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HomeMy WebLinkAboutCP-21-CR-0001554-2016 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-1554-2016 v. : CHARGES: (1) DUI – CONTROLLED st : SUBSTANCE (1) : (2) DUI - CONTROLLED st : SUBSTANCE (1) : (3) DUI - CONTROLLED : SUBSTANCES : (4) UNLAWFUL POSSESSION : OF SMALL AMOUNT OF : MARIJUANA : KELSEY LEEANN NEGLEY : AFFIANT: TPR. DAMIAN TEMPERINE OTN: L991313-1 : PSP - CARLISLE IN RE: OMNIBUS PRE-TRIAL MOTION TO SUPPRESS OPINION and ORDER OF COURT BREWBAKER, J., November 14, 2016 Factual Findings On February 22, 2016, at approximately 11:45 p.m., Trooper Damian Temperine was on routine patrol with his partner, Trooper Gilbert, in the Plainfield area of Route 641, Cumberland County, Pennsylvania. As the Troopers were passing the closed Unimart located in that area, Trooper Temperine noticed that there was a black vehicle parked on the south side of the parking lot, with its headlights illuminating the inside of the business. Being aware of several burglaries and attempted burglaries at that Unimart in recent months, and also aware that the owner of the Unimart, who generally closed the store in the evening, walked rather than drove home from work, Trooper Temperine was concerned that a crime was being committed. Also concerned that the occupants of the vehicle may be in need of assistance, Trooper Temperine turned his patrol car around and pulled up next to the black vehicle. As Trooper Temperine pulled into the parking lot, he noticed a male, with several items at his feet, standing at the passenger side of the vehicle. Trooper Temperine then activated his emergency lights, testifying that this meant to him that the black vehicle was no longer free to leave. At this time, the male began acting suspiciously, ducking down behind the vehicle and acting nervous. Trooper Temperine then approached the male, who provided his name when requested. However, the male continually put his hands in his pockets despite instructions to the contrary, and did not respond when asked several times if he was in a possession of a gun. Trooper Temperine and the male then got into a physical altercation, which ended inside the vehicle. As Trooper Temperine was wrestling with the male inside the vehicle, he smelled the odor of burnt marijuana. The Troopers then subdued the male and placed him under arrest; heroin was found in his pocket during a search incident to arrest. Trooper Temperine then approached the Defendant, who was seated in the driver’s seat of the vehicle, and began to speak with her. As he was doing so, Trooper Temperine noticed that the Defendant had bloodshot, glassy eyes, and smelled of burnt marijuana; she admitted that she had smoked marijuana earlier that day. Contrary to the male passenger, the Defendant was cooperative throughout her entire encounter with Trooper Temperine. After she took and failed Standard Field Sobriety Tests she was arrested, transported to the police station, and evaluated by a Drug Recognition Expert (“DRE”), Trooper John Witkowski. Following the evaluation by the DRE, Trooper Temperine transported the Defendant to the Carlisle Regional Medical Center, where Trooper Temperine read her, verbatim, the DL-26, Pennsylvania’s implied consent form, which indicated that she would be subject to increased 2 1 criminal penalties if she failed to provide a blood test. The Defendant then consented to a test of her blood. Defendant timely filed a motion to suppress, raising two issues for our review: (1) whether Trooper Temperine had the necessary level of suspicion when he turned on his police lights to further investigate the scene; and (2) whether Birchfield v. North Dakota, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016) requires suppression of her blood test results. Analysis Pennsylvania has defined three different levels of police-citizen interactions, all requiring different levels of suspicion: A mere encounter between police and a citizen “need not be supported by any level of suspicion, and carr\[ies\] no official compulsion on the part of the citizen to stop or to respond.” Commonwealth v. Riley, 715 A.2d 1131, 1134 (Pa. Super. 1998). An investigatory stop, which subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute an arrest, requires a reasonable suspicion that criminal activity is afoot. See Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). A custodial detention is an arrest and must be supported by probable cause. Id. Commonwealth v. Fuller, 940 A.2d 476, 479 (Pa. Super. 2007). In determining which level of interaction is at issue in a particular case, the Court must examine all of the circumstances, and decide whether the police action would have led a reasonable person to believe that he was not free to go. Commonwealth v. Stevenson, 832 A.2d 1123, 1127 (Pa. Super. 2003). 1 Specifically, the DL-26 form stated as follows: “It is my duty as a police officer to inform you that if you refuse to submit to the chemical test, your operating privilege will be suspended for at least one year. In addition, if you refuse to submit to the chemical test, and you are convicted of, plead to, or adjudicated delinquent with respect to violating Section 3802(a) of the Vehicle Code, because of your refusal, you will be subject to the more severe penalties set forth in Section 3804(c) of the Vehicle Code, which include a minimum of 72 hours in jail and a minimum fine of $1,000.00.” 3 In the instant case, the Troopers were quite correct in stopping at the Unimart to see if criminal activity was afoot, or to see if the occupants of the vehicle were in need of assistance. Our first inquiry is whether the activation of the police lights was an investigative detention such as to require reasonable suspicion. The facts indicate, and Trooper Temperine agreed, that the interaction between him and the occupants of the vehicle became an investigative detention as soon as the Trooper activated his emergency lights. Since the interaction between Trooper Temperine and the occupants of the vehicle rose to the level of an investigative detention, the question must then turn to whether or not the Trooper possessed the requisite reasonable suspicion. This determination rests on which facts Trooper Temperine possessed at the time that he activated his lights, thus initiating the investigative detention. The Court has defined reasonable suspicion as follows: Reasonable suspicion is a less stringent standard than probable cause necessary to effectuate a warrantless arrest, and depends on the information possessed by police and its degree of reliability in the totality of the circumstances. In order to justify the seizure, a police officer must be able to point to “specific and articulable facts” leading him to suspect criminal activity is afoot. \[Commonwealth v.\] Melendez, \[ 676 A.2d 226\], at 228 \[(Pa. 1996)\] (citing Terry \[v. Ohio, 392 U.S. 1\], at 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 \[(1968)\]. In assessing the totality of the circumstances, courts must also afford due weight to the specific, reasonable inferences drawn from the facts in light of the officer's experience and acknowledge that innocent facts, when considered collectively, may permit the investigative detention. Commonwealth v. Cook, 558 Pa. 50, 735 A.2d 673, 676 (1999) (citations omitted). Commonwealth v. Holmes, 14 A.3d 89, 95 (Pa. 2010). As Trooper Temperine testified, he noticed the vehicle was in a parking lot of a closed business, where several burglaries had recently occurred. The lights of the vehicle were shining so as to illuminate the inside of the business, which is a useful technique for one attempting to burglarize a store. Additionally, Trooper Temperine knew that the owner of the business, who 4 usually closed the business in the evening, generally walked, rather than drove home from work. Finally, as he drove into the parking lot, Trooper Temperine noticed a male standing outside of the vehicle, in the parking lot of the closed business, with several items resting by his feet. In totality, these factors clearly culminated in the necessary reasonable suspicion to justify the Trooper’s investigative detention of the vehicle’s occupants, and thus Defendant’s motion to suppress on this issue will be denied. Defendant’s second issue arises as a result of the recent United States Supreme Court decision in Birchfield v. North Dakota, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016). Decided earlier this year, Birchfield addressed the constitutionality of implied consent laws, which require motorists, as a condition of operating a motor vehicle, to consent to blood alcohol testing if arrested on suspicion of driving under the influence. Id. at 2169, 195 L. Ed. 2d. at 570. After a very thorough analysis, the Court found that because the impact on privacy is slight, the Fourth Amendment to the United States Constitution does permit warrantless breath tests incident to arrests for drunk driving. Id. at 2183, 195 L. Ed. 2d. at 587. The Court arrived at a different conclusion, however, with result to blood tests, finding that “\[b\]lood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test.” Id. Thus, the Court held that because breath tests are significantly less intrusive than blood tests, a breath test, but not a blood test, may be administered as a search incident to an arrest for drunk driving. Id. at 2185, 195 L. Ed. 2d. at 588. Additionally, while a search warrant may be sought for blood evidence pursuant to an arrest for drunk driving, no search warrant was sought in the instant case. Pursuant to the Birchfield analysis and holding, the question then becomes whether Pennsylvania’s implied consent law necessarily invalidates an otherwise valid consent to a blood test. 5 While this ultimate question was not squarely decided by Birchfield, its language is instructive: The North Dakota Supreme Court held that Beylund’s \[one of the unnamed petitioner’s\] consent was voluntary on the erroneous assumption that the State could permissibly compel both blood and breath tests. Because voluntariness of consent to a search must be ‘determined from the totality of all the circumstances,’ we leave it to the state court on remand to reevaluate Beylund’s consent given the partial inaccuracy of the 2 officer’s advisory. Birchfield at 2186, 195 L. Ed. 2d. at 590 (internal citations omitted). Although Pennsylvania does not make refusal to consent to a blood alcohol test a crime itself, there are consequences for a refusal, including increased penalties for a resulting driving under the influence conviction and administrative sanctions in the form of a separate license suspension. 75 Pa.C.S. § 1547; 75 Pa.C.S. § 3804(c). Defendant was advised of these consequences by Trooper Temperine when he read to her Pennsylvania’s implied consent language from the DL-26 form. Furthermore, Defendant was read that form at the hospital, where only blood testing was available, and was not offered an alternative breath test. As a result of all of the foregoing, we hold that under Birchfield v. North Dakota, the sanctions cited in the DL-26 form, coupled with the failure to offer Defendant a breath test, were sufficiently coercive such as to invalidate Defendant’s otherwise lawful consent. As a result, the results of the blood test provided by Defendant in the instant case must be suppressed. 2 Steve Michael Beylund was arrested for driving under the influence, where he was taken to a nearby hospital and read North Dakota’s implied consent advisory. The advisory informed him that a refusal to consent to the blood test was a crime. Beylund then consented to having his blood drawn which was found to contain an amount of alcohol significantly above the legal limit. Id. at 2172, 195 L. Ed. 2d. at 573-74. 6 ORDER th AND NOW, this 14 day of November, 2016, after hearing, it is hereby ORDERED that Defendant’s Motion to Suppress the blood alcohol results is GRANTED. In all other respects, Defendant’s Motion to Suppress is DENIED. BY THE COURT, __________________________ Jessica E. Brewbaker, J. 7 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-1554-2016 v. : CHARGES: (1) DUI – CONTROLLED st : SUBSTANCE (1) : (2) DUI - CONTROLLED st : SUBSTANCE (1) : (3) DUI - CONTROLLED : SUBSTANCES : (4) UNLAWFUL POSSESSION : OF SMALL AMOUNT OF : MARIJUANA : KELSEY LEEANN NEGLEY : AFFIANT: TPR. DAMIAN TEMPERINE OTN: L991313-1 : PSP - CARLISLE ORDER th AND NOW, this 14 day of November, 2016, after hearing, it is hereby ORDERED that Defendant’s Motion to Suppress the blood alcohol results is GRANTED. In all other respects, Defendant’s Motion to Suppress is DENIED. BY THE COURT, __________________________ Jessica E. Brewbaker, J. Nathan Boob, Esquire Assistant District Attorney Bradon Toomey, Esquire Assistant Public Defender :rlm 8