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The state Supreme Court has ruled that police officers have limited authority to pull over motorists suspected of drunk driving once they leave their jurisdiction. The high court ruled 6-0 to overturn the Commonwealth Court’s decision in Martin v. PennDOT, throwing out a woman’s license suspension for refusing to take a Breathalyzer test after a police officer pulled her over, even though he hadn’t observed any questionable driving until she was in a neighboring borough. The Commonwealth Court panel’s 2-1 decision was notable in part for Commonwealth Court President Judge James Gardner Colins’ blistering dissent in which he said the majority was “turning a blind eye” to questionable police conduct, warning that the March 2005 decision could herald a “police state” when it comes to DUI cases. On appeal, the justices sided with Colins, saying that the situation in Martin was essentially governed by the court’s earlier ruling in McKinley v. PennDOT (McKinley IV). Under Section 8953 of the Municipal Police Jurisdiction Act, the high court ruled, municipal police officers generally only have the authority to make arrests outside their jurisdiction in specific instances, such as in hot pursuit of a suspect or on official business. Hampden Township Police Officer James Sollenberger’s decision to pull over Myra Martin in Camp Hill Borough didn’t fall under any of the provisions, the court said. Writing for the majority, Justice Ronald Castille said Sollenberger wasn’t on official business and he didn’t get a valid gauge of Martin’s speed under the Motor Vehicle Code because he’d only followed her for 100 yards. “[W]e conclude that Officer Sollenberger did not have statutory authority to act as a municipal police officer outside his primary jurisdiction in the factual situation presented in this case,” Castille said. “[I]t is undisputed that the officer did not have probable cause to stop [Martin] in his own jurisdiction, and thus his extraterritorial conduct was not authorized as hot pursuit under subsection (a)(2) of the MPJA. Nor did the officer have extraterritorial authority under subsection (a)(5) because, we conclude, he was not on ‘official business’ for the purposes of that subsection when he pursued appellant into a neighboring jurisdiction.” The only reason Sollenberger was in Camp Hill, he said, was because he was following Martin. “Officer Sollenberger was not in Camp Hill on other official business when he noticed appellant, nor was he there as part of his routine patrol – for example, a routine, brief entry to allow him to turn around to re-enter his primary jurisdiction – or for any other purpose,” Castille said. “The officer entered Camp Hill only to investigate his suspicion that appellant was speeding. “Indeed, to overlook the true reason for the officer’s entry, and deem the activity lawful under a different subsection of the MPJA, would ignore” the instances of extraterritorial authority recognized under Section 8953(a), he said. Since Sollenberger had no statutory authority to follow and arrest Martin, he said, he also had no authority to implement the implied consent law. While acknowledging that some drunk drivers might evade arrest under the court’s interpretation of the MPJA, Castille, quoting the high court’s decision in McKinley IV, said that “limited jurisdiction” police officers had options, such as contacting the police in that municipality or helping in identifying the drivers. Although the issue was not squarely before the court, Castille went on to take the Bureau of Driver Licensing to task for arguing that even if Sollenberger’s arrest of Martin was illegal, it didn’t affect the bureau’s ability to suspend Martin’s license. “[T]he bureau’s present argument . . . was squarely rejected in the subsequent appeal to this court in McKinley IV,” he said. “Our mandate in McKinley IV was equally unambiguous, as we reversed the Commonwealth Court and reinstated the trial court order invalidating the license suspension. “The bureau’s present attempt to cast as unsettled, and then relitigate, a question squarely resolved against it in McKinley IV must fail.” Interestingly enough, the lawyer for the driver was the same in both Martin and McKinley IV – Harrisburg attorney John Mancke of Mancke Wager & Spreha. Mancke said the decision would have a broad impact, in part because PennDOT had argued that McKinley only applied to airport police, not municipal police officers. “It will curtail arrests in other jurisdictions,” he said. “If you’re extraterritorial, you would need probable cause to follow someone and then you would need to prove you had a reason to be there.” When the Commonwealth Court’s decision came down in March 2005, Mancke said he found the ruling “very frustrating” and that the Commonwealth Court had “completely misinterpreted McKinley.” He said he thought the Commonwealth Court had a problem with the McKinley IV decision. “The Commonwealth Court just does not like the principle that has been established in” McKinley IV, he said. Mancke also said in March 2005 he was frustrated because he thought PennDOT was out to “crush” McKinley and “any McKinley issues out there.” But PennDOT Assistant Chief Counsel Harold Cramer quickly dismissed that idea last year. “ McKinley doesn’t need to be crushed,” he said at the time. “It’s a very small case.” Asked about the high court’s decision in Martin, Cramer had a similar reaction. “This was a very unusual set of circumstances,” he said, adding that he didn’t think Martin would lead to “wide-spread” challenges to DUI stops and refusals to take Breathalyzer tests, even in situations involving extraterritorial police officers. However, Cramer said he was “somewhat” surprised by the high court’s decision. “I thought they overlooked some of the decisions of the 1970s,” he said. In those cases, Cramer said, the courts had allowed police officers to pursue people into other municipalities to make arrests even though at the time there wasn’t a law on the books like the MPJA allowing them to do so. According to the opinion, Sollenberger saw Martin driving late at night and suspected she was speeding. He followed her “for approximately 100 yards,” and based on his speedometer, clocked her speed at 53 miles an hour in a 40-mile-an-hour zone. Martin slowed down and then made a wide turn on to the road she where lived, which happened to be in Camp Hill Borough – outside Sollenberger’s immediate jurisdiction. Sollenberger pulled her over in front of her house. According to the opinion, he smelled alcohol and noticed that Martin’s eyes were bloodshot and that her speech was slurred. According to the lower court opinion, Martin admitted to having had two glasses of wine. Sollenberger asked her to perform field sobriety tests, which she refused. He arrested her for driving under the influence and took her to a police station where she was asked to provide breath samples. Martin refused, the opinion said, so PennDOT later suspended her driver’s license for a year under the Implied Consent Law. The trial court threw out Martin’s suspension based on McKinley, ruling that Sollenberger lacked jurisdiction to stop and arrest Martin outside of Hampden Township and wasn’t considered a “police officer” under the implied consent law. In McKinley IV, the Supreme Court lifted the driver’s license suspension of a man who refused to submit to blood-alcohol testing after being stopped by an airport police officer just outside airport property. A three-judge Commonwealth Court panel reversed the trial court. The majority, led by Commonwealth Court Judge Mary Hannah Leavitt and joined by Judge James R. Kelley, said Sollenberger had probable cause to follow Martin out of his municipality, even though Leavitt admitted Sollenberger didn’t have enough evidence to cite her for the offense – speeding – that had originally caused him to follow her. It was that suggestion, as much as anything, that provoked Colins. “I must vigorously dissent from the well-written opinion of the majority, as it seems we are coming perilously close to turning a blind eye to questionable conduct by our police officers,” Colins wrote. “While I acknowledge that our police officers are charged with the awesome and sometimes onerous responsibility of protecting the public, I cannot sanction the whisperings of the majority that that protection comes at the deprivation of the constitutional rights of citizenship. We do not want a police state, and it seems we are on the precipice of becoming one, in the name of DUI.” Leavitt said that because Sollenberger believed Martin was speeding and saw her take a wide turn onto the street where she lived, he had every right to pull her over. “Together, these acts of erratic driving presented an immediate clear and present danger to persons or property and further investigation was warranted,” she wrote in her opinion. “That events occurred in a short period of time and happened to traverse a jurisdictional boundary should not negate Officer Sollenberger’s authority.” Although McKinley IV figured prominently at the trial court level and both Martin’s lawyer and PennDOT cited it extensively, Leavitt dismissed it in a footnote, saying that “( McKinley) has no application here.” Leavitt distinguished Martin from McKinley IV based on the fact that the Supreme Court case involved an airport officer, not a municipal police officer. She said in the footnote that by enacting the MPJA, the General Assembly had “expressly authorized municipal police officers like Officer Sollenberger to enforce laws outside their primary jurisdiction.” But Colins fired back that the Commonwealth Court “must follow the direct precedent of McKinley IV.” “The majority contends that McKinley IV has no application here,” Colins wrote in his own footnote. Given the strongly worded dissent from the president judge, it was probably inevitable the high court would hear the case. Former Justice Russell N. Nigro did not participate in the decision. (Copies of the 21-page opinion in Martin v. PennDOT , PICS No. 06-1160, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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