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VEHICLES THAT ARE MOVING ARE NOT “STRANDED” and PUBLIC URINATION IS NOT ALWAYS “LIKELY TO LEAD TO TUMULT and DISORDER.”

The Superior Court has decided the case of Commonwealth v. Vetter, No. 1400 MDA 2015 (September 27, 2016), affirming Vetter’s Motion to suppress evidence based on the fact that (1) his vehicle was not stranded in a snow storm or improperly stopped on the roadway and (2) even assuming, arguendo, he was urinating at the side of a highway, in the dark of night, in a snow storm, away from any residence or businesses, positioning himself such that he was largely protected from view, such action was not likely to lead to tumult and disorder.

FACTS

The only witness to testify at Vetter’s Suppression Hearing was the arresting officer, Corporal Raymond O’Donnell, of the Pennsylvania State Police. Cpl. O’Donnell testified that he was on patrol on a snowy day when he saw a vehicle stopped in, he indicated, were the traveling lanes of southbound Route 61. He testified that the vehicle was stopped about a car’s width from the guardrail on the right side of the roadway. Cpl. O’Donnell also stated that the driver’s side door was opened and Vetter was standing outside the vehicle in between the door the vehicle. According to Cpl. O’Donnell, Vetter’s back was towards Cpl. O’Donnell “as though – and his hands were in front of him as though he was urinating in the roadway.” Cpl. O’Donnell later testified that he did not actually see Vetter urinating nor did he see any indication that Vetter had been urinating. [Insert your own inappropriate “yellow snow” remark here.]

As Vetter got back into his vehicle, Cpl. O’Donnell initiated a traffic stop. He testified that the reason for the stop was “[i]nitially, due to the road conditions, I thought he may have been stuck on the roadway. I was seeing if he needed any kind of assistance. But when he got back in the driver’s seat and began to gain forward momentum, it was because of the traffic violation that he was stopped on the roadway and standing on the roadway.”

In addition to Cpl. O’Donnell’s testimony, the trial Court also viewed a police dash cam video of the incident. The trial court observed that the video showed a vehicle stopped in a snow storm as far off the roadway as possible, and it was clearly not in the lane of travel. No vehicles were obstructed or unable to pass Vetter’s vehicle in a safe manner. Furthermore, the trial court observed that the video showed Vetter’s vehicle was visible for at least 500 feet in the snow storm.

After the traffic stop, Cpl. O’Donnell determined Vetter to be DUI and Vetter was arrested. Better filed a Motion to Suppress the evidence based on an unlawful traffic stop and, based on the above facts, the trial court granted his Motion.

The Commonwealth appealed, arguing that the initial interaction between Cpl. O’Donnell and Vetter was a mere encounter and, even if it was not, there was reasonable suspicion to stop Vetter for public urination, i.e. – Disorderly Conduct.

ISSUE #1

Was the initial interaction between Vetter and Corporal O’Donnell a mere encounter?

 

HOLDING

The Superior Court concluded that the action between Vetter and Corporal O’Donnell was not a “mere encounter.”

REASONING

The Superior Cour rejected the Commonwealth’s contention that the initial interaction between Vetter and Cpl. O’Donnell was a “mere encounter.” The Commonwealth argued that is was a mere encounter because police have a duty to stop and assist stranded motorists. Instead, the Superior Court rather aptly pointed out that once Vetter’s vehicle began to move forward, it was clearly not stranded and “one cannot stop a moving vehicle in order to determine whether that vehicle is stranded.”

Additionally, the Superior Court concluded that probable cause was required if the reason for the stop was for Vetter’s vehicle being improperly stopped on the roadway rather than an attempt to merely assist him. However, stopping a vehicle for this type of violation is not a “mere encounter” and, instead, requires probable cause as it is a violation that does not require further investigation.

ISSUE #2

Whether Corporal O’Donnell possessed reasonable suspicion to stop Vetter’s vehicle based upon his belief that Vetter had been urinating on the street? 

HOLDING

Even assuming this issue was preserved by the Commonwealth, the Commonwealth would not have prevailed on the issue of reasonable suspicion of committing disorderly conduct based on the facts of this case.

REASONING

The Commonwealth argues that regardless of any probable cause or lack thereof regarding a potential violation of properly stopping on the roadway, Cpl. O’Donnell did possess a reasonable suspicion to stop Vetter’s vehicle because of his belief that Vetter had been urinating in the street. This act, the Commonwealth argued, was a violation the crimes code, specifically, Disorderly Conduct.

The Superior Court first noted that regardless of Cpl. O’Donnell’s testimony that he thought Vetter may have been urinating as he approached the vehicle, Cpl. O’Donnell never claimed he stopped Vetter on the basis of a suspected violation of Disorderly Conduct for urinating in public. Further, the court record showed that the Commonwealth did not raise this argument regarding Disorderly Conduct until filing its statement of errors complained of on appeal.

Nonetheless, the Superior Court analyzed the Commonwealth’s claim and the cases it cited in support of the public urination issue, concluding that none of the cases cited actually hold that public urination is a basis for disorderly conduct.

While recognizing that the Disorderly Conduct statute prohibits conduct that creates a physically offensive condition, the Superior Court also noted that “[t]he offense of disorderly conduct is not intended as a catchall for every act which annoys or disturbs people; it is not to be used as a dragnet for all the irritations which breed in the ferment of a community. It has a specific purpose; it has a definite objective, it is intended to preserve the public peace.”

The Superior Court further noted that since “the cardinal feature of the crime of disorderly conduct is public unruliness which can or does lead to tumult and disorder,” the specific facts of this case simply failed to rise to that level of conduct.

To that point, the Superior Court then outlined the facts surrounding Vetter’s vehicle stop, concluding that “the Commonwealth … presented no evidence or argument to demonstrate how, under the specific facts of this case, where Vetter appeared to be urinating at the side of a highway, in the dark of night, in a snow storm, away from any residence or businesses, positioning himself such that he was largely protected from view, such action was likely to lead to tumult and disorder.”

LINK TO CASE:

http://www.pacourts.us/assets/opinions/Superior/out/J-S31025-16o%20-%2010282413510691153.pdf?cb=1

 

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