Com. v. Barber

889 A.2d 587

COMMONWEALTH of Pennsylvania, Appellant, v. Dale Stanley BARBER, Appellee.

Superior Court of Pennsylvania.

Argued September 14, 2005.

Filed December 8, 2005.

COPYRIGHT MATERIAL OMITTED

James P. Barker, Assistant District Attorney, Harrisburg, for Commonwealth, appellant.

Joseph D. Caraciolo, Camp Hill, for appellee.

Before: FORD ELLIOTT, STEVENS, JJ., and MCEWEN, PJE.

STEVENS, J.:

¶ 1 The Commonwealth appeals from the order entered in the Court of Common Pleas of Dauphin County granting Appellee's motion to suppress evidence seized from his van and person following the stop of his van.¹ The Commonwealth alleges the suppression court erred in concluding the police did not have reasonable suspicion to stop Appellee's van based on information provided to a 911 dispatcher by an identified caller. We reverse and remand for further proceedings consistent with this decision.

¶ 2 The record reveals the following: Appellee was arrested, and he filed a pre-trial motion seeking to suppress evidence seized from his van and person. On June 15, 2004, the suppression court held a hearing during which the Commonwealth presented the testimony of Charles Stewart, Police Officer John McPhillips, Corporal Richard L. Smith, and Bruce Danner.² Specifically, Charles Stewart testified that on December 21, 2003 at 7:30 p.m., he and his children were exiting Media Play, which was a store in Paxton Township, when he noticed a van parked beside his vehicle. N.T. 6/15/04 at 5-6. As Mr. Stewart walked across the store's parking lot, he saw a man urinating between Mr. Stewart's vehicle and the van. N.T. 6/15/04 at 6. Mr. Stewart approached and asked the man, "What are you doing?" N.T. 6/15/04 at 6. The man zipped up his pants and got into the van. N.T. 6/15/04 at 7. Mr. Stewart and his children entered Mr. Stewart's vehicle, and as he was starting the vehicle, Mr. Stewart noticed the man drinking a beer in the van. N.T. 6/15/04 at 7. Mr. Stewart watched as the man backed the van out of the parking spot and parked in front of the store. N.T. 6/15/04 at 8. Mr. Stewart called 911 to report the man's actions. N.T. 6/15/04 at 8. Specifically, Mr. Stewart provided the 911 dispatcher with his name and phone number, his location, and described the events he had witnessed, including the urinating in public and drinking while driving. N.T. 6/15/04 at 8-11. Mr. Stewart also gave the 911 dispatcher a description of the van, the van's license plate number, and a description of the driver, who Mr. Stewart positively identified at the suppression hearing as being Appellee. N.T. 6/15/04 at 7, 11. Mr. Stewart remained in the store parking lot and Appellee remained in the van's driver's seat until the police arrived approximately five to seven minutes later. N.T. 6/15/04 at 9. Two police cruisers pulled behind Appellee's van and approached Appellee. N.T. 6/15/04 at 9. Mr. Stewart did not have contact directly with the police at this time. N.T. 6/15/04 at 10.

¶ 3 On cross-examination, Mr. Stewart reiterated that he did not speak to the police at the scene but admitted that he had spoken to the officers in the hallway prior to his testimony. N.T. 6/15/04 at 11-12.

¶ 4 Police Officer John McPhillips testified that he was operating a marked cruiser at the time in question and he was dispatched to the store "Media Play" to investigate an individual who was seen drinking an alcoholic beverage in his vehicle. N.T. 6/15/04 at 12-13, 30. The dispatcher described the vehicle as a gold Plymouth mini van, with a license plate number of EXX8164, and being operated by a white male, who was consuming alcoholic beverages. N.T. 6/15/04 at 13-14. As Officer McPhillips entered the store's parking lot, he saw a gold mini van, bearing the aforementioned license plate, executing a U-turn in front of the officer and pulling in front of the store. N.T. 6/15/04 at 14. Officer McPhillips activated his cruiser's lights, and the van started to pull away from the curb. N.T. 6/15/04 at 14. However, Corporal Smith, who had arrived in a separate cruiser, approached the van's driver's side window and Appellee stopped the van. N.T. 6/15/04 at 14. When Appellee exited the van, Officer McPhillips smelled alcohol, he asked Appellee to perform field sobriety tests, and Appellee failed the tests. N.T. 6/15/04 at 16-18. Officer McPhillips indicated that Appellee was disheveled, his eyes were glassy and bloodshot, and he admitted that he had consumed two beers. N.T. 6/15/04 at 19. Open containers of beer were in plain view and seized from the front operator's section of the van. N.T. 6/15/04 at 21.

¶ 5 Officer McPhillips informed Appellee that he was under arrest for driving while under the influence, handcuffed Appellee, and searched Appellee's person. N.T. 6/15/04 at 19. Officer McPhillips seized a small quantity of marijuana from Appellee's rear pant's pocket. N.T. 6/15/04 at 19. Appellee subsequently consented to a Breathalyzer test, which revealed scores of.079% and .066%, which were below the legal limit. N.T. 6/15/04 at 21. As such, Appellee was not charged with driving while under the influence; however, he was charged with respect to the possession of the marijuana, 35 Pa.C.S.A. § 780-113, and the restriction on possessing an open container of beer while operating a vehicle, 18 Pa.C.S.A. § 7513.³ N.T. 6/15/04 at 21.

¶ 6 On cross-examination, Officer McPhillips testified that Appellee failed the walk and turn field sobriety test in that Appellee did not turn properly, and he failed the one-leg stand test in that he did not stand for the entire time and he cocked his knee. N.T. 6/15/04 at 27-28. Officer McPhillips testified that he stopped the van because the van and driver matched the description given to him by the 911 dispatcher. N.T. 6/15/04 at 28. Officer McPhillips admitted that he neither observed Appellee drinking in the van nor driving unsafely. N.T. 6/15/04 at 29. He further admitted that he did not speak to Mr. Stewart or observe any open containers in the van prior to stopping the van. N.T. 6/15/04 at 30. In fact, Officer McPhillips testified that he stopped Appellee's van solely on the basis of the information given to him by the 911 dispatcher. N.T. 6/15/04 at 29.

¶ 7 Corporal Richard L. Smith testified that he arrived at the store "Media Play" at the time in question in response to a 911 dispatch. N.T. 6/15/04 at 34. Corporal Smith indicated that the 911 dispatcher reported that a person was in a gold Plymouth mini van drinking alcohol in the parking lot. N.T. 6/15/04 at 35. Corporal Smith testified that a specific license plate number was given to the police via the dispatcher. N.T. 6/15/04 at 35. Corporal Smith indicated that, when he arrived at the scene, the van was starting to pull away from the curb, and, therefore, Corporal Smith ran to the driver's side window and pounded on it. N.T. 6/15/04 at 35. In response, Appellee, who was driving the van, stopped the van and exited it. N.T. 6/15/04 at 35. Before Appellee exited the vehicle, Corporal Smith observed through the window three open cans of beer in plain view. N.T. 6/15/04 at 36-37, 39. Corporal Smith observed as Appellee was arrested and searched by Officer McPhillips. N.T. 6/15/04 at 39. Corporal Smith confirmed that marijuana was seized from Appellee's pant's pocket. N.T. 6/15/04 at 39.

¶ 8 On cross-examination, Corporal Smith testified that he arrived on the scene within seconds of Officer McPhillips. N.T. 6/15/04 at 40.

¶ 9 Bruce Danner of the Dauphin County Emergency Management Agency testified that a 911 call was received at 1933 hours on December 21, 2003 from Charles Stewart, who provided his cell phone number. N.T. 6/15/04 at 42. Mr. Stewart indicated an old Voyager, with the license plate number of EXX8164, was in the Media Play parking lot, and a white forty year old male, who was approximately five feet seven inches tall, with a thin build and wearing a baseball cap, was sitting in the front seat drinking a beer when he pulled the van out of the parking lot and in front of the store. N.T. 6/15/04 at 42. Mr. Stewart told the dispatcher that there were beer cans on the dash and one in the driver's hand. N.T. 6/15/04 at 42. Mr. Stewart also told the dispatcher about the public urination he had witnessed. N.T. 6/15/04 at 43.

¶ 10 On cross-examination, Mr. Danner indicated that all of the information Mr. Stewart had given to the 911 dispatcher was relayed to the police officers as they were responding to the scene. N.T. 6/15/04 at 44. Upon further questioning, Mr. Danner admitted that the dispatcher did not tell the police specifically that the suspect was drinking and driving; but rather, the dispatcher told the police that a suspect was sitting in a van drinking beer. N.T. 6/15/04 at 44. Mr. Danner further admitted that the 911 records did not reveal whether the dispatcher had specifically given Mr. Stewart's identity to the police. N.T. 6/15/04 at 44.

¶ 11 On redirect-examination, Mr. Danner testified that the 911 records reveal the identity of the caller as Charles Stewart and provides his cell phone number. N.T. 6/15/04 at 45.

¶ 12 By opinion and order entered on December 30, 2004, the suppression court granted Appellee's motion to suppress. Specifically, although the suppression court found the Commonwealth's witnesses to be credible, the suppression court concluded the Commonwealth failed to prove the police had the requisite reasonable suspicion to stop Appellee's vehicle based on the tip provided to the police. The suppression court concluded that, without Officer McPhillip's and Corporal Smith's independent observations that a crime was being committed, the stop of Appellee's van and ensuing investigation were improper. The Commonwealth filed this timely appeal.⁴ The lower court did not order the Commonwealth to file a Pa. R.A.P.1925(b) statement.

¶ 13 On appeal, the Commonwealth argues the police had reasonable suspicion to stop Appellee's vehicle on the basis...