in the court of common pleas of carbon county, pennsylvania

IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIACRIMINAL DIVISIONCOMMONWEALTH OF PENNSYLVANIA ::v. : No. CR 590-2009:GENO TESSITORE, :Defendant :Joseph Matika, EsquirePaul Levy, EsquireCounsel for the CommonwealthCounsel for the DefendantMEMORANDUM OPINIONNanovic, P.J. – June 17, 2011Defendant has been charged with two counts of drivingunder the influence, a first offense. Defendant was arrested asa result of being stopped at a DUI checkpoint.Defendant hasmade a motion to suppress the evidence of his blood alcohollevel at the time of arrest due to the allegedunconstitutionality of the checkpoint.FACTUAL AND PROCEDURAL BACKGROUNDDefendant, Geno Tessitore, was arrested on or aboutMay 24, 2009, and charged with two counts: Driving under theInfluence of Alcohol – General Impairment of Driving Safely 1 and175 P.S. § 3802 (A)(1)1FN-33-11

Driving under the Influence of Alcohol – General Impairment (BAC.08-.10). 2 The arrest occurred on Mauch Chunk Street, MahoningTownship, Carbon County, Pennsylvania at a DUI checkpointlocated at the former location of the Big Chief Restaurant atapproximately 1:40 a.m.Defendant was driving northbound on Mauch Chunk Street(S.R. 209) in a 1998 GMC vehicle bearing a Pennsylvaniaregistration of GNE6149.companion in the car.Defendant was traveling with a femaleDefendant was stopped in MahoningTownship by an officer who waved him into the sobrietycheckpoint.While in the checkpoint, an officer detected anodor of alcohol coming from the vehicle. The Defendant was thenasked to perform several field sobriety tests - finger to nose,one leg stand, nine step heel to toe, and preliminary breathtest.Defendant failed these tests and was then placed underarrest and submitted to a blood test.The sample was drawn at1:55 hours and yielded a BAC of .094%The Defendant, through his attorney Paul Levy, Esq.,has filed an Omnibus Pre-trial Motion which seeks suppression ofthe evidence of his blood alcohol level due to allegedconstitutional violations regarding the checkpoint.Defendantalleges that the checkpoint was unconstitutional due to a lack275 P.S. § 3802 (A)(2)2FN-33-11

of sufficient warning and lack of prior administrative approval.The hearing on this motion was held on November 12, 2010.The following evidence was presented at the hearing.Officer Audie Mertz who was in charge of the checkpointtestified for the Commonwealth and stated that the roadblock wasset up in compliance with all guidelines, including the erectionof required signage informing drivers of the roadblock.According to PennDOT’s DUI Law Enforcement Manual, there must betwo signs visible to oncoming drivers, one at four hundred feetand one at six hundred feet.Defendant asserted that there wasonly one sign warning of the roadblock and that it was less thanthe required 400 feet from the checkpoint. 3 In response, OfficerMertz testified for the Commonwealth that there had been twosigns placed appropriately four hundred and six hundred feetbefore the checkpoint.The Officer testified that he measuredout the distances and had other officers place the signs atthese distances.The Officer also testified that sufficientnotice of possible locations of the checkpoint was provided inthe form of a press release in advance to the local news media.The Officer was unsure if such information was actuallypublished but testified that he did provide such information tothe media.3The Defendant asserted that the sign was at most 300 feet before the checkpoint.3FN-33-11

Defendant also challenges the checkpoint on the basisof a lack of prior administrative approval.Officer Mertztestified that he is a traffic safety coordinator, as appointedby the Chief of Police on September 1, 2008, and had inherentpower through that position to conduct sobriety checkpointsthroughout the township.Therefore it is the Commonwealth’sposition that no further administrative approval was necessary.Following the hearing, the parties asked for theopportunity to submit briefs on the matter which was granted.The sole issue before us is whether the sobriety checkpoint wasconstitutionally permitted, the lynchpin of Defendant’s motionto suppress.DISCUSSIONDefendant challenges the constitutionality of thetraffic stop which resulted in the DUI charges now pendingagainst him.Defendant’s challenge is based on the sufficiencyof the warning of the checkpoint, and an alleged lack of prioradministrative approval of the checkpoint.[T]he conduct of the roadblock itself can besuch that it requires only a momentary stopto allow the police to make a brief buttrained observation of a vehicle's driver,without entailing any physical search of thevehicle or its occupants. To avoidunnecessary surprise to motorists, the4FN-33-11

existence of a roadblock can be so conductedas to be ascertainable from a reasonabledistance or otherwise made knowable inadvance. The possibility of arbitraryroadblocks can be significantly curtailed bythe institution of certain safeguards. Firstthe very decision to hold a drunk-driverroadblock, as well as the decision as to itstime and place, should be matters reservedfor prior administrative approval, thusremoving the determination of those mattersfrom the discretion of police officers in thefield. In this connection it is essentialthat the route selected for the roadblock beone which, based on local experience, islikely to be travelled by intoxicateddrivers. The time of the roadblock should begoverned by the same consideration.Additionally, the question of which vehiclesto stop at the roadblock should not be leftto the unfettered discretion of policeofficers at the scene, but instead should bein accordance with objective standardsprefixed by administrative decision...Substantial compliance with the guidelines isall that is required to reduce theintrusiveness of the search to aconstitutionally acceptable level. Tarbert,517 Pa. at 293, 535 A.2d at 1043.Commonwealth v. Blouse, 611 A.2d 1177, 1180 (Pa.1992).Thesestandards must be substantially complied with in order for aroadblock to survive constitutional scrutiny. See id. “Theprecise issue of whether drunken driver roadblocks wereconstitutional under our state Constitution eluded the Court inTarbert. However, ‘it is clear that of the six [justices] whoparticipated [in Tarbert], four [justices] expressed the viewthat systematic roadblocks are constitutional.’”Commonwealth5FN-33-11

v. Yastrop, 768 A.2d 318, 321 (Pa. 2001) (citing Blouse, 611A.2d at 1179)(extending the constitutionality of systematicroadblocks to those aimed at detaining and discouraging drunkdrivers).To be constitutionally valid, the Court must findthat the checkpoint substantially complied with the Tarbert-Blouse factors. See id. at 323. If this standard is not met,evidence gained from the checkpoint must be suppressed.Accordingly, it is against the Tarbert-Blouse factors by whichconstitutionality in the context of substantial compliance ismeasured.1. The stop of a vehicle at a checkpoint must bebrief and not entail a physical search.See Tarbert, 535 A.2dat 1043; see also Blouse, 611 A.2d at 1180.Here the initial stop was brief.The Defendant wasstopped and asked a few questions. After detecting alcohol, theOfficer directed the Defendant to pull over and perform thefield sobriety tests.vehicle prior to arrest.No physical search was done of theThe initial stop and questioning wasbrief, sobriety tests were only administered after detecting theodor of alcohol on the Defendant giving the Officer probablecause to detain the Defendant longer.6FN-33-11

2. Motorists must be given sufficient warning of theexistence of the checkpoint. See Tarbert, 535 A.2d at 1043; seealso Blouse, 611 A.2d at 1180.A press release was provided to local news mediagiving information about potential times and places for thecheckpoint.It is immaterial that the press release includedadditional locations beyond the primary two sites for thecheckpoint as the location and time of the checkpoint wascovered within the release.The burden is not on theCommonwealth to make sure that the press release is actuallypublished, showing that a press release was issued issufficient.In Commonwealth v Rastogi, a defendant challenged thevalidity of a checkpoint in part because there was no evidencethat a press release was ever published or broadcast. The courtheld that actual publication or broadcast of the press releaseis not required to make the checkpoint constitutional. See 816A.2d 1191, 1195 (Pa.Super. 2003).In fact, “[n]either Blousenor Tarbert mandate that the police must place advance notice ofthe DUI checkpoint in any local or regional publication.”Id.(citation omitted).The Court also accepts the testimony of Officer Mertzthat the signs for the checkpoint were properly placed at 400and 600 feet, respectively.A diagram of the layout of the7FN-33-11

checkpoint was provided at the hearing.Although the diagramwas not to scale, it depicted an appropriate layout with twosigns warning of the checkpoint.Additionally as far asadequate notice of the stop is concerned “[a] sign indicatingthat the motorist is about to be stopped and suggesting thenature of the stop may provide advance warning of theroadblock.” Tarbert, 535 A.2d at 1041.At the time of the hearing the defense argued thatthere was no place for a northbound driver to make a lawful “Uturn” after seeing signage for the checkpoint. The Commonwealthasserted that a northbound driver could have executed a lawful“U turn” in the parking lot where the DUI checkpoint waslocated.Few, if any, drivers would believe that a “U turn”could be executed in the very parking lot where a checkpoint islocated. However, due to the otherwise adequate warnings of thecheckpoint through press release and signage, and the fact that“neither Blouse nor Tarbert suggest that motorists approaching aDUI checkpoint must be afforded an opportunity to avoid thecheckpoint,” this is not a controlling issue and will not leadto suppression of the evidence. Id.3. The decision to conduct a checkpoint, includingthe decision as to the time and the place for the checkpointmust be subject to prior administrative approval.See Tarbert,535 A.2d at 1043; see also Blouse, 611 A.2d at 1180.8FN-33-11

Testimony showed that Officer Mertz, who organized thecheckpoint, was a traffic safety coordinator for MahoningTownship.It was stated that inherent in his position is theauthority to schedule and conduct checkpoints.The harm to beavoided by requiring administrative approval of checkpoints isto remove the possibility of random, unplanned, and unorganizedcheckpoints for both constitutional and safety concerns.Herethe checkpoint was clearly planned out and clearly organized.Officer Mertz was given authority by the township to plan suchcheckpoints. We cannot say that this authority isconstitutionally unfounded as precautions were taken to avoidthe possible dangers of “surprise” checkpoints.The checkpointwas organized with safety concerns in mind and sufficientwarning was given to put drivers on notice that a checkpointwould occur.4. The time and place for a checkpoint must be basedon local experience as to where and when intoxicated drivers arelikely to be traveling. See Tarbert, 535 A.2d at 1043; see alsoBlouse, 611 A.2d at 1180.Testimony showed that Officer Mertz studiedstatistical data from both Mahoning Township and PennDOT showingthat the location chosen was one likely to be travelled byintoxicated drivers.Officer Mertz reasonably relied on thisinformation in determining that the location and time of the9FN-33-11

checkpoint would be well calculated for the purpose of asobriety checkpoint. Both the location and time for theroadblock followed statistical data according to the officer’stestimony.5. The decision as to which vehicles are stopped mustbe established by an administratively, pre-fixed, objectivestandard and not be left to the discretion of the officers atthe checkpoint.See Tarbert, 535 A.2d at 1043; see alsoBlouse, 611 A.2d at 1180.In the instant case, every officer involved was issueda “Standard Operating Procedure” which stated the purpose of thecheckpoint, the site, implementation, and detainment proceduresfor vehicles at the checkpoint.Only the Coordinator wasallowed to deviate from the “Standard Operating Procedure.”Every vehicle entering the checkpoint was stopped with oneexception: if traffic became unreasonably backed up, twenty carswould be allowed to pass through to alleviate congestion.Thisis allowed under Commonwealth v. Worthy, 957 A.2d 720, 725-26(Pa. 2008).The testimony showed that the plan for vehiclestoppage was laid out prior to implementation of the checkpoint.The officers had no discretion as to which vehicles to stop andhow to proceed once stopped.Accordingly, this factor of theTarbert-Blouse test has been met.10FN-33-11

Having found that all the factors for a checkpoint tobe constitutionally permissible were substantially compliedwith, we find that there were no constitutional violations suchthat the evidence against the Defendant should be suppressed.CONCLUSIONIn accordance with the foregoing, Defendant’s Motionto Suppress will be denied.BY THE COURT___________________P.J.11FN-33-11

IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIACRIMINAL DIVISIONCOMMONWEALTH OF PENNSYLVANIA ::v. : No. CR 590-2009:GENO TESSITORE, :Defendant :Joseph Matika, EsquirePaul Levy, EsquireCounsel for the CommonwealthCounsel for the DefendantORDERAND NOW, this 17th day of June, 2011, uponconsideration of the Defendant’s, GENO TESSITORE, OmnibusPretrial Motion, and in consideration of the parties’submissions thereto and the argument thereon, it is herebyORDERED and DECREED that Defendant’s Motion toSuppress is DISMISSED and DENIED.BY THE COURT___________________P.J.12FN-33-11