turning to the Commonwealth’s assertion that Trooper Fink had reasonable suspicion to believe that Defendant was DUI, for largely the same reasons as described above, we find that he did not. To determine whether reasonable suspicion exists, an officer must be able to point to specific and articulable facts that would lead him to believe that criminal activity may be afoot. Acknowledging that Trooper Fink is a highly experienced officer in the field of DUI, nothing other than Defendant’s momentary touching of the white or yellow lines and minimal speed adjustments by braking was offered into the record as evidence that Defendant was indeed driving under the influence. Moreover, a motorist’s presence on a specific roadway at a certain time of time night, without more, is not a proper factor to be considered in the reasonable suspicion analysis. For all the foregoing reasons, we enter the following order. ORDER th AND NOW, this 25 day of January, 2013, upon consideration of Defendant’s Omnibus Pre-Trial Motion, and following a suppression hearing thereon, Defendant’s Motion is GRANTED, and any and all evidence obtained as a result of the stop of Defendant’s motor vehicle by the Pennsylvania State Police is hereby suppressed. BY THE COURT, Kevin A. Hess, P.J. 10 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : LAWRENCE EDWARD YOUCH, JR. : NO. CP-21-CR-1042-2012 OTN: L657145-6 : IN RE: OMNIBUS PRE-TRIAL MOTION ORDER th AND NOW, this 25 day of January, 2013, upon consideration of Defendant’s Omnibus Pre-Trial Motion, and following a suppression hearing thereon, Defendant’s Motion is GRANTED, and any and all evidence obtained as a result of the stop of Defendant’s motor vehicle by the Pennsylvania State Police is hereby suppressed. BY THE COURT, Kevin A. Hess, P.J. Charles J. Volkert, Jr., Esquire Assistant District Attorney David E. Hershey, Esquire For the Defendant :rlm