Commonwealth v. Marconi

• Decision Date: 11 May 2010
• Citation: 996 A.2d 1070
• Parties: COMMONWEALTH of Pennsylvania, Appellantv.John M. MARCONI, Appellee.
• Court: Pennsylvania Superior Court

996 A.2d 1070

COMMONWEALTH of Pennsylvania, Appellantv.John M. MARCONI, Appellee.

Superior Court of Pennsylvania.

Argued March 9, 2010.

Filed May 11, 2010.

Reargument Denied July 23, 2010.

Amy Zapp, Assistant District Attorney, Harrisburg, for Commonwealth, appellant.

Gregory A. Henry, Bradford, for appellee.

BEFORE: BENDER, BOWES and COLVILLE ^*, JJ.

OPINION BY BENDER, J.:

¶ 1 The Commonwealth appeals from the trial court's order dated April 24, 2009, granting John M. Marconi's motion to suppress the physical evidence obtained after his car was stopped at a sobriety checkpoint. We affirm.

¶ 2 The trial court set forth the facts of the case as follows:

On September 21, 2007, a DUI checkpoint was set-up by the Forest County Sheriff's Department on State Route # 66 in Forest County. The roadblock was operated by Forest County and Warren County Sheriffs and Probation Officers. At 2:45 a.m., on September 22, 2007, [Mr. Marconi] drove his vehicle into the checkpoint area with a 16 year old passenger. As [Mr. Marconi] drove into the checkpoint area, he was initially inspected by Christy Mealy, an Adult Probation Officer with Forest County. Ms. Mealy, noticing the odor of alcohol coming from [Mr. Marconi,] held [Mr. Marconi's] car in place and waived over Deputy Sheriff William Carbaugh of Forest County and Chief Probation Officer Carl McKee of Warren County.

They administered a preliminary breath test, which [Mr. Marconi] failed. Deputy Carbaugh asked [Mr. Marconi] to get out of his vehicle and had him perform three (3) field sobriety tests, which he also failed. A blood sample was drawn from [Mr. Marconi] at the checkpoint, which revealed a .14% blood alcohol content.

Trial Court Opinion (T.C.O.), 4/29/09, at 1-2. Mr. Marconi was arrested by Deputy Sheriff Carbaugh and subsequently charged with two counts of driving under the influence of alcohol (DUI), endangering the welfare of a child, and careless driving. On February 29, 2008, he filed a motion to suppress evidence, which was denied on July 9, 2008.

¶ 3 On February 4, 2009, Mr. Marconi filed a motion in limine, arguing that the DUI checkpoint was illegally operated as it was conducted solely by Forest and Warren County Sheriff's and Probation Departments, not by police officers. As such, Mr. Marconi requested that all evidence obtained as a result of that illegal sobriety checkpoint be suppressed. To support this argument, Mr. Marconi relied on the trial court's own earlier decision in Commonwealth v. Culp, No. 67 of 2006 (Forest Cty. October 9, 2008). There, the trial court “held that DUI roadblocks must be operated by police officers and not sheriffs.” T.C.O., 4/29/09, at 2. Finding that, here, the DUI checkpoint was run solely by sheriffs and probation officers, the court granted Mr. Marconi's motion in limine and ordered that all evidence obtained after his vehicle was stopped at the DUI checkpoint be suppressed. The Commonwealth filed a timely notice of appeal, as well as a timely concise statement of matters complained of on appeal in accordance with Pa.R.A.P. 1925(b). Herein, the Commonwealth raises one issue for our review: “Whether the trial court erred as a matter of law by granting [Mr. Marconi's] motion in limine for suppression of evidence [?]” ¹ Commonwealth's Brief at 4.

¶ 4 The issue presented by the Commonwealth actually consists of two separate arguments. First, the Commonwealth argues that Mr. Marconi was procedurally barred from raising the claims in his February 4, 2009 motion in limine, which the Commonwealth contends was actually a motion to suppress evidence. Citing Pennsylvania Rules of Criminal Procedure 578 and 579, the Commonwealth argues that pretrial motions, including motions to suppress, must be filed together in one omnibus pretrial motion filed within thirty days of the date of the defendant's arraignment. Commonwealth's Brief at 8 (citing Pa.R.Crim.P. 578 and 579). If these requirements are not met, the suppression issue is deemed waived under Pa.R.Crim.P. 581(B). Thus, as the instant motion in limine was not filed together with Mr. Marconi's first motion to suppress, nor within thirty days of the date of Mr. Marconi's arraignment, the Commonwealth concludes that Mr. Marconi waived the suppression issue.

¶ 5 While we agree with the Commonwealth that Mr. Marconi's motion in limine was in fact a motion to suppress evidence, we disagree with its conclusion that he waived the suppression issue. Rule 581(B) permits the filing of motions to suppress which do not meet the requirements of Rules 578 and/or 579 where “the opportunity [to file such a motion] did not previously exist, or the interests of justice otherwise require.” Pa.R.Crim.P. 581(B). “Whether the opportunity did not previously exist or the interests of justice otherwise require is a matter for the discretion of the trial judge.” Commonwealth v. Long, 753 A.2d 272, 279 (Pa.Super.2000) (quoting Commonwealth v. Cooke, 260 Pa.Super. 528, 394 A.2d 1271, 1274 (1978)). Here, the trial court concluded that, because its decision in Culp regarding the authority of sheriffs to conduct DUI checkpoints was not filed until October 9, 2008, after Mr. Marconi had filed his first motion to suppress, the interests of justice required that it proceed with Mr. Marconi's second motion to suppress. We agree and conclude that the issues raised in Mr. Marconi's second motion to suppress were not waived.

¶ 6 Next, the Commonwealth contends that the trial court erred “in determining that the sheriffs lacked the authority to arrest [Mr. Marconi] for violations of the Vehicle Code.” Commonwealth's Brief at 9 (emphasis added). At the outset, we disagree with the Commonwealth that the issue in this case is whether sheriffs had the authority to arrest Mr. Marconi. The trial court's decision to grant Mr. Marconi's motion to suppress the evidence was instead based on its conclusion that the Forest and Warren County Sheriff's Departments, acting without the assistance of police, lacked the authority to conduct and operate the sobriety checkpoint.² Therefore, the question for this Court is whether a sheriff has the authority to conduct and operate a DUI roadblock without the assistance of police officers.³

¶ 7 Initially, we note that, contrary to the trial court's statement in Culp, the legislative authority permitting sobriety checkpoints is found in section 6308(b) of the Motor Vehicle Code, 75 Pa.C.S. §§ 101-9901. Culp, No. 67 of 2006, at 3 (stating that the statutory authority for DUI checkpoints is found in 67 Pa.Code. § 212.5(e)). Section 6308(b) states:

(b) 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. § 6308(b); See also

Commonwealth v. Ziegelmeier, 454 Pa.Super. 330, 685 A.2d 559, 561 n. 4 (1996) (“Authority for police to conduct [DUI] roadblocks is established in 75 Pa.C.S. § 6308(b).”). This section explicitly states that a “police officer” has the authority to conduct DUI roadblock and, thus, we must determine whether a sheriff constitutes a “police officer” under that section of the Vehicle Code.

¶ 8 Our Supreme Court addressed a similar question in Commonwealth v. Leet, 537 Pa. 89, 641 A.2d 299 (1994). There, a sheriff observed the defendant pass several cars illegally, after which the sheriff executed a traffic stop of the defendant's vehicle. Id. During the traffic stop, the sheriff discovered a controlled substance and other illegal items in the car. Id. The defendant was ultimately arrested and charged with various motor vehicle and controlled substance violations. Id. at 300-01. The defendant sought to suppress all physical evidence, arguing that, under section 6308(a) of the Vehicle Code, only a “police officer,” not a sheriff, possesses the authority to stop a vehicle based on a traffic violation. Id. at 301; see 75 Pa.C.S. 6308(a). The trial court agreed with the defendant and granted his motion to suppress. This Court affirmed.

¶ 9 However, on appeal to the Pennsylvania Supreme Court, the Court first determined that sheriffs possess the common law authority to make warrantless arrests for breaches of the peace and felonies that are committed in their presence, unless that power has been abrogated by statute. Id. at 303. Characterizing the Vehicle Code violation that led to the defendant's detention in Leet as a “breach of the peace” committed in the sheriff's presence, the Court then evaluated whether the Motor Vehicle Code abrogated the sheriff's common law power to arrest for such an offense. Id. The Court concluded that nothing in the Code circumscribed this power and, thus, sheriffs have the authority to “stop, detain, and investigate a motorist who breaches the peace while operating a motor vehicle in the presence of the [s]heriff.” ⁴ Id.

¶ 10 At first glance, it seems that Leet vests sheriffs with the common law authority to enforce any provision of the Motor Vehicle Code, including section 6308(b) dealing with sobriety checkpoints. However, since Leet, our Supreme Court has clarified that its holding there was narrow and that the common law power of a sheriff is not immutable. Kopko v. Miller, 586 Pa. 170, 892 A.2d 766, 775, 778 (2006). For instance, in Kopko, our Supreme Court explicitly stated that a sheriff's power to arrest for a breach of the peace committed in his or her presence is “no different from that of a private citizen.” Id. at 774. The Court reaffirmed this rationale in Commonwealth v. Dobbins, 594 Pa. 71, 934 A.2d 1170 (2007), declaring that, “ Leet...