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                              2014 PA Super 272



COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

CIPRIANO GARIBAY

                         Appellant                  No. 758 WDA 2012


            Appeal from the Judgment of Sentence April 3, 2012
            In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0004217-2010


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, J., SHOGAN, J.,
        ALLEN, J., OTT, J., WECHT, J., STABILE, J., and JENKINS, J.

DISSENTING OPINION BY OTT, J.:                    Filed: December 9, 2014

      Because I believe the testimony presented at the suppression hearing

supports the trial court’s denial of Garibay’s motion to suppress evidence

and the trial court’s conclusions are free from legal error, I respectfully

dissent.

      In considering Garibay’s motion to suppress evidence, the trial court

was required to determine whether the seatbelt checkpoint established by

the   Pittsburgh   Police   Department   substantially   complied   with   the

Tarbert/Blouse guidelines, established under Commonwealth v. Tarbert,

535 A.2d 1035 (Pa. 1987) and Commonwealth v. Blouse, 611 A.2d 1177
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(Pa. 1992).1 These guidelines, which will be more fully discussed below, are

designed to protect individuals from unreasonable searches and seizures,

pursuant to the United States and Pennsylvania Constitutions.      Therefore,

the trial court was tasked with determining whether the Commonwealth’s

action in establishing a seatbelt checkpoint on Banksville Road, at the time

in question, was unreasonable. The Majority has agreed with Garibay and

concluded that because the Commonwealth did not produce statistics, data

or reports to support the choice of location as one in which there are

seatbelt violations, the Commonwealth acted unreasonably.       I believe the

Majority’s conclusion ignores the trial court’s determination of the paramount

purpose of the checkpoint and therefore unnecessarily advocates a strict

application of the time and location factors.

       In reviewing the denial of a motion to suppress, “[o]ur standard of

review in addressing a challenge to a trial court’s denial of a suppression

motion is limited to determining whether the factual findings are supported

by the record and whether the legal conclusions drawn from those facts are

correct.” Commonwealth v. Kearney, 92 A.3d 51, 65 (Pa. Super. 2014).

Further, “[t]he sensible interpretation of the rule is that when reviewing the

denial of a motion to suppress, we look at all of the evidence in the light


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1
  There is no dispute that the Tarbert/Blouse guidelines, announced for
application to DUI roadblocks, also apply to vehicle safety checkpoints. See
In re J.A.K., 908 A.2d 322, 326 n.3 (Pa. Super. 2006).



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most favorable to the Commonwealth and determine whether the record

supports the suppression court’s findings of fact.”             Commonwealth v.

Reppert, 814 A.2d 1196, 1208 (Pa. Super. 2002) (en banc).

      The   Tarbert/Blouse       decisions   set        forth   guidelines    for   the

establishment    of   sobriety   checkpoints       to     balance    the     legitimate

governmental interests of conducting such checkpoints with the necessary

protection of individuals from “arbitrary invasions [of privacy] at the

unfettered discretion of the officers in the field.” See Majority Opinion, at 6,

citing Blouse, 611 A.2d at 1178. Those guidelines are:

      [T]he conduct of the roadblock itself can be such that it requires
      only a momentary stop to allow the police to make a brief but
      trained observation of a vehicle’s driver, without entailing any
      physical search of the vehicle or its occupants.         To avoid
      unnecessary surprise to motorists, the existence of a roadblock
      can be so conducted as to be ascertainable from a reasonable
      distance or otherwise made knowable in advance.                 The
      possibility of arbitrary roadblocks can be significantly curtailed
      by the institution of certain safeguards. First, the very decision
      to hold a drink-driving roadblock, as well as the decision as to its
      time and place, should be matters reserved for prior
      administrative approval, thus removing the determination of
      those matters from the discretion of police officers in the field.
      In this connection it is essential that the route selected for the
      roadblock be one which, based on local experience, is likely to be
      travelled by intoxicated drivers. The time of the roadblock
      should be governed by the same consideration. Additionally, the
      question of which vehicles to stop at the roadblock should not be
      left to the unfettered discretion of police officers at the scene,
      but instead should be in accordance with objective standards
      prefixed by administrative decision.

Blouse, 611 A.2d at 1180 (quoting Tarbert, 535 A.2d at 1043).




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       The Tarbert/Blouse guidelines are not mandatory rules.              Rather,

there must be “substantial – and not complete – compliance” to pass

Constitutional muster.       Worthy, supra, 957 A.2d at 725.       In this appeal,

Garibay has only challenged the sufficiency of the evidence regarding the

location and time of the roadblock.2 Therefore, the review of the trial court’s

decision is necessarily limited to the court’s factual findings and legal

conclusions addressing that particular Tarbert/Blouse criteria.

       Testimony      regarding     establishment   and   administration   of   the

checkpoint was provided by Sergeant Richard Howe of the City of Pittsburgh

Police Department, at the December 15, 2011 suppression hearing.

Sergeant Howe was the liaison between the police department and the

Pennsylvania Department of Transportation (PennDOT) for the Click it or

Ticket Buckle Up Campaign.               See N.T. Hearing, 12/15/2011, at 4.

Regarding the choice of Banksville Road for the seatbelt checkpoint,

Sergeant Howe testified as follows:

       Q. And, lastly, this location of Banksville Road where this was,
       where you specified this to have occurred, how did you come to
       specify Banksville Road?

       A. The State likes us to do these safety check seatbelt
       checkpoints on busy roadways within the City of Pittsburgh.
       They pull that information from vehicle traffic, the volume of
       traffic and high accident locations.

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2
 Accordingly, for the purpose of this appeal, all other guidelines have been
met.



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      Q. Okay. And what are some of the other examples of roads in
      the city that you have been told to use as locations[?]

      A. We have done West Liberty Avenue. We have done Saw Mill
      Run Boulevard, which is Route 51. We have done in the past I
      believe on Bigelow Boulevard.

      Q. And those locations, as well as Banksville Road, are all
      mentioned, I guess, to you by the statewide campaign?

      A. Yes. They like to go where we do have high volume vehicle
      traffic. That way the message for the seatbelts can get out.

      Q. The things you just described, high accident rate, high traffic,
      did those things that PennDOT apparently had, did that seem to
      comport with your own experience as an officer and being
      familiar with Banksville Road?

      A. Within the City of Pittsburgh, yes.

N.T. Hearing, 12/15/2011, at 6-7.

      In determining that the evidence presented by the Commonwealth was

sufficient to demonstrate substantial compliance regarding the time and

location of the seatbelt checkpoint, the trial court opined:

      The fourth standard [the choice for time and location of the
      checkpoint must be supported by local experience as to when
      and where drunk drivers are likely to be traveling] is not directly
      applicable in that it applies to DUI checkpoints and intoxicated
      drivers. However, the underlying rationale for this standard, i.e.
      the purpose to be served by the checkpoint will be accomplished
      because the location of the checkpoint is appropriate, is
      applicable in this context as well. It is the purpose of the Click it
      or Ticket checkpoint that as many drivers as possible are given
      the message of the importance of seatbelt use to promote public
      safety (T.R. 12/15/11, p. 5, 6, 7). Therefore, the selection of a
      busy roadway is paramount. As was stated previously, review of
      traffic data by the Commonwealth and the experience of a
      veteran Pittsburgh Police sergeant confirmed that this section of
      Banksville Road was well-traveled and had a high accident count,



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       making it a prime location to get the word out about seatbelt
       safety. (T.R. 12/15/11, p. 7).

Trial Court Opinion, 11/20/2012, at 10, ¶ 4.

       The trial court’s finding of the purpose of the checkpoint is supported

by the record.      I do not believe the trial court’s conclusion that Sergeant

Howe provided a sufficient testimonial basis to support the Banksville Road

location was in error.

       Initially, “the police are not required to produce any statistics at all to

justify the selection of the roadblock location.”          Commonwealth v.

Rastogi, 816 A.2d 1191, 1194 (Pa. Super. 2003) quoting Commonwealth

v. Ziegelmeier, 685 A.2d 559, 563 (Pa. Super. 1996).3 In Ziegelmeier,

Camp Hill Chief of Police Gregory Ammons testified the choice of location for

the DUI checkpoint was based upon “volume of traffic, number of

accidents, number of known DUI offenders that are apprehended on

the roadway, underage drinking arrests, DUI arrests.” Ziegelmeier,

at 562 (emphasis added).          On cross-examination, Chief Ammons testified

that 58 of 80 borough DUI arrests in the prior 13 months occurred in the




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3
  Prior to Ziegelmeier, a panel of our court decided Commonwealth v.
Trivitt, 650 A.2d 104 (Pa. Super. 1994) which ostensibly required the
Commonwealth to produce written reports, statistics or data to support the
choice of location for a DUI roadblock. Ziegelmeier, decided in 1996,
recognized that Trivitt was a plurality decision; therefore Trivitt was not
controlling law.




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general area of the checkpoint and eight occurred at the specific location.4

In his appeal, Ziegelmeier claimed trial counsel was ineffective for essentially

making the Commonwealth’s case by bringing out the actual DUI arrest

statistics. Our Court held:

       The Commonwealth was not required to produce statistics to
       show that the checkpoint area chosen was one “likely to be
       travelled by intoxicated drivers.” As a result, appellant’s claim of
       ineffective assistance of counsel is clearly meritless because the
       testimony by Chief Ammons on cross-examination was
       not necessary to show that the roadblock was conducted
       in a constitutional manner.

Id. at 563 (emphasis added).

       Therefore,    while    specific   numbers    regarding   DUI   arrests    were

presented to the trial court in Ziegelmeier, our Court specifically rejected

the production of such specific testimony as a constitutional requirement to

support choice of location.

       However,      the     Ziegelmeier       decision   was   misinterpreted     by

Commonwealth v. Blee, 695 A.2d 802 (Pa. Super. 1997). In a footnote,

Blee discussed the Ziegelmeier and Trivitt decisions:

       In Ziegelmeier, a panel of this Court declined to adopt Trivitt’s
       conclusion that the Commonwealth is required to introduce into
       evidence the reports, data and statistics relied on by the police
       in determining the location of the sobriety checkpoint. However,
       the panel in Ziegelmeier implicitly agreed with Trivitt’s
       conclusion that the Commonwealth is required to present some
       (emphasis added) type of evidence regarding the manner in
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4
 For reference, 58 incidents in a 13 months period translate to one incident
every 6.7 days. The eight arrests translate to one arrest every 48.75 days.



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      which the specific location of the sobriety checkpoint was
      chosen. That is, both Ziegelmeier and Trivitt require the
      Commonwealth to introduce evidence regarding the number of
      DUI-related accidents and arrests in the particular area of the
      sobriety checkpoint at issue.

Commonwealth v. Blee, 695 A.2d at 805, n. 8.

      This discussion led to Blee’s holding that, “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.”        Blee, at 806.    See also

Majority Opinion at 8.

      However, the concluding sentence of the footnote and resulting

holding of Blee are misstatements of Ziegelmeier’s holding that such

specific statistical information was not required to prove constitutionality.

Specific numbers of DUI-related arrests and/or accidents are statistics, and

Ziegelmeier    held      that   such   statistics   are   not   required   to   prove

constitutionality. Blee has never been cited by our Court or our Supreme

Court for the proposition that the Commonwealth must provide such specific

numbers to support the choice of a checkpoint location. In light of Blee’s

misinterpretation of Ziegelmeier, I do not believe that Blee represents a

binding decision.

      Therefore, any failure by the Commonwealth to provide “documentary

or testimonial evidence that specifies the reports, data or statistics relied




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upon in selecting the location (or time) of the checkpoint”5, as complained of

by Garibay, is not fatal to the Commonwealth’s case.

        Because specific numbers are not a requirement to demonstrate

substantial compliance, an examination of the record demonstrates no legal

error in the trial court’s conclusion that the evidence presented by the

Commonwealth was constitutionally sufficient. As the trial court explained,

the main purpose of this checkpoint was the dissemination of information to

as many citizens as possible. Sergeant Howe testified that to achieve this

goal PennDOT suggested multiple sites, including West Liberty Avenue, Saw

Mill Run Boulevard (Route 51), and Bigelow Boulevard; all of which the

Commonwealth had used for prior seatbelt checkpoint locations. See N.T.

Hearing, 12/15/2011, at 7.           There is nothing in the certified record to

suggest that any of these locations was improper.6         The information from

PennDOT is culled from their database of traffic information.7         Sergeant

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5
    See Garibay’s Appellate Brief, Statement of Questions Involved, at 3.
6
  This evidence is somewhat akin to In re J.A.K., 908 A.2d 322 (Pa. Super.
2006). J.A.K. also involved a seatbelt checkpoint. A panel of our Court
determined that police officer testimony that a checkpoint location had been
used on three prior locations, without any testimony regarding specific
numbers provided sufficient information to support the choice of checkpoint
location. However, in J.A.K. the issue of location was not contested,
therefore the decision’s commentary on the issue is dicta.
7
 See N.T. Hearing, 12/15/2011, at 6 (“The State likes us to do these safety
check seatbelt checkpoints on busy roadways within the City of Pittsburgh.
(Footnote Continued Next Page)


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Howe further testified that his experience as a City of Pittsburgh police

officer confirmed the information and suggestions of PennDOT as proper

locations for a seatbelt checkpoint.             This evidence provides ample support

for the choice of Banksville Road as a seatbelt checkpoint, given the stated

purpose of the checkpoint.          Sergeant Howe’s testimony, presented at the

hearing and accepted by the trial court, supports its finding the location

choice was not arbitrary or otherwise unreasonable. Therefore, I believe this

aspect of the Tarbert/Blouse guidelines has been met.

      Although the Commonwealth presented no evidence regarding the

timing of the checkpoint, the timing factor is not directly applicable to

seatbelt usage as compared with intoxicated driving.               Therefore, because

substantial and not total compliance is the applicable standard, I would

agree with the trial court that the evidence presented by the Commonwealth

fulfilled the requirements of substantial compliance.

      I recognize that the Majority is concerned that deviation from the Blee

requirements of specific statistical reference represents the application of a

lesser standard. See Majority Opinion, at 12. However, I do not believe this

approach represents a lesser standard.                Rather, I believe this analytical

approach in determining substantial compliance comports with our standards

of determining constitutionality in other search and seizure cases.                The
                       _______________________
(Footnote Continued)

They pull that information from vehicle traffic, the volume of traffic and high
accident locations.”).



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general standard applied in such matters, whether we are tasked with

determining reasonable suspicion or probable cause, is an examination of

the totality of the circumstances.8                The application of this standard

recognizes that vastly different circumstances may attend each search and

seizure episode.

       As every search warrant, street encounter or traffic stop is based upon

different factors, the same is true of checkpoints.            Here, the trial court

simply recognized the difference in purpose between a seatbelt checkpoint

and a DUI checkpoint, and evaluated the evidence supporting time and

location of the seatbelt checkpoint accordingly.           See Trial Court Opinion,

11/20/2012, at 10, ¶4, supra.           The general purpose of a DUI roadblock is

the apprehension of impaired drivers, and this purpose suggests that more

specific evidence be required to support the selection of location and timing

of the roadblock.          However, the time and location nexus to a DUI

checkpoint is not directly analogous to a seatbelt checkpoint. Therefore,

accepting the Commonwealth’s evidence without a statistical basis is not
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8
  This totality of circumstances approach was advocated by Justice Eakin in
his concurring opinion in Commonwealth v. Worthy, 957 A.2d 720, 728-
29 (Pa. 2008). In large part, “substantial compliance” might be seen as
simply a restatement of “totality of the circumstances.”

See Commonwealth v. Lyons, 79 A.3d 1053 (Pa. 2013); Commonwealth
v. Bailey, 947 A.2d 808 (Pa. Super. 2008); and Commonwealth v.
Watkins, 344 A.2d 678 (Pa. Super. 1975), among a host of other cases, for
examples of the application of totality of the circumstances as the analytical
basis for examining search and seizure issues.



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representative of a lower standard; it is a weighing of factors as applied to

the specific circumstances of the matter before us, in light of the factual

determinations made by the trial court.

      Accordingly, I   believe   the    trial court correctly determined the

Commonwealth presented sufficient evidence to demonstrate substantial

compliance with the Tarbert/Blouse guidelines.       Therefore, I respectfully

dissent.

      Judges Allen and Stabile join this dissenting opinion.




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