Commonwealth v. Glick -- No Knisely, J. March 5, 2014 Criminal Evidence Suppression DUI Non-investigable offenses.

Transcription

1 Commonwealth v. Glick -- No Knisely, J. March 5, 2014 Criminal Evidence Suppression DUI Non-investigable offenses. Defendant s suppression motion denied where officer saw vehicle abruptly change lanes from right to left, forcing the tractor trailer in the right lane to slow down and brake, providing probable cause to stop Defendant for the non-investigable offense of a violation of roadways laned for traffic, which requires the driver to first ascertain that the movement can be made with safety. Officer s observations of Defendant s bloodshot, watery eyes, slurred speech, odor of alcoholic beverage, changing lanes in front of a tractor trailer, and jumping the curb when the vehicle pulled over provided sufficient reasonable suspicion to detain Defendant for a DUI violation and request that Defendant perform field tests.

2 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CRIMINAL COMMONWEALTH OF PENNSYLVANIA : : vs. : No : DAVID FISHER GLICK : OPINION BY: KNISELY, J. March 5, 2014 Defendant David Glick has appealed to the Superior Court of Pennsylvania from the judgment of sentence entered on January 22, On appeal, Defendant alleges the Court erred in finding the stop of Defendant s vehicle to be supported by either probable cause or reasonable suspicion. This opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure. BACKGROUND On April 14, 2013, at approximately 10:20 p.m., Officer Werner was on duty as a patrol officer on Route 30. (N.T. Suppression Hearing, 11/14/13, p. 4-5). Officer Werner was in the parking lot of a Wawa when he heard an engine revving very loudly in the parking lot directly across the street. (Id. at p. 5-6). The roadway in between Wawa and the other parking lot is a five-lane highway with a center turn lane, two eastbound lanes, and two westbound lanes. (Id. at p. 6). Traffic was light and nothing obscured the officer s vision, so he was able to identify that the noise was coming from a red pickup truck that was leaving the parking lot. (Id. at 5-7). Officer Werner proceeded to his cruiser and began to follow the vehicle. (Id.at 7). Officer Werner had to drive at least 60 miles an hour to keep up with Defendant; the

3 posted speed limit is 40 miles per hour. (N.T. Suppression Hearing, 11/14/13, p. 8). Defendant proceeded eastbound on Route 30 in East Lampeter Township, abruptly changing lanes right in front of a tractor trailer. (N.T. Suppression Hearing, 11/14/13, p. 8-9). Defendant went from the left lane to the right lane in such a manner that his vehicle was shaking like it was out of control and the tractor trailer was forced to slow and brake. (Id. at 9-10). Officer Werner initiated a stop of Defendant s vehicle. (Id. at 9). When Defendant pulled over, his vehicle jumped the curb at the corner of the intersection. (Id. at 11). Upon making contact with Defendant, Officer Werner observed that Defendant had bloodshot, watery eyes, spoke with slurred speech, and that there was a very strong odor of alcoholic beverages. (Id. at 14). There were also unopened beer cans in the back seat. (Id. at 13, 37-38). Based on his observations, Officer Werner directed Defendant to do standard field sobriety tests. (Id. at 16). Defendant performed the Horizontal Gaze Nystagmus test, the Walk and Turn test, and the One-Legged Stand. (Id. at 16). Based on the officer s observations of Defendant prior to initiating the stop and during the field tests, Officer Werner determined Defendant was incapable of safely driving and took him into custody. (Id. at 27 28). The analysis of Defendant s blood indicated a blood alcohol content of.229%. (Id. at 67-68). Defendant was charged with DUI Highest Rate of Alcohol 1 and DUI General Impairment. 2 On September 5, 2013, Defendant filed a motion to suppress evidence and a suppression hearing was held on November 14, The suppression motion was denied based on the Court s findings that the officer s testimony showed that there was probable cause to stop Defendant s vehicle for a violation of 3309 of the Pennsylvania Motor Vehicle Code because 1 75 Pa. C.S. 3802(C) Pa. C.S. 3802(a)(1). 3

4 Defendant did not first ascertain that his shift from the left to right lane could be made safely, and, in addition, that the officer s physical observations as well as the fact that Defendant s vehicle jumped the curb at the stop showed sufficient reasonable suspicion to detain Defendant for a violation of a Chapter 38 offense of the vehicle code. A stipulated bench trial followed the suppression hearing. The Court found Defendant guilty of both DUI charges. A pre-sentence investigation was ordered. On January 22, 2014, Defendant was sentenced to a split sentence of five to twenty-three (5-23) months and 3 years of probation. The instant appeal followed. DISCUSSION The issue presented by Defendant s Motion was whether Officer Werner possessed reasonable suspicion or probable cause to justify a stop of Defendant s vehicle. The Court will first address which quantum of cause was required to stop Defendant s vehicle. Section 6308 of the Vehicle Code provides, in relevant part: Investigation by police officers (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. 75 Pa.C.S.A. 6308(b) (2004) (amending 75 Pa.C.S.A. 6308(b) (1998)) (emphasis added). The Supreme Court of Pennsylvania has addressed the standard set by the amendment of Section 6308 (b): The amendment of 6308 (b) accomplished the elimination of the unique and higher statutory threshold for stops for Vehicle Code offenses; the amendment indicated the legislature did not wish to create a higher standard than that required under the Constitution. That said, one must remember the reason why the Constitution tolerates the lesser standard articulated in Terry-the detention is 4

5 allowed to maintain the status quo so the officer may conduct a brief and safe investigation to see if indeed there is criminal activity afoot. Extensive case law supports the conclusion a vehicle stop for DUI may be based on reasonable suspicion, as a post-stop investigation is normally feasible. However, a vehicle stop based solely on offenses not investigable cannot be justified by a mere reasonable suspicion, because the purposes of a Terry stop do not existmaintaining the status quo while investigating is inapplicable where there is nothing further to investigate. An officer must have probable cause to make a constitutional vehicle stop for such offenses. Commonwealth v. Chase, 599 Pa. 80, 94, 960 A.2d 108, (2008). In other words, whether or not the stop is based on an investigable offense determines whether reasonable suspicion or probable cause is required. In those cases where the suspected violation is one such as a failure to drive within a single lane or unsafely overtaking a vehicle on the right the courts require that the officer possess probable cause to believe that there has been a violation of the Vehicle Code. Com. v. Sands, 887 A.2d 261, 270 (Pa. Super. 2005). In determining whether an officer had reasonable suspicion to justify a vehicle stop, the court must consider the totality of the circumstances. Commonwealth v. Holmes, 14 A.3d 89, 96 (Pa. 2011). The court must evaluate facts of a given case from the standpoint of an objectively reasonable police officer. Id. The officer must articulate specific observations, combined with rational inferences derived therefrom, that reasonably warrant the stop. Commonwealth v. Cauley, 10 A.3d 321, 326 (Pa.Super. 2010). Here, Officer Werner indicated his reason for stopping Defendant s vehicle was for a violation of driving on roadways laned for traffic 3 and driving vehicle at a safe 3 75 Pa. C.S. 3309(1). 5

6 speed. 4 (N.T. Suppression Hearing, 11/14/13, p ). He further stated that while following Defendant s vehicle, he observed it change lanes from the left to right directly in front of a tractor trailer and in such a manner that Defendant s truck shook as though it was out of control. (N.T. Suppression Hearing, 11/14/13, p. 8-10). As such, Officer Werner was required to have probable cause of a violation of roadways laned for traffic to stop Defendant. Here, Officer Werner testified that he needed to maintain a speed of 60 miles per hour in order to keep up with Defendant in a 40 miles per hour zone. (Id. at 8). He testified that Defendant abruptly changed lanes from left to right, forcing the tractor trailer in the right lane to slow down and brake. (Id. at 9). Defendant s truck also shook like it was about to lose control. (Id. at 9-10). Officer Werner had probable cause to stop Defendant for a violation of roadways laned for traffic, which requires the driver to first ascertain that the movement can be made with safety. 75 Pa.C.S. 3309(1). Upon making contact with the Defendant, Officer Werner noted a very strong odor of an alcoholic beverage and unopened beer cans in the backseat. He also observed that Defendant had bloodshot, watery eyes and slurred speech. The violation of 3309 and Officer Werner s physical observations, as well as the fact that Defendant s vehicle jumped the curb at the stop showed sufficient reasonable suspicion to detain Defendant for a DUI violation and request that Defendant perform field tests, which were described, demonstrated, and administered by Officer Werner. Due to Defendant s abrupt lane change, Officer Werner had probable cause to initiate a stop. Based on all the officer s observations and Defendant s failure to perform 4 75 Pa. C.S

7 the field tests satisfactorily, Officer Werner held the legitimate opinion that Defendant was incapable of safely driving his vehicle. Therefore, for the foregoing reasons, the Court respectfully submits that Defendant s judgment of sentence should be affirmed and his appeal dismissed. BY THE COURT: Attest: HOWARD F. KNISELY JUDGE Copies to: Julie Slabinski, Assistant District Attorney Timothy M. Barrouk, Esq. 7