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HomeMy WebLinkAbout2002-0335 CRIMINALCOMMONWEALTH V. CONNIE L. MICKLEY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-0335 CRIMINAL IN RE: OMNIBUS PRETRIAL MOTION BEFORE GUIDO, J. OPINION AND ORDER OF COURT Before us is the defendant's Omnibus Pretrial Motion in the form of a Motion to Suppress Evidence. She has raised the following issues: (1.) The initial stop of her vehicle was improper. (2.) Her roadside statement was given without the benefit of Miranda warnings and should be suppressed. (3.) The results of the breathalyzer test are unreliable and, therefore, inadmissible. (4.) The audio and visual recordings taken at the booking center were obtained in violation of the Wire Tap Act (18 Pa. C.S. 5701 et seq.), and should be suppressed. (5.) The audio portion of the booking center tape should be suppressed because she exercised her right to remain silent. After an evidentiary hearing on the motion, the parties were given the opportunity to file briefs in support of their respective positions. ~ This matter is now ready for disposition. FINDINGS OF FACT Trooper John Yunk of the Pennsylvania State Police encountered the defendant's vehicle at approximately 2:56 a.m. on the morning of November 4, 2001. The defendant was traveling south on state Route 34. The trooper was traveling directly behind her. His 1 Defendant did not brief the fifth issue. Therefore, pursuant to our discussions with counsel, we will presume it has been abandoned. NO. 2002-0335 CRIMINAL attention was drawn to her vehicle because she was weaving from side to side within her own lane of travel. He followed her for approximately six miles during which she continued to weave frequently within her lane of travel. As they approached the intersection with state Route 174, the defendant crossed the fog line onto the berm of the road. The berm is approximately three feet wide and is paved. Her entire rear wheel crossed over the line. While she was still on the paved portion of the berm, she was "well over" the fog line. During the next three-quarters of a mile, she crossed the fog line three more times. Each crossing was similar to the first. i.e., her entire rear wheel was over the fog line onto the paved berm. It is also noteworthy that the crossings occurred on a relatively straight stretch of road. Route 34 is a two lane highway. The defendant and trooper encountered several vehicles traveling in the opposite direction. Two of the fog line crossings were in response to that vehicular traffic. The officer testified that in his training and experience this is an "indicator for driving under the influence". In any event, after she crossed the fog line for the fourth time, the officer initiated a traffic stop in order to issue a citation for violation of Section 3309(1) of the Vehicle Code.2 As the officer approached the defendant's vehicle, he noticed the classic indicia of intoxication. There was a strong odor of alcohol, her speech was slurred, and she had a bloodshot and glassy eye.3 The officer asked her to get out of the vehicle. When she did, : 75 Pa. C.S.A. § 3309(1) provides as follows: § 3309. Driving on roadways laned for traffic Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following roles in addition to all others not inconsistent therewith shall apply: (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. ~ The defendant had some unspecified problem with her other eye which did not allow the officer to make a reliable observation in connection therewith. NO. 2002-0335 CRIMINAL he noticed that the strong odor of alcohol was coming from her breath. As she was standing outside the vehicle, she also had a very difficult time finding her documents. While she was looking for the documents, the officer asked her whether she had been drinking. She responded that she had consumed four beers. After having failed the field sobriety tests, the defendant was placed under arrest and transported to the central booking center. Before her processing began, she was advised that her words and actions were being recorded. Additionally, the booking center contains five prominently displayed signs advising all occupants that audio and visual recording is taking place.4 Defendant was advised of her O 'Connel! warnings5 and she agreed to submit to a breath test. The booking center personnel explained the operation of the Intoxilyzer 5000. During the first test, she did not blow any air into the instrument. As a result, the machine timed out and shut down. It printed out a test ticket indicating "invalid test". Trooper Junk advised the defendant that she could submit to a blood test, or have her failure to provide breath be considered a refusal.6 The defendant indicated that she would like to try the Intoxilyzer again. The trooper agreed. During the next test, the defendant gave one valid sample before the machine shut down, printing a test ticket that stated "invalid test - inhibited RFI".7 This was the result of a radio transmission in the vicinity. 8 4 The video camera was pointed out to her at the time her processing began. s Dept. of Transportation v. 0 'Connell, 521 Pa. 242, 555 A.2d 873 (1989). 6 He again advised her of the O 'Connell warnings. 7 Regulations require that two consecutive breath tests be conducted in order for the results to be valid. See 67 Pa. Code 77.24(b)(1). 8 While there was no direct testimony of a specific radio transmission, we are satisfied that this fact was proven circumstantially. The machine is located in a booking center where radio transmissions are sent and received on a regular basis. NO. 2002-0335 CRIMINAL While the machine was being reset, the defendant was talking to the booking officer with her mouth in close proximity to the mouthpiece. Not only was she talking, she was also coughing. The machine aborted its pretest routine, printing out a ticket that stated "invalid test/ambient conditions". We are satisfied that the machine picked up alcohol from the defendant' s breath and shut itself down. The machine was restarted and a valid breath test was eventually obtained. The entire time elapsing between the first attempted test and the final successful test was only eleven (11) minutes. Initial Stop The defendant cites the recent Supreme Court case of Commonwealth v. Gleason, Pa. ,785 A.2d 983 (2001) in support of her position that the initial stop was unlawful. In Gleason the Court held that a police officer was not justified in stopping the defendant for crossing the fog line on two or three occasions over a distance of one- quarter mile.9 Defendant also cites the case of Commonwealth v. Baumgardner, __ Pa. __., 796 A2d 965, (2002) in which the Supreme Court, citing Gleason, reversed a Superior Court decision upholding the validity of a traffic stop. In Baumgardner the officer initiated the stop based upon the defendant's weaving within his lane of travel over a distance of approximately two miles. While we agree that the principles of law enunciated in Gleason and confirmed in Baumgardner are controlling, both cases are factually distinguishable from the case at bar. 9 We note that the road in Gleason was a four lane highway. We also note that there was no other traffic at the time of the officer's observations. NO. 2002-0335 CRIMINAL The standard necessary for a proper vehicle stop was articulated by the Supreme Court in Commonwealth v. Whitmeyer, 542 Pa. 545, 668 A.2d 1113 (1995) and reiterated in Gleason as follows: If the alleged basis of a vehicular stop is to permit a determination whether there has been compliance with the Motor Vehicle code of this Commonwealth, it is incumbent [sic] upon the officer to articulate specific facts possessed by him, at the time of the questioned stop, which wouM provide probable cause to believe that the vehicle or the driver was in violation of some provision of the Code. Whitmeyer, 668 A.2d at 1116, citing Swanger, 307 A.2d at 879 (emphasis added). Commonwealth v. Gleason, 785 A.2d at 989. The determination of whether a stop is proper depends upon the facts of each case. As the Gleason Court stated: "a stop of a single vehicle is unreasonable where there is no outward sign the vehicle or the operator are in violation of the Vehicle Code .... Before the government may single out one automobile to stop, there must be specific facts justifying this intrusion." Commonwealth v. Swanger, [453 Pa. 107,] 307 A.2d at 878. Thus, the presence of similar facts in this case should dictate a similar result. The legislature has vested police officers with the authority to stop vehicles whenever they have "articulable and reasonable grounds to suspect a violation" of the Vehicle Code. 75 Pa.C.S. § 6308(b). Applying that standard to the instant case, it is apparent that the trial court and Superior Court were correct when they concluded that Trooper Kambic had no justifiable basis for stopping Appellee. Whitmeyer, 668 A.2d at 1116-17 (emphasis added). Commonwealth v. Gleason, 785 A.2d at 989, (emphasis added). Applying the above standard to the case at bar, we find that specific facts existed in this case to justify the intrusion. The defendant had driven erratically for almost seven miles. She was weaving frequently within her lane for the first six miles. She crossed the fog line four times over the last three quarters of a mile. Two of the crossings were in NO. 2002-0335 CRIMINAL response to oncoming traffic, a clear "indicator for driving under the influence", l0 We also note that, unlike Gleason, the defendant's crossing of the fog line was not a "drifting onto the berm two or three times within a short distance". Gleason, 785 A.2d at 986. Rather, her crossings were significant and they occurred on a straight roadway. Additionally, unlike Gleason and Baumgardner, the erratic driving of this defendant did not occur on a four lane deserted roadway. Rather, it occurred on a two lane highway with opposing traffic. Defendant's driving posed a clear hazard to herself and to the motoring public. Under the circumstances of this case, the trooper had probable cause to believe that the defendant was in violation of some provision of the vehicle code. Therefore, we find the initial stop to have been proper. Statements Made by Defendant at the Scene The defendant contends that her statements to the officer at the scene of the stop must be suppressed because they were made without the benefit of Miranda warnings. ~ We disagree. In order for Miranda to apply the defendant must be in custody. See Commonwealth v. Turner, 772 A.2d 970 (Pa. Super. 2001). An ordinary traffic stop is like an investigative detention for which Miranda warnings are not necessary. See Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). However, "if a motorist who has been detained pursuant to a traffic stop thereafter is l0 While the trooper's articulated basis for stopping the defendant was to cite her for violating Section 3309(1) of the Vehicle Code, he also was possessed of sufficient probable cause to initiate a stop under Section 3731 (Driving Under the Influence). See Commonwealth v. Start, 739 A.2d 191 (Pa. Super. 1999). ~ gdiranda v. Arizona NO. 2002-0335 CRIMINAL subjected to treatment that renders him 'in custody' for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda." Id The defendant argues that she was in custody once the officer directed her to exit the vehicle. In support of this position she cites the recent case of Commonwealth v. Turner, supra. Not only is Turner factually distinguishable~2, it clearly indicates that Miranda warnings are not required under the facts of the instant case. As the Turner Court stated: The Commonwealth asserts that a suspect is not in custody when a police officer makes a traffic stop and asks the driver basic investigative questions. However, such encounters are limited to "ordinary" traffic stops. SeeBerkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138 82 L.Ed.2d 317 (1984) (likening an ordinary traffic stop to an investigative detention). See also Pennsylvania v. Bruder, 488 U.S. 9, 10, 109 S.Ct. 205, 102 L.Ed.2d 172 (1988) (concluding that an ordinary traffic stop during which a police officer asks a driver a modest number of questions and requests him to perform a simple balancing test at a location visible to passing motorists did not involve "custody" for purposes of Miranda rule). 772 A.2d at 975 (emphasis added). The Bruder case referred to by the Turner Court is directly on point. Therefore, we conclude that the officer did not violate the dictates of Miranda in questioning the defendant at the scene of the stop. Booking Center Tape The defendant argues that her words and actions at the booking center were recorded in violation of the Wire Tap Act (18 Pa. C.S. § 5701 et seq.). Therefore, she ~2 In Turner the defendant had been placed in the back of the police cruiser before being questioned. The Court noted that "(a) traffic stop during which the detainee is involuntarily placed in the back of a police car with the door closed certainly is not an 'ordinary' traffic stop." 772 A.2d at 975. NO. 2002-0335 CRIMINAL asks that the tape be suppressed. We find her argument to be meritless. The Wire Tap Act makes it a crime to intercept an "oral communication.''~3 The Act defines "oral communication" as "(a)ny oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation." 14 The case law is clear. Communications do not come under the purview of the act unless the declarant has a reasonable expectation that the communication would "remain confidential." Commonwealth v. Henlen, 522 Pa. 514, 564 A.2d 905, 906 (1989). Under the facts of the instant case, it is ridiculous for the defendant to suggest that she had a reasonable expectation that her communications would not be subject to interception. There were signs all over the place indicating the contrary. In fact, there was a sign right in front of her as she looked into the camera. Furthermore, she was specifically advised that audio and visual recordings were being made. However, even without those warnings, defendant's argument still fails. She was aware that she was being processed in connection with a criminal charge. She can hardly expect that the communications made during that processing would "remain confidential." See Henlen, supra. Therefore, there was no violation of the act. ~3 18 Pa. C.S.A. § 5703(1). ~4 18 Pa. C.S.A. § 5702. ~s In her brief, defendant argues that her refusal to sign a document entitled "Audio/Visual and Warning Form" amounted to a refusal to give consent to be recorded. Therefore, the argument goes, she is reasonable in understanding that she must consent to be recorded. We find the argument to be disingenuous, at best. She was asked to sign the "Miranda Warnings" section of the form, which she refused to do. The "Audio/Visual Warnings" is a separate section for which no waiver, consent, or signature is requested. She asks us to infer that her refusal to sign the "Miranda Warnings" section led "her to believe that she had refused to be recorded." See Defendant's Brief, p. 5. We note that she did not testify to this fact and we were not prepared to infer it based upon the evidence of record. NO. 2002-0335 CRIMINAL Admissibility of the Intoxlyzer Results. Defendant's final contention is that the results of the fourth (and only valid) intoxilyzer test are inherently unreliable and should be suppressed. Her contention is based upon alleged malfunctions of the machine which resulted in the first three "invalid" tests. It is settled law that in order for breath test results to be admissible, the Commonwealth must establish that it was conducted in compliance with Section 1547(c) of the Vehicle Code~6 as well as the applicable regulations contained in Title 67 Chapter 77 of the Pennsylvania Code. See Commonwealth v. Thill, 417 Pa. Super. 485, 612 A.2d 1043 (1992) and cases cited therein. Defendant's motion does not question the compliance with any of those statutory provisions or regulations except for the regulation contained in 67 Pa. Code § 77.25.~7 She argues that the regulation in question required the "malfunctioning" intoxilyzer to have been taken out of service. ~8 However, there is a fatal flaw in defendant's argument, the machine did not malfunction. We find as a fact, based upon the testimony of the Commonwealth's witnesses, as well as the exhibits introduced at the hearing, that the Intoxilyzer 5000 did not malfunction. To the contrary, it functioned appropriately in each case, doing exactly what it was designed to do. 16 75 Pa. C.S.A. § 1547(c). ~? 67 Pa. Code § 77.25. See Supplemental Brief in Support of Defendant's Omnibus Pretrial Motion." ~8 The applicable regulation provides: Breath test equipment which has malfunctioned or which fails an accuracy inspection test shall be placed out of service and shall be serviced or repaired, as necessary, by the manufacturer or its authorized representative or a person who has received comparable training or instruction and shall be tested under § 77.26(b) (relating to periodic calibration of Type A breath test equipment) prior to being placed back into service. 67 Pa. Code § 77.25(b)(4). NO. 2002-0335 CRIMINAL The first "invalid test" resulted from the defendant's failure to provide any breath to be tested. The machine "timed out" as it was supposed to. The second "invalid test" involved the machine shutting down because of radio frequency interference. While not a regular occurrence, it is not unheard of for a breath test to be aborted because of radio transmissions. This is a built in feature of the Intoxilyzer 5000 and the machine in question performed appropriately. The third and final "invalid test", while somewhat unusual, was the result of design rather than malfunction. The machine obviously picked up alcohol from the defendant's breath during its pre-test internal checks. In view of the above, we will deny the defendant's motion to suppress the breath test results on the basis that the machine malfunctioned. The ruling is limited to that particular proposition. It does not, however, relieve the Commonwealth of proving compliance with the statutory or regulatory requirements otherwise necessary for the admissibility of those results. AND NOW, this Motion to Suppress Evidence is DENIED. ORDER OF COURT day of JUNE, 2002, the defendant's Omnibus Pretrial By the Court, Michelle Sibert, Esquire For the Commonwealth Karl E. Rominger, Esquire For the Defendant /s/Edward E. Guido, J. Edward E. Guido, J. 10 NO. 2002-0335 CRIMINAL 11 NO. 2002-0335 CRIMINAL 12 COMMONWEALTH VI. CONNIE L. MICKLEY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-0335 CRIMINAL AND NOW, this Motion to Suppress Evidence is DENIED. IN RE: OMNIBUS PRETRIAL MOTION BEFORE GUIDO, J. ORDER OF COURT day of JUNE, 2002, the defendant's Omnibus Pretrial By the Court, Michelle Sibert, Esquire For the Commonwealth Karl E. Rominger, Esquire For the Defendant Edward E. Guido, J.