J-A23024-16


                                   2017 PA Super 16

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

ANDREW C. MENICHINO

                            Appellee                    No. 1904 WDA 2015


               Appeal from the Order entered November 10, 2015
                 In the Court of Common Pleas of Mercer County
                Criminal Division at No: CP-43-CR-0000027-2015


BEFORE: LAZARUS, STABILE, and STRASSBURGER,* JJ.

OPINION BY STABILE, J.:                               FILED JANUARY 23, 2017

        The Commonwealth appeals from the order the Court of Common

Pleas of Mercer County entered on November 10, 2015, granting Appellee

Andrew C. Menichino’s motion to suppress all the evidence derived from a

vehicular stop at a DUI checkpoint. Upon review, we reverse and remand.

         Following a hearing, the suppression court found the following:

        1.   Sergeant Brian Robinson has been employed with the
             Hermitage Police Department for 17 years, and is presently
             a patrol supervisor.

        2.   Sergeant Robinson also serves as the coordinator for the
             Mercer County DUI Task Force.        As coordinator, he is
             responsible for analyzing data in order [to] locate problem
             areas for DUI offenses. He has also served as coordinator
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A23024-16


          for seven years and has conducted approximately five (5)
          checkpoints per year.

     3.   Prior to September 2[6], 2014, Sergeant Robinson utilized
          the Hermitage Police Department’s Alert File System to
          identify two problem areas in the city of Hermitage through
          the use of statistics, State Route 18 [(]a/k/a Hermitage
          Road[)] and State Route 62 [(]a/k/a/ East State Street[)].

     4.   Sergeant Robinson testified that from September 2011 to
          September 2014 there were 94 DUI arrests on State Route
          18.

     5.   Within the same period of time, there were a total 430 DUI
          arrests within the City of Hermitage. Consequently, 22% of
          the total number of DUI arrests in Hermitage during this
          time frame occurred on State Route 18.

     6.   Based on this statistic, Sergeant Robinson prepared and
          presented an Operation Plan for a sobriety checkpoint on
          State Route 18 to the Hermitage Chief of Police.

     7.   In determining the exact location of the checkpoint,
          Sergeant Robinson testified that factors such as safety for
          motorists, site distance, whether the site is geographically
          conducive, and whether the site is appropriate for license
          checks were considered.

     8.   Additionally, the standard methodology for operating the
          sobriety checkpoint required the posting of signage advising
          motorists of the checkpoint, the use of traffic cones to direct
          traffic, a minimum of two officers being present, and that
          every vehicle was stopped.

     9.   Sergeant Robinson was on the scene at the sobriety
          checkpoint when [Appellee] was stopped.

     10. On cross-examination, Sergeant Robinson acknowledged
         that State Route 18, a/k/a/ Hermitage Road, is divided into
         North and South Hermitage Road at the intersection of State
         Route 62.

     11. Further, he acknowledged the Alert File System did not
         break the 94 DUI arrests down between North and South

                                    -2-
J-A23024-16


            Hermitage Road, nor did it identify the block in which an
            arrest occurred.      However, the system did identify
            landmarks for locations of some, but not all, DUI arrests.

     12. The sobriety checkpoint was located in the 2700 block of
         North Hermitage Road, which has the Quaker Circle housing
         development as a landmark.

     13. There had been two (2) DUI arrests at the Quaker Circle
         block of North Hermitage Road during that time frame.

     14. Further, based on landmarks identified in the Alert File
         System, Sergeant Robinson testified there had been at least
         44 DUI arrests on North Hermitage Road out of the total of
         94 for all of State Route 18.

Suppression Court Opinion, 11/10/15, at 2-3.

     After the hearing, the suppression court granted Appellee’s motion to

suppress to the extent he argued that the stop of Appellee was illegal

because the DUI checkpoint was not constitutionally acceptable. This appeal

followed.

     As this Court recently recognized:

     Our standard of review in addressing a challenge to the
     suppression court’s granting of a suppression motion is well
     settled.

        When the Commonwealth appeals from a suppression
        order, we follow a clearly defined standard of review and
        consider only the evidence from the defendant’s witnesses
        together with the evidence of the prosecution that, when
        read in the context of the entire record, remains
        uncontradicted. The suppression court’s findings of fact
        bind an appellate court if the record supports those
        findings.   The suppression court’s conclusions of law,
        however, are not binding on an appellate court, whose
        duty is to determine if the suppression court properly
        applied the law to the facts.



                                    -3-
J-A23024-16


        Commonwealth v. Miller, 56 A.3d 1276, 1278–1279 (Pa.
        Super. 2012) (citations omitted).[1] “Our standard of review is
        restricted to establishing whether the record supports the
        suppression court’s factual findings; however, we maintain de
        novo review over the suppression court’s legal conclusions.”
        Commonwealth v. Brown, 606 Pa. 198, 996 A.2d 473, 476
        (2010) (citation omitted).

Commonwealth v. Korn, 139 A.3d 249, 252-53 (Pa. Super. 2016).

        At issue here is the legality of the vehicular stop that took place at the

DUI checkpoint set up by the Hermitage Police Department on September

26, 2014.2 In addressing the merits of this contention, we are guided by the

following principles.

____________________________________________


1
  In In re L.J., 79 A.3d 1073 (Pa. 2013), our Supreme Court applied
prospectively a new rule regarding the scope of review in suppression
matters. Specifically, it clarified that an appellate court’s scope of review in
suppression matters includes the suppression hearing record, but not
evidence elicited at trial. The Commonwealth challenges the conclusions of
the suppression court, not its findings. As such, L.J. does not come into
play.
2
    The Commonwealth raises the following issues:

        1. Whether the Commonwealth failed to supply sufficient
           evidence regarding the likelihood of observing intoxicated
           drivers at the selected DUI checkpoint location[.]

        2. Whether the law requires evidence of a high volume of
           accidents, arrests, and/or violations of the Vehicle Code on
           the specific block or intersection of a selected route rather
           than evidence that the selected route is likely to be traversed
           by intoxicated drivers[.]

Commonwealth’s Brief at 4.




                                           -4-
J-A23024-16


     [W]hen conducting roadblock checkpoint stops, police in
     Pennsylvania must comply with the [Commonwealth v.
     Tarbert, 535 A.2d 1035 (Pa. 1987) and Commonwealth v.
     Blouse, 611 A.2d 1177 (Pa. 1992)] 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:

          [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

                                   -5-
J-A23024-16


              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, 564 Pa. 338, 768 A.2d 318, 323 (2001).[3] 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).

Commonwealth v. Garibay, 106 A.3d 136, 139-40 (Pa. Super. 2014).

       The issue raised here involves the fourth criteria, specifically, the

location for the DUI checkpoint.          Worthy, supra.   To establish that the

____________________________________________


3
 In response to the guidelines set forth in Tarbert, the legislature amended
Section 6308(b) of the Vehicle Code, which now reads as follows:

       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).



                                           -6-
J-A23024-16


roadblock is likely to be traveled by intoxicated drivers, the Commonwealth,

at the very least, must adduce evidence “sufficient to specify the number of

DUI-related arrests and/or accidents [at] . . . the specific location of the

sobriety checkpoint.” Blee, 695 A.2d at 806. If the Commonwealth fails to

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

accidents for a checkpoint’s location, then the checkpoint will be deemed

unconstitutional. Id.

     Appellee argued, and the suppression court agreed, that Garibay

requires the Commonwealth to specify the number of accidents, arrests, and

violations at the “specific checkpoint location.” Suppression Court Opinion,

11/10/15, at 4.   Relying on Garibay, the suppression court and Appellee

interpreted the “specific checkpoint location” phrase in Garibay to require

evidence of arrests and/or accidents at the exact spot of the checkpoint

(Block 2700 of North Hermitage Road). Because at the exact location of the

checkpoint there were only two DUI arrests reported, the suppression court

concluded that the Commonwealth failed to meet the criteria for a

constitutionally acceptable DUI checkpoint.     The suppression court also

noted it could not take into account the other 44 arrests made on North

Hermitage Road because those arrests did not occur at the specific location

of the checkpoint.   Accordingly, the suppression court concluded that the

stop was illegal, and suppressed all evidence stemming from the illegal stop.




                                    -7-
J-A23024-16


      The suppression court and Appellee misconstrue the specificity

required in choosing a checkpoint location.      Our cases have held that the

police, in setting up a DUI checkpoint, must articulate specifics such as the

reason for the location and the number of prior DUIs in the area of the

checkpoint.     See Commonwealth v. Stewart, 846 A.2d 738, 741 (Pa.

Super. 2004) (holding that the DUI roadblock set up “in the area of

Bookspan on South Market Street in Upper Allen Township” was conducted

substantially   in   compliance     with   the   Tarbert/Blouse    guidelines);

Commonwealth v. Ziegelmeier, 685 A.2d 559, 562 (Pa. Super. 1996)

(holding “there was testimony . . . that the determination was based on

several factors, including volume traffic, number of DUI arrests in that area

(as compared to the total number in Camp Hill) and the number of DUI

related accidents.    Therefore, the roadblock was constitutional under the

requirements of Tarbert and Blouse.”); cf. Blee, 695 A.2d at 806 (holding

the officer “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.”).   Thus, 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.

      Here, there is no dispute that the area of the checkpoint is North

Hermitage Road.      For that specific location, the Commonwealth presented

sufficient testimonial and documentary evidence showing that the location


                                      -8-
J-A23024-16


selected was one likely to be traveled by intoxicated drivers (at least 44 DUI

arrests out of the total of 94 for all of State Route 18 located within the City

of Hermitage).    Accordingly, the suppression court erred in not accounting

for all DUI arrests made on North Hermitage Road for purposes of

determining     whether   the   checkpoint   was   constitutionally   acceptable.

Because the Commonwealth presented sufficient evidence to meet the

location criterion under the Tarbert/Blouse guidelines, we conclude the

checkpoint was conducted in a constitutional manner, and that the

suppression court erred in concluding otherwise.

      Order reversed. Case remanded for further proceedings.          Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2017




                                      -9-
