Commonwealth v. Korenkiewicz

743 A.2d 958, 1999 Pa. Super. 326, 1999 Pa. Super. LEXIS 4628

• Court: Superior Court of Pennsylvania
• Decided: December 22, 1999
• Status: Published

Opinions

KELLY, J.:

¶ 1 Appellant asks us to determine whether the trial court erred when it denied his motion to suppress evidence. Appellant challenges the legal basis for the investigative stop of his vehicle and the propriety of the evidence obtained from the stop. We hold that the information provided by the identified informant was sufficient to support the stop. Accordingly, we affirm Appellant’s judgment of sentence.

¶ 2 The trial court aptly relayed the relevant facts underlying this appeal as follows:

On the evening of August 4, 1997, one Kenneth Pingerton (“Pingerton”), the night manager of an Amoco service station located on 1301 Paoli Pike, West Goshen Township, Chester County, Pennsylvania, first observed [Appellant’s vehicle (N.T. 4-7). Pingerton described [Appellant’s vehicle as a “dark colored convertible” which entered the service station and parked (N.T. 7). Pingerton kept his eye on the parked car and eventually, Pingerton went outside and asked [Appellant] if he was “okay” (N.T. 8-9). [Appellant] did not respond to Pingerton’s inquiry and at that time, Pingerton noticed that [Appellant’s head was wobbling and that [Appellant’s eyes were very wide open (N.T. 9-10). Pingerton suspected that [Appellant] was intoxicated and called 911 relaying to the dispatcher that he “... had a person in the parking lot that was either ill or intoxicated...” (N.T. 10). Pingerton testified that after he called 911 [Appellant] backed his vehicle up and looked at Pingerton through the window and then pulled the vehicle forward. [Appellant] repeated this movement and Pingerton again called 911 because he felt threatened (N.T. 11). While Pingerton was on the phone [Appellant] moved his car to exit the service station on Airport Road.

Police Officer Steven Wassell (“Was-sell”) was on patrol that evening and testified that he was dispatched to the Amoco station for a suspicious vehicle and person complaint. While en route, Wassell received additional information that the operator may be intoxicated and was preparing to leave (N.T. 14). Was-sell testified that when he arrived at the Amoco he observed “a vehicle matching the description given to the Chester County Police Radio as a dark colored convertible.” Wassell testified that the vehicle had its [headlights] on and was preparing to pull out of the service station onto Airport Road (N.T. 14). Was-sell pulled up behind [Appellant] and activated his overhead lights (N.T. 15). At that time, [Appellant’s vehicle was running, its headlights were on and it was facing Airport Road (N.T. 15). Wassell approached the driver who[m] he described as “very confused.” Was-sell testified that [Appellant’s eyes were bloodshot and glassy and that he detected a strong odor of alcohol on [Appellant] (N.T. 16). Wassell attempted to obtain [Appellant’s name, but [Appellant’s speech was slurred and he could not understand him (N.T. 16-17). Was-sell also attempted to obtain [Appellant’s license and registration, but [Appellant] was unable to produce these documents (N.T. 16-17). Wassell asked [Appellant] to get out of his car and described how [Appellant] could barely stand up without leaning on the car (N.T. 17). Based on his experience in previous DUI arrests, as well as his observations of [Appellant], Wassell testified that in his opinion [Appellant] was intoxicated that evening and incapable of operating a motor vehicle (N.T. 18-19). Wassell arrested [Appellant] and had him transported to Chester County Hospital (N.T. 19).

(Trial Court Opinion, dated June 16, 1998, at 1-3).

¶ 3 Appellant filed a motion to suppress Officer Wassell’s observations of Appellant’s intoxication. Appellant claimed that the stop was illegal, as it was unsupported by reasonable suspicion of criminal activity. On June 16, 1998, the suppression court denied Appellant’s motion, finding that the officer had the requisite reasonable suspicion to support the investigative stop of Appellant’s vehicle.

¶ 4 Following a bench trial on February 11, 1998, Appellant was convicted of driving under the influence of alcohol¹ and driving under suspension (DUI related).² For the first offense, the court sentenced Appellant to one to two years’ incarceration. For driving under suspension, Appellant received ninety days’ incarceration, to be served consecutively to the DUI sentence. Appellant appealed his judgment of sentence. A divided panel of this Court filed a memorandum opinion on October 30, 1998, reversing and remanding for a new trial. On November 12, 1998, the Commonwealth filed an application for reargument en banc. This Court granted the Commonwealth’s motion for reargument en banc on January 7, 1999, and withdrew the panel memorandum opinion.

¶ 5 Appellant raises this issue for our review:

DID THE TRIAL COURT ERR IN DENYING APPELLANT’S MOTION TO SUPPRESS, WHERE A POLICE OFFICER STOPPED A VEHICLE UPON UNSUBSTANTIATED REPORTS THAT THE VEHICLE WAS BEING OPERATED BY A DRIVER THAT COULD/MAY BE INTOXICATED?

Appellant’s Brief at 3 (emphasis in original).

¶ 6 The Pennsylvania Supreme Court set forth the standard and scope of review for a challenge to the denial of a suppression motion as follows:

Our standard [of] review in addressing a challenge to a trial court’s denial of a suppression motion is whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. When reviewing rulings of a suppression court, we must consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncon-tradicted when read in the context of the record as a whole. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Hawkins, 549 Pa. 352, 377, 701 A.2d 492, 504-05 (1997), cert. denied, 523 U.S. 1083, 118 S.Ct. 1535, 140 L.Ed.2d 685, (1998) (citation omitted). If there is sufficient evidence of record to support the suppression court’s ruling and that court has not misapplied the law, then we will not disturb the court’s decision, particularly with respect to credibility determinations. Commonwealth v. Queen, 536 Pa. 315, 639 A.2d 443 (1994).

¶ 7 The parties do not dispute that Appellant was “seized” by Officer Wassell when he activated his signal lights and delayed Appellant’s departure from the gas station parking lot onto Airport' Road. Appellant’s sole issue on appeal is whether Officer Wassell had a legal basis to stop Appellant’s vehicle and investigate his condition. Appellant contends that an unconfirmed report of a driver that “could” or “may” be operating a vehicle while intoxicated is insufficient, without more, to supply a legal basis for stopping his vehicle. In support of his argument, Appellant relies primarily on our Supreme Court’s decision in Commonwealth v. Hamilton, 543 Pa. 612, 673 A.2d 915 (1996).

¶ 8 In Hamilton, an officer observed persons gathered around a vehicle in a parking lot. A woman, who had been outside the car, speaking to the driver, approached the officer and told him that everything was okay and that she had taken the driver’s keys. Without making any farther observations regarding the driver, Hamilton, the officer drove across the street and parked in another lot. When the police officer noticed that the vehicle was leaving the parking lot, the officer followed. The officer continued to observe the car as it turned into a restaurant parking lot. During his observation, the officer saw no violations of the Motor Vehicle Code on the driver’s part nor did he notice anything erratic, improper or unsafe about the driving. After Hamilton car had parked at the restaurant, the officer approached the vehicle and saw that Hamilton had been driving. The police officer promptly arrested Hamilton for DUI.

¶ 9 The Hamilton Court reasoned that the basis for the stop was deficient. The woman’s statement to the officer that everything was okay and that she had taken the driver’s keys was nonspecific and amounted to mere implication that Hamilton was intoxicated.³ Because the officer did nothing to verify the woman’s statement, or observe anything on his own to substantiate her suggestion, the Court concluded that the officer did not possess articulable and reasonable grounds to suspect that the driver was intoxicated. The Hamilton Court, therefore, held that the stop was illegal and any evidence gained as a result of the stop should have been suppressed.

¶ 10 Appellant contends that Hamilton is dispositive of the instant case. Appellant claims that the informant’s report in the present case, as in Hamilton, was equivocal at best and mandated independent observation by Officer Wassell. Like the officer in Hamilton, Appellant asserts, Officer Wassell had observed nothing on his own to substantiate the Pingerton’s report. Appellant asserts that the stop and ensuing investigation were improper, without Officer Wassell’s independent knowledge, information or observations that a crime was being committed. Appellant concludes that the impropriety of the stop invalidated all evidence derived from the stop and warranted its suppression. We disagree.

¶ 11 Pennsylvania law recognizes two instances where police may “seize” an individual in compliance with the constitutional prohibitions against warrantless searches and seizures. Commonwealth v. Melendez, 544 Pa. 323, 676 A.2d 226 (1996). One constitutionally permissible circumstance occurs when the police have probable cause to believe that a crime is being committed or is about to be committed. Id. Custodial detentions and arrests implicate this “probable cause” standard. Commonwealth v. Ellis, 379 Pa.Super. 337, 549 A.2d 1323 (1988), appeal denied, 522 Pa. 601, 562 A.2d 824 (1989). The other circumstance is a more limited seizure, which is justified by a reasonable suspicion that criminal activity is occurring. Melendez, supra (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969)). The more limited seizures, implicating the “reasonable suspicion” standard, can be in the form of Terry stops, traffic stops, investigative detentions, and non-custodial detentions. Ellis, supra. Thus, the classification of the interaction between police and citizen determines the scope of applicable constitutional protections. Id.

¶ 12 A police officer may stop a vehicle when he has reasonable, articulable facts to suspect a violation of the Vehicle Code. 75 Pa.S.C.S. § 6308(b); Commonwealth v. Whitmyer, 542 Pa. 545, 668 A.2d 1113 (1995) (confirming correct standard for vehicular stops as “articulable and reasonable grounds to suspect” violation of Vehicle Code); Commonwealth v. McElroy, 428 Pa.Super. 69, 630 A.2d 35 (1993) (en banc), appeal denied, 543 Pa. 729, 673 A.2d 335 (1996) (adopting “articulable and reasonable grounds to suspect” as preferred standard for vehicular stops). “The reasonable suspicion necessary to justify a vehicular stop is less stringent than probable cause, but the officer must have more than a hunch as the basis of a stop.” Commonwealth v. Wright, 448 Pa.Super. 621, 672 A.2d 826, 830 (1996).

¶ 13 A police officer, however, need not personally observe the illegal or suspicious conduct, which forms the basis for the reasonable suspicion, but may rely, under certain circumstances, on information provided by third parties. Id. This Court recently articulated the current status of Pennsylvania law regarding investigative stops based on citizen “tips” as follows:

[ W]hen the police stop a vehicle in this Commonwealth for investigatory purposes, the vehicle, and its occupants are considered “seized” and this seizure is subject to constitutional restraints. An investigatory stop of an automobile is justified only when it is based upon objective facts creating a reasonable suspicion the vehicle’s occupants are presently involved in criminal activity. To meet this standard, the officer must point to specific articulable facts which, together with the rational inferences therefrom, reasonably warrant the intrusion.

To have reasonable suspicion, police officers need not personally observe the illegal or suspicious conduct, but may rely upon the information of third parties, including “tips” from citizens. Naturally, if a tip has a relatively low degree of reliability more information will be required to establish the requisite quantum of suspicion....

However, a tip from a known informer may carry enough indicia of reliability for the police to conduct an investigative stop, even though the same tip from an anonymous informant would likely not have done so. Indeed, a known informant places himself at risk of prosecution for filing a false claim if the tip is untrue, whereas as unknown informant faces no such risk.

Commonwealth v. Lohr, 715 A.2d 459, 461-62 (Pa.Super.1998) (internal quotation marks and citations omitted). When an identified third party provides information to the police, we must examine the specificity and reliability of the information provided. In the Interest of S.D., 429 Pa.Super. 576, 633 A.2d 172 (1993). The information supplied by the informant must be specific enough to support reasonable suspicion that criminal activity is occurring. Commonwealth v. Allen, 555 Pa. 522, 725 A.2d 737 (1999). To determine whether the information provided is sufficient, we assess the information under the totality of the circumstances. Id. The informer’s reliability, veracity, and basis of knowledge are all relevant factors in this analysis. Id.

¶ 14 Pennsylvania law also permits a vehicle stop based upon a radio bulletin if evidence is offered at the suppression hearing to establish reasonable suspicion. Queen, supra. See also Commonwealth v. Janiak, 368 Pa.Super. 626, 534 A.2d 833 (1987) (allowing police to make stop of individual suspected of intoxication based upon radio information, although police had not personally observed unusual or criminal conduct); Commonwealth v. Prengle, 293 Pa.Super. 64, 437 A.2d 992 (1981) (permitting investigative stop of vehicle matching description of stolen truck, supplied to police via radio bulletin). The mere fact that the police receive their information over the police radio does not, of itself, establish or negate the existence of reasonable suspicion. Commonwealth v. Jackson, 548 Pa. 484, 698 A.2d 571 (1997).

¶ 15 Established Pennsylvania law generally accepts that intoxication is a condition within the understanding or powers of observation of ordinary citizens. Miller v. Borough of Exeter, 366 Pa. 336, 77 A.2d 395 (1951); Lohr, supra; Commonwealth v. Bowser, 425 Pa.Super. 24, 624 A.2d 125 (1993), appeal denied, 537 Pa. 638, 644 A.2d 161, cert. denied, 513 U.S. 867, 115 S.Ct. 186, 130 L.Ed.2d 120 (1994); Janiak, supra; Commonwealth v. Neiswonger, 338 Pa.Super. 625, 488 A.2d 68 (1985); Commonwealth v. Boerner, 268 Pa.Super. 168, 407 A.2d 883 (1979); In Interest of Wright, 265 Pa.Super. 278, 401 A.2d 1209 (1979). Our case law has consistently allowed statements such as “He looked drunk,” to serve as a shorthand or compendious statement of fact based upon personal observation. Camp Const. Corp. v. Lumber Products Co., 311 Pa.Super. 381, 457 A.2d 937 (1983).

¶ 16 In the instant case, the information available to Officer Wassell was provided by an identified source, Kenneth Pingerton. Police received Pingerton’s identity and location through his 911 call. In that call, he reported that a suspicious person in a dark colored convertible was parked at his Amoco service station. Concerned for his safety, Pingerton described the vehicle and its exact location. Soon thereafter, Pingerton called 911 again to report that the driver of the vehicle appeared ill or intoxicated and was about to pull out, onto the road. Officer Wassell received all of this information via radio and arrived at the location within minutes of the report. There, Officer Wassell saw a vehicle matching the description in the report at the exact location provided by Pingerton. The location and description of the vehicle matched the report. Thus, Officer Wassell had sufficient reason to believe that Appellant and his vehicle were the subjects of Pingerton’s report. See Janiak, supra.

¶ 17 Further, the content of Pingerton’s report was not equivocal. Pingerton’s use of the description “ill or intoxicated” is just the form of shorthand or compendious statement of fact based upon his personal observation that is acceptable under Pennsylvania law. It was sufficient to arouse public concern that an intoxicated person was about to reenter traffic. Moreover, Pingerton’s report that Appellant was “either ill or intoxicated” does not dimmish Officer Wassell’s level of reasonable suspicion. See Commonwealth v. Riley, 715 A.2d 1131 (Pa.Super.1998), appeal denied, 558 Pa. 617, 737 A.2d 741 (1999) (reiterating that merely because suspected criminal behavior may also be consistent with innocent behavior does not alone make detention and limited investigation illegal). Accordingly, we hold that Officer Wassell was constitutionally authorized to execute a brief stop to maintain the status quo while he obtained more information. See Janiak, supra (quoting Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)).

¶ 18 Moreover, Kenneth Pingerton testified at Appellant’s suppression that from the inside of the station, he saw Appellant drive his car into the station parking lot and sit there for close to twenty minutes. Pingerton described Appellant’s vehicle as a “dark colored convertible.” Pingerton kept his eye on the parked car and eventually went outside and asked Appellant if he was “okay.” Appellant did not respond to Pingerton’s inquiry and at that time, Ping-erton noticed that Appellant’s head was wobbling and that his eyes were “very wide open.” Pingerton suspected that Appellant was intoxicated and called 911 relaying to the dispatcher that he “... had a person in the parking lot that was either ill or intoxicated....” Pingerton testified that after he called 911, Appellant backed his vehicle up and looked at Pingerton through the window and then pulled the vehicle forward. Appellant repeated this movement, which alarmed Pingerton and he again called 911 because he felt threatened. While Pingerton was on the phone, Appellant moved his car to exit the service station on Airport Road. The record establishes that Pingerton’s report was the result of his ongoing personal observation. (N.T., 2/11/98, at 7-11). See Lohr, supra. Therefore, Pingerton’s report was a reliable, appropriate basis for Officer Was-sell’s investigative stop.

¶ 19 Officer Wassell testified at the suppression hearing that he had been dispatched to the Amoco station for a suspicious vehicle and person complaint. While en route, Officer Wassell received additional information that the operator may be intoxicated and was preparing to leave the location. When he arrived at the Amoco Officer Wassell observed a vehicle matching the description that Pingerton had given to the Chester County Police. The vehicle’s highlights were on and Appellant was preparing to pull out of the service station onto Airport Road. As Officer Was-sell pulled up behind Appellant’s car, he activated his overhead lights. At that time, Appellant’s vehicle was running and the headlights were on; the vehicle was located about five to ten feet from the station’s exit. (N.T., 2/11/98, at 12-15).

¶ 20 Based on the information available, Officer Wassell had reasonable suspicion that Appellant was violating the vehicle code by operating his vehicle while under the influence of alcohol. Under the totality of the circumstances, including the reliability, veracity and basis of Pingerton’s report, see Allen, supra, we hold that Officer Wassell was justified in stopping Appellant’s vehicle to investigate his condition. Accordingly, the trial court properly denied Appellant’s suppression motion.

¶ 21 Judgment of sentence affirmed.

¶ 22 JOHNSON, J. files a dissenting opinion in which McEWEN, President Judge, POPOVICH and SCHILLER, JJ. join.

1 . 75 Pa.C.S.A. § 3731(a)(1).

2 . 75 Pa.C.S.A. § 1543(b).

3 . The Dissent’s paraphrase or restatement of the holding in Hamilton does not accurately reflect the Supreme Court’s decision in that case. Specifically, the Hamilton case did not involve a statement that the driver was intoxicated. To the contrary, the report at issue in Hamilton merely implied intoxication. Thus, the Hamilton Court had to decide “whether the statement, in and of itself, provided the officer with a sufficient basis to justify the stop of [Hamilton]’s vehicle.” Id. at 618, 673 A.2d at 918. In short, at issue in Hamilton was the adequacy of the citizen’s report because it only implied intoxication. The Hamilton Court held that a mere implication of intoxication, albeit an obvious implication was insufficient to support an investigative stop. Therefore, “stating that ‘everything is o.k.’ and that someone has another’s keys does not, under the circumstances of the case, create reasonable and articulable grounds to suspect a Vehicle Code violation.” Id. at 619, 673 A.2d at 919. Accordingly, the Hamilton holding is actually more limited than that expressed by the dissent in the instant case.