Commonwealth v. Kriner

• Decision Date: 22 April 1975
• Parties: COMMONWEALTH of Pennsylvania v. Kenneth W. KRINER, Appellant.
• Court: Pennsylvania Superior Court

338 A.2d 683

234 Pa.Super. 230

COMMONWEALTH of Pennsylvania v. Kenneth W. KRINER, Appellant.

Superior Court of Pennsylvania.

April 22, 1975.

Kenneth E. Hankins, Jr., Chambersburg, for appellant.

Edwin D. Strite, Jr., First Asst. Dist. Atty., Chambersburg, for appellee.

Before WATKINS, President Judge, and JACOBS HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

HOFFMAN, Judge.

Appellant contends that all evidence obtained as a result of his arrest for driving under the influence of intoxicating liquor ^[1] should be suppressed as the fruit of an unlawful arrest.

On November 24, 1973, Officer Ott of the Chambersburg Borough Police Department was ordered to proceed to Scotland Road in the vicinity of the Borough line. Officer Ott observed an automobile, across the Borough line in Greene Township straddling the center yellow line of Scotland road. Officer Ott approached the vehicle and noticed that the motor was running, the lights were on, and that appellant was in the driver's seat in an unconscious state. He then opened the door of the vehicle, observed that the automobile was in 'drive' and that a strong odor of alcohol permeated the interior. Officer Ott turned off the ignition and radioed the Pennsylvania State Police, informing them that he had a 'suspected 1037.' Two state troopers arrived at the scene, awakened appellant, and asked him to step out of his car. The troopers testified that appellant smelled of alcohol, was incapable of speaking coherently, and staggered while attempting to walk. Trooper Konscol advised appellant of his constitutional rights and placed him under arrest for operating a vehicle while under the influence of alcohol. Neither Officer Ott nor Trooper Konscol had a warrant for appellant's arrest. In response to questioning, appellant made an inculpatory statement. The troopers then took appellant to the Police Barracks for a breathalyzer test, the results of which were admitted into evidence at trial.

On January 15, 1974, appellant filed a pre-trial motion to suppress all evidence obtained pursuant to the arrest. The motion was denied and appellant was found guilty by a jury on February 25, 1974. In his post-trial montions, appellant renewed his allegation that the arrest was unlawful. The court denied appellant's motions on October 3, 1974, and an appeal to this Court followed.

It is clear that appellant was not arrested until Trooper Konscol told him that he was being charged with a violation of § 1037 of the Vehicle Code. ^[2] Section 1037 provides that it is unlawful 'for any person to Operate a motor vehicle . . . while under the influence of intoxicating liquor . . .' (Emphasis added). Section 1204(a) of the Vehicle Code ^[3] then provided that a warrantless arrest for a misdemeanor can be made only when the arresting officer has probable cause to believe that the offense is being committed in his presence. ^[4] Appellant contends that Trooper Konscol did not have probable cause, and his arrest was therefore unlawful.

It is clear that the arresting officer had probable cause to believe that appellant was under the influence of intoxicating liquor. We have held on numerous occasions, however, that the officer must also have probable cause to believe that the appellant is committing the misdemeanor in his presence, i.e., that he is 'operating' the motor vehicle. Commonwealth v Kloch, 230 Pa.Super. 563, 327 A.2d 375 (1974) (J. 44); Commonwealth v. Jacoby, 226 Pa.Super. 19, 311 A.2d 666 (1973); Commonwealth v. Brown, 225 Pa.Super. 289, 302 A.2d 475 (1973); Commonwealth v. Reeves, 223 Pa.Super. 51, 297 A.2d 142 (1972); Commonwealth v. Kallus, 212 Pa.Super. 504, 243 A.2d 483 (1968). While it is unnecessary that the vehicle itself be in motion, it is required that 'the operator (be) in actual physical control of the movements of either the machinery of the motor vehicle or of the management of the movement of the vehicle itself.' Commonwealth v. Kallus, supra, at 507--508, 243 A.2d at 485. Probable cause to believe that the accused is operating the vehicle cannot be supplied by statements of witnesses, Commonwealth v. Brown, supra, or by an incriminating statement of the driver, Commonwealth v. Jacoby, supra. Thus we have held that there is probable cause to arrest when the 'appellant was seated behind the wheel, there was a strong odor of alcohol, the car was parked mostly on the highway, the motor was running, and the lights were on.' Commonwealth v. Kloch, supra, at ---, 327 A.2d at 384. In the factual context presented by Kloch, we held: 'From what they saw the troopers could reasonably infer that appellant had driven to the spot where they found his car, stopped there without pulling completely off the highway, left the motor running to provide some warmth, left the lights on to provide some sefety, and then had fallen asleep. In short, they could reasonably infer that the car was where it was and was performing as it was because of appellant's choice, from which it followed that appellant was in 'actual physical control' of and so was 'operating' the car while he slept.' --- Pa.Super. at ---, 327 A.2d at 384.

The present case would be identical to Kloch had the arrest occurred before Officer Ott turned off the ignition. Officer Ott was in an unfortunate position: he knew that he was unable to lawfully arrest appellant because he was outside his jurisdiction, but he felt compelled by safety considerations to turn off the motor. The result is that Trooper Konscol was prevented from seeing appel...