J-S18013-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
MALIK MERCADO
No. 1444 EDA 2016
Appeal from the Order Entered April 18, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): MC-51-CR-0023918-2015
BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.*
MEMORANDUM BY PANELLA, J. FILED April 25, 2017
On August 1, 2015, Appellee Malik Mercado was stopped at a sobriety
checkpoint on East Allegheny Avenue in the 25th Police District in
Philadelphia. The police officers operating the checkpoint arrested him and
charged him with driving while under the influence of marijuana (“DUI”). The
Philadelphia Court of Common Pleas affirmed the Philadelphia Municipal
Court’s conclusion that the DUI checkpoint was unconstitutional and
suppressed the evidence gathered from the stop. The sole issue in this
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S18013-17
Commonwealth appeal1 is whether the police chose the location of the DUI
checkpoint in compliance with the Tarbert/Blouse2 guidelines and the body
of law contained in this Court’s application of those guidelines. After careful
review, we affirm.
The Commonwealth contends that the Court of Common Pleas erred in
its application of the Tarbert/Blouse guidelines.
When the Commonwealth appeals from a suppression order, this
Court may consider only the evidence from the defendant’s
witnesses together with the evidence of the prosecution that,
when read in the context of the record as a whole, remains
uncontradicted. In our review, we are not bound by the
suppression court’s conclusions of law, and we must determine if
the suppression court properly applied the law to the facts. We
defer to the suppression court’s findings of fact because, as the
finder of fact, it is the suppression court’s prerogative to pass on
the credibility of the witnesses and the weight to be given to
their testimony.
Commonwealth v. Myers, 118 A.3d 1122, 1125 (Pa. Super. 2015)
(citation omitted).
The Tarbert/Blouse guidelines were promulgated to allow the
government to pursue its legitimate interest in preventing the “carnage”
caused by DUI, Tarbert, 535 A.2d at 304 (citation omitted), while
protecting “the individual from arbitrary invasions at the unfettered
____________________________________________
1
The Commonwealth certified in its notice of appeal that the suppression
order would terminate or substantially handicap the prosecution of Mercado,
thereby perfecting our jurisdiction under Pa.R.A.P. 311(d).
2
Commonwealth v. Tarbert, 535 A.2d 1035 (Pa. 1987) and
Commonwealth v. Blouse, 611 A.2d 1177 (Pa. 1992).
-2-
J-S18013-17
discretion of the officers in the field,” Blouse, 611 A.2d at 1178 (citation
omitted). The guidelines set forth five general requirements that the
Commonwealth must establish substantial compliance with in order to
ensure the constitutionality of a DUI checkpoint. See Commonwealth v.
Garibray, 106 A.3d 136, 140 (Pa. Super. 2014) (en banc). Here, only one
part of the fourth requirement, that the choice of location for the checkpoint
be based on experience as to where intoxicated drivers are likely to be
driving, is at issue.
The essential facts of this case are undisputed and may be
summarized as follows. The 25th Police District of Philadelphia suffered the
highest number of DUI arrests in the city during the years 2013 and 2014.
See N.T., Suppression hearing, 1/7/16, at 24, 29-32. The district covers
approximately 2.3 square miles. See id., at 30. The data used by the police
in this case was not broken down further to specific locations or streets
within the district. See id.
Reacting reasonably to this data, the police sought to curb DUI in this
district by establishing a DUI checkpoint. See id., at 29. Complicating
matters was the fact that a checkpoint requires a large operation, involving
“18 police officers, two police cruisers and one large processing center. It’s
about the size of a firetruck.” Id., at 25. As a result, the police were also
reasonably concerned with safety considerations, ruling out smaller, more
residential side streets. See id.
-3-
J-S18013-17
The Court of Common Pleas concluded that under Commonwealth v.
Blee, 695 A.2d 802 (Pa. Super. 1997), and Garibray, the police had not
provided sufficient evidence to prove that “the DUI checkpoint in question
substantially complied with the Tarbert/Blouse location requirement
because” the evidence was not specific to the location of the DUI checkpoint.
See Trial Court Opinion, 7/6/16, at 6. It therefore affirmed the Municipal
Court’s order that found the stop unconstitutional.
On appeal, the Commonwealth argues that the Court of Common Pleas
misapplied Blee and Garibray.3 The Commonwealth believes that
Commonwealth v. Fioretti, 538 A.2d 570 (Pa. Super. 1988), is controlling.
After reviewing these cases, we agree with the Court of Common Pleas that
there is significant unresolved tension between the holdings of Blee and
Fioretti.
In Fioretti, a panel of this Court was presented with circumstances
similar to the present case. The appellant was one of several defendants
who had been arrested at a DUI checkpoint in Williamsport. The location for
the checkpoint had been chosen after determining that the thirteenth (of
fifteen) police district in Williamsport had been the location of a high number
____________________________________________
3
The Commonwealth also argues that the stop was voluntary. While there
was testimony to support this position, our review of the record reveals that
the Commonwealth never presented this argument to the Court of Common
Pleas or the Municipal Court. It is therefore waived for purposes of appeal.
See Pa.R.A.P. 302(a).
-4-
J-S18013-17
of DUI arrests over a recent six-month period. See Fioretti, 538 A.2d at
576. However, the specific location within the thirteenth district had been
chosen “for its safety features[.]” Id., at 576-577.
The suppression court held that the checkpoint did not comply with the
Tarbert guidelines. The Fioretti panel disagreed, noting that “the location
of the roadblock was chosen based on a statistical analysis of which district
had the highest number of [DUI] arrests or accidents[.]” Id., at 549. It
therefore reversed the suppression order and remanded for further
proceedings.
Similarly, the Blee panel reviewed the placement of a DUI checkpoint
in Luzerne County. It summarized the relevant evidence as follows:
Deputy Chief William Barrett of the Wilkes-Barre Police
Department testified that he was responsible for determining the
site of the checkpoint. He decided to locate the checkpoint on
Route 11 approximately one-quarter mile south of Main Street,
near the shopping center in Edwardsville. In making this
decision, Deputy Chief Barrett considered motorist safety, traffic
volume, availability of lighting and whether motorists would have
ample opportunity to avoid the checkpoint if they so desired. He
also testified that he reviewed studies from the Pennsylvania
Department of Transportation (PennDOT) regarding DUI arrests
and DUI-related accidents in Luzerne County during the years
1989 through 1994. These studies were introduced into evidence
and made a part of the record. On cross-examination, [he]
admitted that the studies were not specific to DUI-related
accidents and arrest at the particular location of the sobriety
checkpoint, that is, Route 11 in Edwardsville. Rather, the studies
provided general information indicating the number of DUI-
related accidents and arrests in Luzerne County, the
municipalities located in Luzerne County and the roads bordering
Luzerne County. Specifically, the studies indicated that, among
the roads in Luzerne County, Route 11 had the second highest
incidence of alcohol-related accidents, and that, among the
-5-
J-S18013-17
municipalities in Luzerne County, Edwardsville had one of the
highest incidence of alcohol-related accidents.5
5
Deputy Chief Barrett testified that from 1989 through
1994 there were 185 alcohol related accidents on Route 11
in Luzerne County, which is approximately thirty-eight miles
in length. He also testified that there were forty-one alcohol
related accidents in the Borough of Edwardsville, which
contains numerous roads.
695 A.2d at 804 (citations omitted).
In contrast to Fioretti, the Blee panel concluded that the
Commonwealth had failed to establish compliance with the Tarbert/Blouse
guidelines.
While Deputy Chief Barrett testified concerning the number of
alcohol-related accidents on Route 11 in Luzerne County and the
number of alcohol-related accidents in Edwardsville, Luzerne
County, he never testified as to the number of alcohol-related
accidents and/or arrests on Route 11 in Edwardsville, the specific
location of the sobriety checkpoint. … 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.
Id., at 805-806.
We are thus left with one precedent, Fioretti, that held that the
localization requirement was satisfied by data covering one of fifteen police
districts in Williamsport, and another, Blee, that held that the localization
requirement was not satisfied by data covering a small borough outside of
Wilkes-Barre. The Commonwealth attempts to distinguish Blee from
Fioretti by formulating a rule whereby police districts are sufficiently
localized, while an entire municipality is not.
-6-
J-S18013-17
However, the Commonwealth’s distinction does not hold up under
review of the status or size of Edwardsville Borough when compared to the
25th police district in Philadelphia. First, it is clear from Blee that
Edwardsville Borough was only a portion of a larger whole covered by the
Wilkes-Barre Police Department. Thus, Edwardsville Borough is more like the
police district at issue in Fioretti than the Commonwealth’s argument
admits.
This becomes even more obvious in light of the size of the
administrative units at issue. Edwardsville Borough covers approximately 1.2
square miles. See About Edwardsville Borough, available at
http://www.edwardsvilleborough.com/, retrieved 3/21/17. While there is no
indication of the size of the 13th police district in Fioretti, the Williamsport
Police Department covers approximately 9 square miles total. See
Williamsport Bureau of Police, available at
http://williamsportpd.org/Pages/Home.aspx, retrieved 3/22/17. It is
therefore unlikely that the 13th district at issue in Fioretti was significantly
larger than the 1.2 square miles contained in Edwardsville Borough. By way
of comparison, the 25th police district at issue in the present case covers
approximately 2.3 square miles. See N.T., Suppression Hearing, 1/7/16, at
30.
We therefore agree with the Court of Common Pleas that Blee is not
easily distinguishable. We therefore turn to this Court’s most recent
-7-
J-S18013-17
application of the Tarbert/Blouse guidelines. In a decision published after
the parties submitted their principal briefs in this case, a panel of this Court
reviewed a suppression order that required the Commonwealth to present
evidence of arrests or accidents “at the exact spot of the checkpoint.”
Commonwealth v. Menichino, 2017 WL 281930, at *4, ___ A.3d ___ (Pa.
Super. 2017).
The Menichino panel rejected this argument, holding that “under
current law, the specific location of the checkpoint is the area where the
checkpoint is located, not the exact block/location of the checkpoint.” Id.
Thus, in the case before it, evidence that 44 out of a total of 94 DUI arrests
on State Route 18 occurred within the city of Hermitage was sufficient to
satisfy the localization requirement of Tarbert/Blouse. See id.
Here, the Court of Common Pleas noted that the Commonwealth’s
evidence only addressed a 2.3 square mile area. It therefore reasoned that
“it does not logically follow that any route selected within a police district
with a relatively high number of DUI-related incidents will be a route that is
likely to be travelled by intoxicated drivers[.]” Trial Court Opinion, 7/6/16, at
6 (quotation marks omitted). We agree that, under the specific
circumstances of this case, the Commonwealth failed to establish that
Allegheny Avenue in the 25th Police District was a route likely to be travelled
by intoxicated drivers. 2.3 square miles within the City of Philadelphia is not
sufficiently localized to constitute substantial compliance with the
-8-
J-S18013-17
Tarbert/Blouse guidelines. While certainly not the only method to obtain
compliance, evidence of DUI arrests on Allegheny Avenue within the 25th
district would have been sufficient. But the Court of Common Pleas did not
err in concluding that the evidence presented here was insufficient.
Accordingly, we affirm the suppression order.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/25/2017
-9-
Com. v. Mercado, M.
Combined Opinion