J-S18013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

MALIK MERCADO

                                                      No. 1444 EDA 2016


                  Appeal from the Order Entered April 18, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): MC-51-CR-0023918-2015


BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                               FILED April 25, 2017

        On August 1, 2015, Appellee Malik Mercado was stopped at a sobriety

checkpoint on East Allegheny Avenue in the 25th Police District in

Philadelphia. The police officers operating the checkpoint arrested him and

charged him with driving while under the influence of marijuana (“DUI”). The

Philadelphia Court of Common Pleas affirmed the Philadelphia Municipal

Court’s conclusion that the DUI checkpoint was unconstitutional and

suppressed the evidence gathered from the stop. The sole issue in this




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*
    Former Justice specially assigned to the Superior Court.
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Commonwealth appeal1 is whether the police chose the location of the DUI

checkpoint in compliance with the Tarbert/Blouse2 guidelines and the body

of law contained in this Court’s application of those guidelines. After careful

review, we affirm.

       The Commonwealth contends that the Court of Common Pleas erred in

its application of the Tarbert/Blouse guidelines.

       When the Commonwealth appeals from a suppression order, this
       Court may consider only the evidence from the defendant’s
       witnesses together with the evidence of the prosecution that,
       when read in the context of the record as a whole, remains
       uncontradicted. In our review, we are not bound by the
       suppression court’s conclusions of law, and we must determine if
       the suppression court properly applied the law to the facts. We
       defer to the suppression court’s findings of fact because, as the
       finder of fact, it is the suppression court’s prerogative to pass on
       the credibility of the witnesses and the weight to be given to
       their testimony.

Commonwealth v. Myers, 118 A.3d 1122, 1125 (Pa. Super. 2015)

(citation omitted).

       The Tarbert/Blouse guidelines were promulgated to allow the

government to pursue its legitimate interest in preventing the “carnage”

caused by DUI, Tarbert, 535 A.2d at 304 (citation omitted), while

protecting “the individual from arbitrary invasions at the unfettered

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1
  The Commonwealth certified in its notice of appeal that the suppression
order would terminate or substantially handicap the prosecution of Mercado,
thereby perfecting our jurisdiction under Pa.R.A.P. 311(d).
2
   Commonwealth v. Tarbert, 535 A.2d 1035 (Pa. 1987) and
Commonwealth v. Blouse, 611 A.2d 1177 (Pa. 1992).



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discretion of the officers in the field,” Blouse, 611 A.2d at 1178 (citation

omitted). The guidelines set forth five general requirements that the

Commonwealth must establish substantial compliance with in order to

ensure the constitutionality of a DUI checkpoint. See Commonwealth v.

Garibray, 106 A.3d 136, 140 (Pa. Super. 2014) (en banc). Here, only one

part of the fourth requirement, that the choice of location for the checkpoint

be based on experience as to where intoxicated drivers are likely to be

driving, is at issue.

      The essential facts of this case are undisputed          and may be

summarized as follows. The 25th Police District of Philadelphia suffered the

highest number of DUI arrests in the city during the years 2013 and 2014.

See N.T., Suppression hearing, 1/7/16, at 24, 29-32. The district covers

approximately 2.3 square miles. See id., at 30. The data used by the police

in this case was not broken down further to specific locations or streets

within the district. See id.

      Reacting reasonably to this data, the police sought to curb DUI in this

district by establishing a DUI checkpoint. See id., at 29. Complicating

matters was the fact that a checkpoint requires a large operation, involving

“18 police officers, two police cruisers and one large processing center. It’s

about the size of a firetruck.” Id., at 25. As a result, the police were also

reasonably concerned with safety considerations, ruling out smaller, more

residential side streets. See id.


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       The Court of Common Pleas concluded that under Commonwealth v.

Blee, 695 A.2d 802 (Pa. Super. 1997), and Garibray, the police had not

provided sufficient evidence to prove that “the DUI checkpoint in question

substantially complied with the Tarbert/Blouse location requirement

because” the evidence was not specific to the location of the DUI checkpoint.

See Trial Court Opinion, 7/6/16, at 6. It therefore affirmed the Municipal

Court’s order that found the stop unconstitutional.

       On appeal, the Commonwealth argues that the Court of Common Pleas

misapplied     Blee    and    Garibray.3       The   Commonwealth   believes   that

Commonwealth v. Fioretti, 538 A.2d 570 (Pa. Super. 1988), is controlling.

After reviewing these cases, we agree with the Court of Common Pleas that

there is significant unresolved tension between the holdings of Blee and

Fioretti.

       In Fioretti, a panel of this Court was presented with circumstances

similar to the present case. The appellant was one of several defendants

who had been arrested at a DUI checkpoint in Williamsport. The location for

the checkpoint had been chosen after determining that the thirteenth (of

fifteen) police district in Williamsport had been the location of a high number

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3
  The Commonwealth also argues that the stop was voluntary. While there
was testimony to support this position, our review of the record reveals that
the Commonwealth never presented this argument to the Court of Common
Pleas or the Municipal Court. It is therefore waived for purposes of appeal.
See Pa.R.A.P. 302(a).



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of DUI arrests over a recent six-month period. See Fioretti, 538 A.2d at

576. However, the specific location within the thirteenth district had been

chosen “for its safety features[.]” Id., at 576-577.

      The suppression court held that the checkpoint did not comply with the

Tarbert guidelines. The Fioretti panel disagreed, noting that “the location

of the roadblock was chosen based on a statistical analysis of which district

had the highest number of [DUI] arrests or accidents[.]” Id., at 549. It

therefore reversed the suppression order and remanded for further

proceedings.

      Similarly, the Blee panel reviewed the placement of a DUI checkpoint

in Luzerne County. It summarized the relevant evidence as follows:

      Deputy Chief William Barrett of the Wilkes-Barre Police
      Department testified that he was responsible for determining the
      site of the checkpoint. He decided to locate the checkpoint on
      Route 11 approximately one-quarter mile south of Main Street,
      near the shopping center in Edwardsville. In making this
      decision, Deputy Chief Barrett considered motorist safety, traffic
      volume, availability of lighting and whether motorists would have
      ample opportunity to avoid the checkpoint if they so desired. He
      also testified that he reviewed studies from the Pennsylvania
      Department of Transportation (PennDOT) regarding DUI arrests
      and DUI-related accidents in Luzerne County during the years
      1989 through 1994. These studies were introduced into evidence
      and made a part of the record. On cross-examination, [he]
      admitted that the studies were not specific to DUI-related
      accidents and arrest at the particular location of the sobriety
      checkpoint, that is, Route 11 in Edwardsville. Rather, the studies
      provided general information indicating the number of DUI-
      related accidents and arrests in Luzerne County, the
      municipalities located in Luzerne County and the roads bordering
      Luzerne County. Specifically, the studies indicated that, among
      the roads in Luzerne County, Route 11 had the second highest
      incidence of alcohol-related accidents, and that, among the

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      municipalities in Luzerne County, Edwardsville had one of the
      highest incidence of alcohol-related accidents.5
           5
              Deputy Chief Barrett testified that from 1989 through
           1994 there were 185 alcohol related accidents on Route 11
           in Luzerne County, which is approximately thirty-eight miles
           in length. He also testified that there were forty-one alcohol
           related accidents in the Borough of Edwardsville, which
           contains numerous roads.

695 A.2d at 804 (citations omitted).

      In       contrast   to   Fioretti,   the   Blee   panel   concluded    that   the

Commonwealth had failed to establish compliance with the Tarbert/Blouse

guidelines.

      While Deputy Chief Barrett testified concerning the number of
      alcohol-related accidents on Route 11 in Luzerne County and the
      number of alcohol-related accidents in Edwardsville, Luzerne
      County, he never testified as to the number of alcohol-related
      accidents and/or arrests on Route 11 in Edwardsville, the specific
      location of the sobriety checkpoint. … 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.

Id., at 805-806.

      We are thus left with one precedent, Fioretti, that held that the

localization requirement was satisfied by data covering one of fifteen police

districts in Williamsport, and another, Blee, that held that the localization

requirement was not satisfied by data covering a small borough outside of

Wilkes-Barre. The Commonwealth attempts to distinguish                      Blee from

Fioretti by formulating a rule whereby police districts are sufficiently

localized, while an entire municipality is not.

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         However, the Commonwealth’s distinction does not hold up under

review of the status or size of Edwardsville Borough when compared to the

25th police district in Philadelphia. First, it is clear from Blee that

Edwardsville Borough was only a portion of a larger whole covered by the

Wilkes-Barre Police Department. Thus, Edwardsville Borough is more like the

police district at issue in Fioretti than the Commonwealth’s argument

admits.

         This becomes even more obvious in light of the size of the

administrative units at issue. Edwardsville Borough covers approximately 1.2

square      miles.   See    About    Edwardsville          Borough,   available         at

http://www.edwardsvilleborough.com/, retrieved 3/21/17. While there is no

indication of the size of the 13th police district in Fioretti, the Williamsport

Police    Department    covers   approximately     9   square    miles   total.        See

Williamsport           Bureau        of          Police,         available              at

http://williamsportpd.org/Pages/Home.aspx,          retrieved     3/22/17.        It    is

therefore unlikely that the 13th district at issue in Fioretti was significantly

larger than the 1.2 square miles contained in Edwardsville Borough. By way

of comparison, the 25th police district at issue in the present case covers

approximately 2.3 square miles. See N.T., Suppression Hearing, 1/7/16, at

30.

         We therefore agree with the Court of Common Pleas that Blee is not

easily distinguishable. We therefore turn to this Court’s most recent


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application of the Tarbert/Blouse guidelines. In a decision published after

the parties submitted their principal briefs in this case, a panel of this Court

reviewed a suppression order that required the Commonwealth to present

evidence of arrests or accidents “at the exact spot of the checkpoint.”

Commonwealth v. Menichino, 2017 WL 281930, at *4, ___ A.3d ___ (Pa.

Super. 2017).

      The Menichino panel rejected this argument, holding that “under

current law, the specific location of the checkpoint is the area where the

checkpoint is located, not the exact block/location of the checkpoint.” Id.

Thus, in the case before it, evidence that 44 out of a total of 94 DUI arrests

on State Route 18 occurred within the city of Hermitage was sufficient to

satisfy the localization requirement of Tarbert/Blouse. See id.

      Here, the Court of Common Pleas noted that the Commonwealth’s

evidence only addressed a 2.3 square mile area. It therefore reasoned that

“it does not logically follow that any route selected within a police district

with a relatively high number of DUI-related incidents will be a route that is

likely to be travelled by intoxicated drivers[.]” Trial Court Opinion, 7/6/16, at

6   (quotation    marks    omitted).   We     agree   that,   under   the   specific

circumstances of this case, the Commonwealth failed to establish that

Allegheny Avenue in the 25th Police District was a route likely to be travelled

by intoxicated drivers. 2.3 square miles within the City of Philadelphia is not

sufficiently   localized   to   constitute   substantial   compliance   with    the


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Tarbert/Blouse guidelines. While certainly not the only method to obtain

compliance, evidence of DUI arrests on Allegheny Avenue within the 25th

district would have been sufficient. But the Court of Common Pleas did not

err in concluding that the evidence presented here was insufficient.

Accordingly, we affirm the suppression order.

     Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/25/2017




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