Commonwealth v. Slovikosky

WIEAND, Judge,

dissenting:

I respectfully dissent. In my judgment, this appeal is jurisdictionally proper and should be considered on its merits. Moreover, because the trial court erred in sustaining Slovikosky’s appeal from a summary conviction, I would reverse and remand for further proceedings.

Ronald F. Slovikosky, while driving a Mack truck, was stopped by Trooper R.K. McDowell of the Pennsylvania State Police, and his truck was weighed. It was found to be overweight by 3500 lbs. After Slovikosky had been found guilty of violating 75 Pa.C.S. § 4941(a) before a district justice, he appealed to the court of common pleas. There, he filed a pre-trial motion to suppress evidence of the weight of his vehicle on grounds that he had been subjected to an illegal search and seizure. After hearing, the trial court entered an order as follows:

AND NOW, on this 23rd day of March, 1987, after consideration of the briefs and arguments of counsel, it is hereby ORDERED that the Motion to Suppress filed on *448behalf of the defendant is GRANTED and the Appeal from Summary Conviction is SUSTAINED.

This order, in my judgment, has effectively terminated any further prosecution. It has not only suppressed the evidence of Slovikosky's alleged violation, but it has also put the Commonwealth out of court by sustaining the appeal and dismissing the prosecution. Because this is a final order, I would hold that the Commonwealth’s appeal is jurisdictionally proper and review the merits of the trial court’s order which sustained the defendant’s appeal and dismissed the prosecution.

This order was entered before jeopardy had attached. It dismissed the prosecution prior to trial for legal reasons not directly concerned with guilt or innocence. Therefore, it was not the same as an acquittal or a finding of “not guilty.” An appeal by the Commonwealth from such an order is not barred by principles of double jeopardy. See: Commonwealth v. Wimberly, 488 Pa. 169, 411 A.2d 1193 (1980); Commonwealth v. Adams, 349 Pa.Super. 200, 502 A.2d 1345 (1986); Commonwealth v. Dincel, 311 Pa.Super. 470, 457 A.2d 1278 (1983).

The trial court suppressed evidence that appellee’s truck was overweight because it determined that the police had not been “engaged in a systematic program of checking vehicles” and, therefore, had subjected Slovikosky to an unreasonable search and seizure.

In Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), the United States Supreme Court held that if police are given unrestrained discretion as to whom to stop, the stopping of a vehicle for a license check is a violation of the driver’s Fourth Amendment right to be free of unreasonable searches and seizures and, therefore, is constitutionally impermissible. The Court implied, however, that methods for spot checks which did not involve unconstrained exercise of discretion would be permissible. The Supreme Court of Pennsylvania reached a similar conclusion and sounded a similar caveat in Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973). Its decision, it *449said, “should not be read as applicable to systematic stops or roadblocks for detection of Motor Vehicle Code violations.” Id., 453 Pa. at 110 n. 3, 307 A.2d at 877 n. 3.

Article I, Section 8 of the Pennsylvania Constitution also contains language which is intended to protect citizens against unreasonable searches and seizures. Reasonableness under this constitutional guarantee is to be determined in cases of this nature by a “balancing of interests approach.” Commonwealth v. Tarbert, 517 Pa. 277, 535 A.2d 1035 (1987). See also: Commonwealth v. Johnston, 515 Pa. 454, 530 A.2d 74 (1987).

In conducting a balancing of interests approach in the instant case, we must remember that we are dealing with heavy trucks which are subject to greater governmental regulation than automobiles because of their burden and heightened danger to the highway system. We must, then, balance the rights of the operators of commercial trucks against the expressed governmental interest in maintaining a safe system of highways. Commonwealth v. Berry, 305 Pa.Super. 8, 14, 451 A.2d 4, 7 (1982).

Consistently with these decisions, the legislature in Pennsylvania has authorized police officers, when “engaged in a systematic program of checking vehicles or drivers,” to stop vehicles to obtain information necessary to enforce provisions of the Vehicle Code. 75 Pa.C.S. § 6308(b). A systematic program for weighing trucks, I would hold, is minimally intrusive and does not constitute an unreasonable search and seizure.

It remains to be determined whether the state police in this case were engaged in a systematic program for checking weights of trucks or whether the program permitted an unrestrained exercise of discretion by the police regarding those trucks to be weighed. In the instant case, the pattern was to stop two trucks and cause them to be weighed. In the meantime, other trucks were permitted to proceed. When the first two trucks had been weighed and had continued on their ways, the police stopped two additional *450trucks. While these vehicles were being weighed, traffic again flowed uninterrupted.

The trial court found that this system permitted the police to exercise an unrestrained discretion and, therefore, that the weighing of selected trucks was an unreasonable search and seizure. In doing so, the trial court relied upon this Court’s decision in Commonwealth v. Tarbert, 348 Pa.Super. 306, 502 A.2d 221 (1985), which held constitutionally impermissible all police roadblocks which stopped vehicles travelling on a public highway for the purpose of determining whether the drivers were under the influence of alcohol. This holding, however, was reversed by the Supreme Court, which held that “a drunk-driver roadblock conducted substantially in compliance with [enumerated] guidelines would reduce the intrusiveness to a degree which, when balanced against the public interest in apprehending such drivers, would not violate Article I, Section 8 of the Pennsylvania Constitution.” Commonwealth v. Tarbert, supra 517 Pa. at 293, 535 A.2d at 1043.

In Wysocki v. PennDOT, 91 Pa.Commw. 42, 496 A.2d 897 (1985), affirmed on different grounds, 517 Pa. 175, 535 A.2d 77 (1987), the police had stopped all cars going in both directions on a highway to check for intoxication until all troopers had become occupied; and, thereafter, those cars not stopped were allowed to pass undisturbed. The Commonwealth Court held that such a system was regular, methodical, and left nothing to the discretion of the police. Therefore, the Court concluded, the program was constitutionally permissible.

“It cannot be doubted that the police powers of this Commonwealth are particularly broad in matters pertaining to highway safety.” Commonwealth v. Tarbert, supra 517 Pa. at 297, 535 A.2d at 1045. When the interest of the Commonwealth in maintaining safe highways is balanced against the interests of commercial truckers in the unimpeded use of those highways, I would hold, as did the Commonwealth Court, that a system which weighs all approaching trucks until the officers are occupied, while unstopped *451trucks are allowed to proceed, is minimally intrusive and not a violation of constitutional safeguards against unreasonable searches and seizures.

I would reverse and remand for further proceedings.