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Commonwealth v. Garibay

Superior Court of Pennsylvania

December 9, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
CIPRIANO GARIBAY, Appellant

Appeal from the Judgment of Sentence of the Court of Common Pleas of Allegheny County. Criminal Division, No(s): CP-02-CR-0004217-2010.

Joshua B. Goldberg, Pittsburgh, for appellant.

Rebecca G. McBride, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, J., SHOGAN, J.,ALLEN, J., OTT, J., WECHT, J., STABILE, J., and JENKINS, J. DISSENTING OPINION BY OTT, J. in which ALLEN and STABILE, JJ. joined.

OPINION

Page 137

JENKINS, J.

Cipriano Garibay (" Appellant" ) appeals from the judgment of sentence entered in the Allegheny County Court of Common Pleas following his conviction for Driving Under the Influence of a Controlled Substance (marijuana)[1] (" DUI" ), and challenges the ruling denying his motion to suppress. After careful review, we reverse.

We first summarize the pertinent factual and procedural history. On November 19, 2009, police in the City of Pittsburgh set up a checkpoint in conjunction with the Pennsylvania Department of Transportation's Click It or Ticket program designed to ensure compliance with seatbelt and motor vehicle equipment requirements. The police conducted the checkpoint on the inbound side of Banksville Road near the intersection with Crane Avenue, a location previously identified by police as a high traffic volume and high accident location appropriate for a safety checkpoint. In addition to prior advertising on billboards and in radio advertisements, signs erected approximately seventy-five yards before the safety checkpoint alerted motorists to the approaching checkpoint.

Appellant entered the checkpoint at approximately 9:05 p.m. Loud noises coming from the exhaust system of Appellant's white Dodge Caravan immediately drew police attention. The police directed Appellant to pull into a designated contact area to check the vehicle for violations. During their subsequent interaction with Appellant, police suspected he may have been under the influence of marijuana due to his failure to respond, his trance-like state, and a particularly pungent odor of marijuana emanating from Appellant's person and his vehicle. Based on these observations, the police asked Appellant to participate in field sobriety testing, which he failed.[2] Ultimately, the police determined Appellant was incapable of safely driving, and placed him under arrest for DUI. A search incident to the arrest yielded a white porcelain pipe in Appellant's

Page 138

right front jacket pocket, which police believed was used to smoke marijuana. Following his arrest, Appellant submitted to blood testing, which tested positive for marijuana.

Police charged Appellant with DUI, Possession of Drug Paraphernalia,[3] and two vehicle-related summary offenses.[4] On September 11, 2011, Appellant filed a motion to suppress alleging, inter alia, that the police did not comply with the Tarbert/Blouse[5] guidelines for checkpoint stops. After conducting a hearing,[6] the trial court denied the motion to suppress by order dated December 23, 2011.

On January 6, 2012, Appellant proceeded to a non-jury trial during which counsel stipulated to the admission of Appellant's blood test results. The trial court found Appellant guilty of one count of DUI. On April 3, 2012, the trial court sentenced Appellant to four days of intermediate punishment and six months of probation. This appeal followed.

Appellant presents the following questions for our review:

I. Can the Commonwealth sustain its burden of proof at a suppression hearing challenging the constitutionality of a checkpoint stop where the Commonwealth fails to produce documentary or testimonial evidence that specifies the reports, data, or statistics the police relied upon in selecting the location of the checkpoint?
II. Can the Commonwealth sustain its burden of proof at a suppression hearing challenging the constitutionality of a checkpoint stop where the Commonwealth fails to produce documentary or testimonial evidence that specifies the reports, data, or statistics the police relied upon in selecting the time of the checkpoint?

Appellant's Brief, p. 3.

Our well-settled standard of review of the denial of a motion to suppress evidence is as follows:

[An appellate court's] standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court's factual findings are supported by the record, [the appellate court is] bound by [those] findings and may reverse only if the court's legal conclusions are erroneous. Where . . . the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal

Page 139

conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to [] plenary review.

Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 654 (Pa.2010) (internal citations and quotation marks omitted).

In examining Appellant's issues, we initially note that both the United States and Pennsylvania Constitutions prohibit " unreasonable searches and seizures." U.S. Const. Amendment IV; Pennsylvania Const. Art. 1, § 8. Further, our Supreme Court has explained that " [i]t is undisputed that the stopping of an automobile and the detention of its occupants is a seizure subject to constitutional restraints." Blouse, 611 A.2d at 1178.

Pennsylvania's Vehicle Code provides police with authority to stop vehicles and conduct systematic DUI or traffic safety checkpoints, even though such stops are not based on reasonable suspicion or probable cause standards. Pertinently, the Vehicle Code provides:

§ 6308. Investigation by police officers
****
(b) Authority of police officer.--Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle's registration, proof of financial responsibility, vehicle identification number or engine number or the driver's license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.

75 Pa.C.S.A. § 6308(b).

Intrusions caused by checkpoint stops must be " balanced against the government's promotion of legitimate interests" in order to protect individuals " from arbitrary invasions at the unfettered discretion of the officers in the field." Blouse, 611 A.2d at 1178 (citing Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979)). Accordingly, when conducting roadblock checkpoint stops, police in Pennsylvania must comply with the Tarbert/Blouse guidelines. Our Supreme Court has stated these guidelines as follows:

[T]he conduct of the roadblock itself can be such that it requires only a momentary stop to allow the police to make a brief but trained observation of a vehicle's driver, without entailing any physical search of the vehicle or its occupants. To avoid unnecessary surprise to motorists, the existence of a roadblock can be so conducted as to be ascertainable from a reasonable distance or otherwise made knowable in advance. The possibility of arbitrary roadblocks can be significantly curtailed by the institution of certain safeguards. First the very decision to hold a drunk-driver roadblock, as well as the decision as to its time and place, should be matters reserved for prior administrative approval, thus removing the determination of those matters from the discretion of police officers in the field. In this connection it is essential that the route selected for the roadblock be one which, based on local experience, is likely to be travelled by intoxicated drivers. The time of the roadblock should be governed by the same consideration. Additionally, the question of which vehicles to stop at the roadblock should not be left to the unfettered discretion

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of police officers at the scene, but instead should be in accordance with objective standards prefixed by administrative decision.

Blouse, 611 A.2d at 1180 (quoting Tarbert, 535 A.2d at 1043). Otherwise stated:

[T]o be constitutionally acceptable, a checkpoint must meet the following five criteria: (1) vehicle stops must be brief and must not entail a physical search; (2) there must be sufficient warning of the existence of the checkpoint; (3) the decision to conduct a checkpoint, as well as the decisions as to time and place for the checkpoint, must be subject to prior administrative approval; (4) the choice of time and place for the checkpoint must be based on local experience as to where and when intoxicated drivers are likely to be traveling; and (5) the decision as to which vehicles to stop at the checkpoint must be established by administratively pre-fixed, objective standards, and must not be left to the unfettered discretion of the officers at the scene.

Commonwealth v. Worthy, 598 Pa. 470, 957 A.2d 720, 725 (Pa.2008) (citing Blouse, supra, and Tarbert, supra). " Substantial compliance with the Tarbert/Blouse guidelines is all that is necessary to minimize the intrusiveness of a roadblock seizure to a constitutionally acceptable level." Commonwealth v. Yastrop, 564 Pa. 338, 768 A.2d 318, 323 (Pa.2001). However, where police do not comply with the guidelines in establishing a checkpoint, the trial court should suppress evidence derived from the stop, including the results of field sobriety and blood alcohol testing. See Commonwealth v. Blee, 695 A.2d 802, 806 (Pa.Super.1997).

Like DUI checkpoints, checkpoints established to inspect vehicle safety and seatbelt usage are lawful in Pennsylvania, provided that the checkpoint complies with the procedural requirements outlined by the Tarbert/Blouse guidelines. In re J.A.K., 2006 PA Super 256, 908 A.2d 322, 325-26 (Pa.Super.2006). In In re J.A.K., a seatbelt safety checkpoint case, this Court specifically stated:

[W]e are convinced, by the plain language of 75 Pa. Cons.Stat.Ann. § 6308(b), that so long as a " systematic program of checking vehicles or drivers" is followed, then an investigative roadblock may be conducted to enforce any provisions of the Motor Vehicle Code. Indeed, the plain language of 75 Pa. Cons.Stat.Ann. § 6308(b) clearly does not limit the situations under which such a roadblock may be conducted, other than to specify that such a stop must be " necessary to enforce the provisions of [the Motor Vehicle Code]." Therefore, we find that while 75 Pa. Cons.Stat.Ann. § 4581(a)(2) may prohibit a police officer from making routine traffic stops for a seatbelt violation, nothing in that provision prohibits an investigative roadblock that checks for general motor vehicle safety compliance, provided that a proper systematic program is implemented. Such roadblocks afford minimal personal interference, while furthering an important highway safety interest.

In re J.A.K., 908 A.2d at 325-26 (internal citation omitted) (emphasis supplied).

Regarding the evidence the Commonwealth must put forth at a suppression hearing to justify the selection of a DUI checkpoint, this Court has explained that " [t]o ensure that the intrusion upon the travelling public remains minimal, we cannot accept [] general testimony elicited at [a suppression] hearing as proof of 'substantial compliance' with the [Tarbert/Blouse guidelines]." Blee, 695 A.2d at 806. Rather, " [a]t the very least, the Commonwealth [must] present information sufficient to specify the number of DUI-related

Page 141

arrests and/or accidents [at] . . . the specific location of the sobriety checkpoint." Id. If the Commonwealth fails to introduce evidence concerning the number of DUI-related arrests and/or accidents in explaining the choice of a checkpoint's location,[7] then the checkpoint will be deemed unconstitutional. Compare Blee, supra (checkpoint unconstitutional where testimony at suppression hearing related to DUI arrests and DUI-related accidents county-wide and in certain municipalities rather than at the specific location of the sobriety checkpoint) and Commonwealth v. Trivitt, 437 Pa.Super. 432, 650 A.2d 104 (Pa.Super.1994) (same) with Commonwealth v. Ziegelmeir, 454 Pa.Super. 330, 685 A.2d 559 (Pa.Super.1996) (roadblock constitutional where testimony established the number of DUI-related accidents and arrests in the particular area of the checkpoint), Commonwealth v. Myrtetus, 397 Pa.Super. 299, 580 A.2d 42 (Pa.Super.1990) (same), and Yastrop, supra (sobriety checkpoint constitutional where officer who set up checkpoint testified that he reviewed PennDOT records and information that led him to conclude the checkpoint location was a route likely to be travelled by intoxicated drivers). The Commonwealth must fulfill these same specified procedural requirements for both DUI and non-DUI checkpoints. See In re J.A.K., supra.

At the suppression hearing in the instant matter, as in all suppression matters, the Commonwealth had the burden of establishing that the challenged evidence was not obtained in violation of Appellant's rights by illustrating that the police complied with the requirements of the Tarbert/Blouse guidelines in conducting the Click It or Ticket seatbelt checkpoint. See Pa.R.Crim.P. 581(H); see also In re J.A.K., supra. To satisfy the selection of the checkpoint time and location portion of this burden, the Commonwealth presented only the testimony of Sergeant Richard Howe of the Pittsburgh Police. Sergeant Howe testified that he ordered the November 19, 2009, Banksville Road seatbelt/safety equipment violation checkpoint as part of a " statewide public safety" campaign. N.T. 12/15/2011, pp. 4-5. However, Sergeant Howe provided none of the testimony contemplated in Blee regarding the number of prior safety violations and/or accidents at the specific checkpoint location in question. Instead, Sergeant Howe simply explained the selection of the Banksville Road location in general terms as follows:

Q. And, lastly, this location of Banksville Road where this was, where you specified this to have occurred, how did you come to specify Banksville Road?
A. The State likes us to do these safety check seatbelt checkpoints on busy roadways within the City of Pittsburgh. They pull that information from vehicle traffic, the volume of traffic and high accident locations.
Q. Okay. And what are some of the other examples of roads in the city that you have been told to use as locations[?]
A. We have done West Liberty Avenue. We have done Saw Mill Run Boulevard,

Page 142

which is Route 51. We have done in the past I believe on Bigelow Boulevard.
Q. And those locations, as well as Banksville Road, are all mentioned, I guess, to you by the statewide campaign?
A. Yes. They like to go where we do have high volume vehicle traffic. That way the message for the seatbelts can get out.
Q. The things you just described, high accident rate, high traffic, did those things that PennDOT apparently had, did that seem to comport with your own experience as an officer and being familiar with Banksville Road?
A. Within the City of Pittsburgh, yes.

N.T. 12/15/2011, pp. 6-7. Moreover, Sergeant Howe failed to offer any testimony regarding the selection of the checkpoint's time/duration. At the conclusion of this testimony, and without further questioning by Appellant, the Commonwealth rested with regard to the motion to suppress without offering additional testimony or documentary evidence pertaining to the determination of the checkpoint's location and time/duration.

Sergeant Howe's generalized testimony provided no specifics whatsoever regarding accidents, arrests, citations, violations, etc., regarding seatbelt usage or non-usage at the specific checkpoint location, nor did it present any insight into the selection of the checkpoint time and duration. Therefore, the testimony did not satisfy the requirements of the Tarbert/Blouse guidelines. Because the Commonwealth's only evidence as to the selection of the location of this checkpoint was Sergeant Howe's general testimony, the trial court should have suppressed all evidence resulting from the stop at this seatbelt checkpoint.

Despite the deficiencies in Sergeant Howe's testimony, the Commonwealth argues " the 'Click It or Ticket It Buckle Up Campaign' checkpoint was established and conducted in a constitutionally acceptable manner." Commonwealth's Brief, p. 7. Specifically, the Commonwealth argues that " [b]eing that [the instant checkpoint] was not a DUI checkpoint, the testimony of Sergeant Howe about his experience with Banksville Road along with the Commonwealth's research on Banksville Road satisfied constitutional standards." Id. Essentially, the Commonwealth argues that, while police must comply with the Tarbert/Blouse guidelines in setting up DUI checkpoints, a lesser standard exists for establishing a non-DUI checkpoint. We do not agree.

Blouse itself involved a license, registration, and equipment checkpoint, and the Court applied the same guidelines as were appropriate for a DUI checkpoint. See Blouse, supra. There, our Supreme Court unambiguously stated:

[t]he rationale behind upholding the constitutionality of drunk driving roadblocks applies equally to all systematic roadblocks, where the compelling interest of the statute in protecting its citizens from harm . . . outweighs the privacy interests of the individual.

Blouse, 611 A.2d at 1179. Further, exactly as in the instant matter, In re J.A.K. involved a " Click It Or Ticket" checkpoint. In that case, before engaging in an analysis of whether the authorities complied with the specified procedural requirements outlined by the Pennsylvania Supreme Court in Tarbert and Blouse, this Court expressly noted:

Although our caselaw dealing with checkpoint procedures focuses on DUI checkpoints, we analyze the facts of this case utilizing the same [Tarbert/Blouse] guidelines, as there is no reasonable distinction

Page 143

between DUI checkpoints and vehicle safety checkpoints.

In re J.A.K., 908 A.2d at 326 n.3.

Based on this precedent, this Court is unwilling to conclude that there exist differing standards for setting up DUI and non-DUI checkpoints in this Commonwealth.

Judgment of sentence vacated. Remanded for further proceedings. Jurisdiction relinquished.

Ford Elliott, P.J.E., Bender, P.J.E., Bowes, Shogan and Wecht, JJ. join the opinion.

Judge Ott files a dissenting opinion in which Judges Allen and Stabile join.

Judgment Entered.

DISSENTING OPINION

OTT, J.

Because I believe the testimony presented at the suppression hearing supports the trial court's denial of Garibay's motion to suppress evidence and the trial court's conclusions are free from legal error, I respectfully dissent.

In considering Garibay's motion to suppress evidence, the trial court was required to determine whether the seatbelt checkpoint established by the Pittsburgh Police Department substantially complied with the Tarbert/Blouse guidelines, established under Commonwealth v. Tarbert, 517 Pa. 277, 535 A.2d 1035 (Pa. 1987) and Commonwealth v. Blouse, 531 Pa. 167, 611 A.2d 1177 (Pa. 1992).[8] These guidelines, which will be more fully discussed below, are designed to protect individuals from unreasonable searches and seizures, pursuant to the United States and Pennsylvania Constitutions. Therefore, the trial court was tasked with determining whether the Commonwealth's action in establishing a seatbelt checkpoint on Banksville Road, at the time in question, was unreasonable. The Majority has agreed with Garibay and concluded that because the Commonwealth did not produce statistics, data or reports to support the choice of location as one in which there are seatbelt violations, the Commonwealth acted unreasonably. I believe the Majority's conclusion ignores the trial court's determination of the paramount purpose of the checkpoint and therefore unnecessarily advocates a strict application of the time and location factors.

In reviewing the denial of a motion to suppress, " [o]ur standard of review in addressing a challenge to a trial court's denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct." Commonwealth v. Kearney, 2014 PA Super 97, 92 A.3d 51, 65 (Pa. Super. 2014). Further, " [t]he sensible interpretation of the rule is that when reviewing the denial of a motion to suppress, we look at all of the evidence in the light most favorable to the Commonwealth and determine whether the record supports the suppression court's findings of fact." Commonwealth v. Reppert, 2002 PA Super 383, 814 A.2d 1196, 1208 (Pa. Super. 2002) (en banc).

The Tarbert/Blouse decisions set forth guidelines for the establishment of sobriety checkpoints to balance the legitimate governmental interests of conducting such checkpoints with the necessary protection of individuals from " arbitrary invasions [of privacy] at the unfettered discretion of the officers in the field." See Majority Opinion, at 6, citing Blouse, 611 A.2d at 1178. Those guidelines are:

[T]he conduct of the roadblock itself can be such that it requires only a momentary

Page 144

stop to allow the police to make a brief but trained observation of a vehicle's driver, without entailing any physical search of the vehicle or its occupants. To avoid unnecessary surprise to motorists, the existence of a roadblock can be so conducted as to be ascertainable from a reasonable distance or otherwise made knowable in advance. The possibility of arbitrary roadblocks can be significantly curtailed by the institution of certain safeguards. First, the very decision to hold a drink-driving roadblock, as well as the decision as to its time and place, should be matters reserved for prior administrative approval, thus removing the determination of those matters from the discretion of police officers in the field. In this connection it is essential that the route selected for the roadblock be one which, based on local experience, is likely to be travelled by intoxicated drivers. The time of the roadblock should be governed by the same consideration. Additionally, the question of which vehicles to stop at the roadblock should not be left to the unfettered discretion of police officers at the scene, but instead should be in accordance with objective standards prefixed by administrative decision.

Blouse, 611 A.2d at 1180 ( quoting Tarbert, 535 A.2d at 1043).

The Tarbert/Blouse guidelines are not mandatory rules. Rather, there must be " substantial -- and not complete -- compliance" to pass Constitutional muster. Worthy, supra, 957 A.2d at 725. In this appeal, Garibay has only challenged the sufficiency of the evidence regarding the location and time of the roadblock.[2] Therefore, the review of the trial court's decision is necessarily limited to the court's factual findings and legal conclusions addressing that particular Tarbert/Blouse criteria.

Testimony regarding establishment and administration of the checkpoint was provided by Sergeant Richard Howe of the City of Pittsburgh Police Department, at the December 15, 2011 suppression hearing. Sergeant Howe was the liaison between the police department and the Pennsylvania Department of Transportation (PennDOT) for the Click it or Ticket Buckle Up Campaign. See N.T. Hearing, 12/15/2011, at 4. Regarding the choice of Banksville Road for the seatbelt checkpoint, Sergeant Howe testified as follows:

Q. And, lastly, this location of Banksville Road where this was, where you specified this to have occurred, how did you come to specify Banksville Road?
A. The State likes us to do these safety check seatbelt checkpoints on busy roadways within the City of Pittsburgh. They pull that information from vehicle traffic, the volume of traffic and high accident locations.
Q. Okay. And what are some of the other examples of roads in the city that you have been told to use as locations[?]
A. We have done West Liberty Avenue. We have done Saw Mill Run Boulevard, which is Route 51. We have done in the past I believe on Bigelow Boulevard.
Q. And those locations, as well as Banksville Road, are all mentioned, I guess, to you by the statewide campaign?
A. Yes. They like to go where we do have high volume vehicle traffic. That way the message for the seatbelts can get out.
Q. The things you just described, high accident rate, high traffic, did those things that PennDOT apparently had, did that seem to comport with your own experience as an officer and being familiar with Banksville Road?

Page 145

A. Within the City of Pittsburgh, yes.

N.T. Hearing, 12/15/2011, at 6-7.

In determining that the evidence presented by the Commonwealth was sufficient to demonstrate substantial compliance regarding the time and location of the seatbelt checkpoint, the trial court opined:

The fourth standard [the choice for time and location of the checkpoint must be supported by local experience as to when and where drunk drivers are likely to be traveling] is not directly applicable in that it applies to DUI checkpoints and intoxicated drivers. However, the underlying rationale for this standard, i.e. the purpose to be served by the checkpoint will be accomplished because the location of the checkpoint is appropriate, is applicable in this context as well. It is the purpose of the Click it or Ticket checkpoint that as many drivers as possible are given the message of the importance of seatbelt use to promote public safety (T.R. 12/15/11, p. 5, 6, 7). Therefore, the selection of a busy roadway is paramount. As was stated previously, review of traffic data by the Commonwealth and the experience of a veteran Pittsburgh Police sergeant confirmed that this section of Banksville Road was well-traveled and had a high accident count, making it a prime location to get the word out about seatbelt safety. (T.R. 12/15/11, p. 7).

Trial Court Opinion, 11/20/2012, at 10, ¶ 4.

The trial court's finding of the purpose of the checkpoint is supported by the record. I do not believe the trial court's conclusion that Sergeant Howe provided a sufficient testimonial basis to support the Banksville Road location was in error.

Initially, " the police are not required to produce any statistics at all to justify the selection of the roadblock location." Commonwealth v. Rastogi, 2003 PA Super 46, 816 A.2d 1191, 1194 (Pa. Super. 2003) quoting Commonwealth v. Ziegelmeir, 454 Pa.Super. 330, 685 A.2d 559, 563 (Pa. Super. 1996).[3] In Ziegelmeir, Camp Hill Chief of Police Gregory Ammons testified the choice of location for the DUI checkpoint was based upon " volume of traffic, number of accidents, number of known DUI offenders that are apprehended on the roadway, underage drinking arrests, DUI arrests." Ziegelmeir, at 562 (emphasis added). On cross-examination, Chief Ammons testified that 58 of 80 borough DUI arrests in the prior 13 months occurred in the general area of the checkpoint and eight occurred at the specific location.[4] In his appeal, Ziegelmeir claimed trial counsel was ineffective for essentially making the Commonwealth's case by bringing out the actual DUI arrest statistics. Our Court held:

The Commonwealth was not required to produce statistics to show that the checkpoint area chosen was one " likely to be travelled by intoxicated drivers." As a result, appellant's claim of ineffective assistance of counsel is clearly meritless because the testimony by Chief Ammons on cross-examination was not necessary to show that the roadblock was conducted in a constitutional manner.

Id. at 563 (emphasis added).

Therefore, while specific numbers regarding DUI arrests were presented to

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the trial court in Ziegelmeir, our Court specifically rejected the production of such specific testimony as a constitutional requirement to support choice of location.

However, the Ziegelmeir decision was misinterpreted by Commonwealth v. Blee, 695 A.2d 802 (Pa. Super. 1997). In a footnote, Blee discussed the Ziegelmeir and Trivitt decisions:

In Ziegelmeir, a panel of this Court declined to adopt Trivitt's conclusion that the Commonwealth is required to introduce into evidence the reports, data and statistics relied on by the police in determining the location of the sobriety checkpoint. However, the panel in Ziegelmeir implicitly agreed with Trivitt's conclusion that the Commonwealth is required to present some (emphasis added) type of evidence regarding the manner in which the specific location of the sobriety checkpoint was chosen. That is, both Ziegelmeir and Trivitt require the Commonwealth to introduce evidence regarding the number of DUI-related accidents and arrests in the particular area of the sobriety checkpoint at issue.

Commonwealth v. Blee, 695 A.2d at 805, n. 8.

This discussion led to Blee's holding that, " At the very least, the Commonwealth was required to present information sufficient to specify the number of DUI-related arrests and/or accidents on Route 11 in Edwardsville, the specific location of the sobriety checkpoint." Blee, at 806. See also Majority Opinion at 8.

However, the concluding sentence of the footnote and resulting holding of Blee are misstatements of Ziegelmeir's holding that such specific statistical information was not required to prove constitutionality. Specific numbers of DUI-related arrests and/or accidents are statistics, and Ziegelmeir held that such statistics are not required to prove constitutionality. Blee has never been cited by our Court or our Supreme Court for the proposition that the Commonwealth must provide such specific numbers to support the choice of a checkpoint location. In light of Blee's misinterpretation of Ziegelmeir, I do not believe that Blee represents a binding decision.

Therefore, any failure by the Commonwealth to provide " documentary or testimonial evidence that specifies the reports, data or statistics relied upon in selecting the location (or time) of the checkpoint" [5], as complained of by Garibay, is not fatal to the Commonwealth's case.

Because specific numbers are not a requirement to demonstrate substantial compliance, an examination of the record demonstrates no legal error in the trial court's conclusion that the evidence presented by the Commonwealth was constitutionally sufficient. As the trial court explained, the main purpose of this checkpoint was the dissemination of information to as many citizens as possible. Sergeant Howe testified that to achieve this goal PennDOT suggested multiple sites, including West Liberty Avenue, Saw Mill Run Boulevard (Route 51), and Bigelow Boulevard; all of which the Commonwealth had used for prior seatbelt checkpoint locations. See N.T. Hearing, 12/15/2011, at 7. There is nothing in the certified record to suggest that any of these locations was improper.[6] The information from PennDOT is

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culled from their database of traffic information.[7] Sergeant Howe further testified that his experience as a City of Pittsburgh police officer confirmed the information and suggestions of PennDOT as proper locations for a seatbelt checkpoint. This evidence provides ample support for the choice of Banksville Road as a seatbelt checkpoint, given the stated purpose of the checkpoint. Sergeant Howe's testimony, presented at the hearing and accepted by the trial court, supports its finding the location choice was not arbitrary or otherwise unreasonable. Therefore, I believe this aspect of the Tarbert/Blouse guidelines has been met.

Although the Commonwealth presented no evidence regarding the timing of the checkpoint, the timing factor is not directly applicable to seatbelt usage as compared with intoxicated driving. Therefore, because substantial and not total compliance is the applicable standard, I would agree with the trial court that the evidence presented by the Commonwealth fulfilled the requirements of substantial compliance.

I recognize that the Majority is concerned that deviation from the Blee requirements of specific statistical reference represents the application of a lesser standard. See Majority Opinion, at 12. However, I do not believe this approach represents a lesser standard. Rather, I believe this analytical approach in determining substantial compliance comports with our standards of determining constitutionality in other search and seizure cases. The general standard applied in such matters, whether we are tasked with determining reasonable suspicion or probable cause, is an examination of the totality of the circumstances.[8] The application of this standard recognizes that vastly different circumstances may attend each search and seizure episode.

As every search warrant, street encounter or traffic stop is based upon different factors, the same is true of checkpoints. Here, the trial court simply recognized the difference in purpose between a seatbelt checkpoint and a DUI checkpoint, and evaluated the evidence supporting time and location of the seatbelt checkpoint accordingly. See Trial Court Opinion, 11/20/2012, at 10, ¶ 4, supra. The general purpose of a DUI roadblock is the apprehension of impaired drivers, and this purpose suggests that more specific evidence be required to support the selection of location and timing of the roadblock. However, the time and location nexus to a DUI checkpoint is not directly analogous to a seatbelt checkpoint. Therefore, accepting the Commonwealth's evidence without a statistical basis is not representative

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of a lower standard; it is a weighing of factors as applied to the specific circumstances of the matter before us, in light of the factual determinations made by the trial court.

Accordingly, I believe the trial court correctly determined the Commonwealth presented sufficient evidence to demonstrate substantial compliance with the Tarbert/Blouse guidelines. Therefore, I respectfully dissent.

Judges Allen and Stabile join this dissenting opinion.


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