2004 Pa. Super. 324 - Commonwealth v. Lehman

¶1OPINION BY

DEL SOLE, P.J.:

¶2¶ 1 The Commonwealth appeals from an order granting suppression based on the lack of either reasonable suspicion or probable cause to stop and board Appellee’s boat. We affirm.

¶3¶ 2 At the suppression hearing, the evidence established that Coast Guard Officer Jeffrey Jobczyski and Erie County Detective Daniel Powell, while on patrol at Pres-que Isle Bay on Lake Erie, were summoned to a bar by one of its employees. The employee told the officers that some men had just left the bar with an open beer container and boarded a boat known as the Janice Ann. The officers pursued the vessel, stopped it and boarded. The officers did not observe any erratic or unusual driving nor did the bar employee indicate that any of the men was under the influence. As Appellee came down the *687ladder from the “flying bridge”,1 Detective Powell detected an odor of alcohol. Appel-lee failed the field sobriety tests and was arrested and charged with boating under the influence.2 Appellee was returned to shore by a waterways conservation officer. Based on this evidence, the suppression court found that the sole purpose in making the stop was to investigate suspected criminal activity. Since the officers did not have probable cause or even reasonable suspicion that criminal activity was taking place, the court found the stop and boarding of the boat was unlawful under both the United States and Pennsylvania Constitutions. We agree with the trial court that the stop and boarding of the Janice Ann violated Article 1 § 8 of the Pennsylvania Constitution. We need not therefore discuss whether the stop violated the United States Constitution.3

¶4¶3 Our standard of review when the Commonwealth appeals from a suppression order is to consider only the evidence from the defendant’s witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. Commonwealth v. Pickron, 535 Pa. 241, 634 A.2d 1093 (1993). As long as there is some evidence to support them, we are bound by the suppression court’s findings of fact. Id.Most importantly, we are not at liberty to reject a finding of fact which is based on credibility. Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003).

¶5¶ 4 Presently, the suppression court found incredible the Coast Guard officer’s testimony that this was a random boarding “[f]or the sole purpose of conducting a Coast Guard safety check.”4 N.T., 12/23/02, at 12. There was ample evidence to support the court’s determination: the stop and boarding was made solely in response to the complaint from the employee of the bar; absent this complaint, the Coast Guard vessel would not have stopped Appellee’s vessel; and the Coast Guard officer never sought to review documents or perform a safety inspection.

¶6¶ 5 In Commonwealth v. Petroll, 558 Pa. 565, 738 A.2d 993 (1999), the defendant, a commercial truck driver, was involved in a fatal accident involving several other vehicles. The sole issue before the Court was whether the trial court should have, suppressed evidence seized when the defendant’s tractor-trailer was searched without a warrant shortly after the accident. The Supreme Court determined that the suppression court erred in failing to suppress the evidence, stating “The police cannot conduct a warrantless administrative search to advance a criminal investigation under the pretext of addressing a specific, compelling governmental interest advanced by a statutory scheme.” Id. at 1003-4. The suppression court here correctly analogized this principle to the present case when it determined that the “random safety check” principle advocated by *688the officers was merely a pretext to further a criminal investigation and allow them to stop the boat without probable cause.5 As there is no evidence to support a finding that there was probable cause to believe a crime had been or was being committed, the suppression court correctly determined that the stop was invalid under the Pennsylvania Constitution and the evidence obtained should be suppressed.

¶7¶ 6 Order affirmed.

¶8¶ 7 TAMILIA, J. files a dissenting opinion.

¶9. The "flying bridge” is one of two areas from which the vessel can be operated.

¶10. 30 Pa.C.S.A. § 5502(a)(1) and (a)(4)(i).

¶11. It is well settled that a state may, through its constitution, guarantee rights which are more expansive than those under the U.S. Constitution and indeed our Supreme Court has interpreted the Pennsylvania Constitution as affording greater protection to defendants than the federal Constitution. Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983).

¶12.The Coast Guard has the authority to:

.. .go on board of any vessel subject to the jurisdiction, or to the operation of any law of the United States, address inquiries to those on board, examine the ship’s documents and papers, and examine, inspect, and search the vessel and use all necessary force to compel compliance.

¶1314 U.S.C. § 89 (emphasis added).

¶14. There is no need to discuss the authority of the waterways conservation officer since he did not stop or board Appellee's boat but merely transported Appellee to shore after Appellee was placed under arrest by Erie County Detective Powell.