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decided: April 22, 1975.


Appeal from judgment of sentence of Court of Common Pleas of Franklin County, No. 458 of 1973, in case of Commonwealth of Pennsylvania v. Kenneth W. Kriner.


Kenneth E. Hankins, Jr., with him Martin, Bittle & Hankins, for appellant.

Edwin D. Strite, Jr., First Assistant District Attorney, with him John R. Walker, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Watkins, P. J., and Jacobs and Price, JJ., dissent.

Author: Hoffman

[ 234 Pa. Super. Page 232]

Appellant contends that all evidence obtained as a result of his arrest for driving under the influence of intoxicating liquor*fn1 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

[ 234 Pa. Super. Page 233]

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 motions, 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 ยง 1037 of The Vehicle Code.*fn2 Section 1037 provides that it is unlawful "for any person to

[ 234 Pa. Super. Page 234]

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 578, 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 the provide some safety 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." 230 Pa. Superior Ct. at 579, 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 appellant "operate" his automobile, and the legislature has clearly stated that a warrantless arrest for a misdemeanor is lawful only if the arresting officer has probable cause to believe that the misdemeanor is being committed in his presence. The only evidence upon which Trooper Konscol could base such a conclusion was the information related to him by Officer Ott. Commonwealth v. Brown, supra, held that information supplied by witnesses cannot provide the arresting officer with probable cause to believe that the crime is being committed in his presence.

[ 234 Pa. Super. Page 236]

Thus, the lower court erred in not suppressing all evidence obtained as a result of appellant's unlawful arrest.

Judgment of sentence reversed, and the case is remanded for a new trial consistent with this opinion.


Judgment of sentence reversed and case remanded for new trial.

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