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HomeMy WebLinkAboutCP-21-CR-0003632-2011 COMMONWEALTH v. IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT REGINA RENEE SCHMEHL CP-21-CR-3632-2011 IN RE: OMNIBUS PRETRIAL MOTION OPINION and ORDER OF COURT nd Placey, C.P.J., 22 April 2013 Defendant filed an Omnibus Pretrial Motion on 11 October 2012, averring that October 2011 was without the requisite probable cause or reasonable suspicion. A hearing was held on 1 March 2013, which was Motion to Suppress on 2 April 2013. This opinion is written in support of the decision made based on the notes of evidence adduced at the omnibus hearing. FINDINGS OF FACT The following findings of fact are made from the courtnotes without a transcript: 1. At approximately 11:25 on the evening of 15 October 2011, a seven-year veteran of the Pennsylvania State Police, hereinafter Trooper, was on routine patrol; 2. The Trooper indicated that he was on State Route 11 in West Pennsboro Township, Cumberland County, which he considers to be a high DUI area; 3. While headed southbound, the Trooper observed a vehicle approaching from the opposite direction of travel that was perceivably moving closer to the double yellow center line as it approached an oncoming vehicle traveling in the opposite direction ahead of him; 4. After the obtrusive vehicle passed, the Trooper spun his patrol car around and witnessed the same vehicle cross over the white fog line onto the berm of the road for a brief time; 5. Upon seeing this, the Trooper activated his overhead lights to conduct a DUI traffic stop; 1 6. This was not a stop to issue a citation for Driving on Roadways Laned for Traffic; 7. The Trooper described the road as being dark, but there were no adverse road conditions that would have otherwise explained the driving; 8. This area of State Route 11 is described as a two lane road, fairly straight, with a minor berm that had mailboxes and culverts along it; 9. The improved berm was not as wide as a lane of traffic; 10. -car camera video of the 2 approach and stop. DISCUSSION Under our jurisprudence, the legal standard for reasonable suspicion is less than probable cause, which is the legal standard for arrest and warrants, but more than an 3 d , 1 75 Pa.C.S. §3309(1). 2 . 3 Terry v. Ohio, 392 U.S.1, 27 (1968). 2 4 are necessary in order for the police to briefly detain a person for investigative purposes. See also Commonwealth v Chase, 960 A.2d 108 (Pa. 2008). 75 Pa.C.S. § 6308(b) provides police with the authority to stop vehicles on roadways 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, 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. (emphasis added). While the issue of quality and quantity of articulation needed by a police officer to initiate a traffic stop for reasonable suspicion has not been put to rest by the Pennsylvania Supreme Court, our Superior Court has provided a detailed analysis in Commonwealth v. Feczko, 10 A.3d 1285 (Pa. Super. 2010). Feczko provided in part: 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. In effect, the language of Section 6308(b) necessary to enforce the pis conceptually equivalent with the underlying purpose of a Terry stop. Feczko, 10 A.3d at 1291 (citations omitted). , The defense contends that this case is controlled by Commonwealth v. Youch 62 Cumb. L.J. 95 (Hess, P.J. 2013), where a suppression motion was granted by the President Judge, after acknowledging that the trooper was a highly experienced officer 4 Terry, 392 U.S. at 21. 3 in the field of DUI and finding [d] of the white or yellow lines and minimal speed adjustments by braking was offered into the record as evidence that [d]efendant was in Youch, 62 Cumb. L.J. at 102-3. The Commonwealth emphasizes that Youch is a fact specific decision. Application of law to facts. The first matter to be resolved is to separate the wheat from the chaff in the facts provided. This is not a case of probable cause; however, the Youch opinion properly references Commonwealth v. Gleason, 785 A.2d 983 (Pa. 2001), as describing the probable cause standard in cases involving traffic stops based on Vehicle Code Section 3309(1). In Gleason, our Supreme Court found the combination of the early morning hour, no other traffic, and momentary nature over the fog line was not adequate justification for a probable cause stop. Reasonable suspicion is therefore less than this standard. The unsupported assertions that State Route 11 is a high DUI area and that 11:25 p.m. is a leading time for DUI incidents is also, therefore, chaff among the wheat. See Youch. Along this evidentiary spectrum, reasonable suspicion is between an unparticularized suspicion or hunch and probable cause. When it appears through the trained and experienced perceptions of an officer that a crime may have been committed, reasonable suspicion exists to briefly stop and investigate. This is less than the evidence necessary for probable cause, when the evidence is obvious that a crime has most likely been committed. A more precise definition of reasonable suspicion has not been found despite extensive legal research efforts. 4 In an effort to provide a guide post, this court would reduce reasonable suspicion into two basic elemental questions: Primarily, is there sufficient information available and articulated that would lead an officer to believe that criminal activity is taking place; and, secondarily, is there a sound basis for the officer to believe that a particular person could be involved in the suspected criminal activity. As previously stated, some of the evidence presented is simply chaff and not reliable, quality information that criminal activity is taking place. The unsupported assertions based on the road or times of day as being indicative of impaired driving are unsubstantiated without further validation. The critically important facts in this case are that a seasoned patrol officer perceived abching oncoming traffic, which the Trooper considered dangerous and, more importantly, caused the Trooper to react and follow that vehicle. In following the vehicle, the Trooper witnessed Defendant failure to keep the vehicle within the marked lanes, which in and of itself would not be probable cause or reasonable suspicion to stop this vehicle. Adding to the straight nature of the road, no adverse conditions that would otherwise explain a need for such driving, anda roadway with only a minor berm bounded sporadically by mailboxes and drainage culverts. Unlike Youch wherein the only evidentiary support of record was momentary touching of the white or yellow line and minimal speed variances, which does not pass the primary inquiry noted above, it is a combination of factors in this particular case that leads this court to its decision. Primarily, the perceived abnormal and dangerous driving by a trained, experienced officer coupled with s movement, albeit brief, 5 outside the lane of travel. Secondary factors considered include the fairly straight nature of the roadway, the narrower berm with potential hazards, and the road conditions that did not otherwise require such movement on the part of Defendant. Together, both the primary and secondary factors support the finding that the Trooper had reasonable suspicion to believe a violation of the Vehicle Code, specifically the driving impaired laws, was taking place. To find otherwise would be to maintain the Gleason probable cause standard for vehicle stops rather than the lesser articulated standard of reasonable suspicion found in Section 6308(b). Thus, viewing the totality of the circumstances, it is found that reasonable suspicion existed and the Trooper had an 5 objective basis for suspecting DUI activity. ORDER OF COURT AND NOW22ndApril 2013 , this day of DENIED Omnibus Pretrial Motion and following a hearing, otion is . BY THE COURT, _____________________________ Thomas A. Placey C.P.J. Distribution: Richard H. Bradbury, Jr. Assistant District Attorney Diane L. Morgan Senior Assistant Public Defender 5 The inquiry in this motion stopped the moment the lights were activated in the patrol car. The issues associated with a brief investigatory detention are left to a future finder of facts. 6