Myra J. MARTIN v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant.
Commonwealth Court of Pennsylvania.
Decided March 18, 2005.
Submitted Nov. 12, 2004.
John B. Mancke, Harrisburg, for appellee.
BEFORE: COLINS, President Judge, and LEAVITT, Judge, and KELLEY, Senior Judge.
OPINION BY Judge LEAVITT.
The Department of Transportation, Bureau of Driver Licensing (Department), appeals from an order of the Court of Common Pleas of Cumberland County (trial court) that sustained the statutory appeal of Myra J. Martin (Martin) from a one-year suspension of her operating privilege pursuant to Section 1547(b) of the Vehicle Code (Implied Consent Law).1 We reverse.
On November 27, 2003, Hampden Township Police Officer James Sollenberger was on uniformed patrol in a marked police cruiser. At approximately 1:45 a.m. he observed Martin‘s vehicle proceeding along Trindle Road in Hampden Township. Believing that Martin was exceeding the posted 40 mile per hour speed limit, Officer Sollenberger followed her at a steady distance for approximately 100 yards and, using his speedometer, clocked Martin‘s speed at 53 miles per hour. Martin reduced her speed and made a wide right turn onto April Drive, a two-lane unmarked street in the Borough of Camp Hill. Notes of Testimony, 5/26/04, at 9 (N.T. —); Reproduced Record at 25a (R.R. —). The only vehicles on April Drive were Officer Sollenberger‘s and Martin‘s.
As Officer Sollenberger activated his lights to initiate a traffic stop, Martin stopped in front of her residence on April
By notice dated December 16, 2003, the Department informed Martin that her operating privilege was being suspended for a period of one year in accordance with the Implied Consent Law. Martin filed a statutory appeal to the trial court challenging only Officer Sollenberger‘s authority to enforce the Implied Consent Law outside of his jurisdiction. Following a de novo hearing on May 26, 2004, the trial court found that Officer Sollenberger lacked jurisdiction to stop and arrest Martin outside of his jurisdiction and, therefore, was not a “police officer” for purposes of the Implied Consent Law. The trial court sustained Martin‘s appeal and reversed her suspension. The Department now appeals.2
On appeal, the Department argues that the trial court erred in its determination that Officer Sollenberger lacked extraterritorial authority to enforce the Implied Consent Law. The Department also maintains that the legality of Martin‘s arrest is immaterial.
The Implied Consent Law provides, in pertinent part, as follows:
(a) General Rule.—Any person who drives, operates or is in actual physical control of the movement of a vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood ... if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a vehicle:
(1) in violation of section ... 3802 (relating to driving under influence of alcohol or controlled substance)....
The Department argues, and we agree, that the Municipal Police Jurisdiction Act (MPJA),
(a) General rule.—Any duly employed municipal police officer who is within this Commonwealth, but beyond the territorial limits of his primary jurisdiction, shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office as if enforcing those laws or performing those functions within the territorial limits of his primary jurisdiction in the following cases:
* * *
(5) Where the officer is on official business and views an offense, or has probable cause to believe that an offense has been committed, and makes a reasonable effort to identify himself as a police officer and which offense is a felony, misdemeanor, breach of the peace or other act which presents an immediate clear and present danger to persons or property.
Applying subsection (a)(5) to the facts of this case, we find that Officer Sollenberger was “on official business” prior to and during his encounter with Martin. He was on routine patrol in a marked police cruiser in an area within his primary jurisdiction, albeit at the boundary with neighboring Camp Hill Borough. He was also in uniform and was unquestionably identifiable as a police officer. While still in his primary jurisdiction, Officer Sollenberger viewed at least one offense by Martin, speeding, as evidenced by his uncontroverted testimony that he clocked her speed for a distance of approximately 100 yards.6 He viewed a second offense on the geographical boundary when Martin made a wide right turn onto April Drive and crossed over the opposing lane. Together these acts of erratic driving presented an immediate clear and present danger to persons or property and further investigation was warranted. That the events occurred in a short period of time and happened to traverse a jurisdictional boundary should not negate Officer Sollenberger‘s authority. By concluding otherwise, the trial court thwarted the liberal construction of the MPJA mandated by our Supreme Court.
Section 1547(a) of the Vehicle Code requires, in addition to the arresting officer‘s authority, “reasonable grounds” for the officer to believe the licensee was driving under the influence of alcohol.
In accordance with the foregoing analysis, we reverse the order of the trial court sustaining Martin‘s appeal and reversing her suspension.
ORDER
AND NOW, this 18th day of March, 2005, the order of the Court of Common Pleas of Cumberland County dated June 2, 2004, in the above-captioned matter is hereby REVERSED.
Myra J. MARTIN v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant.
Commonwealth Court of Pennsylvania.
I must vigorously dissent from the well-written opinion of the majority, as it seems we are coming perilously close to turning a blind eye to questionable conduct by our police officers. While I acknowledge that our police officers are charged with the awesome and sometimes onerous responsibility of protecting the public, I cannot sanction the whisperings of the majority that that protection comes at the deprivation of the constitutional rights of citizenship. We do not want a police state, and it seems we are on the precipice of becoming one, in the name of DUI. I suggest that the Court, and the police, can ill afford to sanction this type of conduct.
The facts here are like those of so many other cases. In the early morning hours of November 27, 2003, Officer Sollenberger of the Hampden Township Police saw a vehicle driving in front of his marked police cruiser on Trindle Road in Hampden Township. For no cause other than that Officer Sollenberger felt that the car was driving at a rate of speed above the 40-miles-per-hour limit posted for the road, he followed the vehicle at a steady distance for 100 yards. Based on his own speedometer reading, he clocked its speed at 53 miles per hour. The vehicle reduced its speed and while still on Trindle Road, entered the separate jurisdiction of the Borough of Camp Hill. After properly signaling, the driver made a wide right turn, avoiding several large potholes, onto April Drive, a two-lane unmarked side street in Camp Hill. Officer Sollenberger did not notice the potholes in the road at the time of the stop, but Martin produced photos and testimony at trial to show that a wide turn was necessary to avoid the potholes at that intersection. Officer Sollenberger‘s and Martin‘s vehicles were the only traffic on the road at the time. Martin then continued on April Drive in the right lane, and as Officer Sollenberger turned on his lights to initiate a traffic stop, Martin stopped in front of 202 April Drive, Martin‘s residence. At this point, Officer Sollenberger was outside of his primary jurisdiction and had no probable cause to issue a ticket for any violations of the vehicle code or otherwise make an arrest.
After the vehicle stopped, Martin got out of her car. Officer Sollenberger also got out of his cruiser and requested that Martin return to her vehicle. She did. Officer Sollenberger then requested that Martin produce her license and vehicle registration. She did. Officer Sollenberger detected an odor of alcohol from the vehicle and noticed that Martin had bloodshot eyes and slurred speech. Officer Sollenberger requested that Martin get out of her vehicle, at which point, he noticed the smell of alcohol emanating from Martin. Martin admitted to having had two glasses of wine, one at 10 P.M. and another at 12 A.M. Officer Sollenberger asked Martin to perform field sobriety tests, and in response she started to walk to her house. Officer Sollenberger told her to stop, but she kept going. He took hold of Martin and arrested her for driving under the influence and had to physically place her in the police cruiser. He drove her to the booking center where he informed her of the Implied Consent Law1 and asked her
There is no dispute as to whether Martin was arrested for driving under the influence, nor is there a dispute as to whether she refused chemical testing. The sole issue in this case is whether Officer Sollenberger had extraterritorial jurisdiction when he stopped and arrested Martin in the Borough of Camp Hill qualifying Officer Sollenberger as a “police officer” for purposes of the Implied Consent Law.
In disagreeing with the majority on this issue, I do not question the officer‘s diligence, nor his honor and integrity in protecting the community. I do, however, challenge the methodology. The majority sanctions the conduct of Officer Sollenberger and rather glibly admits that they would sanction such conduct even if the officer‘s conduct were not authorized by the law known as the Municipal Police Jurisdiction Act (MPJA),
For purposes of the Implied Consent Law at issue here, the Vehicle Code at Section 102 defines “police officer” as “[a] natural person authorized to make arrests for violations of law.”
[a] police stop of a motorist without probable cause or articulable suspicion of criminal activity would taint the seizure of evidence as “fruit of the poisonous tree” and render it suppressible. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Commonwealth v. Epoca, 447 Pa.Super. 183, 668 A.2d 578 (1995); and Commonwealth v. Dennis, 289 Pa.Super. 305, 433 A.2d 79 (1981). Thus, the police are not given carte blanche to stop indiscriminately all motorists without sacrificing the suppression of evidence seized as a result of an unlawful stop.
In this case, I believe the officer‘s stop was indiscriminate, and as such, the officer lacked reasonable grounds to stop the vehicle. For the foregoing reasons I would affirm the trial court.
Accordingly, I respectfully dissent.
Notes
Any duly employed municipal police officer shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office anywhere within his primary jurisdiction as to:
(1) Any offense which the officer views or otherwise has probable cause to believe was committed within his jurisdiction.
(2) Any other event that occurs within his primary jurisdiction and which reasonably requires action on the part of the police in order to preserve, protect or defend persons or property or to otherwise maintain the peace and dignity of this Commonwealth.