Appeal from the Judgment of Sentence April 3, 2012 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0004217-2010
BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J. [*]
Cipriano Garibay appeals from the judgment of sentence entered against him on April 3, 2012, following his conviction on the charge of driving under the influence of a controlled substance (marijuana). In this timely appeal, Garibay claims the suppression court erred in failing to suppress testimony and documentary evidence obtained from a checkpoint stop where the Commonwealth failed to produce sufficient reports, data, or statistics upon which the police relied to set the location and time of the checkpoint. Garibay argues the lack of reports, etc., rendered the checkpoints unconstitutional. Following a thorough review of the submissions by the parties, relevant law, and the certified record, we affirm.
The findings of fact from the suppression hearings held December 2, 2011 and December 15, 2011 are stated by the trial court in its Pa.R.A.P. 1925(a) Opinion.
[On November 19, 2009], the City of Pittsburgh had set up a checkpoint in conjunction with the Click It or Ticket program run by the Pennsylvania Department of Transportation. (T.R. 12/2/11, p. 7). The purpose of the checkpoint was to ensure compliance with [seatbelt] and motor vehicle equipment requirements on the inbound side of Banksville Road. (T.R. 12/2/11, p. 8).
Sergeant Richard Howe, of the City of Pittsburgh Police Department, served as the liaison between the City of Pittsburgh Police Department and the statewide Click It or Ticket Buckle Up campaign and ordered the checkpoint to be set up on Banksville Road on November 19, 2009. (T.R. 12/15/11, p. 4). The Pittsburgh checkpoint on Banksville Road was part of a concerted statewide effort to ensure [seatbelt] usage. (T.R. 12/15/11, p. 4). The Commonwealth advertised the efforts with billboards and radio ads, as well as by providing road signs for the Click It or Ticket checkpoint and pamphlets to be handed out to drivers passing through the checkpoint. (T.R. 12/15/11, p. 4). The Commonwealth wanted the Click It or Ticket checkpoints performed on high traffic volume roadways [within] the City of Pittsburgh, which it determined based on a review of information regarding vehicle traffic, traffic volume and high accident locations. (T.R. 12/15/11, p. 6). Busy roads within the City of Pittsburgh, such as Banksville Road, West Liberty Avenue, Route 51 and Bigelow Boulevard were selected for this program by the Commonwealth. (T.R. 12/15/11, p. 7). Sergeant Howe, based on his experience as an officer and his familiarity with Banksville Road, agreed that it was a high traffic volume and high accident location within the City of Pittsburgh. (T.R. 12/15/11, p. 7).
On November 19, 2009, the checkpoint began on inbound Banksville Road, near the intersection with Crane Avenue. (T.R. 12/2/11, p. 8). At that location, there were signs notifying drivers that they were approaching a seatbelt safety checkpoint area. (T.R. 12/2/11, p. 9). The signs were approximately 75 yards from the location of the contact officers. (T.R. 12/2/11, p. 9). A marked police unit [was] also in the vicinity of the sign in order to illuminate the area. (T.R. 12/2/11[, p. 9]). The left lane of inbound Banksville Road was blocked with traffic barriers in order to direct all traffic into one lane, the right-hand lane. (T.R. 12/2/11, p. 9). Officers were standing in the left-hand lane to make contact with drivers as they proceeded into the single right-hand lane. (T.R. 12/2/11, pp. 9-10). A contact area, in which more lengthy contacts with a driver could occur, was set up in the Boilermakers Union parking lot, located to the right of the right-hand lane. (T.R. 12/2/11, p. 10). As a vehicle proceeded into the single right-hand lane of the checkpoint, Officer Mitchell, a contact officer, would inform the driver about the Click It or Ticket checkpoint, explaining why he was stopping the vehicle. (T.R. 12/2/11, p. 10). He would check to make sure that the vehicle occupants had [seatbelts] on and would also check for vehicle equipment violations. (T.R. 12/2/11, pp. 10-11). Assuming there were no violations, Officer Mitchell would then hand the occupants a flier about the PennDot [sic] program and send them on their way. (T.R. 12/2/11, p. 11). Generally, occupants of vehicles would roll down their window to speak with the checkpoint officers. (T.R. 12/2/11, p. 11).
On November 19, at approximately 9:05 p.m., a white Dodge Caravan driven by the Defendant approached the checkpoint and drew the attention of Officer Mitchell due to the extremely loud noise coming from the exhaust. (T.R. 12/2/11, p. 11). The van was the fourth or fifth in a line of vehicles that were all cars. (T.R. 12/2/11, pp. 14-15). There were no other white vans at that time. (T.R. 12/2/11, p. 15). As the van approached Officer Mitchell, he directed the Defendant to pull over to the designated contact area because of a possible equipment violation relating to the exhaust. (T.R. 12/2/11, pp. 11-13). Officer Mitchell informed Officer Suzensky, who was about 25 feet away in the designated contact area, that the Defendant was being sent to the area to check his exhaust. (T.R. 12/2/11, pp. 12-13).
Officer Suzensky directed the Defendant to pull into the contact parking lot so that he could evaluate the Defendant's van and determine if any citations should be issued. (T.R. 12/2/11, p. 21). The officer had difficulty directing the Defendant into the parking lot because he could not get the Defendant's attention. (T.R. 12/2/11, p. 21). Officer Suzensky described the Defendant as driving in a "trance-like state." (T.R. 12/2/11, p. 21). Once the vehicle was stopped in a spot, Officer Suzensky approached the van and tapped on the driver side window to get the Defendant's attention. (T.R. 12/2/11, p. 23). It took Officer Suzensky tapping several times and then finally yelling repeatedly at the Defendant to wind down his window before the Defendant complied with the officer's direction. (T.R. 12/2/11, p. 23). When the Defendant rolled down his window, Officer Suzensky noticed a very pungent odor of marijuana, which he described as "like getting punched in the face with a ton of marijuana." (T.R. 12/2/11, p. 23). Officer Suzensky then requested certain documentation from the Defendant, which he had to request repeatedly. (T.R. 12/2/11, p. 24). It took the Defendant a long time to turn over his license, registration and insurance card. (T.R. 12/2/11, p. 24).
Officer Suzensky then instructed the Defendant to exit the van and step behind the vehicle, during which he observed that the Defendant continued to move in a trance-like state, although not quite as much, and continued to require repeated commands and questions. (T.R. 12/2/11, p. 25). Officer Suzensky asked the Defendant to perform certain field sobriety tests, again having to repeat the instructions several times and demonstrate them. (T.R. 12/2/11, p. 25). When Officer Suzensky asked the Defendant if he understood the instructions, he could not tell if the Defendant actually understood him. (T.R. 12/2/11, p. 25). Although Officer Suzensky performed an HGN test, he did not perform additional field sobriety tests because the Defendant was having difficulty walking and was leaning against his van. (T.R. 12/2/11, p. 27). The officer also observed that there was a strong smell of marijuana coming from the Defendant. (T.R. 12/2/11, pp. 25-26). Officer Suzensky determined that the Defendant was unable to operate a motor vehicle because of the marijuana coming from the vehicle. (T.R. 12/2/11, p. 27). Officer Suzensky placed the Defendant under arrest at this point.
(T.R. 1/16/12, p. 5). During a search incident to arrest, the officer patted down the Defendant and found, in his right front jacket pocket, a white porcelain item with the word "Grolsch" on it, which he believed to be used for smoking marijuana. (T.R. 1/16/12, pp. 5, 7). The Defendant submitted to a blood test after his arrest, which tested positive for marijuana. (T.R. 1/16/12, p. 5).
Trial Court Opinion, 11/20/12, at 2-5.
Additionally, Sergeant Howe testified to the differences between a DUI checkpoint ...