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Judge rules Rush traffic stop illegal; evidence is suppressed

Published November 16. 2011 05:01PM

Ruling that the initial stop of a vehicle was the exit ramp on private property of Wal-Mart Store, Tide Road, on Rush Township, Judge John E. Domalakes dismissed criminal charges filed against Nikki Bertolette, 20, of White Haven.

A hearing was held in Schuylkill County court on the petition brought by Bertollette to suppress the charges filed against her by Rush Township Patrolman Adam Sinton, who charged her with driving under the influence (DUI), possession of drug paraphernalia, underage drinking and failing to drive on right side of road.

In an opinion handed down by Domalakes he stated, "The credible evidence presented at the hearing was that on March 13 at 6:11 a.m. Officer Sinton observed a vehicle operated by the defendant traveling from Route 309 onto Tide Road and then turn the wrong way onto an exit ramp from the local Wal-Mart Store, proceeding into the store's parking lot utilizing the exit ramp, which is on private property.

"She turned her vehicle and crossed a concrete divider and proceeded to the Verizon Store in the shopping center at which point the officer activated his police vehicle lights and stopped the vehicle. He approached the vehicle and detected a strong odor of alcohol. She failed field sobriety tests. He then arrested her and took her to the Rush Township Police Station where a breath test indicated a blood alcohol content of 0.054 percent.

"Prior to transporting her to the police station, Officer Sinton noted a second female passenger and asked if she needed anything from the vehicle and she told him to bring her purse in the front seat. On the way to the police station Sinton detected the odor of marijuana emitting from the purse and asked at the police station for permission to search the purse. The defendant gave her permission and the officer found a glass pipe with marijuana residue and a small cylinder consistent with a tobacco cutter with marijuana in it.

"The defendant testified she never gave permissin to search her purse and did not request the purse be removed from the front seat. The court finds the officer's testimony to be credible and finds she did ask him to retrieve the purse.

"The defendant argued that the initial stop of her vehicle was unlawful because, when she travelled the wrong way on the exit ramp, she was on private property owned by Wal-Mart (the Mall) and, therefore, had committed no violations of the motor vehicle code. Although the defendant was cited for a DUI offense all the evidence of that offense was discovered after the vehicle stop. The Commonwealth argued that the ingree and egress into Wal-Mart shopping plaza is a 'trafficway' under the vehicle code and it cites cases related to DUI offenses that private parking lots, parking garages and dirt roads have been held as 'trafficways' for purposes of the DUI statute.

"The crucial factor in the case is the reason given by the officer for stopping the vehicle. The officer stated that his reason was the defendant's proceeding up the exit ramp of Wal-Mart parking lot and then crossing a concrete barrier into the parking lot. He testified that, prior to this, the defendant had given him no cause to stop her and there was no erractic driving.

"There was no evidence supporting a reasonable suspicion that she was driving under the influence of alcohol until after the police officer stopped her. The Commonwealth has not carried its burden of proof to establish a reasonable suspicion or probable cause for the stop nor cited to any recognized and accepted section of the vehicle code that the defendant may have been violating on a trafficway when the officer decided to stop her.

"Since the initial stop of the vehicle is found to be improper, the subsequent evidence obtained by the police must be suppresed. The defendant's motion for suppression is granted and all evidence obtained as a result of the vehicle stop and detention are also suppressed."

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