Com. v. Menichino, A.

J-A23024-16
2017 PA Super 16COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ANDREW C. MENICHINO
Appellee No. 1904 WDA 2015
Appeal from the Order entered November 10, 2015
In the Court of Common Pleas of Mercer County
Criminal Division at No: CP-43-CR-0000027-2015
BEFORE: LAZARUS, STABILE, and STRASSBURGER,* JJ.
OPINION BY STABILE, J.: FILED JANUARY 23, 2017
The Commonwealth appeals from the order the Court of Common
Pleas of Mercer County entered on November 10, 2015, granting Appellee
Andrew C. Menichino’s motion to suppress all the evidence derived from a
vehicular stop at a DUI checkpoint. Upon review, we reverse and remand.
Following a hearing, the suppression court found the following:
1. Sergeant Brian Robinson has been employed with the
Hermitage Police Department for 17 years, and is presently
a patrol supervisor.
2. Sergeant Robinson also serves as the coordinator for the
Mercer County DUI Task Force. As coordinator, he is
responsible for analyzing data in order [to] locate problem
areas for DUI offenses. He has also served as coordinator
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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for seven years and has conducted approximately five (5)
checkpoints per year.
3. Prior to September 2[6], 2014, Sergeant Robinson utilized
the Hermitage Police Department’s Alert File System to
identify two problem areas in the city of Hermitage through
the use of statistics, State Route 18 [(]a/k/a Hermitage
Road[)] and State Route 62 [(]a/k/a/ East State Street[)].
4. Sergeant Robinson testified that from September 2011 to
September 2014 there were 94 DUI arrests on State Route
18.
5. Within the same period of time, there were a total 430 DUI
arrests within the City of Hermitage. Consequently, 22% of
the total number of DUI arrests in Hermitage during this
time frame occurred on State Route 18.
6. Based on this statistic, Sergeant Robinson prepared and
presented an Operation Plan for a sobriety checkpoint on
State Route 18 to the Hermitage Chief of Police.
7. In determining the exact location of the checkpoint,
Sergeant Robinson testified that factors such as safety for
motorists, site distance, whether the site is geographically
conducive, and whether the site is appropriate for license
checks were considered.
8. Additionally, the standard methodology for operating the
sobriety checkpoint required the posting of signage advising
motorists of the checkpoint, the use of traffic cones to direct
traffic, a minimum of two officers being present, and that
every vehicle was stopped.
9. Sergeant Robinson was on the scene at the sobriety
checkpoint when [Appellee] was stopped.
10. On cross-examination, Sergeant Robinson acknowledged
that State Route 18, a/k/a/ Hermitage Road, is divided into
North and South Hermitage Road at the intersection of State
Route 62.
11. Further, he acknowledged the Alert File System did not
break the 94 DUI arrests down between North and South
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Hermitage Road, nor did it identify the block in which an
arrest occurred. However, the system did identify
landmarks for locations of some, but not all, DUI arrests.
12. The sobriety checkpoint was located in the 2700 block of
North Hermitage Road, which has the Quaker Circle housing
development as a landmark.
13. There had been two (2) DUI arrests at the Quaker Circle
block of North Hermitage Road during that time frame.
14. Further, based on landmarks identified in the Alert File
System, Sergeant Robinson testified there had been at least
44 DUI arrests on North Hermitage Road out of the total of
94 for all of State Route 18.
Suppression Court Opinion, 11/10/15, at 2-3.
After the hearing, the suppression court granted Appellee’s motion to
suppress to the extent he argued that the stop of Appellee was illegal
because the DUI checkpoint was not constitutionally acceptable. This appeal
followed.
As this Court recently recognized:
Our standard of review in addressing a challenge to the
suppression court’s granting of a suppression motion 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.
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Commonwealth v. Miller, 56 A.3d 1276, 1278–1279 (Pa.
Super. 2012) (citations omitted).[1] “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. Brown, 606 Pa. 198, 996 A.2d 473, 476
(2010) (citation omitted).
Commonwealth v. Korn, 139 A.3d 249, 252-53 (Pa. Super. 2016).
At issue here is the legality of the vehicular stop that took place at the
DUI checkpoint set up by the Hermitage Police Department on September
26, 2014.2 In addressing the merits of this contention, we are guided by the
following principles.
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1
In In re L.J., 79 A.3d 1073 (Pa. 2013), our Supreme Court applied
prospectively a new rule regarding the scope of review in suppression
matters. Specifically, it clarified that an appellate court’s scope of review in
suppression matters includes the suppression hearing record, but not
evidence elicited at trial. The Commonwealth challenges the conclusions of
the suppression court, not its findings. As such, L.J. does not come into
play.
2
The Commonwealth raises the following issues:
1. Whether the Commonwealth failed to supply sufficient
evidence regarding the likelihood of observing intoxicated
drivers at the selected DUI checkpoint location[.]
2. Whether the law requires evidence of a high volume of
accidents, arrests, and/or violations of the Vehicle Code on
the specific block or intersection of a selected route rather
than evidence that the selected route is likely to be traversed
by intoxicated drivers[.]
Commonwealth’s Brief at 4.
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[W]hen conducting roadblock checkpoint stops, police in
Pennsylvania must comply with the [Commonwealth v.
Tarbert, 535 A.2d 1035 (Pa. 1987) and Commonwealth v.
Blouse, 611 A.2d 1177 (Pa. 1992)] guidelines. Our Supreme
Court has stated 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, 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).
Otherwise stated:
[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
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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)
(citing Blouse, supra, and Tarbert, supra). “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.” Commonwealth v.
Yastrop, 564 Pa. 338, 768 A.2d 318, 323 (2001).[3] However,
where police do not comply with the guidelines in establishing a
checkpoint, the trial court should suppress evidence derived
from the stop, including the results of field sobriety and blood
alcohol testing. See Commonwealth v. Blee, 695 A.2d 802,
806 (Pa. Super. 1997).
Commonwealth v. Garibay, 106 A.3d 136, 139-40 (Pa. Super. 2014).
The issue raised here involves the fourth criteria, specifically, the
location for the DUI checkpoint. Worthy, supra. To establish that the
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3
In response to the guidelines set forth in Tarbert, the legislature amended
Section 6308(b) of the Vehicle Code, which now reads as follows:
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).
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roadblock is likely to be traveled by intoxicated drivers, the Commonwealth,
at the very least, must adduce evidence “sufficient to specify the number of
DUI-related arrests and/or accidents [at] . . . the specific location of the
sobriety checkpoint.” Blee, 695 A.2d at 806. If the Commonwealth fails to
introduce evidence concerning the number of DUI-related arrests and/or
accidents for a checkpoint’s location, then the checkpoint will be deemed
unconstitutional. Id.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 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 44 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.
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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, 685 A.2d 559, 562 (Pa. Super. 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.
Here, there is no dispute that the area of the checkpoint is North
Hermitage Road. For that specific location, the Commonwealth presented
sufficient testimonial and documentary evidence showing that the location
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selected was one likely to be traveled by intoxicated drivers (at least 44 DUI
arrests out of the total of 94 for all of State Route 18 located within the City
of Hermitage). Accordingly, the suppression court erred in not accounting
for all DUI arrests made on North Hermitage Road for purposes of
determining whether the checkpoint was constitutionally acceptable.
Because the Commonwealth presented sufficient evidence to meet the
location criterion under the Tarbert/Blouse guidelines, we conclude the
checkpoint was conducted in a constitutional manner, and that the
suppression court erred in concluding otherwise.
Order reversed. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/23/2017
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