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HomeMy WebLinkAbout01-1965 CRIMINALCOMMONWEALTH JOHN F. YARINA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-1965 CRIMINAL TERM IN RE: MOTION TO SUPPRESS EVIDENCE BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., February 7, 2002:-- Defendant, John F. Yarina, is charged with counts of driving under the influence of alcohol,1 and unlawful possession of drug paraphernalia? He filed a motion to suppress evidence upon which a hearing was conducted on January 29, 2002. We find the following facts. On June 30, 2001, Officer Brian Staley, of the New Cumberland Borough Police Department, was on patrol in a marked car. At approximately 12:15 a.m., he was driving northbound on Bridge Street in the Borough of New Cumberland. Bridge Street is a wide two-way street divided by a double yellow line. Officer Staley saw a motorcycle, with a passenger, ahead of him. The motorcycle was traveling to the far right side of the street, where parking was permitted. A traffic light at Sixteenth Street turned red. The motorcycle slowed to stop, and Officer Staley saw it lean to the left to a 1 75 Pa.C.S. § 3731(a)(1) and (4). 2 35 P.S. § 780-113(a)(32). 01-1965 CRIMINAL TERM ten to eleven o'clock position. It then moved upright. The motorcycle stopped for the red light. After the light turned green, it began to move slowly. Officer Staley again saw the motorcycle lean left to a ten to eleven o'clock position, and then move upright. As the officer continued to follow, he twice saw the motorcycle drift back and forth in the northbound lane between the double yellow line to a few feet from the curb on the right side. The officer also saw the operator "jerking on the handlebars," which appeared to him to be an effort to keep the motorcycle upright. After observing the motorcycle for a total of approximately six blocks, Officer Staley activated the lights on his patrol car and the motorcycle stopped. Officer Staley discovered that the operator, John F. Yarina, had a strong odor of an alcoholic beverage. The officer conducted field sobriety tests, after which he arrested defendant at 12:25 a.m., for driving under the influence. After the arrest, he patted defendant down. He discovered a marijuana smoking pipe containing residue, in his left front pocket. Defendant was transported to a booking center, and arrived at 12:38 a.m. After waiting for more than twenty minutes, a processing agent conducted a test of defendant's breath on an Intoxilyzer 5000. The two processing agents, who were present, saw nothing in defendant's mouth, nor did they smell any snuff about defendant. DISCUSSION Defendant maintains that the stop by Officer Staley of his motorcycle was unlawful; therefore, all evidence obtained thereafter must be suppressed. He further maintains that even if the stop was lawful, the results of the test of his breath on the -2- 01-1965 CRIMINAL TERM Intoxilyzer 5000 must be suppressed because of lack of compliance with the requirements of 67 Pa. Code § 77.24(a). I. As to defendant's first claim, a lawful investigative stop of a vehicle may be based on an observation of erratic driving. Commonwealth v. Starr, 739 A.2d 191 (Pa. Super. 1999). In Commonwealth v. Baumgardner, 767 A.2d 1065 (Pa. Super. 2001), the Superior Court of Pennsylvania concluded that weaving within one's lane may support an investigative stop based on suspicion of intoxication, under the specific circumstances of a particular case. The Court stated: [w]e recognize that there are varying degrees of weaving, and we do not hold that any motion that may be described as "weaving" will support a stop. In this we are persuaded by those decisions that hold that the weaving must be more than "slight," "minimum," or "subtle" or that it must be "excessive," "pronounced," or "exaggerated." E.g. Salter v. Department of Transportation, 505 N.W.2d 111 (N.D.1993); Spikes, supra, State v. Binette, 33 S.W.3d 215 (Tenn. 2000). We also wish to emphasize that a single instance of swerving or weaving, without more, does not constitute sufficient facts for an officer to articulate a reasonable suspicion that a driver is under the influence of alcohol. Commonwealth v. Carlson, 705 A.2d 468, 471 (Pa. Super. 1998). In Commonwealth v. Whitmyer, 668 A.2d 1113 (Pa. 1995), the Supreme Court of Pennsylvania upheld an order of this court suppressing evidence based upon an illegal stop. The facts were: [t]he arresting officer, Trooper Thomas Kambic, was traveling south on Interstate 81 in Dauphin County when he observed Whitmyer's vehicle proceeding in the same direction. Whitmyer was behind another vehicle as the two cars approached a point on the Susquehanna River Bridge where two lanes of traffic merged into a single lane. Trooper Kambic then saw Whitmyer drive over the solid white line on the roadway and pass the vehicle in front of him before the vehicle merged into the same lane. -3- 01-1965 CRIMINAL TERM There was, however, no evidence that Whitmyer operated his vehicle in a careless or reckless manner while doing so. Trooper Kambic continued to follow Whitmyer as he traveled across the bridge into Cumberland County. Utilizing his speedometer for two-tenths of a mile, Trooper Kambic estimated Whitmyer's speed at seventy miles per hour. Shortly thereafter, Trooper Kambic stopped Whitmyer and cited him for driving at an unsafe speed. He also warned Whitmyer about his erratic lane change. The Trooper noticed the smell of burnt marijuana as he approached the vehicle. Whitmyer was ordered out of the vehicle; a search revealed marijuana and rolling papers. Whitmyer was subsequently charged with possession of marijuana and paraphernalia. Concluding that a police officer may stop a vehicle based on specific facts known to the officer at the time of the stop, which would provide probable cause to believe that the operator was in violation of some provision of the Vehicle Code, the Court stated: Our review of the record fails to disclose any evidence that would refute the trial court's conclusion that there was no outward sign that Appellee was driving at an unsafe speed. The trooper testified that Appellee "made an erratic lane change from the ramp onto the interstate.. · ." This observation clearly does not fit within the ambit of prohibited vehicle operation as defined in section 3361. Likewise, the trooper could not have relied upon his estimate of Appellee's speed as that estimate was based on a distance of only two-tenths of a mile instead of the three- tenths required by the statute .... As the learned trial court stated, the only other evidence bearing upon a possible Section 3361 violation, was the trooper's testimony that traffic at the time was medium to heavy. That conclusion is of no legal significance where [Appellee]'s speed was only estimated at fifteen miles over the speed limit on a three-lane interstate highway at a time when his vehicle was not changing lanes, traveling too close to another vehicle, or presenting a potential hazard to any other vehicle or person. In Commonwealth v. Malone, 19 D. & C.4th (Cumberland County 1993), the -4- 01-1965 CRIMINAL TERM defendant was charged with a count of driving under the influence. The facts were: Patrolman William A. Burger, Jr., of Silver Spring Township, was in a marked police vehicle stopped at a stop sign on Artcraft Drive at Trindle Road, Route 641, at 2:50 a.m. on January 23, 1993. He observed a vehicle operated by defendant pass him traveling east on Trindle Road. The officer pulled behind the vehicle although there was nothing unusual about defendant's driving. There is one solid line delineating the berm and double solid lines dividing the two-lane Trindle Road. Just prior to the intersection of Lodge Road, the officer observed the passenger side wheels of defendant's vehicle go into the berm area approximately one foot. In the area of the intersection of Trindle Road and Pheasant Street, the officer observed defendant cross the center lines with the driver's side wheels, approximately one foot. Defendant proceeded further on Trindle Road and at the intersection of State Road, she activated her left-turn signal and made a proper turn onto that road. Up to that point, the officer had followed defendant, as he testified, for approximately three quarters of a mile although it was possible that it was as much as a mile and a half. Defendant then traveled on State Road until she made a proper right turn onto Church Road. She proceeded on Church Road and as she was about to make a left turn into Mulberry Road, the officer activated the lights on his patrol vehicle. Defendant made a proper left turn onto Mulberry Road and immediately turned into a private driveway and stopped in a grassy area. There was no other traffic in either direction from the time the officer first observed defendant on Trindle Road until he stopped her eight minutes later at 2:58 a.m. Defendant was driving within the speed limit at all times. Suppressing all evidence obtained by Officer Burger after the stop, we concluded that defendant's driving was not erratic or unsafe, it could not be categorized as weaving such as to warrant an investigative stop, nor did the officer have probable cause to believe that the defendant was not operating her vehicle in a single lane of travel as nearly as possible to justify a stop under the Vehicle Code at 75 Pa.C.S. Section 3309. -5- 01-1965 CRIMINAL TERM In Commonwealth v. Gleason, 785 A.2d 983 (Pa. 2001), the Supreme Court of Pennsylvania granted an allowance of appeal to determine: [w]hether an arresting officer possesses reasonable and articulable grounds to believe that a licensee violated a provision of the Vehicle Code, warranting the stop of the licensee's car, based upon his observations that the licensee's vehicle crossed the berm line by six to eight inches on two occasions for a period of a second or two over a distance of approximately one quarter of a mile. The Court reversed an order of the Superior Court of Pennsylvania and reinstated a trial court order granting the defendant's motion to suppress evidence. The Court concluded that there was a lack of any evidence that the defendant's driving created a safety hazard which would have supported a stop under the Vehicle Code at 75 Pa.C.S. Section 3309(1), which requires that a vehicle shall be driven as nearly as practicable entirely within a single lane. With these cases in mind, we will review the facts in the case sub judice, Officer Staley observed defendant on a motorcycle with a passenger. (1) Defendant was driving on a part of Bridge Street where parking was permitted. (2) As defendant approached a traffic light at Bridge and Sixteenth Street, the motorcycle leaned to a ten to eleven o'clock position and then moved back to an upright position. (3) After the light turned green, defendant proceeded slowly with the motorcycle again leaning to a ten to eleven o'clock position and then to an upright position. (4) As Officer Staley continued to follow defendant, he saw the motorcycle drift back and forth in the wide northbound lane between the double yellow line to within a few feet of the curb on the -6- 01-1965 CRIMINAL TERM right side. (5) The officer saw defendant weave a second time in the same manner within the wide lane. (6) Officer Staley then saw defendant "jerking on the handlebars," which looked like an effort to keep the motorcycle in an upright position. While these observations did not provide probable cause for Officer Staley to believe that there was a specific violation of a provision of the Vehicle Code, taken together they constituted erratic operation of the motorcycle over a distance of six blocks sufficient to justified an investigative stop on suspicion that the operator was driving while under the influence. II. As to defendant's second claim, 67 Pa. Code §§ 77.24(a), provides: Observation. The person to be tested with breath test equipment shall be kept under observation by a police officer or certified breath test operator for at least 20 consecutive minutes immediately prior to administration of the first alcohol breath test given to the person, during which time the person may not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten or smoked. Custody of the person may be transferred to another officer or certified breath test operator during the 20 consecutive minutes or longer period as long as the person to be tested is under observation for at least 20 consecutive minutes prior to initial administration of the alcohol breath test. (Emphasis added.) John Yarina, age 51, testified that he was at a campsite in Goldsboro with Christina Conley on June 29, 2001. While there he drank three or four eight-ounce beers. They left the campsite and drove to New Cumberland on his 1993 Harley Davidson motorcycle. They stopped in New Cumberland to see Conley's son, and then went to a diner where they ate. Yarina testified that he a Iongtime user of snuff, and that he often uses it after he eats. When he came out of the diner, he took some snuff -7- 01-1965 CRIMINAL TERM from a can of Copenhagen and put it into his mouth before he got onto the motorcycle. Yarina testified that with a passenger, it is not unusual for his motorcycle to lean to the ten to eleven o'clock position. He testified that he used the whole northbound lane of traffic on Bridge Street to "dodge patches in the pavement." After he was stopped by Officer Staley, he kept the snuff in his mouth. When he arrived at the booking center, a booking officer took his can of Copenhagen? During the waiting period, he spit once in a trashcan when the booking officer looked away while he filled out forms. The snuff was in his mouth when he performed the breath tests on the Intoxilyzer 5000. After the tests, he was allowed to go to the bathroom, and while there he disposed of the snuff. Christina Conley testified that defendant drank about two beers while they were at the campsite in Goldsboro. She testified that she would not have gotten onto his motorcycle if she thought he had too much to drink. After they finished eating at the diner, she saw defendant put snuff in his mouth. As they were riding, he spit, and some of it flew back onto her. Conley testified that defendant had no problem with balancing the motorcycle. He swerved a couple of times to avoid manholes. She was with him until he was taken by the police officer to the booking center. She never saw him spit out the wade of snuff. Brandon Mitchem, was the processing agent who did the twenty minute observation, and then conducted the Intoxilyzer 5000 test. He testified that defendant 3 An inventory report of the booking center shows receipt of the can of Copenhagen from defendant. -8- 01-1965 CRIMINAL TERM had no odor coming from him other than alcohol. While he did not specifically look into defendant's mouth, he noticed nothing that would indicate that defendant had anything in his mouth. He did not see anything on the mouthpiece of the Intoxilyzer 5000 after defendant utilized it to blow air into the machine. Richard Fitzgerald, a processing agent, was the video operator, answered the following questions: Q Did you check if the defendant had anything in his mouth prior to the administration of the Intoxilyzer 5000 test? A It's standard procedure in our department, all defendants are patted down. I did the pat-down on Mr. Yarina that night Officer Staley brought him in. It's common standard procedure when I search someone I always check their mouth, especially when they are being charged with driving under the influence, and I know they are going to be taking an Intoxilyzer 5000 test. In the twenty minute observation, I generally ask them to open their mouth, ask them if they have anything in their mouth. I tell them to lift their tongue, roll it - lift up the tongue, roll right, roll left, and I check the mouth. The only thing I observed is Mr. Yarina had a very heavy, gray, black mustache. Q But would you have done that in this case since you were the camera operator? A I honestly don't recall. It being seven months ago, I can't answer that. I don't recall. The video of defendant's booking shows nothing indicating that he had anything in his mouth. We may believe all, part of, or none of a witnesses testimony. Commonwealth v. Myrick, 360 A.2d 598 (Pa. 1976). Weighing the credibility of all of the witnesses, and based on all of the evidence, direct and circumstantial, we find by a preponderance of the evidence that defendant did not have snuff in his mouth while he was at the booking center. Furthermore, Section 77.64(a) of 67 Pa. Code provides that a person being tested with breath test equipment may not, during the twenty -9- 01-1965 CRIMINAL TERM consecutive minutes immediately prior to the administration of the first test, have "ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten or smoked." You don't eat snuff and you don't smoke it. Defendant did not ingest alcoholic beverages or other fluids, or regurgitate or vomit. It is not for this court to expand a Department of Transportation regulation. The Code was not violated even if defendant had snuff inside his mouth during the twenty consecutive minutes immediately prior to the administration of the first alcohol breath test. ORDER OF COURT AND NOW, this suppress evidence, IS DENIED. day of February, 2002, the motion of defendant to By the Court, Michael W. Mervine, Esquire For the Commonwealth Brian W. Perry, Esquire 2411 North Front Street Harrisburg, PA 17110 For the Defendant :saa Edgar B. Bayley, J. -10-