J. A29006/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JUSTIN LEE HERP, : No. 1900 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, November 13, 2014,
in the Court of Common Pleas of Butler County
Criminal Division at No. CP-10-CR-0000210-2014
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND MUSMANNO, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 07, 2016
Justin Lee Herp appeals from the judgment of sentence entered on
November 13, 2014, in the Court of Common Pleas of Butler County
following the trial court’s denial of his omnibus pre-trial motion to suppress
and his conviction of driving under the influence (“DUI”)-general
impairment, 75 Pa.C.S.A. § 3802(a)(1) and DUI-highest rate, 75 Pa.C.S.A.
§ 3802(c). He was sentenced to 30 days to 6 months of incarceration and a
$750 fine. We affirm.
On December 26-27, 2013, Pennsylvania State Trooper
Christopher Cialella was working the 11 p.m. to 7 a.m. shift on patrol, in
uniform, and in a marked vehicle with Trooper Knirnschild. It had snowed
earlier that day. There was snow cover on the ground and the roads were
slick. At 3:20 a.m., while traveling eastbound on State Route 422,
J. A29006/15
Trooper Cialella observed appellant performing “donuts” with his Jeep
Cherokee SUV in the private parking lot of the Assembly of God Church.
(Transcript of proceedings, 5/16/14 at 8.) Appellant’s vehicle was spinning
around. No other vehicles were in the parking lot, and the parking lot did
not have any trees or light posts. There were commercial and residential
structures in the immediate area around the church. Trooper Cialella found
it to be “suspicious” because it was 3:30 in the morning. (Id.) He also
believed that in doing donuts, appellant was “a reckless danger to himself”
and that “[h]e could have flipped the vehicle.” (Id. at 18.) Trooper Cialella
observed appellant’s vehicle abruptly leave the parking lot. The trooper
followed appellant one quarter of a mile on Route 422 and activated the
emergency lights on his vehicle just as appellant turned left onto Golden
Lane, a one-lane road. (Id. at 21.) Appellant “was waving his hands out
the driver’s side window,” traveled approximately 60 yards or about
30-45 seconds, passing several places he could have pulled over and
stopped his car, and then eventually stopped at his residence. (Id. at 13,
22, 33, 36.)
Appellant was ordered out of the vehicle at gunpoint. When appellant
exited his vehicle, Trooper Cialella’s partner patted appellant down for
weapons. Appellant informed the police that he had a large knife on his
person. The troopers then handcuffed appellant from behind on the hood of
his car. After appellant was handcuffed, Trooper Cialella asked appellant
-2-
J. A29006/15
about doing donuts in the church parking lot. Appellant said that he “was
having fun.” (Id. at 15.) Trooper Cialella detected the “faint odor” of
alcohol. (Id.) Besides the faint smell of alcohol, Trooper Cialella did not
observe any other indicia of impairment. Appellant did not have bloodshot
eyes; he was not staggering or slurring his speech. (Id. at 25.)
Trooper Cialella asked appellant if he had anything to drink, and appellant
told him he had “a few drinks.” At that point, Trooper Cialella administered
a preliminary breath test (“PBT”) which registered positive. Trooper Cialella
did not conduct standard field sobriety tests because of the weather
conditions. Appellant was placed in the patrol car and transported to the
hospital for a consented blood draw. Appellant’s blood alcohol content was
0.162 percent.
Appellant was charged with DUI-general impairment, DUI-highest rate,
failing to stop upon request or signal of a police officer1 and reckless
driving.2
On April 21, 2014, appellant filed an omnibus pre-trial motion
challenging the propriety of the vehicle stop and seeking to suppress the
evidence obtained therefrom. Specifically, appellant argued that the
troopers lacked reasonable suspicion to justify the initial traffic stop. He was
alone in the parking lot and posed no risk of danger to himself or anyone
1
75 Pa.C.S.A. § 6308(a).
2
75 Pa.C.S.A. § 3736(a).
-3-
J. A29006/15
else. He further argued that once his vehicle was stopped, a sufficient basis
did not exist to order appellant out of his vehicle at gunpoint, pat him down
for weapons, and handcuff him. He contends that he was subjected to the
functional equivalent of an arrest, yet he was not given his Miranda3
warnings; therefore, the odor of alcohol on his breath, the results of the
PBT, and any statements he made about having a “few drinks” should be
suppressed. He also argued that the troopers did not have probable cause
to arrest him and transport him for chemical testing because, besides the
faint odor of alcohol on his breath, there were no other indicia of impairment
such as erratic driving, bloodshot eyes, staggering, or slurring.
A suppression hearing was held on May 16, 2014. At the hearing,
Trooper Cialella testified on cross-examination, that he stopped appellant
because he observed appellant driving in a reckless manner. He handcuffed
appellant because: “it was a high risk stop”; appellant “did not stop
immediately”; he was “waving his hands out the window”; and the stop
occurred in a dark and unfamiliar place. (Id. at 24.)
The trial court denied appellant’s suppression motion on August 1,
2014.
A stipulated non-jury trial was conducted on October 31, 2014. The
trial court considered the testimony of Trooper Cialella which was given at
the suppression hearing and a video recording from the officer’s patrol car.
3
Miranda v. Arizona, 384 U.S. 436 (1966).
-4-
J. A29006/15
The trial court found appellant guilty of DUI-general impairment, under
75 Pa.C.S.A. §§ 3802(a)(1), and DUI-highest rate, under § 3802(c), and not
guilty of the remaining charges. On November 13, 2014, appellant was
sentenced to a term of 30 days to 6 months’ imprisonment plus a $750 fine.
This timely filed appeal followed. Both appellant and the trial court complied
with the mandates of Pa.R.A.P. 1925.
On appeal, appellant raises the following issues:
I. WHETHER THE SUPPRESSION COURT ERRED
IN DETERMINING THAT THE STOP OF THE
APPELLANT’S MOTOR VEHICLE WAS LAWFUL
AND; SUPPORTED BY PROBABLE CAUSE THAT
A VEHICLE CODE VIOLATION HAD OCCURRED;
OR REASONABLE SUSPICION THAT A VEHICLE
VIOLATION WAS ONGOING THAT REQUIRED
ADDITIONAL INVESTIGATION[?]
II. WHETHER THE SUPPRESSION COURT ERRED
IN ITS DETERMINATION THAT THE APPELLANT
WAS NOT UNLAWFULLY DETAINED WHEN HE
WAS IMMEDIATELY CUFFED UPON REMOVAL
FROM HIS MOTOR VEHICLE BY THE
PENNSYLVANIA STATE POLICE[?]
III. WHETHER THE SUPPRESSION COURT ERRED
IN ITS DETERMINATION THAT THE
PENNSYLVANIA STATE POLICE HAD
SUFFICIENT PROBABLE CAUSE TO PLACE THE
APPELLANT IN THE STATE POLICE CRUISER
AND TRANSPORT HIM FOR CHEMICAL
TESTING[?]
Appellant’s brief at 4-5.
Our scope and standard for reviewing an order denying a motion to
suppress is as follows:
-5-
J. A29006/15
We are limited to determining whether the lower
court’s factual findings are supported by the record
and whether the legal conclusions drawn therefrom
are correct. We may consider the evidence of the
witnesses offered by the Commonwealth, as verdict
winner, and only so much of the evidence presented
by defense that is not contradicted when examined
in the context of the record as a whole. We are
bound by facts supported by the record and may
reverse only if the legal conclusions reached by the
court were erroneous.
Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa.Super. 2006).
I.
First, appellant contends that the suppression court erred in
determining that the initial stop of his vehicle was lawful. He contends that
the troopers lacked probable cause to conclude that a vehicle code violation
was occurring.
In Pennsylvania, the authority that addresses the
requisite cause for a traffic stop is statutory and is
found at 75 Pa.C.S.A. § 6308(b), which provides:
(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.
-6-
J. A29006/15
75 Pa.C.S. § 6308(b). In Commonwealth v.
Feczko, 10 A.3d 1285 (Pa.Super.2010) (en banc),
this Court, consistent with our Supreme Court’s
clarification of constitutional principles under the
Fourth Amendment and Article I, Section 8 of the
Pennsylvania Constitution, stated with respect to
§ 6308(b):
In light of our Supreme Court’s
interpretation of the current language of
Section 6308(b), we are compelled to
conclude that the standards concerning
the quantum of cause necessary for an
officer to stop a vehicle in this
Commonwealth are settled;
notwithstanding any prior diversity on
the issue among panels of this Court.
Traffic stops based on a reasonable
suspicion: either of criminal activity or a
violation of the Motor Vehicle Code under
the authority of Section 6308(b) must
serve a stated investigatory purpose.
(footnote and citation omitted).
....
Mere reasonable suspicion will not justify
a vehicle stop when the driver’s
detention cannot serve an investigatory
purpose relevant to the suspected
violation. In such an instance, “it is
encumbent [sic] upon the officer to
articulate specific facts possessed by
him, at the time of the questioned stop,
which would provide probable cause
to believe that the vehicle or the
driver was in violation of some
provision of the Code.”
[Commonwealth v.] Gleason [567 Pa.
111], 785 A.2d [983,] 989 [(Pa.2001)]
(citation omitted) [superseded by
statute, Act of Sept. 30, 2003, P.L. 120,
No. 24, § 17 (amending 75 Pa.C.S.A.
§ 6308(b))].
-7-
J. A29006/15
Id. at 1290–1291 (emphasis added in Gleason).
Accordingly, when considering whether reasonable
suspicion or probable cause is required
constitutionally to make a vehicle stop, the nature of
the violation has to be considered. If it is not
necessary to stop the vehicle to establish that a
violation of the Vehicle Code has occurred, an officer
must possess probable cause to stop the vehicle.
Where a violation is suspected, but a stop is
necessary to further investigate whether a violation
has occurred, an officer need only possess
reasonable suspicion to make the stop.
Commonwealth v. Salter, 121 A.3d 987, 992-993 (Pa.Super. 2015)
(emphasis in original).
In this case, Trooper Cialella testified that he stopped appellant’s
vehicle because he observed appellant driving recklessly. 75 Pa.C.S.A.
§ 3736 provides:
Reckless driving. Any person who drives any
vehicle in willful or wanton disregard for the safety of
persons or property is guilty of reckless driving.
Appellant argues that doing donuts does not constitute “reckless
driving.” We disagree. Trooper Cialella testified that by doing donuts,
appellant was “a reckless danger to himself” and that “[h]e could have
flipped the vehicle.” (Transcript of proceedings, 5/16/14 at 18.) We agree
that operating one’s motor vehicle in such a manner as to intentionally lose
control of the vehicle, causing it to lose traction and repeatedly spin in
circles, constitutes reckless driving.
-8-
J. A29006/15
Based on the record of the suppression hearing, we conclude
Trooper Cialella was able to articulate specific facts possessed by him, at the
time of the questioned stop, which supported that he had probable cause to
conclude that appellant was in violation of Section 3736. Accordingly, we
find that the traffic stop of appellant’s vehicle was legal.
II.
Next, appellant contends once he was placed in handcuffs, he was
under arrest and any questioning under those circumstances should have
been preceded by Miranda warnings. Appellant argues that all evidence
obtained after his arrest should have been suppressed.
Statements made during custodial
interrogation are presumptively involuntary, unless
the accused is first advised of [his] Miranda rights.
Custodial interrogation is questioning initiated by law
enforcement officers after a person has been taken
into custody or otherwise deprived of [his] freedom
of action in any significant way. . . . Thus,
[i]nterrogation occurs where the police should know
that their words or actions are reasonably likely to
elicit an incriminating response from the suspect.
[I]n evaluating whether Miranda warnings were
necessary, a court must consider the totality of the
circumstances. . . .
Commonwealth v. Williams, 941 A.2d 14, 30 (Pa.Super. 2008) (en banc)
(citations and quotation marks omitted).
Not every time an individual is placed in handcuffs is the functional
equivalent of an arrest. See Commonwealth v. Rosas, 875 A.2d 341, 348
(Pa.Super. 2005) (“[P]olice officers may handcuff individuals during an
-9-
J. A29006/15
investigative detention.”); Commonwealth v. Guillespie, 745 A.2d 654,
660-661 (Pa.Super. 2000). It is not the subjective view of the police officer
that controls in determining whether an individual is in custody; rather, it is
an objective test, i.e., viewed in the light of the reasonable impression
conveyed to the person subjected to the seizure rather than the strictly
subjective view of the officers or the persons being seized.
Commonwealth v. Douglass, 539 A.2d 412, 419 (Pa.Super. 1988). An
arrest is an act that indicates an intention to take a person into custody or
that subjects the person to the will and control of the person making the
arrest. Commonwealth v. Lovette, 450 A.2d 975, 978 (Pa. 1982).
In assessing whether a detention is too long in
duration to be justified as an investigative stop, we
consider it appropriate to examine whether the
police diligently pursued a means of investigation
that was likely to confirm or dispel their suspicions
quickly, during which time it was necessary to detain
the [appellees]. A court making this assessment
should take care to consider whether the police are
acting in a swiftly developing situation, and in such
cases the court should not indulge in unrealistic
second guessing.
Commonwealth v. Mayo, 496 A.2d 824, 826 (Pa.Super. 1985).
During an investigative detention, a suspect may legally be placed in
handcuffs in order for the police to maintain control and safety for all
involved. “It is well-established that ‘when an officer detains a vehicle for a
violation of a traffic law, it is inherently reasonable that he or she be
concerned with safety and, as a result, may order the occupants out of the
- 10 -
J. A29006/15
vehicle to alight from the car.’” Commonwealth v. Rosa, 734 A.2d 412,
414 (Pa.Super. 1999). Further, for their safety, police officers may handcuff
individuals during an investigative detention. Guillespie, 745 A.2d at
660-661 (act of handcuffing suspects during investigatory detention was
merely part and parcel of ensuring the safe detaining of individuals during
the lawful Terry4 stop and did not constitute an arrest).
Here, Trooper Cialella testified that he considered the encounter to be
a “high risk” stop. After the troopers activated their overhead lights,
appellant ignored the troopers and continued to drive to a dark and isolated
location even though there were places to pull over on the side of Golden
Lane. According to Trooper Cialella, the troopers grew increasingly more
concerned for their safety as the appellant continued to fail to respond to
their signal to stop and began to wave his hands out the window in some
sort of undiscernible signal to the troopers. After the stop, the troopers
found a large knife on appellant. He was then handcuffed.
We agree with the suppression court that placing appellant in
handcuffs during the detention was lawful and did not constitute an arrest.
III.
In his final issue, appellant contends that the suppression court erred
in determining that Trooper Cialella had sufficient probable cause to place
appellant in the police cruiser and transport him for chemical testing.
4
Terry v. Ohio, 392 U.S. 1 (1968).
- 11 -
J. A29006/15
Appellant claims that police cannot request chemical testing pursuant to
75 Pa.C.S.A. § 1547 for an alcohol-based DUI based solely on the smell of
alcohol. Commonwealth v. Rosko, 509 A.2d 1289 (Pa.Super. 1986).
Appellant contends that the only basis for the transport for chemical testing
was the faint smell on appellant’s breath. He contends that there were no
other indicia of impairment, such as slurred speech, staggering gait, or
glassy bloodshot eyes, which gave the troopers probable cause to arrest
him.
In order for an individual to be placed under arrest and transported for
chemical testing, an officer must have probable cause to believe the driver
has been driving under the influence of alcohol or a controlled substance.
Commonwealth v. Angel, 946 A.2d 115, 118 (Pa.Super. 2008) (en banc).
Probable cause to arrest exists when the facts and
circumstances within the police officer’s knowledge
and of which the officer has reasonably trustworthy
information are sufficient in themselves to warrant a
person of reasonable caution in the belief that an
offense has been committed by the person to be
arrested.
Commonwealth v. Dommel, 885 A.2d 998, 1002 (Pa.Super. 2005),
appeal denied, 920 A.2d 831 (Pa. 2007). “Probable cause justifying a
warrantless arrest is determined by the ‘totality of the circumstances.’” Id.
“[P]robable cause does not involve certainties, but rather ‘the factual and
practical considerations of everyday life on which reasonable and prudent
[persons] act.’” Id. Further, “a police officer may utilize both his
- 12 -
J. A29006/15
experience and personal observations to render an opinion as to whether a
person is intoxicated.” Commonwealth v. Kelley, 652 A.2d 378, 382
(Pa.Super. 1994), citing Commonwealth v. Bowser, 624 A.2d 125
(Pa.Super. 1993).
Here, the trial court found, based on the totality of the circumstances,
that Trooper Cialella had the quantum of evidence required to support the
probable cause standard to arrest appellant for DUI. We agree with the trial
court. Trooper Cialella testified that he observed appellant driving recklessly
at 3:30 a.m., doing donuts in the church parking lot, that appellant did not
immediately pull his vehicle over in response to the trooper’s signals, and
that he was waving his hands out the window as he was driving.
Trooper Cialella smelled alcohol on appellant’s breath. When
Trooper Cialella asked appellant if he was drinking, appellant admitted that
he had a few drinks. Based upon the foregoing, we find there was probable
cause to arrest appellant for DUI under the totality of the circumstances.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/7/2016
- 13 -