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HomeMy WebLinkAbout99-1865 criminal v' COMMONWEALTH · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA o vs · 99-1865 CRIMINAL · CHARGE' DUI ROBERT H. MCNEW, JR. · AFFIANT: TPR. ROBIN FEISER OTN' F 141629-5 IN RE: OMNIBUS PRETRIAL MOTION BEFORE HESS, J.. ORDER AND NOW, this 5'- ~ day of January, 2000, the omnibus pretrial motion of the defendant in the nature of a motion to suppress evidence is DENIED. BY THE COURT, Ke~vin~./,,.h2~vin~ ess,/._7/'~J. John Abom, Esquire /' Assistant District Attorney Samuel Milkes, Esquire Assistant Public Defender 'rlm COMMONWEALTH : IN THE cdlOURT OF COMMON PLEAS OF : CUMB E R [..AND COUNTY, PENNSYLVANIA : vs : 99-1865 CRIMINAL : CHARGE: DUI ROBERT H. MCNEW, JR. : AFFIANT: TPR. ROBIN FEISER OTN: F 141629-5 IN RE: OMNIBUS PRETRIAL MOTION BEFORE HESS, J. OPINION AND ORDER This suppression motion challenges the admissibility of evidence obtained as the result of a police roadblock. The parties have agreed that the testiomny in this case would be the same as that adduced at a suppression hearing held before Judge Bayley on March 2, 1999 involving a defendant by the name of Donald G. Davis. Because we believe they are supported by the record, we adopt the following findings of fact as proposed by the Commonwealth. 1. The checkpoint in this case was held on Friday, July 3, 1998 at 11:00 p.m. to Saturday, July 4, 1998 at 4:00 a.m. 2. The checkpoint was held on the Holly Pike, State Route 34, two-tenths of a mile north of Heisers Lane in South Middleton Township, Cumberland County, approximately two miles south of Carlisle Borough and six miles north of Mount Holly Springs Borough. 3. All vehicles travelling both north and south on the Holly Pike passing through the checkpoint were stopped. . 4. Checkpoint officers asked each driver to produce his or her license and vehicle registration. 5. The checkpoint was located adjacent to a parking lot that was used as a pull-off area for drivers suspected of violations. 99-1865 CRIMINAL 6. If traffic were to back up during the checkpoint, officers would allow all vehicle; to pass through the checkpoint without stopping those vehicles. 7. The checkpoint could be observed by motorists travelling in both directions for at least a quarter of a mile. 8. Police erected signs and barriers and parked at least two police vehicles along the north and south berms of State Route 34 for the purpose of warning oncoming motorists of the upcoming checkpoint in accordance with PSP guidelines. 9. Several days prior to the checkpoint, Troop H Public Information Officer, Trooper Robert Trossler, alerted the local daily newspapers based in or near Cumberland County, and Trooper John Yunk prepared a press release regarding the checkpoint and posted it at the Carlisle Barracks for notification and review by the media and the public. 10. Corporal Perry L. Tolbert administers DUI checkpoints throughout Cumberland County for Troop H, Carlisle Barracks. Cpl. Tolbert has over sixteen years of experience as a trooper with the Pennsylvania State Police. 11. Lieutenant Barry Titler, Commander of Carlisle Barracks, has been employed by the Pennsylvania State Police for more than eighteen years. 12. Lt. Barry Titler, in consultation with Lt. Len Hess, PSP Troop H Patrol Section Commander, made the ultimate decision as to where and when this checkpoint would be held. 13. The decision to hold the checkpoint was made well in advance of July 3, 1998, and was not left to the discretion of the police officers in the field on July 3, 1998. 14. In making the decision as to where and when to hold this checkpoint, Lt. Titler and Lt. Hess consulted the most recent PennDOT statistics available and consulted the Carlisle 99-1865 CRI'MINAL Barracks pi-~, :nap and incident tracking system to find a location where there was a large number DUI arrests and alcohol-related traffic accidents. 15. In the twelve-month period preceding the July 3, 1998 checkpoint, there were numerous motor vehicle accidents on the Holly Pike involving drivers who had consumed alcohol and ten DUI arrests in the first six months in 1998. 16. Among the PSP Barracks in Troop H, Carlisle Barracks recorded the highest number of alcohol- related traffic accidents in 1997. 17. Thc Holly Pike is a heavily traveled roadway in South Middleton Township as it is the main thoroughfare between the boroughs of Carlisle and Mount Holly Springs. 18. Carlisle borough has at least twenty, and Mount Holly Springs has at least four public and private establishments which sell alcoholic beverages for consumption on premises. 19. Ahnost all traffic travelling south out of Carlisle and north out of Mount Holly Springs would have to pass through the checkpoint. 20. The checkpoint in this case resulted in six DUI arrests, nine traffic citations, and one Vehicle Code warning being issued. 21. A checkpoint, at the same location as the checkpoint in this case, held on September 5, 1998, resulted in seven DUI arrests, fifteen traffic citations, two non-traffic citations and ten Vehicle Code warnings being issued. 22. In the experience of Lt. Titler and Cpl. Tolbert, the highest frequency of alcohol- related accidents in Cumberland County occur between the hours of 8'00 p.m. and 4:00 a.m.; occur on a Friday or a Saturday; and increase at or around holidays. 23. There is a higher frequency of DUI accidents and arrests made during the late evening and early morning hours. 99-1865 CRIMINAL 24. Independence Day is celebrated each year on July 4. DISCUSSION It is undisputed that a roadblock which entails the stopping of automobiles and the detention of their occupants is subject to scrutiny under the Fourth Amendment to the United States Constitution and Article I, Section VIII of the Pennsylvania Constitution. Com. v. Blouse, 531 Pa. 167, 168, 611 A.2d 1177, 1178 (1992). The Pennsylvania Supreme Court has determined that systematic, nondiscriminatory, nonarbitrary roadblocks do not violate the federal or state constitution. To assure compliance with constitutional requirements, the court has adopted the following guidelines: The conduct of the roadblock itself can be such that it requires only a momentary stop to allow the police to make a brief but trained observation of a vehicle's driver, without entailing any physical search of the vehicle or its occupants. To avoid unnecessary surprise to motorists. the existence of a roadblock can be so conducted as to be ascertainable from a reasonable distance or otherwise made knowable in advance. The possibility of arbitrary roadblocks can be significantly curtailed by the institution of certain safeguards. First, the very decision to hold a drank-driver roadblock, as well as the decision as to its time and place, should be matters reserved for prior administrative approval, thus removing the determination of those matters from the discretion of police officers in the field. In this connection, it is essential that the route selected for the roadblock be one which, based on local experience, is likely to be traveled by intoxicated drivers. The time of the roadblock should be governed by the same consideration. Additionally, the question of which vehicles to stop at the roadblock should not be left to the unfettered discretion of police officers at the scene, but instead should be in accordance with objective standards prefixed by administrative decision. 99-1865 CRIMINAL Id, at 172, 611 A.2d at 1180 (citing Com. v. Tarbert, 517 Pa. 277, 293,535 A.2d 1035, 1043 (1987)). We agree with the Commonwealth that the requirements of Tarbert and Blouse were met in this case. The stop of most vehicles was momentary. Those drivers suspected of possible violations were directed to a pull-off area which insured that the delay to other drivers was kept to a minimum. In addition, if a back-up occurred, all traffic was allowed to pass through the checkpoint without stopping. The checkpoint was ascertainable from a reasonable distance and was made known to the public in advance. The initial warning signs and lights before the checkpoint could be seen for at least a quarter of a mile away. The checkpoint was marked with signs and flares and portable lights had been set up. Several days prior to the checkpoint, local newspapers were notified concerning police intentions. A press release was also posted at the Barracks. There is, in any event, no requirement that checkpoints be publicized in advance. See Com. v. Pacek, 456 Pa. Super. 578, 691 A.2d 466 (1997). Next, we note that the decision to hold the checkpoint was not left to the discretion of officers in the field. The decision to hold the checkpoint was made well in advance of July 3, 1998. The ultimate decision as to where and when the checkpoint would be conducted was made by the Station Commander at the Pennsylvania State Police Barracks in Carlisle and the Patrol Section Commander in Harrisburg. These decisions were not left to the discretion of the police officers in the field on the evening of the checkpoint. Finally, the Commonwealth has demonstrated the likelihood that police officers would encounter intoxicated drivers given both the location and the time of the roadblock. PennDOT statistics revealed that there have been numerous alcohol-related accidents on the Holly Pike. Lt. 99-1865 CRIMINAL Titler, Station Commander, testified that this stretch of highway had the greatest number of DUI arrests and accide~3.ts :-~f an3' road,s-ay in his jurisdiction. "['he checkpoint in this case was approximately two miles south of the borough of Carlisle where there are at least twenty drinking establislunents. The checkpoint was also six miles north of Mount Holly Springs Borough, a municipality with at least four establishments which sell alcoholic beverages for consumption on premises. The checkpoint was conducted at a time at which it was clearly likely that drinking drivers ~vould be encountered. The checkpoint began late on Friday night and continued into the early morning hours of a national holiday. The defendant makes much of the fact that the State Police, in conducting this roadblock, violated certain of their own regulations. For example, the portable lighting at the checkpoint area may have been too bright, the troopers were not positioned on the roadway in full compliance with the Pennsylvania State Police Department directive regarding traffic safety checkpoints, that flares were present in the area of the checkpoint, and that only two or three checkpoints were being conducted on an annual basis in violation of the directive that checkpoints generally be conducted annually. In these regards the defendant "asserts that the failure of the State POlice to comply with their own standards, in the ways described above, constitute significant deviation from the protection intended to be imposed by the courts..." We know of no authority for this proposition. To the contrary, where the police have complied with the requirements of the courts and the constitution, we fail to see how their lack of compliance with more stringent self-imposed standards can serve as a basis for the suppression of evidence. ORDER AND NOW, this ~-' ~' day of January, 2000, the omnibus pretrial motion of the defendant in the nature of a motion to suppress evidence is DENIED. 99-1865 CRIMINAL BY THE COURT, Kevin ss, J. / John Abom, Esquire Assistant District Attorney Samuel Milkes, Esquire Assistant Public Defender :rlm