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COMMONWEALTH PENNSYLVANIA v. STEPHEN P. LENINSKY (12/29/86)

filed: December 29, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
STEPHEN P. LENINSKY, APPELLANT



Appeal from Order entered September 23, 1985 in the Court of Common Pleas of Forest County, Criminal Division, at No. 25 of 1985.

COUNSEL

Arnold H. Cantor, Pittsburgh, for appellant.

Paul H. Millin, District Attorney, Tionesta, for appellee.

Brosky, Kelly and Roberts, JJ. Brosky and Roberts, JJ., concur.

Author: Kelly

[ 360 Pa. Super. Page 51]

This appeal raises the question of whether a police checkpoint or roadblock set up for the purpose of checking licenses, registrations, inspection violations, or for drivers under the influence of alcohol violates state or federal proscriptions against unreasonable searches and seizures.

In Commonwealth v. Tarbert, 348 Pa. Super. 306, 502 A.2d 221 (1986) (allocatur granted August 20, 1986), President Judge Cirillo opined for a divided panel of this Court that all such roadblocks or checkpoint stops are per se unconstitutional under Article I, Section 8 of the Pennsylvania Constitution. Therefore, the order and judgment of sentence is vacated and the trial court is directed to discharge the appellant.

Although I believe the Tarbert reasoning is factually and legally flawed, nonetheless, I would find that the procedures utilized in the instant case were constitutionally infirm. Consequently, I agree with the result reached by application of the Tarbert rule. I set forth my reasoning and concerns at length.

FACTS

On March 1, 1985, three officers of the Pennsylvania State Police conducted a traffic check on Route 62 in Tionesta Borough, Forest County, Pennsylvania. All vehicles traveling in either direction were stopped and the operators were asked to produce their licenses and vehicle registration cards. The field officers were acting pursuant to the instructions of the station commander that a two hour safety check should be held once a week, weather

[ 360 Pa. Super. Page 52]

    permitting. The date, time, site, and actual duration of the safety check were left to the discretion of the ranking field officer. There were no written guidelines or regulations for the traffic check, nor does the record indicate that specific instructions regarding the operation of the traffic check were given to the field officers by supervisory personnel.

Trooper Daniel Molitoris testified that he and two other uniformed officers of the Pennsylvania State Police selected a location, pulled their cars to the side of the highway and flagged down all cars traveling in either direction. The record does not include any evidence regarding the volume of traffic, safety precautions taken, notice to the public, or advance warning to the motorists approaching the traffic check.

Appellant, Stephen P. Leninsky, passed through the traffic check at approximately 1:00 p.m. Appellant failed to produce a driver's license when requested to do so. A subsequent check with the Department of Motor Vehicles revealed that appellant's driver's license was under suspension. The appellant was charged with Driving Under Suspension, D.U.I. Related, in violation of 75 Pa.C.S.A. ยง 1543(b).

On May 2, 1985, appellant was found guilty by the District Magistrate, fined one thousand nineteen dollars and fifty cents ($1,019.50), and sentenced to ninety (90) days imprisonment. Notice of appeal from the summary criminal conviction was filed on May 28, 1985. A hearing de novo was conducted before the Honorable Robert L. Wolfe on July 15, 1985. On August 14, 1985, the appeal was dismissed. On August 20, 1985, appellant filed post-trial motions. These motions were argued and denied on September 23, 1985. This appeal followed.

Appellant contends that the trial court erred in failing to dismiss the charges because: 1) the stop was in violation of the appellant's rights under the Fourth Amendment of the U.S. Constitution; 2) the stop was in violation of the appellant's rights under Article 1, Section 8 of the Pennsylvania

[ 360 Pa. Super. Page 53]

Constitution; and 3) the stop was invalid because under the Vehicle Code the officer did not have authority to stop appellant's vehicle.

I.

Both the United States and Pennsylvania Constitutions protect citizens from unreasonable searches and seizures. U.S. Const. Amend. 4; Pa. Const. Art. 1, Section 8. I note that while federal law establishes the minimum constitutional protections applicable to all citizens, "the state has power to impose standards on searches and seizures higher than those required by the Federal Constitution." Commonwealth v. DeJohn, 486 Pa. 32, 43, 403 A.2d 1283, 1288 (1979), citing Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967).

The protections of the state and federal constitutions apply where a police office stops a vehicle, thereby seizing both the vehicle and its occupants for the duration of the detention. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1973). However, "one's expectation of privacy in an automobile and freedom in its operation are significantly different from the traditional expectation of privacy and freedom in one's residence." United States v. Martinez-Fuerte, 428 U.S. 543, 561, 96 S.Ct. 3074, 3084, 49 L.Ed.2d 1116 (1976); see also Commonwealth v. Shaffer, 447 Pa. 91, 103, 288 A.2d 727, 734 (1972). "One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects." Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1984). "Automobiles, unlike homes, are subject to pervasive and continuing, governmental regulation and controls, including periodic inspection and licensing requirements." South Dakota v. Opperman, 428 U.S. 364, 368, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976). Nonetheless, "[a]n individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because

[ 360 Pa. Super. Page 54]

    the automobile and its use are subject to government regulation." Delaware v. Prouse, 440 U.S. 648, 662, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979).

"The essence of the Fourth Amendment to the federal constitution, and Article I, Section 8, of the Pennsylvania Constitution, is reasonableness; these provisions provide protection against unreasonable searches and seizures." In re Gartley, 341 Pa. Super. 350, 361, 491 A.2d 851, 857 (1985) (emphasis supplied); see also Zurcher v. Stanford Dailey, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978); Commonwealth v. Tann, 500 Pa. 593, 459 A.2d 322 (1983).

In Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973), our Supreme Court explained that, "there is no ready made test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entail." 453 Pa. at 111, 307 A.2d at 878, quoting Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). In Brown ...


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