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Commonwealth v. Fickes

April 8, 2009

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
SHAWN M. FICKES, APPELLANT



Appeal from the Judgment of Sentence June 18, 2008 In the Court of Common Pleas of York County Criminal Division at No. CP-67-CR-0007501-2007.

The opinion of the court was delivered by: Bender, J.

BEFORE: MUSMANNO, BENDER and CLELAND, JJ.

OPINION

¶ 1 Shawn M. Fickes (Appellant) appeals from the judgment of sentence entered following his conviction for DUI. Appellant claims that the trial court erred in denying his motion to suppress. For the reasons that follow, we affirm.

¶ 2 In the early morning hours of August 20, 2007, Officer Gary Ross received a dispatch call to respond to a hit and run accident. At the time, he was on patrol in full uniform and a marked police car. Officer Ross arrived at the scene at 2:53 a.m. where he encountered a witness who reported that he heard a crash, went outside, and viewed a vehicle reversing away from the vehicle it had struck and head westbound on Wyndamere Road. The witness described the vehicle as a silver "rounded sedan" or "coupe." N.T., 3/28/08, at 4.

¶ 3 Officer Ross surveyed the scene and noted that there were skid marks in a grass area between the road and the parking lot where the accident occurred. The marks indicated that the vehicle had been traveling on Yorktown Road and was attempting to turn left onto Wyndamere Road when the operator turned too wide and went off the road. These marks also indicated that the vehicle headed westbound on Wyndamere Road after leaving the accident scene.

¶ 4 Officer Ross then departed the scene, following in the direction of the perpetrator's vehicle. Approximately one mile down the road, at the intersection of Wyndamere Road and Old Quaker Road, Officer Ross and other officers discovered a stop sign that had been struck by a vehicle, thereby fully pushing it over. It had been raining that night and the roads were wet, as was the embankment where the stop sign was located. There were tire tracks in the mud of the embankment, which indicated that the vehicle was traveling westbound on Wyndamere Road and had attempted to turn right at Old Quaker Road, but instead had gone directly into the stop sign. There were also muddy tire marks indicating that the vehicle had continued on Old Quaker Road.

¶ 5 Officer Ross drove on Old Quaker Road a short distance until he reached Lewisberry Road. He did not observe anything out of the ordinary there and so he doubled back to the one road that intersected Old Quaker Road in the stretch between Wyndamere and Lewisberry. This road led up to an apartment complex, and shortly after driving into the apartment complex, Officer Ross noticed an open garage door with the lights on and a silver vehicle pulled into the garage. Id. at 6. Officer Ross then radioed for backup and alighted from his vehicle to investigate further. The time was approximately 3:30 a.m., which was only thirty seven minutes after Officer Ross responded to the scene of the hit and run.

¶ 6 From "outside of the garage," Officer Ross observed the following. Id. at 7. There were wet tire tracks leading into the garage. Although the vehicle's engine was off, it was emitting a ticking sound. The garage was not set up as a normal garage, but instead looked like "party headquarters, [with a] bunch of memorabilia and alcohol containers everywhere." Id. at 7. There was a couch pinned between the front of the vehicle and the garage wall, and there was a second couch resting or leaning on the hood of the vehicle. Finally, Officer Ross observed some damage to the front right side of the vehicle, but could not tell the extent of the damage from outside the garage.

¶ 7 Officer Ross then walked up to the abutting apartment and knocked on the door, but nobody answered. He then walked into the garage and knocked on another door that led directly from the garage into the apartment, but again there was no response. Because of the heavy tinting of the windows of the vehicle, Officer Ross could not see inside it. Therefore, he opened the driver door and was immediately struck by a strong smell of alcohol. And there was Appellant passed out and slumped over in the driver's seat with an open bottle of vodka on the passenger seat. Id. at 8.

¶ 8 Officer Ross attempted to communicate with Appellant, but he was so inebriated that even after Officer Ross yelled at him "again and again," he did not wake up. Id. at 8. Appellant finally began to respond when Officer Ross physically removed him from the vehicle. Although Appellant was sluggish, he eventually gained his bearings enough to know where he was and to stand up. Officer Ross arrested Appellant and took him to a hospital for a blood test. A blood test was performed at 5:00 a.m., which indicated a blood alcohol content of .179 percent. Id. at 10.

¶ 9 Appellant was charged with DUI under 75 Pa.C.S. § 3802(c) (Highest rate of alcohol) and other offenses related to the hit and run. Prior to trial, Appellant filed a motion to suppress the results of the blood test in which he alleged that Officer Ross's warrantless entry into the garage was unconstitutional. Finding probable cause and exigent circumstances, the trial court denied the motion. The case then proceeded to a jury trial at the conclusion of which Appellant was found guilty of DUI and several other offenses. As Appellant had prior DUI convictions, the court sentenced Appellant to five years of intermediate punishment, including forty five days' incarceration followed by ninety days' house arrest and fines. Appellant then filed this appeal presenting one question for our review:

I. Whether the Fourth Amendment of the United States Constitution or Article I, §8 of the Pennsylvania Constitution was violated when the arresting officer, without a search warrant and without the presence of any of the judicially recognized exceptions to a search warrant, entered private residential property, walked into a garage to visually and physically inspect a parked vehicle?

Brief for Appellant at 4. While Appellant frames his question in terms of violations of either the U.S. or Pennsylvania constitutions, the Argument section of his brief does not differentiate between the two and he cites only Pennsylvania cases in support of his argument. Consequently, we shall limit our analysis to the guarantees of Article I, Section 8 of the Pennsylvania Constitution, which in any event confers protections that are either coterminous with or greater than ...


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