Martin v. Commonwealth, Department of Transportation, Bureau of Driver Licensing

*987Dissenting Opinion by

President Judge COLINS.

I must vigorously dissent from the well-written opinion of the majority, as it seems we are coming perilously close to turning a blind eye to questionable conduct by our police officers. While I acknowledge that our police officers are charged with the awesome and sometimes onerous responsibility of protecting the public, I cannot sanction the whisperings of the majority that that protection comes at the deprivation of the constitutional rights of citizenship. We do not want a police state, and it seems we are on the precipice of becoming one, in the name of DUI. I suggest that the Court, and the police, can ill afford to sanction this type of conduct.

The facts here are like those of so many other cases. In the early morning hours of November 27, 2003, Officer Sollenber-ger of the Hampden Township Police saw a vehicle driving in front of his marked police cruiser on Trindle Road in Hamp-den Township. For no cause other than that Officer Sollenberger felt that the car was driving at a rate of speed above the 40-miles-per-hour limit posted for the road, he followed the vehicle at a steady distance for 100 yards. Based on his own speedometer reading, he clocked its speed at 58 miles per hour. The vehicle reduced its speed and while still on Trindle Road, entered the separate jurisdiction of the Borough of Camp Hill. After properly signaling, the driver made a wide right turn, avoiding several large potholes, onto April Drive, a two-lane unmarked side street in Camp Hill. Officer Sollenberger did not notice the potholes in the road at the time of the stop, but Martin produced photos and testimony at trial to show that a wide turn was necessary to avoid the potholes at that intersection. Officer Sollenberger’s and Martin’s vehicles were the only traffic on the road at the time. Martin then continued on April Drive in the right lane, and as Officer Sollenberger turned on his lights to initiate a traffic stop, Martin stopped in front of 202 April Drive, Martin’s residence. At this point, Officer Sol-lenberger was outside of his primary jurisdiction and had no probable cause to issue a ticket for any violations of the vehicle code or otherwise make an arrest.

After the vehicle stopped, Martin got out of her car. Officer Sollenberger also got out of his cruiser and requested that Martin return to her vehicle. She did. Officer Sollenberger then requested that Martin produce her license and vehicle registration. She did. Officer Sollenber-ger detected an odor of alcohol from the vehicle and noticed that Martin had bloodshot eyes and slurred speech. Officer Sol-lenberger requested that Martin get out of her vehicle, at which point, he noticed the smell of alcohol emanating from Martin. Martin admitted to having had two glasses of wine, one at 10 P.M. and another at 12 A.M. Officer Sollenberger asked Martin to perform field sobriety tests, and in response she started to walk to her house. Officer Sollenberger told her to stop, but she kept going. He took hold of Martin and arrested her for driving under the influence and had to physically place her in the police cruiser. He drove her to the booking center where he informed her of the Implied Consent Law1 and asked her *988to supply a breath test. Martin refused to provide two good breath tests.

There is no dispute as to whether Martin was arrested for driving under the influence, nor is there a dispute as to whether she refused chemical testing. The sole issue in this case is whether Officer Sollenberger had extraterritorial jurisdiction when he stopped and arrested Martin in the Borough of Camp Hill qualifying Officer Sollenberger as a “police officer” for purposes of the Implied Consent Law.

In disagreeing with the majority on this issue, I do not question the officer’s diligence, nor his honor and integrity in protecting the community. I do, however, challenge the methodology. The majority sanctions the conduct of Officer Sollenber-ger and rather glibly admits that they would sanction such conduct even if the officer’s conduct were not authorized by the law known as the Municipal Police Jurisdiction Act (MPJA), 42 Pa.C.S. §§ 8951-8954.2 This, despite the majority’s position that the MPJA controls the issue of Officer Sollenberger’s authority to act extraterritorially. Thus, I lay the blame at our door for allowing this conduct to escalate.

For purposes of the Implied Consent Law at issue here, the Vehicle Code at Section 102 defines “police officer” as “[a] natural person authorized to make arrests for violations of law.” 75 Pa.C.S. § 102. Officer Sollenberger was operating outside his primary jurisdiction of Hampden Township. In determining whether Officer Sollenberger was authorized to make an arrest in the Borough of Camp Hill, this Court must follow the direct precedent of McKinley IV.3 as handed down by the Pennsylvania Supreme Court, concerning the ability of limited jurisdiction police officers to act in implementation of the Implied Consent Law. McKinley v. Department of Transportation, Bureau of Driver Licensing, 576 Pa. 85, 838 A.2d 700 (2008) (McKinley IV). In discussing limited jurisdiction police officers, the Supreme Court stated that “as the Legislature has circumscribed their police authority, we hold that they lack the ability to act as police officers in implementation of the Implied Consent Law outside territorial boundaries, in the absence of an express, legislative grant of extraterritorial authority.” 576 Pa. at 94, 838 A.2d at 706. The Legislature has expressly addressed the extraterritorial authority of municipal police officers.4 This express grant of extraterritorial jurisdiction for municipal police officers has already been noted by this Court in Stein, which distinguishes the respective statutory grants of authority of municipal officers from those of the airport police officers that were addressed in our Supreme Court’s holding in McKinley IV. Stein v. Department of Transportation, *989Bureau of Driver Licensing, 857 A.2d 719, 726 (Pa.Cmwlth.2004).5 Under the facts of the present case, I conclude that none of the circumstances outlined in 42 Pa.C.S. § 8953(a) apply to Officer Sollenberger’s actions. We agree with the trial court that Officer Sollenberger witnessed no violations of the Vehicle Code while within his primary jurisdiction of Hampden Township. Officer Sollenberger did not get a valid speedometer clock of Martin’s vehicle because, as Officer Sollenberger testified, he clocked Martin’s car for only 100 yards. The Vehicle Code at 75 Pa.C.S. § 3368(a) requires that for a speedometer clock to be valid the vehicle’s speed must be measured “for a distance of not less than three-tenths of a mile.” Commonwealth v. Whitmyer, 542 Pa. 545, 668 A.2d 1113 (1995) (Pennsylvania Supreme Court held clocking for two-tenths of a mile insufficient to constitute probable cause of a speeding violation). All other driving and conduct of Martin witnessed by Officer Sollenberger took place outside his primary jurisdiction, where he lacked authority to make an arrest. Martin’s arrest for driving under the influence was also made ■without the requisite authority. Consequently, Martin’s refusal to submit to chemical testing was a legal nullity and the Implied Consent Law does not apply. Snyder v. Commonwealth, 163 Pa.Cmwlth. 178, 640 A.2d 490 (1994).

I hesitantly reference the criminal law’s “fruit of the poisonous tree” doctrine, as I must acknowledge that license suspension proceedings are civil in nature. However, as stated by our Superior Court in Commonwealth v. Scattone, 448 Pa.Super. 533, 672 A.2d 345, 348 n. 5 (1996),

[a] police stop of a motorist without probable cause or articulable suspicion of criminal activity would taint the seizure of evidence as “fruit of the poisonous tree” and render it suppressible. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Commonwealth v. Epoca, 447 Pa.Super. 183, 668 A.2d 578 (1995); and Commonwealth v. Dennis, 289 Pa.Super. 305, 433 A.2d 79 (1981). Thus, the police are not given carte blanche to stop indiscriminately all motorists without sacrificing the suppression of evidence seized as a result of an unlawful stop.

In this case, I believe the officer’s stop was indiscriminate, and as such, the officer lacked reasonable grounds to stop the vehicle. For the foregoing reasons I would affirm the trial court.

Accordingly, I respectfully dissent.

. The Implied Consent Law at Section 1547(a) of the Vehicle Code, 75 Pa.C.S. § 1547(a), states in relevant part: “Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of the blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been *988driving, operating or in actual physical control of the movement of a vehicle....” Further, Section 1547(b)(i) states in relevant part: "If any person placed under arrest for a violation of section 3802 [formerly Section 3731 relating to driving under the influence of alcohol or other controlled substance] is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person ... for a period of 12 months.” 75 Pa.C.S. § 1547(b)(i)

. "We would reach the same result even if Officer Sollenberger’s conduct was not technically authorized under the MPJA.” Majority Opinion, at footnote 7.

. The majority contends that McKinley IV has no application here. Nevertheless, the majority attempts to find the express legislative grant of authority that McKinley mandates.

. Judicial Code, 42 Pa.C.S. § 8953(a) and (b).

. Specifically, based on the facts in Stein, this Court noted that Section 8953(a) of the Judicial Code grants municipal police officers jurisdiction to enforce the laws of the Commonwealth beyond their primary jurisdiction in the following circumstances: where the officer is in hot pursuit; where the officer has obtained the prior consent of the chief law enforcement officer, or person authorized by him to give consent, of the recognized law enforcement agency that provides primary police services to political subdivision; and where the officer is on official business and views an offense or has probable cause to believe that an offense has been committed.