J-E04006-17

                                   2019 PA Super 63

    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: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,
        SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., and DUBOW, J.

OPINION BY PANELLA, J.                              FILED FEBRUARY 27, 2019

       The Commonwealth appeals from the order of the Philadelphia Court of

Common Pleas, affirming the order of the Philadelphia Municipal Court, which

granted the motion to suppress evidence that Appellee, Malik Mercado was

found to be driving under the influence (“DUI”) of a controlled substance,

marijuana, when stopped by Philadelphia police at a roadblock checkpoint.1

After careful review, we conclude that the police substantially complied with

the Tarbert/Blouse2 guidelines adopted by our Supreme Court to establish

the constitutionality of a DUI roadblock. Specifically, the selection of a location

____________________________________________


1 The Commonwealth certified that the order would substantially handicap or
effectively terminate the prosecution, perfecting our jurisdiction under
Pa.R.A.P. 311(d).

2See Commonwealth v. Tarbert, 535 A.2d 1035 (Pa. 1987) (plurality), and
Commonwealth v. Blouse, 611 A.2d 1177 (Pa. 1992).
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as well as the operation of the checkpoint met constitutional requirements.

Accordingly, we are constrained to reverse and remand.

        The facts of the case are not in dispute.     The Common Pleas Court

summarized them as follows:

               On July 31, 2015 at 10:45p.m., Philadelphia Police Officers
        [Eric] Kornberg and Soto3 stopped Appellee at a DUI checkpoint
        located on the 300 block of East Allegheny Avenue, Philadelphia,
        Pennsylvania.     Officer Kornberg noticed that Appellee had
        bloodshot, glassy eyes and detected the odor of burnt marijuana
        coming from both Appellee’s vehicle and breath. Officer Kornberg
        stated that Appellee admitted to smoking marijuana [twenty]
        minutes prior to their interaction.      Subsequently, Appellee
        submitted to a field sobriety test and was placed in custody for
        suspicion of DUI. Appellee was transported to the Police Detention
        Unit for a blood test.

               Lieutenant James McCarrick is responsible for selecting
        locations for DUI checkpoints throughout the City of Philadelphia.
        To determine the location of the DUI checkpoint in question,
        Lieutenant McCarrick tabulated all DUI-related incidents in
        Philadelphia over the previous two years and broke those figures
        down by DUI-related incidents per police district. He found that
        the 25th Police District, which is 2.3 square miles, was “the number
        one district in the city for DUIs,” but confirmed that there was
        nothing in the statistics that indicated that the 300 block of East
        Allegheny Avenue had a higher frequency of DUI incidents than
        anywhere else in the 25th Police District because the figures are
        not location-specific.

               The Lieutenant explained that a DUI checkpoint operation
        “roughly consists of eighteen police officers, two police cruisers
        and one large processing center [that is] about the size of a fire
        truck.” He testified that he would be unable to set up a DUI
        checkpoint in the “majority of locations” within the 25th Police
        District because it is a “highly congested residential area.”
        Lieutenant McCarrick selects DUI-checkpoint locations that are
        “large enough and safe enough” to accommodate such an
____________________________________________


3   Officer Soto’s first name is not readily apparent in the record before us.

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      operation. He noted that the 300 block of East Allegheny Avenue
      is “a main vein of travel” within the district.

Common Pleas Court Opinion, 7/06/16, at 1-2 (record citations omitted).

      Appellee Mercado filed a motion to suppress the DUI evidence, which

the Municipal Court granted, after a hearing. The Commonwealth appealed

to the Court of Common Pleas. On April 18, 2016, the Court of Common Pleas

denied the Commonwealth’s appeal, after a hearing, in effect affirming the

grant of suppression. The Commonwealth now appeals to this Court.

      Our standard of review in addressing a challenge to the grant of a

motion to suppress 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.

           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. Menichino, 154 A.3d 797, 800-801 (Pa. Super. 2017),

appeal denied, 169 A.3d 1053 (Pa. 2017) (citations omitted) (emphasis

added).

      In its substituted brief, the Commonwealth presents one question for

our review:


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            May a police official lawfully locate a sobriety checkpoint on
      a major road in a police district in which there is an anomalously
      high rate of DUIs?

Commonwealth’s Brief, at 4.

      The Commonwealth argues that suppression was improper because the

roadblock and the checkpoint at issue were lawful under applicable precedent

and met constitutional requirements. See Commonwealth’s Brief, at 11-14.

It maintains that under Tarbert/Blouse, “[s]ubstantial compliance with the

guidelines is all that is required to reduce the intrusiveness of the search to a

constitutionally acceptable level.” Id. at 13 (citing Tarbert, supra at 1043)

(quoting Blouse, at 1180).

      In reviewing the merits of this contention, we are guided by the

following legal principles.

              Initially, we note that the stopping of an automobile at a
      checkpoint constitutes a seizure for constitutional purposes, thus
      implicating the protections of both the Fourth Amendment to the
      United State Constitution, see Michigan Dep't of State Police
      v. Sitz, 496 U.S. 444, 450 [ ] (1990), and Article I, Section 8 of
      the Pennsylvania Constitution, see Blouse, [supra at] 1178.
      These provisions do not proscribe all searches and seizures, but
      only “unreasonable” ones. Thus, the central question in any
      litigation challenging a particular search or seizure is whether that
      search or seizure was constitutionally “reasonable.”

             The reasonableness of a seizure that is less intrusive than a
      traditional arrest depends upon a three-pronged balancing test
      derived from Brown v. Texas, 443 U.S. 47 [ ] (1979), in which
      the reviewing Court weighs “the gravity of the public concerns
      served by the seizure, the degree to which the seizure advances
      the public interest, and the severity of the interference with
      individual liberty.” Id. at 50 [ ].

                                  *    *    *

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       Because of the severe consequences of drunken driving in
       terms of roadway deaths, injuries, and property damage,
       see generally Sitz, [supra at] 451 [ ] (summarizing national
       statistics); Tarbert, [supra at] 1042 (summarizing Pennsylvania
       statistics), both the United States Supreme Court and [the
       Pennsylvania Supreme] Court have recognized that the
       government has a compelling interest in detecting
       intoxicated drivers and removing them from the roads
       before they cause injury. . . . This has raised the question of
       whether the law permits police officers to effect suspicionless
       seizures in the form of brief vehicle stops at publicly announced
       sobriety checkpoints along roadways known to be frequented by
       intoxicated drivers. As noted, and as with all similar questions,
       this question has been answered with reference to the balancing
       test described above.

Commonwealth v. Beaman, 880 A.2d 578, 581–83 (Pa. 2005) (footnotes

and some citations omitted) (emphases added).

       When conducting roadblock checkpoint stops, the police must comply

with the Tarbert/Blouse guidelines.4             Our Supreme Court has explained

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,
____________________________________________


4 The Tarbert plurality suggested the guidelines to ensure constitutionality
under Article I, section 8 of the Pennsylvania Constitution: “In our view, a
drunk-driver roadblock conducted substantially in compliance with the above
guidelines would reduce the intrusiveness to a degree which, when balanced
against the compelling public interest in apprehending such drivers, would not
violate Article I, section 8 of the Pennsylvania Constitution.” Tarbert, 535
A.2d at 1043. The Blouse majority expressly adopted the Tarbert guidelines
“because they achieve the goal of assuring that an individual’s reasonable
expectation of privacy is not subject to arbitrary invasions solely at the
unfettered discretion of officers in the field.” Blouse, 611 A.2d at 1180
(citation omitted).


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J-E04006-17


          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) (emphasis

added).

     Similarly,

            [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) (citation omitted,

emphasis added).

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J-E04006-17


      “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.”    Menichino, 154 A.3d at 802 (citation

omitted).

      Here, the Commonwealth argues that the grant of Appellee’s motion to

suppress is contrary to this Court’s applicable precedent, in particular,

Commonwealth v. Fioretti, 538 A.2d 570 (Pa. Super. 1988). We agree.

      In pertinent part, Fioretti reversed an order of suppression, affirming,

as constitutional, the establishment of a roadblock by selecting a police district

in Williamsport which had a disparately high number of drunk-driving arrests

within a specified time frame (February 1, 1984 to August 8, 1985). See id.

at 576.     The Fioretti Court also noted that the actual location within the

district was chosen for its safety features: a straight roadway, no cross streets,

a wide berm, two lanes, good lighting, and a concrete barrier dividing the two

flows of traffic travelling in opposite directions. See id. at 576–77.

      Appellee counters that there was a failure of substantial compliance with

the Tarbert/Blouse Guidelines by the Philadelphia police “because the

specific location selected for the checkpoint was not supported by any data on

DUI related arrests or accidents at that location, and it was not chosen

because it was likely to be traveled by intoxicated drivers[.]” (Appellee’s Brief,




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J-E04006-17


at 1).5   Similarly, he posits that Fioretti “did not fully address the fourth

requirement of the Tarbert/Blouse guidelines with respect to whether the

roadblock was one which, based on local experience, was likely to be traveled

by intoxicated drivers.” (Id. at 14).

        In its opinion, the Common Pleas Court explained that it affirmed the

Municipal Court’s order granting suppression in favor of Appellee after deciding

that this case was controlled by Commonwealth v. Blee, 695 A.2d 802 (Pa.

Super. 1997) and Commonwealth v. Garibay, 106 A.3d 136 (Pa. Super.

2014), appeal denied, 123 A.3d 1060 (Pa. 2015). See Common Pleas Court

Opinion, 7/6/16, at 6.

        Notably, the Common Pleas Court concluded it was “[u]nable to

reconcile the holdings” in Blee and Garibay with Fioretti, and based its ruling

expressly on Blee and Garibay, disregarding Fioretti, “because they [Blee

and Garibay] postdate Fioretti.” Id. On careful review, we are constrained

to conclude that the Common Pleas Court’s reliance is misplaced.

        This Court has recently distinguished Blee and Garibay, on facts similar

to this case, in Menichino, supra. The Menichino Court explained:

               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
____________________________________________


5   See also N.T. Hearing, 4/18/16, at 3: “We conceded everything else.”

                                           -8-
J-E04006-17


     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 [forty-four] 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.

           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, 454 Pa. Super.
     330, 685 A.2d 559, 562 (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.

Menichino, 154 A.3d at 802-03 (first and second emphases in original; third

emphasis added).

     Here, we conclude after careful review that Fioretti and Menichino

provide more persuasive authority for the resolution of this case than Blee

and Garibay. The selection and operation of the roadblock checkpoint was in


                                   -9-
J-E04006-17


substantial compliance with the Tarbert/Blouse guidelines.          Lieutenant

McCarrick testified, without contradiction, that he selected the route based on

statistical data demonstrating that the 25th district accounted for the highest

rate of DUI arrests in the city of Philadelphia, and that Allegheny Avenue was

the main avenue of East-West travel in the district. See N.T., Suppression

Hearing, 1/7/16, at 24-25, 29-32. Lieutenant McCarrick also considered traffic

volume and safety factors in the selection of the checkpoint. See id., at 25.

      Appellee argues that selection of a checkpoint location for reasons of

safety and convenience “do not satisfy the constitutional requirements for a

reasonable stop.” (Appellee’s Brief, at 17). We disagree.

      To the contrary, our case law recognizes that safety is a proper

consideration in the selection of a checkpoint.      See Fioretti, supra at

576–77. Accordingly, we are constrained to reverse the grant of suppression

and remand for a trial at which evidence of Appellee’s intoxicated driving may

be admitted.

      Reversed and remanded to the trial court for proceedings consistent

with this opinion. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/27/19


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