Com. v. Mercado, M. , 205 A.3d 368 ( 2019 )

J-E04006-17
2019 PA Super 63COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
MALIK MERCADO : No. 1444 EDA 2016
Appeal from the Order Entered April 18, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): MC-51-CR-0023918-2015
BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,
SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., and DUBOW, J.
OPINION BY PANELLA, J. FILED FEBRUARY 27, 2019
The Commonwealth appeals from the order of the Philadelphia Court of
Common Pleas, affirming the order of the Philadelphia Municipal Court, which
granted the motion to suppress evidence that Appellee, Malik Mercado was
found to be driving under the influence (“DUI”) of a controlled substance,
marijuana, when stopped by Philadelphia police at a roadblock checkpoint.1
After careful review, we conclude that the police substantially complied with
the Tarbert/Blouse2 guidelines adopted by our Supreme Court to establish
the constitutionality of a DUI roadblock. Specifically, the selection of a location
____________________________________________
1 The Commonwealth certified that the order would substantially handicap or
effectively terminate the prosecution, perfecting our jurisdiction under
Pa.R.A.P. 311(d).
2See Commonwealth v. Tarbert, 535 A.2d 1035 (Pa. 1987) (plurality), and
Commonwealth v. Blouse, 611 A.2d 1177 (Pa. 1992).
J-E04006-17
as well as the operation of the checkpoint met constitutional requirements.
Accordingly, we are constrained to reverse and remand.
The facts of the case are not in dispute. The Common Pleas Court
summarized them as follows:
On July 31, 2015 at 10:45p.m., Philadelphia Police Officers
[Eric] Kornberg and Soto3 stopped Appellee at a DUI checkpoint
located on the 300 block of East Allegheny Avenue, Philadelphia,
Pennsylvania. Officer Kornberg noticed that Appellee had
bloodshot, glassy eyes and detected the odor of burnt marijuana
coming from both Appellee’s vehicle and breath. Officer Kornberg
stated that Appellee admitted to smoking marijuana [twenty]
minutes prior to their interaction. Subsequently, Appellee
submitted to a field sobriety test and was placed in custody for
suspicion of DUI. Appellee was transported to the Police Detention
Unit for a blood test.
Lieutenant James McCarrick is responsible for selecting
locations for DUI checkpoints throughout the City of Philadelphia.
To determine the location of the DUI checkpoint in question,
Lieutenant McCarrick tabulated all DUI-related incidents in
Philadelphia over the previous two years and broke those figures
down by DUI-related incidents per police district. He found that
the 25th Police District, which is 2.3 square miles, was “the number
one district in the city for DUIs,” but confirmed that there was
nothing in the statistics that indicated that the 300 block of East
Allegheny Avenue had a higher frequency of DUI incidents than
anywhere else in the 25th Police District because the figures are
not location-specific.
The Lieutenant explained that a DUI checkpoint operation
“roughly consists of eighteen police officers, two police cruisers
and one large processing center [that is] about the size of a fire
truck.” He testified that he would be unable to set up a DUI
checkpoint in the “majority of locations” within the 25th Police
District because it is a “highly congested residential area.”
Lieutenant McCarrick selects DUI-checkpoint locations that are
“large enough and safe enough” to accommodate such an
____________________________________________
3 Officer Soto’s first name is not readily apparent in the record before us.
-2-
J-E04006-17
operation. He noted that the 300 block of East Allegheny Avenue
is “a main vein of travel” within the district.
Common Pleas Court Opinion, 7/06/16, at 1-2 (record citations omitted).
Appellee Mercado filed a motion to suppress the DUI evidence, which
the Municipal Court granted, after a hearing. The Commonwealth appealed
to the Court of Common Pleas. On April 18, 2016, the Court of Common Pleas
denied the Commonwealth’s appeal, after a hearing, in effect affirming the
grant of suppression. The Commonwealth now appeals to this Court.
Our standard of review in addressing a challenge to the grant of a
motion to suppress 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 is to determine if
the suppression court properly applied the law to the facts.
Our standard of review is restricted to establishing whether
the record supports the suppression court’s factual findings;
however, we maintain de novo review over the suppression
court’s legal conclusions.
Commonwealth v. Menichino, 154 A.3d 797, 800-801 (Pa. Super. 2017),
appeal denied, 169 A.3d 1053 (Pa. 2017) (citations omitted) (emphasis
added).
In its substituted brief, the Commonwealth presents one question for
our review:
-3-
J-E04006-17
May a police official lawfully locate a sobriety checkpoint on
a major road in a police district in which there is an anomalously
high rate of DUIs?
Commonwealth’s Brief, at 4.
The Commonwealth argues that suppression was improper because the
roadblock and the checkpoint at issue were lawful under applicable precedent
and met constitutional requirements. See Commonwealth’s Brief, at 11-14.
It maintains that under Tarbert/Blouse, “[s]ubstantial compliance with the
guidelines is all that is required to reduce the intrusiveness of the search to a
constitutionally acceptable level.” Id. at 13 (citing Tarbert, supra at 1043)
(quoting Blouse, at 1180).
In reviewing the merits of this contention, we are guided by the
following legal principles.
Initially, we note that the stopping of an automobile at a
checkpoint constitutes a seizure for constitutional purposes, thus
implicating the protections of both the Fourth Amendment to the
United State Constitution, see Michigan Dep't of State Police
v. Sitz, 496 U.S. 444, 450 [ ] (1990), and Article I, Section 8 of
the Pennsylvania Constitution, see Blouse, [supra at] 1178.
These provisions do not proscribe all searches and seizures, but
only “unreasonable” ones. Thus, the central question in any
litigation challenging a particular search or seizure is whether that
search or seizure was constitutionally “reasonable.”
The reasonableness of a seizure that is less intrusive than a
traditional arrest depends upon a three-pronged balancing test
derived from Brown v. Texas, 443 U.S. 47 [ ] (1979), in which
the reviewing Court weighs “the gravity of the public concerns
served by the seizure, the degree to which the seizure advances
the public interest, and the severity of the interference with
individual liberty.” Id. at 50 [ ].
* * *
-4-
J-E04006-17
Because of the severe consequences of drunken driving in
terms of roadway deaths, injuries, and property damage,
see generally Sitz, [supra at] 451 [ ] (summarizing national
statistics); Tarbert, [supra at] 1042 (summarizing Pennsylvania
statistics), both the United States Supreme Court and [the
Pennsylvania Supreme] Court have recognized that the
government has a compelling interest in detecting
intoxicated drivers and removing them from the roads
before they cause injury. . . . This has raised the question of
whether the law permits police officers to effect suspicionless
seizures in the form of brief vehicle stops at publicly announced
sobriety checkpoints along roadways known to be frequented by
intoxicated drivers. As noted, and as with all similar questions,
this question has been answered with reference to the balancing
test described above.
Commonwealth v. Beaman, 880 A.2d 578, 581–83 (Pa. 2005) (footnotes
and some citations omitted) (emphases added).
When conducting roadblock checkpoint stops, the police must comply
with the Tarbert/Blouse guidelines.4 Our Supreme Court has explained
these guidelines as follows:
[T]he conduct of the roadblock itself can be such that
it requires only a momentary stop to allow the police to
make a brief but trained observation of a vehicle’s driver,
____________________________________________
4 The Tarbert plurality suggested the guidelines to ensure constitutionality
under Article I, section 8 of the Pennsylvania Constitution: “In our view, a
drunk-driver roadblock conducted substantially in compliance with the above
guidelines would reduce the intrusiveness to a degree which, when balanced
against the compelling public interest in apprehending such drivers, would not
violate Article I, section 8 of the Pennsylvania Constitution.” Tarbert, 535
A.2d at 1043. The Blouse majority expressly adopted the Tarbert guidelines
“because they achieve the goal of assuring that an individual’s reasonable
expectation of privacy is not subject to arbitrary invasions solely at the
unfettered discretion of officers in the field.” Blouse, 611 A.2d at 1180
(citation omitted).
-5-
J-E04006-17
without entailing any physical search of the vehicle or its
occupants. To avoid unnecessary surprise to motorists, the
existence of a roadblock can be so conducted as to be
ascertainable from a reasonable distance or otherwise made
knowable in advance. The possibility of arbitrary roadblocks
can be significantly curtailed by the institution of certain
safeguards. First the very decision to hold a drunk-driver
roadblock, as well as the decision as to its time and place,
should be matters reserved for prior administrative
approval, thus removing the determination of those matters
from the discretion of police officers in the field. In this
connection it is essential that the route selected for
the roadblock be one which, based on local
experience, is likely to be travelled by intoxicated
drivers. The time of the roadblock should be governed by
the same consideration. Additionally, the question of which
vehicles to stop at the roadblock should not be left to the
unfettered discretion of police officers at the scene, but
instead should be in accordance with objective standards
prefixed by administrative decision.
Blouse, 611 A.2d at 1180 (quoting Tarbert, 535 A.2d at 1043) (emphasis
added).
Similarly,
[T]o be constitutionally acceptable, a checkpoint must meet
the following five criteria: (1) vehicle stops must be brief and must
not entail a physical search; (2) there must be sufficient warning
of the existence of the checkpoint; (3) the decision to conduct a
checkpoint, as well as the decisions as to time and place for the
checkpoint, must be subject to prior administrative approval; (4)
the choice of time and place for the checkpoint must be
based on local experience as to where and when
intoxicated drivers are likely to be traveling; and (5) the
decision as to which vehicles to stop at the checkpoint must be
established by administratively pre-fixed, objective standards,
and must not be left to the unfettered discretion of the officers at
the scene.
Commonwealth v. Worthy, 957 A.2d 720, 725 (Pa. 2008) (citation omitted,
emphasis added).
-6-
J-E04006-17
“Substantial compliance with the Tarbert/Blouse guidelines is all that
is necessary to minimize the intrusiveness of a roadblock seizure to a
constitutionally acceptable level.” Menichino, 154 A.3d at 802 (citation
omitted).
Here, the Commonwealth argues that the grant of Appellee’s motion to
suppress is contrary to this Court’s applicable precedent, in particular,
Commonwealth v. Fioretti, 538 A.2d 570 (Pa. Super. 1988). We agree.
In pertinent part, Fioretti reversed an order of suppression, affirming,
as constitutional, the establishment of a roadblock by selecting a police district
in Williamsport which had a disparately high number of drunk-driving arrests
within a specified time frame (February 1, 1984 to August 8, 1985). See id.
at 576. The Fioretti Court also noted that the actual location within the
district was chosen for its safety features: a straight roadway, no cross streets,
a wide berm, two lanes, good lighting, and a concrete barrier dividing the two
flows of traffic travelling in opposite directions. See id. at 576–77.
Appellee counters that there was a failure of substantial compliance with
the Tarbert/Blouse Guidelines by the Philadelphia police “because the
specific location selected for the checkpoint was not supported by any data on
DUI related arrests or accidents at that location, and it was not chosen
because it was likely to be traveled by intoxicated drivers[.]” (Appellee’s Brief,
-7-
J-E04006-17
at 1).5 Similarly, he posits that Fioretti “did not fully address the fourth
requirement of the Tarbert/Blouse guidelines with respect to whether the
roadblock was one which, based on local experience, was likely to be traveled
by intoxicated drivers.” (Id. at 14).
In its opinion, the Common Pleas Court explained that it affirmed the
Municipal Court’s order granting suppression in favor of Appellee after deciding
that this case was controlled by Commonwealth v. Blee, 695 A.2d 802 (Pa.
Super. 1997) and Commonwealth v. Garibay, 106 A.3d 136 (Pa. Super.
2014), appeal denied, 123 A.3d 1060 (Pa. 2015). See Common Pleas Court
Opinion, 7/6/16, at 6.
Notably, the Common Pleas Court concluded it was “[u]nable to
reconcile the holdings” in Blee and Garibay with Fioretti, and based its ruling
expressly on Blee and Garibay, disregarding Fioretti, “because they [Blee
and Garibay] postdate Fioretti.” Id. On careful review, we are constrained
to conclude that the Common Pleas Court’s reliance is misplaced.
This Court has recently distinguished Blee and Garibay, on facts similar
to this case, in Menichino, supra. The Menichino Court explained:
Appellee argued, and the suppression court agreed, that
Garibay requires the Commonwealth to specify the number of
accidents, arrests, and violations at the “specific checkpoint
location.” Suppression Court Opinion, 11/10/15, at 4. Relying on
Garibay, the suppression court and Appellee interpreted the
“specific checkpoint location” phrase in Garibay to require
evidence of arrests and/or accidents at the exact spot of the
____________________________________________
5 See also N.T. Hearing, 4/18/16, at 3: “We conceded everything else.”
-8-
J-E04006-17
checkpoint (Block 2700 of North Hermitage Road). Because at the
exact location of the checkpoint there were only two DUI arrests
reported, the suppression court concluded that the
Commonwealth failed to meet the criteria for a constitutionally
acceptable DUI checkpoint. The suppression court also noted it
could not take into account the other [forty-four] arrests made on
North Hermitage Road because those arrests did not occur at the
specific location of the checkpoint. Accordingly, the suppression
court concluded that the stop was illegal, and suppressed all
evidence stemming from the illegal stop.
The suppression court and Appellee misconstrue the
specificity required in choosing a checkpoint location. Our
cases have held that the police, in setting up a DUI checkpoint,
must articulate specifics such as the reason for the location and
the number of prior DUIs in the area of the checkpoint. See
Commonwealth v. Stewart, 846 A.2d 738, 741 (Pa. Super.
2004) (holding that the DUI roadblock set up “in the area of
Bookspan on South Market Street in Upper Allen Township” was
conducted substantially in compliance with the Tarbert/Blouse
guidelines); Commonwealth v. Ziegelmeier, 454 Pa. Super.
330, 685 A.2d 559, 562 (1996) (holding “there was testimony ...
that the determination was based on several factors, including
volume traffic, number of DUI arrests in that area (as compared
to the total number in Camp Hill) and the number of DUI related
accidents. Therefore, the roadblock was constitutional under the
requirements of Tarbert and Blouse.”); cf. Blee, 695 A.2d at
806 (holding the officer “never testified as to the number of
alcohol-related accidents and/or arrests on Route 11 in
Edwardsville, the specific location of the sobriety checkpoint.”).
Thus, under current law, the specific location of the
checkpoint is the area where the checkpoint is located, not
the exact block/location of the checkpoint.
Menichino, 154 A.3d at 802-03 (first and second emphases in original; third
emphasis added).
Here, we conclude after careful review that Fioretti and Menichino
provide more persuasive authority for the resolution of this case than Blee
and Garibay. The selection and operation of the roadblock checkpoint was in
-9-
J-E04006-17
substantial compliance with the Tarbert/Blouse guidelines. Lieutenant
McCarrick testified, without contradiction, that he selected the route based on
statistical data demonstrating that the 25th district accounted for the highest
rate of DUI arrests in the city of Philadelphia, and that Allegheny Avenue was
the main avenue of East-West travel in the district. See N.T., Suppression
Hearing, 1/7/16, at 24-25, 29-32. Lieutenant McCarrick also considered traffic
volume and safety factors in the selection of the checkpoint. See id., at 25.
Appellee argues that selection of a checkpoint location for reasons of
safety and convenience “do not satisfy the constitutional requirements for a
reasonable stop.” (Appellee’s Brief, at 17). We disagree.
To the contrary, our case law recognizes that safety is a proper
consideration in the selection of a checkpoint. See Fioretti, supra at
576–77. Accordingly, we are constrained to reverse the grant of suppression
and remand for a trial at which evidence of Appellee’s intoxicated driving may
be admitted.
Reversed and remanded to the trial court for proceedings consistent
with this opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/19
- 10 -