COMMONWEALTH OF PENNSYLVANIA

vs

TIMOTHY L. HESS

	Defendant

IN THE COURT OF COMMON PLEAS FOR THE 26TH JUDICIAL DISTRICT, COLUMBIA COUNTY BRANCH, PENNSYLVANIA
CRIMINAL DIVISION

CASE NO: 302 OF 2000 

RICHARD KNECHT, ESQUIRE, Attorney for the Commonwealth of Pennsylvania
PETER T. CAMPANA, ESQUIRE, Attorney for Defendant

May 16, 2001.  JAMES, J.

OPINION

On April 30, 2001, this court held a hearing regarding defendant’s Motion to Suppress Evidence.  The hearing revealed that on December 30, 1999, at approximately 8:30 p.m. two witnesses saw a tractor trailer truck strike and damage a parked car at the corner of East and Main Streets in the town of Bloomsburg.  The truck did not stop.  One of the witnesses called 911 and another witness followed the truck to an area on Old Berwick Road.  Bloomsburg Police were dispatched to the Old Berwick Road area, where they found the truck that had been described to them by the witnesses.  The truck had scrape marks and blue paint like the damaged parked car.  The police determined through a neighbor that the truck belonged to defendant who resided nearby.
At 9:05 p.m., two police officers went to defendant’s residence and knocked on the door.  Defendant came to the door and voluntarily accompanied the police officers to the truck.  Officer Rogutski observed that defendant had a strong odor of intoxicating liquor, glassy eyes, and an unsteady gait.  Defendant voluntarily gave the police officers a preliminary breath test that registered the maximum reading of .15.  Defendant told the officers that he had five to six beers after he got home.  Officer Rogutski asked defendant to show him the empty beer containers.  
The officer and defendant went back to defendant’s home.  Defendant went into the home.  Officer Rogutski stayed outside by the door, but kept a constant eye on defendant for “safety purposes.”  Defendant said he did not want the officers in the house, but the officers told him that they could not let him out of their sight.  Defendant then told the officers that he had no intention of showing them the empty beer containers.  The officers then entered the house and arrested defendant in the house without a warrant.  Defendant then showed the officers one and one-half empty beers in the home.  He said that there would be other empty containers in a nearby dumpster outside.  The officers checked and found none.  Defendant consented to a blood alcohol test.
The issue presented by defendant’s Motion to Suppress Evidence is whether defendant was illegally arrested in his home, thus mandating the suppression of evidence seized as a result of that arrest.  When an officer makes an unlawful arrest, any evidence seized during a search incident to the arrest must be suppressed.  See Commonwealth v. Lovette, 498 Pa. 665, 676-77, 450 A.2d 975, 981 (1982).  
Normally, a warrant is required to make an arrest for a misdemeanor, unless the misdemeanor is committed in the presence of the police officer.  Commonwealth v. Clark, 558 Pa. 157, 163, 735 A.2d 1248, 1251 (1999).  The legislature has authorized several instances when warrantless arrests are permitted for misdemeanors committed outside of police presence.  One such exception is applicable in this case.  In cases of driving under the influence, “a police officer is hereby authorized to arrest without a warrant any person who the officer has probable cause to believe has violated the provisions of this section, regardless of whether the alleged violation was committed in the presence of such officer.” 75 Pa.C.S. § 3731 (c).
The threshold issue is whether probable cause existed for the officers to arrest defendant.  “To determine whether probable cause exists to justify a warrantless arrest, we must consider the totality of the circumstances.  Illinois v. Gates, 462 U.S. 213, 233, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527 (1983); Commonwealth v. Evans, 546 Pa. 417, 422, 685 A.2d 535, 537 (1996). ‘”Probable cause exists where the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed.” Evans, 546 Pa. at 423, 685 A.2d at 537 [quoting Commonwealth v. Gibson, 536 Pa. 123, 130, 638 A.2d 203, 206 (1994)].  Probable cause must be ‘”viewed from the vantage point of a prudent, reasonable, cautious police officer on the scene at the time of the arrest guided by his experience and training.”’ Id. (quoting Commonwealth v. Norwood, 456 Pa. 330, 334, 319 A.2d 908, 910 (1974).”  Commonwealth v. Clark, 558 Pa. at 164-64, 735 A.2d at 1252.  See also, Commonwealth v. Santiago, 736 A.2d 624 (1999).
Here, before effecting defendant’s arrest, the police officers had significant probable cause to justify a warrantless arrest.  They knew that a hit and run incident had occurred involving a tractor trailer truck and a blue car.  They saw blue paint and scrape marks on defendant’s truck.  A witness had followed defendant’s truck to the vicinity of his home.  Within a half-hour of the accident, defendant was found to strongly smell of intoxicating beverages, to be glassy eyed, and to have unsteady gait.  Defendant had acknowledged driving the truck.  There was sufficient probable cause for a warrantless arrest.
The next issue is whether the warrantless arrest in defendant’s home was justified.  “Absent probable cause and exigent circumstances, the entry of a home without a warrant is prohibited under the Fourth Amendment.”  Commonwealth v. Roland, 525 Pa. 595, 599, 637 A.2d 269, 270 (1994), citing Payton v. New York, supra. Pennsylvania case law has enumerated “relevant factors to be considered when determining whether exigent circumstances existed:  1) the gravity of the offense; 2) a reasonable belief that the suspect is armed; 3) a clear showing of probable cause; 4) strong reason to believe that the suspect is on the premises; 5) likelihood that the suspect will escape if not quickly apprehended; 6) the time of the entry; and 7) whether the entry is peaceable.” Commonwealth v. Lopez, 525 Pa. 185, 189, 579 A.2d 854, 856 (1990).
This court finds that no exigent circumstances existed to justify a warrantless arrest for this misdemeanor in defendant’s home. This is not a felony case, it is not a “grave” offense, nor is it a crime of violence.  The justification for proceeding without a warrant in such cases is more likely absent.  See Commonwealth v. Roland, 535 Pa. at 600, 637 A.2d at 271.
Thus, the arrest within the house was illegal since it was performed without a warrant.  Any evidence seized after the arrest must be suppressed.1  However, any evidence secured or seized before the arrest is not suppressed.

COMMONWEALTH OF PENNSYLVANIA

vs

TIMOTHY L. HESS

	Defendant

IN THE COURT OF COMMON PLEAS FOR THE 26TH JUDICIAL DISTRICT, COLUMBIA COUNTY BRANCH, PENNSYLVANIA
CRIMINAL DIVISION

CASE NO: 302 OF 2000 

ORDER

	AND NOW, this 16th day of May 2001, defendant’s Motion to Suppress Evidence is GRANTED regarding any evidence seized after defendant’s arrest.

			BY THE COURT:

			_________________________________ 
			HONORABLE THOMAS A. JAMES, JR., J.