Enough evidence existed from an accident scene to provide probable cause that an event data recorder in the defendant’s van could be retrieved, a Lehigh County judge has ruled.

In Commonwealth v. Sell, defendant Dale Sell wanted evidence from his car’s data recorder suppressed, arguing there was no probable cause in the investigating officer’s affidavit for the issuance of a warrant.

“The affidavit clearly outlines the Vehicle Code transgressions,” Lehigh County Court of Common Pleas Judge Robert L. Steinberg said in denying Sell’s motion. “As a result, it was essential and appropriate to seize evidence of a crime, some of which would be discovered from data the vehicle itself would relinquish.”

Steinberg said Corporal David W. Barr Jr.’s affidavit explained how Sell’s vehicle disregarded a steady red indicator, causing a collision with Antoinette Haubert at the intersection of Mauch Chunk and Levans Road in North Whitehall Township, Pa. Haubert suffered blunt-force trauma to the head and died a few days after the May 2011 accident. Sell was charged with homicide by vehicle, aggravated assault by vehicle, involuntary manslaughter and recklessly endangering another person, Steinberg said.

Along with arguing that Barr’s affidavit failed to contain probable cause to seize his vehicle’s event data recorder, Sell also argued the evidence should be suppressed for Barr’s failure to deliver a copy of the search warrant to Sell at the time of the warrant’s execution.

Steinberg noted in his analysis that the test for whether probable cause exists is whether the totality of the circumstances provides a “‘fair probability’” that evidence of a crime will be found in a particular place. It is the probability of the criminal activity, not a prima facie showing of criminal activity, that is the standard for issuing a warrant, Steinberg said.

Barr is a collision analysis and reconstruction specialist. In his affidavit of probable cause to seize the event data recorder, Barr described the police response to the accident and his observations upon arriving to the scene. He said he saw three vehicles involved in the crash, their positions of “‘final rest’” and the damage to the vehicles.

Barr said he also learned that Sell failed to stop for a steady red indicator and struck the right side of Haubert’s vehicle as it was “‘traversing the intersection.’”

Based upon his experience, Barr knew that Sell’s vehicle, a 2006 Chevy Express, contained an event data recorder, Steinberg said. It was Barr’s expert opinion that pre- and post-crash data from the recorder would “‘assist in the investigation,’” according to the opinion.

While the affidavit contains some hearsay, Steinberg said it provided the issuing magisterial district judge a basis to conclude probable cause existed to seize the data recorder.

As to Sell’s argument that he wasn’t served a copy of the warrant at the time the recorder was seized, Steinberg noted Pennsylvania Rule of Criminal Procedure 208 requires an officer to leave a copy of the search warrant and affidavit, as well as a receipt for the property seized, with the person from whom the property was taken.

The rule also allows the officer to leave the documents in a noticeable place if the person isn’t there when the warrant is executed. Steinberg further noted that Rule 208 is not a rule of exclusion, but one of compliance.

In Sell, Barr left a copy of the documents in Sell’s vehicle.

“Due to the towing of the defendant’s vehicle to Atlas Towing, Corporal Barr’s decision to leave a copy of the warrant in the vehicle substantially complied with Rule 208,” Steinberg said.

Steinberg said Sell was not prejudiced by Barr’s failure to personally serve Sell.

V. Paul Bernardino III of the Lehigh County District Attorney’s Office represented the state and Chris Rand Eyster of Ligonier, Pa., represented Sell.

Amaris Elliott-Engel can be contacted at 215-557-2354 or aelliott-engel@alm.com. Follow him on Twitter @BPresentTLI.

(Copies of the seven-page opinion in Commonwealth v. Sell, PICS No. 12-1587, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)