Com. v. Garibay, C.

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2014 Pa. Super. 272
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CIPRIANO GARIBAY
Appellant No. 758 WDA 2012
Appeal from the Judgment of Sentence April 3, 2012
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0004217-2010
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, J., SHOGAN, J.,
ALLEN, J., OTT, J., WECHT, J., STABILE, J., and JENKINS, J.
DISSENTING OPINION BY OTT, J.: Filed: December 9, 2014
Because I believe the testimony presented at the suppression hearing
supports the trial court’s denial of Garibay’s motion to suppress evidence
and the trial court’s conclusions are free from legal error, I respectfully
dissent.
In considering Garibay’s motion to suppress evidence, the trial court
was required to determine whether the seatbelt checkpoint established by
the Pittsburgh Police Department substantially complied with the
Tarbert/Blouse guidelines, established under Commonwealth v. Tarbert,
535 A.2d 1035 (Pa. 1987) and Commonwealth v. Blouse, 611 A.2d 1177
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(Pa. 1992).1 These guidelines, which will be more fully discussed below, are
designed to protect individuals from unreasonable searches and seizures,
pursuant to the United States and Pennsylvania Constitutions. Therefore,
the trial court was tasked with determining whether the Commonwealth’s
action in establishing a seatbelt checkpoint on Banksville Road, at the time
in question, was unreasonable. The Majority has agreed with Garibay and
concluded that because the Commonwealth did not produce statistics, data
or reports to support the choice of location as one in which there are
seatbelt violations, the Commonwealth acted unreasonably. I believe the
Majority’s conclusion ignores the trial court’s determination of the paramount
purpose of the checkpoint and therefore unnecessarily advocates a strict
application of the time and location factors.
In reviewing the denial of a motion to suppress, “[o]ur standard of
review in addressing a challenge to a trial court’s denial of a suppression
motion is limited to determining whether the factual findings are supported
by the record and whether the legal conclusions drawn from those facts are
correct.” Commonwealth v. Kearney, 92 A.3d 51, 65 (Pa. Super. 2014).
Further, “[t]he sensible interpretation of the rule is that when reviewing the
denial of a motion to suppress, we look at all of the evidence in the light
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1
There is no dispute that the Tarbert/Blouse guidelines, announced for
application to DUI roadblocks, also apply to vehicle safety checkpoints. See
In re J.A.K., 908 A.2d 322, 326 n.3 (Pa. Super. 2006).
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most favorable to the Commonwealth and determine whether the record
supports the suppression court’s findings of fact.” Commonwealth v.
Reppert, 814 A.2d 1196, 1208 (Pa. Super. 2002) (en banc).
The Tarbert/Blouse decisions set forth guidelines for the
establishment of sobriety checkpoints to balance the legitimate
governmental interests of conducting such checkpoints with the necessary
protection of individuals from “arbitrary invasions [of privacy] at the
unfettered discretion of the officers in the field.” See Majority Opinion, at 6,
citing Blouse, 611 A.2d at 1178. Those guidelines are:
[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, 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 drink-driving 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).
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The Tarbert/Blouse guidelines are not mandatory rules. Rather,
there must be “substantial – and not complete – compliance” to pass
Constitutional muster. Worthy, supra, 957 A.2d at 725. In this appeal,
Garibay has only challenged the sufficiency of the evidence regarding the
location and time of the roadblock.2 Therefore, the review of the trial court’s
decision is necessarily limited to the court’s factual findings and legal
conclusions addressing that particular Tarbert/Blouse criteria.
Testimony regarding establishment and administration of the
checkpoint was provided by Sergeant Richard Howe of the City of Pittsburgh
Police Department, at the December 15, 2011 suppression hearing.
Sergeant Howe was the liaison between the police department and the
Pennsylvania Department of Transportation (PennDOT) for the Click it or
Ticket Buckle Up Campaign. See N.T. Hearing, 12/15/2011, at 4.
Regarding the choice of Banksville Road for the seatbelt checkpoint,
Sergeant Howe testified as follows:
Q. And, lastly, this location of Banksville Road where this was,
where you specified this to have occurred, how did you come to
specify Banksville Road?
A. The State likes us to do these safety check seatbelt
checkpoints on busy roadways within the City of Pittsburgh.
They pull that information from vehicle traffic, the volume of
traffic and high accident locations.
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2
Accordingly, for the purpose of this appeal, all other guidelines have been
met.
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Q. Okay. And what are some of the other examples of roads in
the city that you have been told to use as locations[?]
A. We have done West Liberty Avenue. We have done Saw Mill
Run Boulevard, which is Route 51. We have done in the past I
believe on Bigelow Boulevard.
Q. And those locations, as well as Banksville Road, are all
mentioned, I guess, to you by the statewide campaign?
A. Yes. They like to go where we do have high volume vehicle
traffic. That way the message for the seatbelts can get out.
Q. The things you just described, high accident rate, high traffic,
did those things that PennDOT apparently had, did that seem to
comport with your own experience as an officer and being
familiar with Banksville Road?
A. Within the City of Pittsburgh, yes.
N.T. Hearing, 12/15/2011, at 6-7.
In determining that the evidence presented by the Commonwealth was
sufficient to demonstrate substantial compliance regarding the time and
location of the seatbelt checkpoint, the trial court opined:
The fourth standard [the choice for time and location of the
checkpoint must be supported by local experience as to when
and where drunk drivers are likely to be traveling] is not directly
applicable in that it applies to DUI checkpoints and intoxicated
drivers. However, the underlying rationale for this standard, i.e.
the purpose to be served by the checkpoint will be accomplished
because the location of the checkpoint is appropriate, is
applicable in this context as well. It is the purpose of the Click it
or Ticket checkpoint that as many drivers as possible are given
the message of the importance of seatbelt use to promote public
safety (T.R. 12/15/11, p. 5, 6, 7). Therefore, the selection of a
busy roadway is paramount. As was stated previously, review of
traffic data by the Commonwealth and the experience of a
veteran Pittsburgh Police sergeant confirmed that this section of
Banksville Road was well-traveled and had a high accident count,
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making it a prime location to get the word out about seatbelt
safety. (T.R. 12/15/11, p. 7).
Trial Court Opinion, 11/20/2012, at 10, ¶ 4.
The trial court’s finding of the purpose of the checkpoint is supported
by the record. I do not believe the trial court’s conclusion that Sergeant
Howe provided a sufficient testimonial basis to support the Banksville Road
location was in error.
Initially, “the police are not required to produce any statistics at all to
justify the selection of the roadblock location.” Commonwealth v.
Rastogi, 816 A.2d 1191, 1194 (Pa. Super. 2003) quoting Commonwealth
v. Ziegelmeier, 685 A.2d 559, 563 (Pa. Super. 1996).3 In Ziegelmeier,
Camp Hill Chief of Police Gregory Ammons testified the choice of location for
the DUI checkpoint was based upon “volume of traffic, number of
accidents, number of known DUI offenders that are apprehended on
the roadway, underage drinking arrests, DUI arrests.” Ziegelmeier,
at 562 (emphasis added). On cross-examination, Chief Ammons testified
that 58 of 80 borough DUI arrests in the prior 13 months occurred in the
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3
Prior to Ziegelmeier, a panel of our court decided Commonwealth v.
Trivitt, 650 A.2d 104 (Pa. Super. 1994) which ostensibly required the
Commonwealth to produce written reports, statistics or data to support the
choice of location for a DUI roadblock. Ziegelmeier, decided in 1996,
recognized that Trivitt was a plurality decision; therefore Trivitt was not
controlling law.
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general area of the checkpoint and eight occurred at the specific location.4
In his appeal, Ziegelmeier claimed trial counsel was ineffective for essentially
making the Commonwealth’s case by bringing out the actual DUI arrest
statistics. Our Court held:
The Commonwealth was not required to produce statistics to
show that the checkpoint area chosen was one “likely to be
travelled by intoxicated drivers.” As a result, appellant’s claim of
ineffective assistance of counsel is clearly meritless because the
testimony by Chief Ammons on cross-examination was
not necessary to show that the roadblock was conducted
in a constitutional manner.
Id. at 563 (emphasis added).
Therefore, while specific numbers regarding DUI arrests were
presented to the trial court in Ziegelmeier, our Court specifically rejected
the production of such specific testimony as a constitutional requirement to
support choice of location.
However, the Ziegelmeier decision was misinterpreted by
Commonwealth v. Blee, 695 A.2d 802 (Pa. Super. 1997). In a footnote,
Blee discussed the Ziegelmeier and Trivitt decisions:
In Ziegelmeier, a panel of this Court declined to adopt Trivitt’s
conclusion that the Commonwealth is required to introduce into
evidence the reports, data and statistics relied on by the police
in determining the location of the sobriety checkpoint. However,
the panel in Ziegelmeier implicitly agreed with Trivitt’s
conclusion that the Commonwealth is required to present some
(emphasis added) type of evidence regarding the manner in
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4
For reference, 58 incidents in a 13 months period translate to one incident
every 6.7 days. The eight arrests translate to one arrest every 48.75 days.
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which the specific location of the sobriety checkpoint was
chosen. That is, both Ziegelmeier and Trivitt require the
Commonwealth to introduce evidence regarding the number of
DUI-related accidents and arrests in the particular area of the
sobriety checkpoint at issue.
Commonwealth v. Blee, 695 A.2d at 805, n. 8.
This discussion led to Blee’s holding that, “At the very least, the
Commonwealth was required to present information sufficient to specify the
number of DUI-related arrests and/or accidents on Route 11 in Edwardsville,
the specific location of the sobriety checkpoint.” Blee, at 806. See also
Majority Opinion at 8.
However, the concluding sentence of the footnote and resulting
holding of Blee are misstatements of Ziegelmeier’s holding that such
specific statistical information was not required to prove constitutionality.
Specific numbers of DUI-related arrests and/or accidents are statistics, and
Ziegelmeier held that such statistics are not required to prove
constitutionality. Blee has never been cited by our Court or our Supreme
Court for the proposition that the Commonwealth must provide such specific
numbers to support the choice of a checkpoint location. In light of Blee’s
misinterpretation of Ziegelmeier, I do not believe that Blee represents a
binding decision.
Therefore, any failure by the Commonwealth to provide “documentary
or testimonial evidence that specifies the reports, data or statistics relied
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upon in selecting the location (or time) of the checkpoint”5, as complained of
by Garibay, is not fatal to the Commonwealth’s case.
Because specific numbers are not a requirement to demonstrate
substantial compliance, an examination of the record demonstrates no legal
error in the trial court’s conclusion that the evidence presented by the
Commonwealth was constitutionally sufficient. As the trial court explained,
the main purpose of this checkpoint was the dissemination of information to
as many citizens as possible. Sergeant Howe testified that to achieve this
goal PennDOT suggested multiple sites, including West Liberty Avenue, Saw
Mill Run Boulevard (Route 51), and Bigelow Boulevard; all of which the
Commonwealth had used for prior seatbelt checkpoint locations. See N.T.
Hearing, 12/15/2011, at 7. There is nothing in the certified record to
suggest that any of these locations was improper.6 The information from
PennDOT is culled from their database of traffic information.7 Sergeant
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5
See Garibay’s Appellate Brief, Statement of Questions Involved, at 3.
6
This evidence is somewhat akin to In re J.A.K., 908 A.2d 322 (Pa. Super.
2006). J.A.K. also involved a seatbelt checkpoint. A panel of our Court
determined that police officer testimony that a checkpoint location had been
used on three prior locations, without any testimony regarding specific
numbers provided sufficient information to support the choice of checkpoint
location. However, in J.A.K. the issue of location was not contested,
therefore the decision’s commentary on the issue is dicta.
7
See N.T. Hearing, 12/15/2011, at 6 (“The State likes us to do these safety
check seatbelt checkpoints on busy roadways within the City of Pittsburgh.
(Footnote Continued Next Page)
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Howe further testified that his experience as a City of Pittsburgh police
officer confirmed the information and suggestions of PennDOT as proper
locations for a seatbelt checkpoint. This evidence provides ample support
for the choice of Banksville Road as a seatbelt checkpoint, given the stated
purpose of the checkpoint. Sergeant Howe’s testimony, presented at the
hearing and accepted by the trial court, supports its finding the location
choice was not arbitrary or otherwise unreasonable. Therefore, I believe this
aspect of the Tarbert/Blouse guidelines has been met.
Although the Commonwealth presented no evidence regarding the
timing of the checkpoint, the timing factor is not directly applicable to
seatbelt usage as compared with intoxicated driving. Therefore, because
substantial and not total compliance is the applicable standard, I would
agree with the trial court that the evidence presented by the Commonwealth
fulfilled the requirements of substantial compliance.
I recognize that the Majority is concerned that deviation from the Blee
requirements of specific statistical reference represents the application of a
lesser standard. See Majority Opinion, at 12. However, I do not believe this
approach represents a lesser standard. Rather, I believe this analytical
approach in determining substantial compliance comports with our standards
of determining constitutionality in other search and seizure cases. The
_______________________
(Footnote Continued)
They pull that information from vehicle traffic, the volume of traffic and high
accident locations.”).
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general standard applied in such matters, whether we are tasked with
determining reasonable suspicion or probable cause, is an examination of
the totality of the circumstances.8 The application of this standard
recognizes that vastly different circumstances may attend each search and
seizure episode.
As every search warrant, street encounter or traffic stop is based upon
different factors, the same is true of checkpoints. Here, the trial court
simply recognized the difference in purpose between a seatbelt checkpoint
and a DUI checkpoint, and evaluated the evidence supporting time and
location of the seatbelt checkpoint accordingly. See Trial Court Opinion,
11/20/2012, at 10, ¶4, supra. The general purpose of a DUI roadblock is
the apprehension of impaired drivers, and this purpose suggests that more
specific evidence be required to support the selection of location and timing
of the roadblock. However, the time and location nexus to a DUI
checkpoint is not directly analogous to a seatbelt checkpoint. Therefore,
accepting the Commonwealth’s evidence without a statistical basis is not
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8
This totality of circumstances approach was advocated by Justice Eakin in
his concurring opinion in Commonwealth v. Worthy, 957 A.2d 720, 728-
29 (Pa. 2008). In large part, “substantial compliance” might be seen as
simply a restatement of “totality of the circumstances.”
See Commonwealth v. Lyons, 79 A.3d 1053 (Pa. 2013); Commonwealth
v. Bailey, 947 A.2d 808 (Pa. Super. 2008); and Commonwealth v.
Watkins, 344 A.2d 678 (Pa. Super. 1975), among a host of other cases, for
examples of the application of totality of the circumstances as the analytical
basis for examining search and seizure issues.
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representative of a lower standard; it is a weighing of factors as applied to
the specific circumstances of the matter before us, in light of the factual
determinations made by the trial court.
Accordingly, I believe the trial court correctly determined the
Commonwealth presented sufficient evidence to demonstrate substantial
compliance with the Tarbert/Blouse guidelines. Therefore, I respectfully
dissent.
Judges Allen and Stabile join this dissenting opinion.
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