Com. v. Worthy

• Decision Date: 29 June 2006
• Citation: 903 A.2d 576
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Mark S. WORTHY.

903 A.2d 576

COMMONWEALTH of Pennsylvania, Appellant, v. Mark S. WORTHY.

Superior Court of Pennsylvania.

Argued October 25, 2005.

Filed June 29, 2006.

James R. Gilmore, Asst. Dist. Atty., Pittsburgh, for Com., appellant.

Martin W. Sheerer, Pittsburgh, for appellee.

BEFORE: FORD ELLIOTT, TODD, and POPOVICH, JJ.

OPINION BY FORD ELLIOTT, J.:

¶ 1 In this appeal, the Commonwealth challenges the October 19, 2004 order of the Court of Common Pleas of Allegheny County granting Mark S. Worthy's ("Worthy") motion to suppress evidence obtained after his vehicle was stopped at a sobriety checkpoint roadblock.¹ The trial court held that the checkpoint at issue failed to adhere to the Tarbert-Blouse criteria.² We agree and affirm.

¶ 2 When we review the Commonwealth's appeal from the decision of the suppression court, "[we] 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." Commonwealth v. Nester, 551 Pa. 157, 160, 709 A.2d 879, 880-81 (1998). "When the evidence supports the suppression court's findings of fact . . ., this Court may reverse only when the legal conclusions drawn from those facts are erroneous." Commonwealth v. Valentin, 748 A.2d 711, 713 (Pa.Super.2000).

¶ 3 The Commonwealth presents the following issue for our review:

Did the suppression court err in concluding that the police operating the DUI sobriety checkpoint pursuant to 75 Pa.C.S.A. § 6308(b), which stopped every vehicle that approached, acted improperly in opening the checkpoint at times when traffic backed-up to allow motorists to pass through the checkpoint before resuming the checkpoint operations of stopping every vehicle?

Commonwealth's brief at 4.

¶ 4 Worthy was charged with driving under the influence of alcohol, §§ 3731(a)(1) and (a)(4)(l), after he was stopped during a sobriety checkpoint on May 25, 2002 in Monroeville, Pennsylvania. Worthy filed an omnibus pre-trial motion and a motion to dismiss; he claimed that the roadblock conducted on May 24, 2002 through May 25, 2002 was unconstitutional and, therefore, any evidence obtained from the stop must be suppressed.

¶ 5 A suppression hearing was held on April 13, 2004 wherein Sergeant Ronald H. Harvey ("Sergeant Harvey") testified that he was the checkpoint coordinator for the regulatory roadblock in question. (Notes of testimony, 4/13/04 at 4.) Sergeant Harvey met with the administration of the police department as to where, when, and why the checkpoint would be held. He presented information to show the history of the roadway as far as the number of accidents and DUI arrests that had occurred in that area. (Id.) The sobriety checkpoint was approved by Assistant Chief Doug Cole; the following memorandum was entered into evidence:

You are hereby authorized to post notice and arrange for officers to work a sobriety check point the night of the 24th of May, 2002. The check point details shall start at 2300 hours, the 24th of May, 2002, and conclude no later than 0400 hours on the 25th of May, 2002. As per our conversation on the 15th of May, 2002, our review of the state accident statistics regarding drinking and driving accidents and our department records showing the number of traffic stops resulting in driving under the influence arrests, you are authorized to set up a check point on Route 22 westbound at Roomful Express, 3651 William Penn Highway in Monroeville, PA. If circumstances would prevent you from using that primary location, you are authorized to move to 2420 Moss Side Boulevard, State Route 48 in Monroeville.

Id. at 6.

¶ 6 Sergeant Harvey explained that the checkpoint began at approximately 11:40 p.m. (Id. at 7.) The officer involved in the checkpoint posted large orange signs several hundred feet up the road which were lit by traffic flares and lights. (Id. at 7-8.) The signs advised drivers of an imminent checkpoint ahead. He also stated that every vehicle, without exception, was to be stopped. (Id. at 8.) However, "when the traffic got heavy and there was an unreasonable delay, we opened the checkpoint and let all the traffic flow. At that point, no traffic was checked." (Id.) Sergeant Harvey stated that there were three different occasions where he opened the checkpoint. (Id. at 9.)

¶ 7 Following the hearing, the court ordered briefs from both parties. Argument on the briefs was held during an October 6, 2004 hearing. Based on the evidence adduced from the hearing, the trial court concluded that the prosecution failed to satisfy its burden of proving that the sobriety checkpoint was constitutional; on October 19, 2004, the court filed an order granting Worthy's suppression motion. The Commonwealth filed a timely appeal along with the Rule 1925(b) statement ordered by the court.

¶ 8 It is well settled that the stopping of an automobile and the detention of its occupants is a seizure subject to constitutional restraints under the United States and Pennsylvania Constitutions.³ Commonwealth v. Fioretti, 371 Pa.Super. 535, 538 A.2d 570 (1988). "However, if the police follow specified procedures, systematic, non-discriminatory, non-arbitrary roadblocks for the purpose of insuring safety on the highways have been deemed constitutional." Commonwealth v. Ziegelmeier, 454 Pa.Super. 330, 685 A.2d 559, 561 (1996) (citation omitted). The authority to conduct a systematic roadblock in Pennsylvania is statutorily authorized. 75 Pa.C.S.A. § 6308(b).⁴

¶ 9 In Tarbert, supra, a plurality of our supreme court set forth guidelines to insure that an investigative roadblock is acceptable. Specifically, our supreme court indicated the following:

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 traveled 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.

Id. (emphasis added). See Blouse, supra at 173, 611 A.2d at 1180 ("We now adopt the guidelines set forth in Tarbert, 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."). See also Ziegelmeier, 685 A.2d at 562, quoting Tarbert, supra. The Blouse court also held that "[s]ubstantial compliance with the guidelines is all that is required to reduce the intrusiveness of the search to a constitutionally acceptable level." Blouse, supra.

¶ 10 With these particulars in mind, we now focus our attention on the instant checkpoint to determine if it was conducted in a constitutional manner. Again, the trial court found the checkpoint did not comply with the fifth guideline; rather, that the question of which vehicles to stop was not established by objective standards prefixed by administrative decision. (Trial court opinion, 2/4/05 at 3.) We agree.

¶ 11 At the suppression hearing, testimony was presented concerning the manner in which the police conducted the roadblock. The memorandum which authorized the plans and procedure for the checkpoint was entered into evidence. The testimony presented revealed that each vehicle was stopped "[e]xcept for when the traffic got heavy and there was an unreasonable delay, we opened the check point and let all the traffic flow. At that point, no traffic was checked." (Notes of testimony, 4/13/04 at 8.) The checkpoint was opened at three different times during its operation. (Id. at 9.)

¶ 12 We agree with the trial court that "the guidelines of Tarbert-Blouse were not complied with as there was no prefixed administrative decision with objective criteria describing when to suspend the checkpoint to allow traffic to flow through." (Trial court opinion, 2/4/05 at 4.) The memorandum authorizing this checkpoint made no mention of when the checkpoint could be temporarily stopped due to traffic flow. Additionally, no testimony was presented as to how Sergeant Harvey came to the conclusion that the traffic was backed-up to the point that the operation needed to be suspended. For instance, Sergeant Harvey did not testify as to how many cars were stopped on the roadway at the times he suspended the checkpoint. Nor did he explain the criteria that was used in making the decision to begin checking vehicles again. No testimony was presented to indicate that the traffic stoppage posed safety problems for the citizens or officer involved. See, e.g., Tarbert, supra at 290, 535 A.2d at 1041.

¶ 13 Therefore, we find that the record supports the trial court's conclusion that the checkpoint was controlled by the arbitrary discretion of the officers working that evening rather than established procedures governing the operation of the roadblock. Again, "[a] central concern in balancing the opposing interests is protecting the individual from arbitrary invasions at the unfettered discretion of officers in the field." Blouse, supra at 170, 611 A.2d at 1178. Sergeant Harvey had "the unfettered discretion of when to suspend the checkpoint and when to resume the checkpoint." (Id. at 4-5.) Such arbitrary decisions can be curtailed significantly by the institution of a safeguard; the very decision of how many cars are backed-up should be reserved for prior administrative approval, thus removing the determination from the discretion of the police officers in the field. See Tarbert, supra at 293, 535 A.2d at 1043.

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