           IN THE COMMONEALTH COURT OF PENNSYLVANIA

Michael Heller,                         :
            Appellant                   :
                                        :
      v.                                :   No. 806 C.D. 2018
                                        :   Submitted: March 1, 2019
Commonwealth of Pennsylvania,           :
Department of Transportation,           :
Bureau of Driver Licensing              :

BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                    FILED: May 6, 2019

             Michael Heller (Licensee) appeals an order of the Court of Common
Pleas of Northumberland County (trial court) denying his license suspension appeal
and reinstating the Department of Transportation’s (PennDOT) 18-month
suspension of his operating privilege under Section 1547 of the Vehicle Code, 75
Pa. C.S. §1547, commonly referred to as the Implied Consent Law.            For the
following reasons, we affirm.
             On February 2, 2018, while on patrol, Northumberland Borough police
officer Edward Cope received several dispatch reports concerning an erratic driver
in a nearby township. The vehicle was described in the dispatches. Cope proceeded
to the area where the vehicle was likely to enter the Borough. While en route, he
was informed that the vehicle had parked in a handicapped parking space on Queen
Street. Upon arrival, he observed a vehicle as described in the dispatches parked in
the handicapped space with no handicapped parking placard displayed. A portion
of the vehicle was in the lane of travel.
             Cope approached the vehicle and observed Licensee sitting in the
driver’s seat, his head down and his car keys between his legs on the seat. Cope
opened the door of the vehicle to determine if Licensee was experiencing a medical
problem and to awaken him; at this point, he smelled the odor of alcohol.
             Cope asked Licensee to exit the vehicle to perform a standardized field
sobriety test, which he failed. Cope then arrested Licensee for driving under the
influence of alcohol (DUI) and transported him to a hospital for a blood test.
Licensee refused the blood test despite being advised of the civil penalties that could
result from his refusal.
             On February 16, 2018, PennDOT notified Licensee that his operating
privilege would be suspended for a period of 18 months, effective March 23, 2018.
Certified Record (C.R.), Notice of Suspension, at 1. Licensee appealed, contending
that the “searches and seizures of his person and vehicle, made prior to and/or
subsequent to his arrest,” violated his constitutional rights. Reproduced Record at 4
(R.R. ___); Petition for Appeal (3/13/2018), ¶5.
             The trial court held a de novo hearing, at which only Cope testified.
Cope testified, in addition to the facts described above, that he arrived on the scene
11 minutes after receiving the initial dispatch. The vehicle’s engine was not running,
and he did not touch the vehicle to see whether it was warm. Notes of Testimony,
5/9/2018, at 16 (N.T.___); R.R. 37. Cope explained:

             I didn’t really touch it. I mean it was the same vehicle that was
             described as driving erratically a couple minutes before. So.
             And it was parked exactly in the handicapped spot. There is very
             few handicapped spots in Northumberland Borough. This was
             the business district. So – and it was parked as described by the
             dispatchers on the two-way radio.



                                          2
Id. Cope acknowledged that he did not obtain consent from Licensee before opening
the door of the vehicle.
              On May 9, 2018, the trial court denied Licensee’s appeal. Licensee
appealed to this Court. The trial court issued an order pursuant to Pennsylvania Rule
of Appellate Procedure 1925(b), directing Licensee to file a statement of errors
complained of on appeal. PA. R.A.P. 1925(b). In his 1925(b) statement, Licensee
asserted that Cope unlawfully entered his vehicle and “unconstitutionally removed
[him] from his vehicle.” C.R. Item No. 8; 1925(b) Statement, ¶2. Licensee argued
that Cope’s belief that Licensee had operated his vehicle under the influence of
alcohol was based on evidence obtained “through a violation of [Licensee’s] rights
[to privacy] under the United States and Pennsylvania State Constitutions[.]” C.R.
Item No. 8; 1925(b) Statement, ¶1.
              In its opinion filed pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a), the trial court reasoned that Licensee did not enjoy a reasonable
expectation of privacy. Citing Osselburn v. Department of Transportation, Bureau
of Driver Licensing, 970 A.2d 534 (Pa. Cmwlth. 2009), the trial court observed that
a person’s privacy interest in an automobile “is considerably diminished.” Trial
Court op. at 2; R.R. 21. The trial court rejected Licensee’s privacy argument because
his vehicle “was in public, parked illegally in a handicapped parking spot.” Id.
              On appeal,1 Licensee argues that Cope lacked reasonable grounds to
suspect that Licensee had operated a vehicle under the influence of alcohol. Cope
did not actually observe Licensee driving. Licensee further asserts that any evidence
Cope obtained after he entered the vehicle violated Licensee’s right to privacy under

1
 This Court’s review determines whether the trial court’s findings are supported by competent
evidence, whether errors of law have been committed, or whether the trial court’s determinations
demonstrate a manifest abuse of discretion. Osselburn, 970 A.2d at 538 n.4.
                                               3
Article I, Section 8 of the Pennsylvania Constitution2 and, thus, must be suppressed
in the license appeal.
               To sustain a suspension of a licensee’s operating privilege under the
Implied Consent Law,3 PennDOT must establish that the licensee: (1) was arrested
for driving under the influence by a police officer who had reasonable grounds to
believe that the licensee was operating or was in actual physical control of the
movement of the vehicle while under the influence of alcohol; (2) was asked to

2
  It states:
         The people shall be secure in their persons, houses, papers and possessions from
         unreasonable searches and seizures, and no warrant to search any place or to seize
         any person or things shall issue without describing them as nearly as may be, nor
         without probable cause, supported by oath or affirmation subscribed to by the
         affiant.
Pa. Const. art. I, §8. Article I, Section 8 protects a citizen’s “reasonable expectation of privacy.”
Commonwealth v. Blystone, 549 A.2d 81, 87 (Pa. 1988). In Commonwealth v. Edmunds, 586 A.2d
887 (Pa. 1991), our Supreme Court explained that:
         Article I, Section 8 … may be employed to guard individual privacy rights against
         unreasonable searches and seizures more zealously than the federal government
         does under the Constitution of the United States by serving as an independent
         source of supplemental rights.
Id. at 899 (quotation omitted).
3
  Section 1547(a) of the Vehicle Code states in pertinent part:
         (a) General rule.--Any person who drives, operates or is in actual physical control
         of the movement of a vehicle in this Commonwealth shall be deemed to have given
         consent to one or more chemical tests of breath or blood for the purpose of
         determining the alcoholic content of blood or the presence of a controlled substance
         if a police officer has reasonable grounds to believe the person to have been
         driving, operating or in actual physical control of the movement of a vehicle in
         violation of section 1543(b)(1.1) (relating to driving while operating privilege is
         suspended or revoked), 3802 (relating to driving under influence of alcohol or
         controlled substance) or 3808(a)(2) (relating to illegally operating a motor vehicle
         not equipped with ignition interlock).
75 Pa. C.S. §1547(a) (emphasis added). Section 1547(b) of the Vehicle Code states that “[i]f any
person placed under arrest for a violation of section 3802 is requested to submit to chemical testing
and refuses to do so,” PennDOT shall suspend the operating privilege for 1 year, or 18 months
under certain conditions. 75 Pa. C.S. §1547(b).
                                                 4
submit to a chemical test; (3) refused to do so; and (4) was warned that refusal might
result in a license suspension. Banner v. Department of Transportation, Bureau of
Driver Licensing, 737 A.2d 1203, 1206 (Pa. 1999). Licensee’s sole challenge on
appeal is to the first prong.
             Reasonable grounds exist “when a person in the position of the police
officer, viewing the facts and circumstances as they appeared at the time, could have
concluded that the motorist was operating the vehicle while under the influence of
intoxicating liquor.” Id. at 1207. Further, “[t]he standard of reasonable grounds to
support a license suspension does not rise to the level of probable cause required for
a criminal prosecution.” Id. This standard is determined by the totality of the
circumstances, which may include “the location of the vehicle, whether the engine
was running and whether there was other evidence indicating that the motorist had
driven the vehicle at some point prior to the arrival of the police.” Id. Whether
reasonable grounds exist is a question of law reviewable by an appellate court on a
case-by-case basis. Id.
             It is not necessary for an officer to witness a licensee operating a vehicle
in order for the officer to have reasonable grounds to arrest the Licensee for a
suspected DUI offense. Walkden v. Department of Transportation, Bureau of Driver
Licensing, 103 A.3d 432, 436 (Pa. Cmwlth. 2014). When an officer does not observe
the licensee behind the wheel, there must be a showing of some other objective
evidence establishing a time frame “between the licensee’s driving and the licensee’s
intoxication.” Sestric v. Department of Transportation, Bureau of Driver Licensing,
29 A.3d 141, 144 (Pa. Cmwlth. 2011). Simply because other inferences are possible
does not render an arresting officer’s belief unreasonable. Polinsky v. Department
of Transportation, 569 A.2d 425, 427 (Pa. Cmwlth. 1990). Further, an officer’s


                                           5
reasonable grounds are not rendered void if it is later discovered that the officer’s
belief was erroneous.     McCallum v. Commonwealth, 592 A.2d 820, 822 (Pa.
Cmwlth. 1991).
             Here, the evidence adduced at trial was sufficient to establish
reasonable grounds. Cope testified that he received a dispatch report about erratic
driving that included a physical description of the vehicle and then another report
that the vehicle was parked in a handicapped parking space on Queen Street. Cope
arrived on the scene 11 minutes after receiving the initial dispatch and observed the
exact vehicle as described parked in the handicapped space, without a handicapped
parking placard displayed. A portion of the vehicle was in the lane of travel. Cope
approached the vehicle and saw Licensee sitting in the driver’s seat, with his head
down and keys between his legs on the seat. Cope opened the door of the vehicle
and smelled an odor of alcohol. Cope asked Licensee to perform a field sobriety
test, which he failed. Viewing the facts and circumstances as they appeared at the
time, a person in Cope’s position could reasonably infer that Licensee had operated
his vehicle under the influence of alcohol. Banner, 737 A.2d at 1207.
             Licensee argues that reasonable grounds did not exist because Cope
did not see him operate the vehicle, and “the individual alleging the vehicle was
being driven” erratically did not testify. Licensee Brief at 11. This argument lacks
merit. Out-of-court statements are inadmissible hearsay if offered to prove the truth
of the matter asserted.     Bonegre v. Workers’ Compensation Appeal Board
(Bertolini’s), 863 A.2d 68 (Pa. Cmwlth. 2004). Statements made by a dispatcher to
an arresting officer, however, are admissible to show the officer’s state of mind and
establish whether he had reasonable grounds to believe the licensee operated a motor
vehicle while intoxicated. Menosky v. Commonwealth, 550 A.2d 1372, 1374 (Pa.


                                         6
Cmwlth. 1988). Accordingly, the dispatch statements here were admissible for this
limited purpose and properly made part of the record.4
               Next, we consider Licensee’s argument that the evidence of
intoxication Cope obtained by opening the door to Licensee’s vehicle must be
suppressed because Cope violated Licensee’s right to privacy under Article I,
Section 8 of the Pennsylvania Constitution. In support, Licensee cites Regula v.
Department of Transportation, Bureau of Driver Licensing, 146 A.3d 836 (Pa.
Cmwlth. 2016), where this Court stated that Article I, Section 8 could possibly
provide a viable challenge to a license suspension on the basis of a violation of
privacy. Id. at 840 n.6 (quoting Osselburn, 970 A.2d at 539). PennDOT responds
that it was reasonable under the circumstances for Cope to open the door of the
vehicle to see whether Licensee needed medical assistance.
               We conclude that Cope did not violate Licensee’s right to privacy by
opening the door to the vehicle. This Court has held that “[i]n general, to have a
reasonable expectation of privacy, one must intend to exclude others and must
exhibit that intent.” Osselburn, 970 A.2d at 539. Although the right to privacy is
applicable to a vehicle, “the expectation of privacy in one’s vehicle is significantly
less than in one’s home or office.” Id. at 540 (quoting Commonwealth v. Chase, 960
A.2d 108, 119 (Pa. 2008)). Here, Licensee parked his vehicle in a public parking
space, partially in the lane of travel. He was observed sitting in the driver’s seat,
with his head down. Because Licensee did not exhibit an intent to “exclude others,”
he did not have a reasonable expectation of privacy under the circumstances.
Osselburn, 970 A.2d at 539.

4
  At the trial court hearing, Licensee raised an objection on hearsay grounds to Cope’s testimony
regarding the dispatch statements. Licensee later withdrew the objection after Cope stated that the
statements were made to him before he approached Licensee’s vehicle. N.T. 6; R.R. 27.
                                                7
             In any event, courts have consistently held that the remedy of
suppression of evidence is unavailable in the context of a license suspension appeal.
Sitoski v. Department of Transportation, Bureau of Driver Licensing, 11 A.3d 12,
21 (Pa. Cmwlth. 2010). See also Department of Transportation v. Wysocki, 535
A.2d 77, 79 (Pa. 1987) (holding that the legality of a licensee’s arrest is immaterial
in a license suspension proceeding as the licensee’s guilt or innocence of a criminal
offense is not at issue in the license suspension proceeding).
             For all of the foregoing reasons, we conclude that Officer Cope had
reasonable grounds to suspect that Licensee had driven while under the influence of
alcohol. We thus affirm the trial court’s May 9, 2018, order.

                                   _____________________________________
                                   MARY HANNAH LEAVITT, President Judge




                                          8
          IN THE COMMONEALTH COURT OF PENNSYLVANIA

Michael Heller,                   :
            Appellant             :
                                  :
     v.                           :   No. 806 C.D. 2018
                                  :
Commonwealth of Pennsylvania,     :
Department of Transportation,     :
Bureau of Driver Licensing        :


                                ORDER

           AND NOW, this 6th day of May, 2019, the order of the Court of
Common Pleas of Northumberland County in the above-captioned matter, dated
May 9, 2018, is AFFIRMED.
                                _____________________________________
                                MARY HANNAH LEAVITT, President Judge
