Com. v. Bennett, J. ( 2016 )

J. A15025/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
JOSHUA SAMUEL BENNETT :
:
: No. 2417 EDA 2015
:
Appeal from the Order July 8, 2015
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0002123-2015
BEFORE: FORD ELLIOTT, P.J.E., DUBOW, J., and JENKINS, J.
MEMORANDUM BY DUBOW, J.: FILED JULY 13, 2016
The Commonwealth appeals from the July 8, 2015 Order entered in
the Bucks County Court of Common Pleas granting the Motion to Suppress
filed by Appellee, Joshua Samuel Bennett. After careful review, we conclude
that the trial court erred as a matter of law when it concluded Appellant’s
arrest had not been supported by probable cause. Accordingly, we reverse
the trial court’s Order and remand for further proceedings consistent with
this Memorandum.
In its Pa.R.A.P. 1925(a) Opinion, the trial court summarized the factual
and procedural history as follows.
On February 25, 2015, Appellee was charged with Driving Under
the Influence ("DUI"): Controlled Substance- 1st Offense, DUI:
Controlled Substance- Metabolite- 1st Offense, DUI: Controlled
Substance- Impaired Ability- 1st Offense and Careless Driving.
J. A15025/16
On July 7, 2015, Appellee filed a Motion to Suppress, alleging
that no probable cause existed for Appellee's DUI arrest.
A hearing was held in front of [the trial court] on Appellee's
Motion to Suppress on July 8, 2015. The following evidence was
submitted at said hearing.
On January 9, 2015, around 4:16 p.m., Appellee was involved in
a single vehicle traffic accident on Central Avenue, Route 309
overpass in Hilltown Township. Appellee was the driver of a car
[that] left the paved roadway and struck a tree.
Officer Tucholski, of the Hilltown Township Police Department
("HTPD"), testified that he has been employed as a police officer
with Hilltown for approximately eleven (11) years. Prior to this,
Officer Tucholski was a deputy sheriff for one (1) year with
Montgomery County's Sheriffs Department. Officer Tucholski has
received training in the investigation of individuals suspected of
driving under the influence of marijuana. Officer Tucholski was
first to arrive at the scene of the accident.
When Officer Tucholski arrived, he instructed Appellee to take a
seat on the ground as he indicated that he may have suffered a
neck or back injury from the crash. Appellee initially obeyed and
sat on the ground but then stood back up and continued to
stand. Officer Tucholski testified that Appellee appeared
disoriented and unsteadily paced about the vehicle. Officer
Tucholski further observed that Appellee had watery eyes and
was speaking with a slower speech. Appellee told Officer
Tucholski that he possibly drove over ice which caused him to
lose control of the motor vehicle but Officer Tucholski observed
that there was no ice on the road at this time. When asked
whether Appellee had a difficult time in answering questions that
day, Officer Tucholski answered "no."
During the investigation, Appellee was asked to keep his hands
out of his pockets for the safety of the officers at least three (3)
times. Officer Tucholski testified that Appellee kept putting his
hands back into his pocket. As a result, Officer Tucholski
searched Appellee's pockets for weapons. During the search,
Officer Tucholski found a soft-pouch containing a multi-colored
glass pipe which had what Officer Tucholski believed to be
marijuana residue in Appellee's left jacket side pocket. When
Appellee stated that he had not smoked marijuana in the past
two (2) days, Officer Tucholski testified that it was his belief that
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Appellee had smoked more recently. Thereafter, Officer
Tucholski advised Appellee that he thought Appellee was under
the influence and therefore the police would be requesting a
blood sample at the hospital.
When questioned by defense counsel as to why the officers did
not conduct a field sobriety test on Appellee, Officer Tucholski
answered that he did not want to harm Appellee, who had just
been in a car accident with potential injuries that could have
been exacerbated. Also, Officer Tucholski testified on cross
examination that he did not find any marijuana in the car nor did
he smell any marijuana on Appellee. Further, Officer Tucholski
testified that the pipe used to smoke marijuana found on
Appellee's person was not warm. Finally, Officer Tucholski did
not testify that he smelled marijuana in the pipe, although that
question was not asked on direct or cross.
One of the other responding officers, Officer John Gildea of the
Hilltown Township Police Department, has been a police officer
for over twenty (20) years and has been employed with Hilltown
for over eighteen (18) years. Officer Gildea is trained in
detecting marijuana intoxication and has experience with
individuals who are under the influence of marijuana.
Officer Gildea arrived at the scene of the motor vehicle crash and
he observed that Appellee had a visible head injury and was
bleeding from a wound on his forehead. Officer Gildea also
observed that Appellee's eyes were watery and glazed. Officer
Gildea testified that Appellee appeared to be unsteady on his
feet, dazed, confused, and disoriented. Appellee admitted that
he had last smoked marijuana two (2) to three (3) days prior to
the accident.
Officer Gildea testified that he did not smell any odor of freshly
burnt marijuana on either Appellee or in Appellee's car.
Further, no field sobriety tests were conducted. Because there
was an accident and that Appellee had a visible head injury,
Officer Gildea testified that there was a fifty-fifty chance that
Appellee was driving under the influence of marijuana. It follows
that the officer testified that there was also a fifty-fifty chance
that his observations of Defendant were a result of his head
injury. Officer Gildea further noted that the tire tracks showed
that Appellee likely did not swerve to avoid an obstacle and he
stated that the fact Appellee was involved in a single vehicle
accident was an indicator that the driver might be impaired.
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There was snow on the sides of the road but the roadway itself
was clear.
Trial Court Opinion, dated 8/27/15, at 1-4 (footnotes omitted).
At the close of the hearing, the trial court granted Appellee’s Motion to
Suppress. Id. at 5.
Appellant filed a timely Notice of Appeal. Both Appellant and the trial
court complied with Pa.R.A.P. 1925.
Appellant raises the following issue for our review:
Did the trial court err and/or misapply the law in granting
suppression of all evidence in this case by finding insufficient
probable cause to arrest Appellee for driving under the influence
of a controlled substance where, at the scene of a one-vehicle
crash, experienced officers made observations of Appellee that,
while possibly attributable to Appellee's head injury, were more
indicative of being under the influence of a controlled substance,
where Appellee made inconsistent statements as to how the
crash occurred, reflecting consciousness of guilt, where Appellee
admitted to smoking marijuana, albeit on previous days, where
Appellee was found in possession of a marijuana pipe, and,
where one officer formed the opinion that Appellee was under
the influence of a controlled substance to a degree that rendered
him incapable of safe driving?
Appellant’s Brief at 4.
Our standard of review applicable to suppression determinations is
well-settled.
When the Commonwealth appeals from a suppression order, we
follow a clearly defined standard of review and consider only the
evidence from the defendant's witnesses together with the
evidence of the prosecution that, when read in the context of the
entire record, remains uncontradicted. The suppression court's
findings of fact bind an appellate court if the record supports
those findings. The suppression court's conclusions of law,
however, are not binding on an appellate court, whose duty it is
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to determine if the suppression court properly applied the law to
the facts.
Commonwealth v. Nester, 709 A.2d 879, 880-81 (Pa. 1998).
The trial court’s findings of facts are not at issue in the instant appeal.
Rather, Appellant argues that the trial court erred in its conclusions of law
when it concluded that the facts did not support the police officers’ probable
cause determination. Appellant’s Brief at 13. After careful review, we
agree.
“To be constitutionally valid, a warrantless arrest must, of course, be
supported by probable cause.” Commonwealth v. Evans, 685 A.2d 535,
537 (Pa. 1996) (citation omitted). Probable cause to stop and arrest a
defendant exists when “the facts and circumstances which are within the
knowledge of the officer at the time of the arrest, and of which he has
reasonably trustworthy information, are sufficient to warrant a man of
reasonable caution in the belief that the suspect has committed or is
committing a crime.” Commonwealth v. Rodriguez, 585 A.2d 988, 990
(Pa. 1991) (citation omitted). As our Supreme Court has made clear:
The question we ask is not whether the officer's belief was
correct or more likely true than false. Rather, we require only a
probability, and not a prima facie showing, of criminal activity.
In determining whether probable cause exists, we apply a
totality of the circumstances test.
Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (emphasis in
original) (quotation marks and citations omitted).
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In applying the totality of the circumstances test, courts are instructed
to “consider all the factors and their total effect” and to refrain from
“concentrat[ing] on each individual element[.]” Commonwealth v. Quiles,
619 A.2d 291, 298 (Pa. Super. 1993) (citation omitted). In addition, it “is
important to view all of the facts and the totality of the circumstances in
order to avoid rendering a decision that is ‘totally devoid of the
commonsensical inferences that are drawn by trained police officers[.]’”
Commonwealth v. Wells, 916 A.2d 1192, 1195 (Pa. Super. 2007)
(emphasis in original) (citation omitted).
Finally, “[p]robable cause exists when criminality is one reasonable
inference; it need not be the only, or even the most likely, inference.”
Quiles, supra at 298. See also Commonwealth v. Moss, 543 A.2d 514,
518 (Pa. 1988) (noting that the fact that other inferences could be drawn
does not demonstrate that the inference that was drawn by police was
unreasonable).
In the instant case, the totality of the circumstances—when viewed
through the eyes of a “prudent, reasonable, cautious police officer guided by
experience and training”—amply supports the officers’ determination that
probable cause existed to arrest Appellant for DUI. Wells, supra at 1195.
Appellee was involved in a single-car crash for which he gave conflicting
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explanations.1 Even though they did not administer a formal field sobriety
test due to Appellee’s injury, both officers observed Appellee at the scene
and noted that (i) he was disoriented and unsteady on his feet, (ii) his
speech was unusually slow, and (iii) his eyes were watery and glazed. In
addition, Appellee admitted to the regular use of marijuana and officers
recovered a glass pipe with suspected marijuana residue from Appellee’s
person. N.T. 7/8/15, at 35-36. Based on those specific observations and
their many years of experience, both officers reasonably believed that
Appellee was under the influence of a controlled substance. Id. at 16, 37.
The trial court opined that because Officer Gildea admitted that he
could not be certain whether the head wound was the cause of Appellee’s
appearance of intoxication at the scene, and there was no odor of a
prohibited substance, probable cause for Appellee’s arrest was not
supported. See Trial Court Opinion at 8. We note that, contrary to the trial
court’s implication, the Commonwealth was not required to disprove that
Appellee’s behavior was caused by a head injury suffered in the crash or to
prove that there was an odor of an illegal substance. Rather, the
Commonwealth was only required to show that a DUI offense was one
1
When first asked about the accident, Appellee told Officer Tucholski that his
vehicle slipped on ice in the roadway. N.T. 7/8/15, at 31-32. When Officer
Tucholski pointed out that there was no ice on the roadway, Appellee
changed his story and claimed to have crashed while avoiding a truck that
crossed over into his lane of travel. Id. at 32. Appellee gave Officer Gildea
a third version of events, claiming he swerved to avoid something in the
roadway. Id. at 17.
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“reasonable inference” to be drawn from the totality of the circumstances at
the time of the arrest. Quiles, supra at 298.
For the foregoing reasons, we hold that the trial court erred in granting
Appellee’s Motion to Suppress. Accordingly, we reverse the trial court’s
Order and remand for further proceedings consistent with this Memorandum.
Order reversed. Case remanded. Jurisdiction relinquished.
President Judge Emeritus Ford Elliott joins the memorandum.
Judge Jenkins concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/13/2016
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