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.
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) (" 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. 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
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, and two vehicle-related summary offenses. On September 11, 2011, Appellant filed a motion to suppress alleging, inter alia, that the police did not comply with the Tarbert/Blouse guidelines for checkpoint stops. After conducting a hearing, 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
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
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 ...