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decided: March 20, 1980.


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.

Author: Roberts

[ 488 Pa. Page 299]


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

[ 488 Pa. Page 300]

    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 driver knew nothing of how the accident occurred and left the

[ 488 Pa. Page 301]

    scene shortly after Baker's arrival, leaving only Baker and appellee. Baker approached appellee. Appellee asked Baker about "getting a wrecker to come and take the car off the guardrails," but Baker did not call for a tow truck. Instead, he summoned another patrol car to assist with traffic. Because the accident occurred outside of Carlisle, Baker also contacted Carlisle Police Headquarters, which in turn contacted State Police.

Baker testified that he told appellee "he would have to wait" at the scene until the State Police arrived. Baker closely observed appellee while they waited. Once the Carlisle Police patrol car responding to Baker's call arrived, appellee waited in the patrol car. When asked at the suppression hearing, "wasn't one of the reasons [that appellee was in the police vehicle] to keep him there until the state police got there?," Corporal Baker responded, "I would imagine so, yes, sir."

State Troopers Stine and Sattazahn arrived about one-half hour after Baker called headquarters. Baker told Stine that he believed appellee possibly was under the influence of alcohol. He told Stine he didn't ask appellee anything more than whether appellee was injured because he "didn't want to jeopardize Trooper Stine's investigation."

Appellee got out of the Carlisle Police patrol car and walked to where Trooper Stine was standing. Stine asked appellee for his operator's license and registration card, appellee retrieved the registration card from his vehicle, and then produced both cards. Without first administering Miranda warnings, Trooper Stine addressed appellee and asked him "what happened." Appellee responded with the pre-arrest statement now in controversy.*fn2 Stine then examined the scene and determined appellee had been improperly driving south in the northbound lane of travel and not, as appellee stated, properly driving north. Thereafter, Stine

[ 488 Pa. Page 302]

    formally placed appellee under arrest and instructed State Trooper Sattazahn to administer Miranda warnings. Sattazahn did so, at approximately 3:45 a. m.

After arresting appellee, state police obtained the post-arrest oral statements now at issue.*fn3 State police also gave appellee the breathalyzer test, the results of which (.20%) are now also subject to dispute. Appellee was charged with driving under the influence later the same day. As mentioned, the case twice proceeded to trial. After each the court on post-verdict motions ordered a new trial. The order of the suppression court presently under review followed.*fn4

[ 488 Pa. Page 303]

In ordering suppression of appellee's pre-arrest statement, the suppression court relied on this Court's opinion in Commonwealth v. D'Nicuola, 448 Pa. 54, 292 A.2d 333 (1972). There, this Court stated that

"'whenever an individual is questioned while in custody or while the object of an investigation of which he is the focus, before any questioning begins the individual must be given the warnings established in Miranda.'"

448 Pa. at 57, 292 A.2d at 335, quoting Commonwealth v. Feldman 432 Pa. 428, 432, 248 A.2d 1, 3 (1968) (plurality opinion). Here, the suppression court determined that Trooper Stine's investigation had "focused" on appellee before he addressed appellee and asked "what happened," and concluded that, under D'Nicuola, Miranda warnings should have been given before interrogation.*fn5 The court's suppression of appellee's post-arrest statements and the results of the post-arrest breathalyzer test for want of a lawful arrest was based on the then-applicable version of Pa.R.Crim.Proc. 101. Rule 101 provided:

" Means of Instituting Proceedings in Court Cases

Criminal proceedings in court cases shall be instituted by:

1. a written complaint; or

2. an arrest without a warrant upon probable cause when the offense is a felony; or

3. an arrest without a warrant when the offense is a felony or misdemeanor committed in the presence of the police officer making the arrest.*fn6

[ 488 Pa. Page 304]

The court reasoned that, because Trooper Stine did not see appellee driving, Stine could not arrest appellee without a warrant on the misdemeanor charge of driving under the influence. The court so concluded even though a then-applicable amendment to the Vehicle Code expressly provided:

"A peace officer may, upon view or upon probable cause without a warrant, arrest any person violating section 1037 of this act in cases causing or contributing to an accident."*fn7

According to the suppression court, the above amending act is inconsistent with Rule 101 and must fall under Pa.Const. art. V, ยง 10(c).*fn8 The Commonwealth's appeal followed.*fn9

[ 488 Pa. Page 305]


In urging this Court to reverse the order of the suppression court insofar as it suppresses appellee's pre-arrest statement, the Commonwealth insists that Trooper Stine's "focus" upon appellee does not by itself require warnings before interrogation. The Commonwealth takes the position that the quoted language of D'Nicuola upon which the suppression court relied is not sound. The Commonwealth claims D'Nicuola is based on a "faulty assumption" that Miranda requires warnings whenever as accused is in custody or the focus of an investigation. In the Commonwealth's view, the Supreme Court of the United States in Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976), which interprets Miranda, "clearly disavows" a "focus" test and instead establishes a rule that warnings are necessary only when an individual is actually in custody or otherwise deprived of freedom by authorities in any significant way. In the Commonwealth's estimation, neither of these circumstances is present here.

This record presents no occasion to accept the Commonwealth's invitation to question D'Nicuola or any other case of this Court containing the now-challenged "focus" language, for the Commonwealth's argument is erroneous in at least two respects.*fn10 First, the order of the suppression

[ 488 Pa. Page 306]

    court must stand even on the Commonwealth's exposition of the law. The undisputed record, composed exclusively of the testimony of Corporal Baker and Trooper Stine, is manifestly clear that police deprived appellee of his freedom in a significant way. Most notably, Corporal Baker testified that he expressly told appellee "he would have to wait" at the scene of the accident. Indeed, Baker further admitted that one of the reasons appellee was in the Carlisle police patrol car was to keep him at the scene until State Police arrived. Warnings therefore should have preceded interrogation.

Second, and more fundamental, the Commonwealth's exposition of what it views to be the guiding rule of law seriously understates the circumstances in which Miranda warnings must be given in Pennsylvania. The Commonwealth now, in supposed harmony with Beckwith, would have it that police must give warnings only if they interrogate one in actual custody or otherwise significantly deprived of freedom. But this jurisdiction's test of "custodial interrogation" examines more than actual deprivation of freedom. Pennsylvania's test for custodial interrogation is

"'whether the suspect is physically deprived of his freedom in any significant way or is placed in a situation in which he reasonably believes that his freedom of action of [sic] movement is restricted by such interrogation . . .' Commonwealth v. Romberger, [454 Pa. 279, 283, 312 A.2d 353, 355 (1973), vacated, 417 U.S. 964, 94 S.Ct. 3166, 41 L.Ed.2d 1136 (1974), reinstated on remand, 464 Pa. 488, 347 A.2d 460 (1975)], citing Commonwealth v. Marabel, [445 Pa. 435, 441, 283 A.2d 285, 288 (1971)]."

Commonwealth v. O'Shea, 456 Pa. 288, 292, 318 A.2d 713, 715, cert. denied, 419 U.S. 1092, 95 S.Ct. 686, 42 L.Ed.2d 685 (1974) (emphasis deleted). Accord, Commonwealth v. Brown, 473 Pa. 562, 375 A.2d 1260 (1977); Commonwealth v. Fisher, 466 Pa. 216, 352 A.2d 26 (1976). As this Court unanimously stated in Brown, supra,

[ 488 Pa. Page 307]

"custodial interrogation does not require that the police make a formal arrest, nor that the police intend to make an arrest. [ Commonwealth v. Fisher, supra;] Commonwealth v. O'Shea, supra; Commonwealth v. Bordner, 432 Pa. 405, 247 A.2d 612 (1968). Rather, the test of custodial interrogation is whether the individual being interrogated reasonably believes his freedom of action is being restricted."

Brown, 473 Pa. at 570, 375 A.2d at 1264.*fn11 And here, a "reasonable belief that freedom of action has been restricted" surely existed. Corporal Baker expressly told appellee he must wait at the scene. Once the driver of the tractor-trailer left, appellee was the only person not a law-enforcement officer at the scene. Baker closely observed appellee pending the arrival of the State Troopers. Part of that time appellee was in a Carlisle police patrol car. State Police arrived and one of them, Trooper Stine, surveyed the scene and directed appellee to produce an owner's card and driver's license.

Thus, on the Commonwealth's suggested standard, which examines only whether in fact freedom has been restricted, or on the standard long reflected by our cases which looks to "whether the individual being interrogated reasonably believes his freedom of action is being restricted," Brown, supra, it is clear that appellee's pre-arrest statement was properly suppressed.*fn12

[ 488 Pa. Page 308]


While we agree with the suppression court's ruling on appellee's pre-arrest statement, we disagree with its ruling on the post-arrest statements and the results of the post-arrest breathalyzer test. Whether an officer who did not observe the offense of driving under the influence may, in harmony with the then-applicable version of Pa.R.Crim.Proc. 101, effectuate a warrantless arrest pursuant to the Act of July 20, 1974 has been fully considered in Commonwealth v. Levesque, 469 Pa. 118, 364 A.2d 932 (1976). There, a majority of this Court (after the suppression court's order here) held that the then-applicable version of Rule 101 does not invalidate an arrest authorized by the Act of 1974. Appellee agrees that the suppression court's invalidation of the arrest cannot stand in light of Levesque. We vacate the order of the suppression court insofar as it suppresses the post-arrest statements and results of the post-arrest breathalyzer test, and remand for proceedings consistent with this opinion.*fn13

Order affirmed in part and vacated in part.

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