No. 388 January Term, 1977, Appeal from the order of Court of Common Pleas of Cumberland County, at No. 280 Criminal, 1975, dated May 4, 1976, Sustaining Defendant's Application for Pretrial Relief.
Edgar B. Bayley, Dist. Atty., Carlisle, J. Michael Eakin, Mechanicsburg, for appellant.
John B. Mancke, Harrisburg, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ.
On December 30, 1974, police arrested and charged appellee with driving under the influence of alcohol, a misdemeanor under the old Vehicle Code.*fn1 The case has gone to
trial on two occasions. After each trial the court of common pleas on post-verdict motions awarded appellee a new trial. Before appellee's third trial, the court on pre-trial motions ordered the suppression of both a pre-arrest statement and post-arrest statements police obtained from appellee as well as the results of a post-arrest breathalyzer test. The Commonwealth now seeks review of this pre-trial order.
We conclude that the court correctly suppressed appellee's pre-arrest statement. Police failed to give appellee warnings of constitutional rights required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Accordingly, we affirm the order insofar as it suppresses appellee's pre-arrest statement. We also conclude, however, that the court suppressed the post-arrest statements and results of the post-arrest breathalyzer test on an erroneous theory that appellee's arrest was unlawful. The order must be vacated to the extent it suppresses the post-arrest statements and the results of the post-arrest breathalyzer test.
In the early morning hours of December 30, 1974, Corporal Baker of the Carlisle Police Department was in uniform, driving his unmarked patrol car. At about 3:00 a. m., Baker observed, just outside of Carlisle, a tractor-trailer parked on U.S. Interstate Route 81 and a person nearby placing a flare on the highway. Baker proceeded to the scene, where he came upon a motor vehicle resting on a southwesterly direction on the guardrail along the northbound, passing lane of travel.
The only persons other than Baker then at the scene were the driver of the tractor-trailer, who had placed the flares on the highway, and appellee, who upon Baker's arrival was standing within a few feet of the motor vehicle. The ...