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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.

OPINION BY JENKINS, J.:                               FILED DECEMBER 9, 2014

        Cipriano Garibay (“Appellant”) appeals from the judgment of sentence

entered in the Allegheny County Court of Common Pleas following his

conviction for Driving Under the Influence of a Controlled Substance

(marijuana)1 (“DUI”), and challenges the ruling denying his motion to

suppress. After careful review, we reverse.

        We first summarize the pertinent factual and procedural history. On

November 19, 2009, police in the City of Pittsburgh set up a checkpoint in

conjunction with the Pennsylvania Department of Transportation’s Click It or

____________________________________________


1
    75 Pa.C.S. § 3802(d)(1).
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Ticket program designed to ensure compliance with seatbelt and motor

vehicle equipment requirements.           The police conducted the checkpoint on

the inbound side of Banksville Road near the intersection with Crane Avenue,

a location previously identified by police as a high traffic volume and high

accident location appropriate for a safety checkpoint.       In addition to prior

advertising on billboards and in radio advertisements, signs erected

approximately seventy-five yards before the safety checkpoint alerted

motorists to the approaching checkpoint.

       Appellant entered the checkpoint at approximately 9:05 p.m.          Loud

noises coming from the exhaust system of Appellant’s white Dodge Caravan

immediately drew police attention. The police directed Appellant to pull into

a designated contact area to check the vehicle for violations.      During their

subsequent interaction with Appellant, police suspected he may have been

under the influence of marijuana due to his failure to respond, his trance-like

state, and a particularly pungent odor of marijuana emanating from

Appellant’s person and his vehicle. Based on these observations, the police

asked Appellant to participate in field sobriety testing, which he failed.2

Ultimately, the police determined Appellant was incapable of safely driving,

and placed him under arrest for DUI. A search incident to the arrest yielded


____________________________________________


2
  Appellant participated in only one field sobriety test, during which he had
trouble walking. Police concern for Appellant’s personal safety prevented
further field sobriety testing.



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a white porcelain pipe in Appellant’s right front jacket pocket, which police

believed was used to smoke marijuana.            Following his arrest, Appellant

submitted to blood testing, which tested positive for marijuana.

        Police charged Appellant with DUI, Possession of Drug Paraphernalia,3

and two vehicle-related summary offenses.4           On September 11, 2011,

Appellant filed a motion to suppress alleging, inter alia, that the police did

not comply with the Tarbert/Blouse5 guidelines for checkpoint stops. After

conducting a hearing,6 the trial court denied the motion to suppress by order

dated December 23, 2011.

        On January 6, 2012, Appellant proceeded to a non-jury trial during

which counsel stipulated to the admission of Appellant’s blood test results.

The trial court found Appellant guilty of one count of DUI. On April 3, 2012,

____________________________________________


3
    35 P.S. § 780-113(a)(32).
4
  Violation of Vehicle Equipment Standards, 75 Pa.C.S. § 4107, and
Operating Vehicle Without Valid Inspection, 75 Pa.C.S. § 4103.
5
  Commonwealth v. Tarbert, 535 A.2d 1035 (Pa.1987); Commonwealth
v. Blouse, 611 A.2d 1177 (Pa.1992).
6
  The trial court held two days of hearings with regard to Appellant’s motion
to suppress. The initial hearing, conducted on December 2, 2011, consisted
of the testimony of Officers Donald I. Mitchell, Jr., and John Suzensky, both
of whom testified regarding the circumstances surrounding the actual vehicle
stop on the night in question. The trial court continued the matter until
December 15, 2011, at which time Sergeant Richard Howe, who had ordered
the time and location of the November 19, 2009 checkpoint, testified for the
Commonwealth regarding the establishment and administration of the
checkpoint.



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the trial court sentenced Appellant to four days of intermediate punishment

and six months of probation. This appeal followed.

      Appellant presents the following questions for our review:

      I. Can the Commonwealth sustain its burden of proof at a
      suppression hearing challenging the constitutionality of a
      checkpoint stop where the Commonwealth fails to produce
      documentary or testimonial evidence that specifies the reports,
      data, or statistics the police relied upon in selecting the location
      of the checkpoint?

      II. Can the Commonwealth sustain its burden of proof at a
      suppression hearing challenging the constitutionality of a
      checkpoint stop where the Commonwealth fails to produce
      documentary or testimonial evidence that specifies the reports,
      data, or statistics the police relied upon in selecting the time of
      the checkpoint?

Appellant’s Brief, p. 3.

      Our well-settled standard of review of the denial of a motion to

suppress evidence is as follows:

      [An appellate court’s] standard of review in addressing a
      challenge to the denial of a suppression motion is limited to
      determining whether the suppression court’s factual findings are
      supported by the record and whether the legal conclusions
      drawn from those facts are correct. Because the Commonwealth
      prevailed before the suppression court, we may consider only
      the evidence of the Commonwealth and so much of the evidence
      for the defense as remains uncontradicted when read in the
      context of the record as a whole. Where the suppression court’s
      factual findings are supported by the record, [the appellate court
      is] bound by [those] findings and may reverse only if the court’s
      legal conclusions are erroneous. Where . . . the appeal of the
      determination of the suppression court turns on allegations of
      legal error, the suppression court’s legal conclusions are not
      binding on an appellate court, whose duty it is to determine if
      the suppression court properly applied the law to the facts.



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      Thus, the conclusions of law of the courts below are subject to []
      plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa.2010) (internal citations

and quotation marks omitted).

      In examining Appellant’s issues, we initially note that both the United

States and Pennsylvania Constitutions prohibit “unreasonable searches and

seizures.”   U.S. Const. Amendment IV; Pennsylvania Const. Art. 1, § 8.

Further, our Supreme Court has explained that “[i]t is undisputed that the

stopping of an automobile and the detention of its occupants is a seizure

subject to constitutional restraints.” Blouse, 611 A.2d at 1178.

      Pennsylvania’s Vehicle Code provides police with authority to stop

vehicles and conduct systematic DUI or traffic safety checkpoints, even

though such stops are not based on reasonable suspicion or probable cause

standards.   Pertinently, the Vehicle Code provides:

      § 6308. Investigation by police officers

                                   *****

      (b) Authority of police officer.--Whenever a police officer is
      engaged in a systematic program of checking vehicles or drivers
      or has reasonable suspicion that a violation of this title is
      occurring or has occurred, he may stop a vehicle, upon request
      or signal, for the purpose of checking the vehicle’s registration,
      proof of financial responsibility, vehicle identification number or
      engine number or the driver’s license, or to secure such other
      information as the officer may reasonably believe to be
      necessary to enforce the provisions of this title.

75 Pa.C.S.A. § 6308(b).




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      Intrusions caused by checkpoint stops must be “balanced against the

government’s     promotion    of   legitimate   interests”   in   order   to   protect

individuals “from arbitrary invasions at the unfettered discretion of the

officers in the field.”   Blouse, 611 A.2d at 1178 (citing Brown v. Texas,

443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979)).               Accordingly, when

conducting roadblock checkpoint stops, police in Pennsylvania must comply

with the Tarbert/Blouse guidelines. Our Supreme Court has stated these

guidelines as follows:

      [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
      drunk-driver 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). Otherwise

stated:




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      [T]o be constitutionally acceptable, a checkpoint must meet the
      following five criteria: (1) vehicle stops must be brief and must
      not entail a physical search; (2) there must be sufficient warning
      of the existence of the checkpoint; (3) the decision to conduct a
      checkpoint, as well as the decisions as to time and place for the
      checkpoint, must be subject to prior administrative approval; (4)
      the choice of time and place for the checkpoint must be based
      on local experience as to where and when intoxicated drivers are
      likely to be traveling; and (5) the decision as to which vehicles to
      stop at the checkpoint must be established by administratively
      pre-fixed, objective standards, and must not be left to the
      unfettered discretion of the officers at the scene.

Commonwealth v. Worthy, 957 A.2d 720, 725 (Pa.2008) (citing Blouse,

supra,   and    Tarbert,   supra).       “Substantial   compliance    with   the

Tarbert/Blouse guidelines is all that is necessary to minimize the

intrusiveness of a roadblock seizure to a constitutionally acceptable level.”

Commonwealth v. Yastrop, 768 A.2d 318, 323 (Pa.2001).                 However,

where police do not comply with the guidelines in establishing a checkpoint,

the trial court should suppress evidence derived from the stop, including the

results of field sobriety and blood alcohol testing. See Commonwealth v.

Blee, 695 A.2d 802, 806 (Pa.Super.1997).

      Like DUI checkpoints, checkpoints established to inspect vehicle safety

and seatbelt usage are lawful in Pennsylvania, provided that the checkpoint

complies with the procedural requirements outlined by the Tarbert/Blouse

guidelines. In re J.A.K., 908 A.2d 322, 325-26 (Pa.Super.2006). In In re

J.A.K., a seatbelt safety checkpoint case, this Court specifically stated:

      [W]e are convinced, by the plain language of 75 Pa.
      Cons.Stat.Ann. § 6308(b), that so long as a “systematic program
      of checking vehicles or drivers” is followed, then an
      investigative roadblock may be conducted to enforce any

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       provisions of the Motor Vehicle Code. Indeed, the plain
       language of 75 Pa. Cons.Stat.Ann. § 6308(b) clearly does not
       limit the situations under which such a roadblock may be
       conducted, other than to specify that such a stop must be
       “necessary to enforce the provisions of [the Motor Vehicle
       Code].” Therefore, we find that while 75 Pa. Cons.Stat.Ann. §
       4581(a)(2) may prohibit a police officer from making routine
       traffic stops for a seatbelt violation, nothing in that provision
       prohibits an investigative roadblock that checks for general
       motor vehicle safety compliance, provided that a proper
       systematic program is implemented. Such roadblocks afford
       minimal personal interference, while furthering an important
       highway safety interest.

In re J.A.K., 908 A.2d at 325-26 (internal citation omitted) (emphasis

supplied).

       Regarding the evidence the Commonwealth must put forth at a

suppression hearing to justify the selection of a DUI checkpoint, this Court

has explained that “[t]o ensure that the intrusion upon the travelling public

remains minimal, we cannot accept [] general testimony elicited at [a

suppression]     hearing     as   proof    of   ‘substantial   compliance’   with   the

[Tarbert/Blouse guidelines].”          Blee, 695 A.2d at 806.       Rather, “[a]t the

very least, the Commonwealth [must] present information sufficient to

specify the number of DUI-related arrests and/or accidents [at] . . . the

specific location of the sobriety checkpoint.” Id. If the Commonwealth fails

to introduce evidence concerning the number of DUI-related arrests and/or

accidents in explaining the choice of a checkpoint’s location,7 then the
____________________________________________


7
  We note that, in the past, we required the Commonwealth to put actual
documentation explaining police determinations as to checkpoint details such
(Footnote Continued Next Page)


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checkpoint will be deemed unconstitutional.                 Compare Blee, supra

(checkpoint unconstitutional where testimony at suppression hearing related

to DUI arrests and DUI-related accidents county-wide and in certain

municipalities rather than at the specific location of the sobriety checkpoint)

and Commonwealth v. Trivitt, 650 A.2d 104 (Pa.Super.1994) (same) with

Commonwealth v. Ziegelmeier, 685 A.2d 559 (Pa.Super.1996) (roadblock

constitutional where testimony established the number of DUI-related

accidents    and   arrests       in   the   particular   area   of   the   checkpoint),

Commonwealth v. Myrtetus, 580 A.2d 42 (Pa.Super.1990) (same), and

Yastrop, supra (sobriety checkpoint constitutional where officer who set up

checkpoint testified that he reviewed PennDOT records and information that

led him to conclude the checkpoint location was a route likely to be travelled

by intoxicated drivers). The Commonwealth must fulfill these same specified

procedural requirements for both DUI and non-DUI checkpoints. See In re

J.A.K., supra.




                       _______________________
(Footnote Continued)

as location into evidence. See Commonwealth v. Trivitt, 650 A.2d 104
(Pa.Super.1994) (holding the introduction of documentary evidence relied
upon in determining location of checkpoint required to satisfy
Tarbert/Blouse guidelines). We have since relaxed that requirement to
allow the Commonwealth to introduce such evidence via testimony. See
Commonwealth v. Ziegelmeier, 685 A.2d 559 (Pa.Super.1996) (requiring
same specific information as to location of specific checkpoints to satisfy
Tarbert/Blouse guidelines, but repudiating the documentary evidence
requirement of Trivitt).



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      At the suppression hearing in the instant matter, as in all suppression

matters, the Commonwealth had the burden of establishing that the

challenged evidence was not obtained in violation of Appellant’s rights by

illustrating   that   the   police   complied    with   the   requirements   of   the

Tarbert/Blouse guidelines in conducting the Click It or Ticket seatbelt

checkpoint. See Pa.R.Crim.P. 581(H); see also In re J.A.K., supra. To

satisfy the selection of the checkpoint time and location portion of this

burden, the Commonwealth presented only the testimony of Sergeant

Richard Howe of the Pittsburgh Police.           Sergeant Howe testified that he

ordered the November 19, 2009, Banksville Road seatbelt/safety equipment

violation checkpoint as part of a “statewide public safety” campaign.             N.T.

12/15/2011, pp. 4-5.         However, Sergeant Howe provided none of the

testimony contemplated in Blee regarding the number of prior safety

violations and/or accidents at the specific checkpoint location in question.

Instead, Sergeant Howe simply explained the selection of the Banksville

Road location in general terms 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.

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




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      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. 12/15/2011, pp. 6-7.      Moreover, Sergeant Howe failed to offer any

testimony regarding the selection of the checkpoint’s time/duration. At the

conclusion of this testimony, and without further questioning by Appellant,

the Commonwealth rested with regard to the motion to suppress without

offering additional testimony or documentary evidence pertaining to the

determination of the checkpoint’s location and time/duration.

      Sergeant     Howe’s   generalized    testimony       provided   no   specifics

whatsoever regarding accidents, arrests, citations, violations, etc., regarding

seatbelt usage or non-usage at the specific checkpoint location, nor did it

present any insight into the selection of the checkpoint time and duration.

Therefore,   the   testimony   did   not   satisfy   the    requirements    of   the

Tarbert/Blouse guidelines. Because the Commonwealth’s only evidence as

to the selection of the location of this checkpoint was Sergeant Howe’s




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general testimony, the trial court should have suppressed all evidence

resulting from the stop at this seatbelt checkpoint.

      Despite   the      deficiencies       in   Sergeant     Howe’s     testimony,   the

Commonwealth argues “the ‘Click It or Ticket It Buckle Up Campaign’

checkpoint was established and conducted in a constitutionally acceptable

manner.”    Commonwealth’s Brief, p. 7.                 Specifically, the Commonwealth

argues that “[b]eing that [the instant checkpoint] was not a DUI checkpoint,

the testimony of Sergeant Howe about his experience with Banksville Road

along with the Commonwealth’s research on Banksville Road satisfied

constitutional standards.” Id. Essentially, the Commonwealth argues that,

while police must comply with the Tarbert/Blouse guidelines in setting up

DUI checkpoints, a lesser standard exists for establishing a non-DUI

checkpoint. We do not agree.

      Blouse    itself    involved      a    license,    registration,   and   equipment

checkpoint, and the Court applied the same guidelines as were appropriate

for a DUI checkpoint.       See Blouse, supra.              There, our Supreme Court

unambiguously stated:

      [t]he rationale behind upholding the constitutionality of drunk
      driving roadblocks applies equally to all systematic roadblocks,
      where the compelling interest of the statute in protecting its
      citizens from harm . . . outweighs the privacy interests of the
      individual.

Blouse, 611 A.2d at 1179. Further, exactly as in the instant matter, In re

J.A.K. involved a “Click It Or Ticket” checkpoint.                In that case, before



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engaging in an analysis of whether the authorities complied with the

specified procedural requirements outlined by the Pennsylvania Supreme

Court in Tarbert and Blouse, this Court expressly noted:

        Although our caselaw dealing with checkpoint procedures focuses
        on DUI checkpoints, we analyze the facts of this case utilizing
        the same [Tarbert/Blouse] guidelines, as there is no
        reasonable distinction between DUI checkpoints and vehicle
        safety checkpoints.

In re J.A.K., 908 A.2d at 326 n.3.

        Based on this precedent, this Court is unwilling to conclude that there

exist differing standards for setting up DUI and non-DUI checkpoints in this

Commonwealth.

        Judgment of sentence vacated.     Remanded for further proceedings.

Jurisdiction relinquished.

        Ford Elliott, P.J.E., Bender, P.J.E., Bowes, Shogan and Wecht, JJ. join

the opinion.

        Judge Ott files a dissenting opinion in which Judges Allen and Stabile

join.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/9/2014

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