Commonwealth of Pennsylvania, v. Joe Richard Weaber

Commonwealth of Pennsylvania, v. Joe Richard Weaber

 

Criminal Action-Constitutional Law-Driving Under the Influence-Omnibus Pretrial Motion-Suppression of Evidence-Vehicle Stop-Probable Cause-Driving on Roadways Laned for Traffic-Warrantless Arrest-Search Warrant for Blood Draw-Investigative Detention-Rights pursuant to Miranda v. Arizona

 

Joe Richard Weaber (“Defendant”) was charged with Driving Under the Influence and summary offenses including Driving on Roadways Laned for Traffic after a vehicle stop before which his vehicle swerved back and forth between the yellow and the white lines within its lane and stopped completely on the shoulder of the road for an extended period of time.  During the traffic stop, Defendant stared ahead, appeared lethargic and underwent field sobriety testing suggestive of intoxication or impairment.  Defendant refused examination by a drug recognition expert and consent to perform blood testing or a search of the vehicle.  Defendant filed an Omnibus Pretrial Motion to Suppress Evidence on the basis that law enforcement lacked reasonable suspicion or probable cause to initiate the traffic stop, lacked probable cause to arrest him for Driving Under the Influence and to apply for a search warrant for blood draw and violated his rights under the protections embodied in Miranda v. Arizona, 384 U.S. 436 (1966).

 

1. Law enforcement officers need only reasonable suspicion to effectuate a traffic stop for a violation of the Pennsylvania Vehicle Code.

 

2. For a violation of the summary offense of Driving on Roadways Laned for Traffic, Title 75 Pa.C.S. § 3309(1), a law enforcement officer must possess probable cause to justify a traffic stop.

 

3. Probable cause is determined by evaluating whether the facts and circumstances within the knowledge of the officer at the time of the arrest are sufficient to warrant a person of reasonable caution in the belief that the suspect has committed or is committing a crime.

 

4. Where the evidence establishes that Defendant made a very wide turn and traveled over fog lines during the turn, the vehicle swerved back and forth from the double yellow to the fog lines, the vehicle traveled onto the shoulder of the road and Defendant delayed pulling over his vehicle after activation of the lights and siren of the patrol vehicle, law enforcement possessed probable cause to suspect a violation of § 3309(1).

 

5. A law enforcement officer possesses probable cause to make a warrantless arrest where the officer has knowledge of sufficient facts and circumstances to warrant a prudent person to believe that the driver has been driving under the influence of alcohol or a controlled substance.

 

6. In light of the fact that the record establishes that numerous indicia were present suggesting intoxication or impairment including the claimant’s stare and lethargy, the quality of Defendant’s voice and the results of field sobriety tests, probable cause existed to justify a warrantless arrest for Driving Under the Influence and an application for a search warrant for blood draw.

 

7. Traffic stops are investigative detentions that do not require the issuance of warnings pursuant to Miranda v. Arizona.

 

8. Since the traffic stop at issue was an investigative detention during which Defendant was asked basic questions and was not deprived of his physical freedom in any way, law enforcement was not required to issue warnings to Defendant pursuant to Miranda v. Arizona.

 

L.C.C.C.P. No. CP-38-CR-0001052-2021, Opinion by John C. Tylwalk, President Judge, March 23, 2022.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CRIMINAL DIVISION

 

COMMONWEALTH OF PENNSYLVANIA        :         NO. CP-38-CR-1052-2021

:

1. :

:

JOE RICHARD WEABER                                   :

 

ORDER OF COURT

 

AND NOW, this 23rd day of March, 2022, upon consideration of Defendant’s Omnibus Pretrial Motion to Suppress Evidence, the evidence adduced at the hearing conducted on January 19, 2022, and the Briefs submitted by the parties, it is hereby Ordered that said Motion is DENIED.  Defendant is directed to appear at the Call of the List scheduled for April 5, 2022 and the Term of Criminal Jury Trials to commence on April 18, 2022 at 8:30 a.m. in the designated Courtroom.

BY THE COURT:

 

                                                          _____________________________, P.J.

                                                          JOHN C. TYLWALK

 

JCT/jah

 

Cc:  Courtney McMonigle, Esquire/Assistant District Attorney

        Public Defender

        Leslie Fillak/Court Administration

        Judith Huber, Esquire/Law Clerk

 

 

 

 

 

 

 

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CRIMINAL DIVISION

 

COMMONWEALTH OF PENNSYLVANIA        :         NO. CP-38-CR-1052-2021

:

1. :

:

JOE RICHARD WEABER                                   :

 

APPEARANCES:

 

COURTNEY MCMONIGLE, ESQUIRE           FOR THE COMMONWEALTH

ASSISTANT DISTRICT ATTORNEY

 

DALIA ABORAYA, ESQUIRE                          FOR JOE RICHARD WEABER

ASSISTANT PUBLIC DEFENDER

 

OPINION, TYLWALK, P.J., MARCH 23, 2022.

 

Defendant is charged with one count of DUI – Schedule I Controlled Substance, one count of DUI – Schedule II or III Controlled Substance, one count of Possession of Heroin, 2^nd offense, one count of Possession of Methamphetamine, 2^nd offense[1] and the summary offenses of Driving While Operating Privilege is Suspended or Revoked, Driving on Roadways Laned for Traffic, Careless Driving, and Carrying and Exhibiting Driver’s License on Demand[2] as the result of a traffic stop on May 22, 2021 in Union Township, Lebanon County.  He has filed an Omnibus Pretrial Motion to Suppress Evidence obtained by the police as the result of the stop.  We conducted a hearing on the Motion on January 19, 2022. The transcript of the hearing has been lodged, the parties have filed post-hearing Briefs, and the matter is now before us for disposition.

The evidence adduced at the hearing established that Trooper Tristan Shoopack of the Pennsylvania State Police Barracks at Jonestown was on duty on May 22, 2021 in Union Township, Lebanon County.  At the intersection of Route 72 and Jonestown Road, he observed a silver Nissan Altima stopped at the traffic light in the left-hand turn lane.  Trooper Shoopack was directly behind the Nissan in his police vehicle.  Trooper Shoopack testified that he noticed the Nissan make a very wide left-hand turn, going over the white fog line as he turned.  As he proceeded on Jonestown Road, the vehicle kept going back and forth from the double yellow lines to the white fog line.  The passenger-side tires remained on the white fog lines several times.

The Commonwealth presented an MVR video from Trooper Shoopack’s police vehicle.  (Exhibit “1”) The video was two minutes long and showed the Nissan in the left turn lane of Route 72 North at the light at Jonestown Road.  Trooper Shoopack pointed out that the vehicle made the wide left-hand turn, went over the fog line and failed to stay within its lane.  The Nissan was continually going back and forth, touching the yellow line and then to the shoulder of the roadway, touching the white line.  As the Nissan progressed, it continued to swerve within its lane.  At several points, the passenger-side tires were on the white line.  After the Nissan was completely on the shoulder for an extended period of time, Trooper Shoopack initiated a traffic stop.  The Trooper explained that, despite the fact that the Nissan had been swerving back and forth for some time, he waited to pull it over until the location was safe for the stop.  When Trooper Shoopack activated his lights and sirens, there was no immediate reaction from the Nissan and it did not immediately pull over.   Eventually, the right turn signal on the Nissan was activated and the driver stopped on Jonestown Road near the intersection with Yingst Drive.

Trooper Shoopack approached on the passenger side of the Nissan and made contact with the driver and passenger.  He immediately noticed that the driver had a “thousand yard stare,” focusing only to his front, and was not paying attention to the Trooper.  When the Trooper asked for the driver’s license, registration and insurance papers, the driver did nothing and did not speak with the Trooper.  Trooper Shoopack noted that passenger did all the talking.  When the Trooper asked for Defendant’s documents a second time, the passenger informed him that the driver did not have them.  Trooper Shoopack was able to identify Defendant after being given his bank card.  He noted that Defendant’s voice was very slow, raspy, and lethargic.  Based on his extensive training and experience, Trooper Shoopack recognized the driver’s condition as being indicative of intoxication/controlled substance impairment and called for backup so that he could conduct field sobriety tests.

Trooper Shoopack returned to his police vehicle and ran the vehicle and Defendant’s identity through NCIC.  He learned that Defendant’s license was suspended, DUI-related, and that there was an outstanding warrant for him in Lebanon County.  Trooper Shoopack returned to the Nissan and asked Defendant to step out.  When Defendant exited the Nissan, he had to lean on the car for balance.  His demeanor continued to be very slow and lethargic.  Defendant agreed to undergo field sobriety testing.  The Trooper observed that Defendant had trouble walking and was informed that Defendant had recently had surgery and had a swollen foot. Trooper Shoopack decided not to do the one-leg test or the walk-and-turn test due to Defendant’s medical condition.

Trooper Shoopack proceeded with the HGN and lack of convergence tests.  During the HGN test, Trooper Shoopack detected a lack of smooth pursuit in both eyes.  The Trooper explained that the eyes of a sober person would move back and forth in a fluid motion, whereas when a person is impaired, his eyes would jump in a ticking motion.  In the lack of convergence test, the Trooper has the subject move his eye to a point where no white can be seen in the outer corner of the eye.  When a person is intoxicated, his eye will involuntarily jump at that point.  Trooper Shoopack observed additional signs of Defendant’s intoxication through these tests.

At that point, the Trooper suspected that Defendant was under the influence of a controlled substance and asked if he would agree to an examination with a drug recognition expert (“DRE”).  Trooper Shoopack explained that he is able to recognize signs of impairment from his training and experience.  However, he explained to Defendant that a DRE examination would “fine tune that to what they are actually impaired on and if it’s a combination of things, what the combination is that they’re impaired on.”  (N.T. 1/19/22 at 25).  Trooper Shoopack confirmed that the DRE could show that an individual is not impaired or that he may not be impaired on a controlled substance.  (N.T. 1/19/22 at 25).  Defendant refused to undergo the DRE examination.  Based on all of his observations, Trooper Shoopack placed Defendant into custody for DUI.

When asked, Defendant refused to consent to a blood draw and a vehicle search.  Within two hours of the stop, Trooper Shoopack obtained a search warrant.  In his Affidavit of Probable Cause, Trooper Shoopack described Defendant’s “thousand yard stare,” his lethargy, his voice, the signs of impairment, and the results of the field sobriety testing as factors indicating his intoxication or impairment.   A blood draw was performed which came back positive for multiple controlled substances – fentanyl, xylazine (a horse tranquilizer), methamphetamines, and amphetamines.

When asked whether he would have been comfortable letting Defendant drive away after the traffic stop, he stated”  “[a]bsolutely not.  If I would have let him get back in that driver’s seat, I’d be the laziest Trooper in the State Police.  There was – without a doubt, there was drug impairment to the point that he could not safely operate that vehicle from that spot.”  (N.T. 1/19/22 at 17-18)

In his Motion to Suppress, Defendant asserts violations of his rights under the Fourth, Fifth and Fourteenth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution.   He contends that Trooper Shoopack did not have reasonable suspicion or probable cause to initiate the traffic stop, and lacked probable cause to arrest Defendant for DUI and apply for the search warrant.  He further asserts a violation of his Miranda rights.  Our review of the evidence and exhibits presented at the hearing reveal that these contentions have no merit.

Generally, law enforcement officers need only reasonable suspicion to effectuate a traffic stop for a violation of the Pennsylvania Vehicle Code.  Commonwealth v. Angel, 946 A.2d 115, 117 (Pa. Super. 2008).  However, for violations of the summary offense of Driving on Roadways Lane for Traffic, 75 Pa.C.S.A. §3309(1), an officer must have probable cause to justify a traffic stop.  Commonwealth v. Cephus, 208 A.3d 1096, 1099 (Pa. Super. 2018).  Probable cause is determined by evaluating

Whether the facts and circumstances which are within the knowledge of the officer at the time of the arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed or is committing a crime.

 

Cephus, 208 A.3d at 1099.

75 Pa.C.S.A. §3309(1) provides that “[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not move from the lane until the driver has first ascertained that the movement can be made safely.”  In Cephus, the officers testified that they had observed the defendant’s vehicle cross the center line at least four time over a short period of time and that the tires had consistently remained over the center line.  The defendant’s vehicle was stopped due to his failure to maintain his lane several times.  It was held that these observations constituted the probable cause required to initiate a traffic stop for a violation of Section 3309(1).

Here, Trooper Shoopack testified that he observed Defendant make a very wide left turn from Route 72 onto Jonestown Road, going over the white fog lines during the turn.  As he proceeded on Jonestown Road, Defendant’s vehicle swerved back and forth from the double yellow lines to the fog lines.  At several points, the passenger-side tires remained on the white fog line and the vehicle ended up going into the shoulder of the road.  When the lights and sirens of the police vehicle were activated, Defendant failed to react for some time and he delayed pulling his vehicle over.  We have reviewed the video from the police vehicle’s MVR which indicates that this occurred within a short span of time. Our view of the video revealed that Trooper Shoopack’s observations were accurate such that they presented sufficient probable cause for him to suspect a violation of Section 3309.  We believe Trooper Shoopack was fully justified in his initiation of the traffic stop.

We further believe that Trooper Shoopack had probable cause to place Defendant under arrest and to apply for a search warrant for a blood draw.  In order for an officer to make a warrantless arrest or apply for a search warrant, he must have probable cause to do so.  With regard to arrests for DUI, an officer has probable cause to make a warrantless arrest “where the officer has knowledge of sufficient facts and circumstances to warrant a prudent person to believe that the driver has been driving under the influence of alcohol or a controlled substance. “ Commonwealth v. Hilliar, 943 A.2d 984, 994 (Pa. Super. 2008).  Probable cause justifying a warrantless arrest is determined by the totality of the circumstances.  Id.

Trooper Shoopack described numerous indicia of Defendant’s intoxication/impairment.  His “thousand yard stare,” his failure to pay attention to and reluctance to speak with the Trooper, his lethargy, and low, raspy voice were recognized as signs of impairment by the Trooper based on his extensive training and experience.  The results of the HGN and lack of convergence test revealed additional signs of Defendant’s impairment.[3] These indicators supplied Trooper Shoopack with sufficient probable cause to make a warrantless arrest of Defendant for DUI.  Trooper Shoopack set forth these indicators in his Affidavit of Probable Cause when he applied for the search warrant for a blood draw.  These provided ample probable cause to support the application and, based on these observations, the search warrant was issued.

In his Motion, Defendant argued that his Miranda rights were violated during the traffic stop.

Police are required to read a suspect his Miranda warnings when he is in custody and subject to interrogation. Moreover, the “prosecution may not use statements, whether inculpatory or exculpatory, stemming from a custodial interrogation of a defendant unless it demonstrates that he was apprised of his right against self-incrimination and his right to counsel. [I]n evaluating whether Miranda warnings were necessary, a court must consider the totality of the circumstances.”

 

Commonwealth v. Williams, 220 A.3d 1086, 1091, citing Commonwealth v. Gaul, 590 Pa. 175, 912 A.2d 252, 255 (2006) (citations and headnotes omitted).  Traffic stops are investigative detentions that do not require the issuance of Miranda warnings. Pennsylvania v. Bruder, 488 U.S. 9, 10 (1988).   Mere encounters in which the police ask the driver basic investigative questions constitute “ordinary” traffic stops in which the individual is not in custody.  16A West’s Pa Prac., Criminal Practice §20:6.

It appears that Defendant has abandoned this argument, as it was not included in his post-hearing Brief.  However, we note that this contention was also without merit.   The traffic stop at issue here was an investigative detention that did not require Trooper Shoopack to give Defendant any warnings.  This was an “ordinary” stop and Defendant was asked only basic questions.  He was not deprived of his physical freedom in any way.  Defendant was not in custody until the Trooper had found sufficient indicia of his intoxication/impairment.  Moreover, Defendant has failed to identify any incriminating statements made by him to the Trooper.

For these reasons, we will deny Defendant’s Motion to Suppress and will direct him to appear for the next Call of the List and Term of Criminal Jury Trials.

 

 

 

 

[1] Counts 1 through 4, 75 Pa.C.S.A. §3802(d)(1)(i), 75 Pa.C.S.A. §3802(d)(1)(ii), 35 P.S. §780-113(a)(16), and 35 P.S. §780-113(a)(16), respectively.

[2] (a) through (d), 75 Pa.C.S.A. §1543(b)(1)(i), 75 Pa.C.S.A. §3309(1), 75 Pa.C.S.A. §3714(a), and 75 Pa.C.S.A. §1511(a), respectively.

[3]  The results of an HGN test performed by a police officer following a traffic stop of a defendant may be used in determining probable cause for the arrest of the defendant for driving under the influence (DUI), even if evidence of HGN test results would not have been admissible at trial; the criterion of admissibility in evidence is not to be applied to the facts relied upon to show probable cause, and an officer, who is trained in the administration of HGN test, is permitted to rely on his observations gained from the  test in determining whether to arrest a defendant.  Commonwealth v. Weaver, 76 A.3d 562 (Pa. Super. 2013).