J-A32026-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
BOBBIE LIONEL HENDERSON III,
Appellee No. 1363 EDA 2014
Appeal from the Order Dated March 27, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0008071-2013
BEFORE: PANELLA, OLSON AND FITZGERALD,* JJ.
MEMORANDUM BY OLSON, J.: FILED JANUARY 28, 2015
Appellant, the Commonwealth of Pennsylvania (the Commonwealth),
appeals from the order dated March 27, 2014 granting a motion to suppress
evidence filed by Appellee, Bobbie Lionel Henderson, III (Appellee). 1 Upon
careful consideration, we reverse the order granting suppression and
remand for trial.
We briefly summarize the facts of this case as follows. On August 31,
2013, at 3:30 a.m., Pennsylvania State Police Trooper Jeffrey Hand observed
Appellee driving on Route I-95 in Bensalem Township, Bucks County.
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1
“The Commonwealth may take an appeal as of right from an order that
does not end the entire case where the Commonwealth certifies in the notice
of appeal that the order will terminate or substantially handicap the
prosecution.” Pa.R.A.P. 311. The Commonwealth has complied with Rule
311 and the appeal is properly before us.
*Retired Justice specially assigned to the Superior Court.
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Appellee was driving in the middle lane of the interstate when he came to an
almost complete stop, activated his left turn signal, made an abrupt, almost
90-degree turn to the right (over another lane of travel and the gore of the
road), and traveled down the exit ramp at the Woodhaven exit. Trooper
Hand followed Appellee for a mile and effectuated a traffic stop near the
Franklin Mills Mall. Trooper Hand observed Appellee had bloodshot eyes and
he smelled the odor of alcohol and burnt marijuana. Trooper Hand
administered several field sobriety tests, concluded that Appellee was under
the influence of alcohol and/or a controlled substance, and arrested
Appellee.
The trial court summarized the procedural history of this case as
follows:
On August 31, 2013, [Appellee] was arrested and charged
on Information 8071-2013 with six (6) counts of driving
under the influence of alcohol or controlled substance
(“DUI”) (2nd offense), including general impairment, 75
Pa.C.S.A. § 3802(a)(1); high rate of alcohol (0.10 –
0.16%), 75 Pa.C.S.A. § 3802(b); controlled substance –
impaired ability, 74 Pa.C.S.A. § 3802(d)(2); controlled
substance – schedule I, 75 Pa.C.S.A. § 3802(d)(1)(i);
controlled substance – metabolite, 75 Pa.C.S.A. §
3802(d)(1)(ii) and controlled substance – combination
alcohol and drug (blood alcohol level 0.117), 75 Pa.C.S.A. §
3802(d)(3). In addition, Appellee was charged with two (2)
summary traffic violations, including one count of turning
movements and required signals, 75 Pa.C.S.A. § 3334(a),
and one count of minimum speed regulation – too slow for
conditions, 75 Pa.C.S.A. § 3364(a).
On March 4, 2014, Appellee filed an omnibus pre-trial
motion seeking to suppress all evidence obtained as a result
of his purported stop and arrest by the Pennsylvania State
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Police on August 31, 2013. On March 31, 2014, Appellee
filed a supplemental omnibus pre-trial motion [] seeking to
dismiss all charges against him due to the spoliation by way
of destruction of videotape evidence from [] Trooper[
Hand’s] onboard video equipment which evidence was
allegedly favorable to him. A suppression hearing was held
on March 27, 2014, at which time [the trial court] denied
Appellee’s motion to dismiss[,] but granted his motion to
suppress. On April 23, 2014, the Commonwealth [] filed a
notice of appeal[.] On May 2, 2014, [the trial court]
ordered the Commonwealth to file a statement of errors
complained of on appeal no later than twenty[-]one (21)
days from the date of the order pursuant to Pa.R.A.P.
1925(b). On May 6, 2014, the Commonwealth filed its
statement of matters complained of on appeal. [The trial
court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
May 22, 2014.]
Trial Court Opinion, 5/22/2014, at 1-2 (superfluous capitalization omitted).
On appeal, the Commonwealth raises the following issues for our
review:
A. Whether the trial court erred in finding as fact that
Appellee’s actions in rapidly decelerating his speed to an
almost full stop in the middle lane of the three-lane
highway and, after activating [his] left-turn signal,
abruptly making a right turn across the right lane of
travel and across the gore to the off ramp constituted an
“emergency turn,” as there was no testimony, evidence,
or support for same on the record?
B. Whether the trial court erred and/or misapplied the
standard for motor vehicle stops by holding there was
not reasonable suspicion and/or probable cause for the
traffic stop based on the totality of the circumstances,
the police officer’s training and experience, and the
police officer’s observations that the vehicle operated by
Appellee rapidly decelerated in speed to an almost
complete stop in the middle lane of the three-lane
highway and, then, after activating its left-turn signal
abruptly made a right turn across the gore to the off
ramp, in apparent violation of the motor vehicle code?
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Commonwealth’s Brief at 4 (complete capitalization omitted).
Both of the Commonwealth’s issues are interrelated and challenge the
trial court’s grant of suppression, thus, we will examine them together.
First, the Commonwealth argues that the trial court erred by making a
factual determination, without support in the record, “that Appellee’s abrupt,
close to perpendicular turn off Interstate 95 constituted an emergency turn.”
Id. at 14. The Commonwealth continues, “[w]hile Trooper Hand agreed the
abrupt turn was made as though the driver decided at the last second to
make the turn, the suppression court’s factual finding that Appellee’s exit off
of Interstate 95 was due to an emergency is not supported by the record.”
Id. at 14-15. In its next issue presented, the Commonwealth challenges
the trial court’s ruling that there was no probable cause to initiate a traffic
stop because Trooper Hand followed Appellee for approximately a mile after
the alleged traffic violation. Id. at 15. The Commonwealth argues that “a
traffic stop need not be instantaneous upon observing [] a violation [of the
Motor Vehicle Code]; instead, an officer is allowed to pursue a suspect of a
traffic violation and wait to effectuate the traffic stop due to unsafe
conditions.” Id. at 21. The Commonwealth maintains that there was
probable cause to pull Appellee over because he used the wrong turn signal,
decelerated rapidly, and abruptly changed lanes. Id. at 22. Moreover, the
Commonwealth asserts that the trial court further erred by determining that
there was no reasonable suspicion to follow Appellee and to effectuate a
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traffic stop for further investigation of suspected DUI due to reckless and
erratic driving. Id. at 16, 25-29.
“Our standard of review in addressing a challenge to the [grant] of a
suppression motion is limited to determining whether the suppression court's
factual findings are supported by the record and whether the legal
conclusions drawn from those facts are correct.” Commonwealth v. Stem,
96 A.3d 407, 409 (Pa. Super. 2014) (citation omitted). “[O]ur scope of
review is limited to the factual findings and legal conclusions of the [trial]
court.” In re L.J., 79 A.3d 1073, 1080 (Pa. 2013) (citation omitted). “[W]e
are limited to considering only the evidence of the prevailing party, and so
much of the evidence of the non-prevailing party as remains uncontradicted
when read in the context of the record as a whole.” Id.
“As [this Court has] explained, the Fourth Amendment to the United
States Constitution and Article I, Section 8 of the Pennsylvania Constitution
protect citizens from unreasonable searches and seizures.”
Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa. Super. 2013) (internal
alteration and quotation marks omitted). The burden is on the
Commonwealth to prove, by a preponderance of the evidence, that the
evidence seized from Appellee was legally obtained. See Commonwealth
v. Howard, 64 A.3d 1082, 1087 (Pa. Super. 2013), appeal denied, 74 A.3d
118 (Pa. 2013) (citation omitted). Probable cause is required to conduct a
traffic stop when the infraction at issue does not require any further
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investigation. Commonwealth v. Brown, 64 A.3d 1101, 1105 (Pa. Super.
2013), appeal denied, 79 A.3d 1096 (Pa. 2013) (citation omitted).
Here, the trial court concluded that “the only articulable grounds for
the stop was the abrupt exit of Appellee’s vehicle. However, the totality of
the circumstances leads to the conclusion that the stop, some extended
distance down the road, was not made for an abrupt turn but for suspected
DUI.” Trial Court Opinion, 5/22/2014, at 10. More specifically, the trial
court elucidated:
While the Trooper asserts that the abrupt turn which the
Appellee made in order to make the exit from Route 95 that
[] Appellee almost missed was sufficient to support a
reasonable suspicion that a Vehicle Code violation had
occurred, the Trooper did not make the stop at that time.
Instead, the Trooper set about to investigate whether []
Appellee was DUI. He pursued that investigation by means
of following [] Appellee for a considerable distance – that
distance being well over a mile from Rout I-95 to the end of
Franklin Mills exit without acquiring any evidence that []
Appellee was driving while impaired. Therefore, the
investigatory seizure was unlawful[.] The stop [would
have been legally sufficient] if the stop had been
made when probable cause existed and when the
abrupt turn with the wrong turn signal occurred. And,
while probable cause does not de-materialize, the purpose
of the stop was not for an unlawful exit; instead, the stop
was made in connection with an investigation for a DUI.
That seizure for DUI was without reasonable suspicion for a
DUI and was without probable cause for a DUI.
Id. at 8 (emphasis added).
In this case, the trial court found that the traffic stop was conducted in
order to investigate a DUI – thereby requiring Trooper Hand to have
reasonable suspicion that Appellee was driving under the influence. See
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Commonwealth v. Weaver, 76 A.3d 562, 568 (Pa. Super. 2013), aff’d,
2014 WL 6750608 (Pa. Dec. 1, 2014) (per curiam) (requiring reasonable
suspicion to pull a suspect over for driving under the influence).
Additionally, in the trial court’s view, the traffic stop was invalid since
Trooper Hand lacked reasonable suspicion. Upon review of the certified
record, and viewing the evidence in the light most favorable to Appellee as
required, we are persuaded that the trial court’s mixed findings of fact and
conclusions of law are contrary to the record and controlling Pennsylvania
authority.
Herein, Trooper Hand testified without contradiction that he “saw
[Appellee’s] vehicle decelerating very quickly” and “c[o]me to a near
complete stop” in the “[m]iddle lane[]” on I-95 near the Woodhaven exit.
N.T., 3/27/2014, at 47-49. Appellee’s vehicle “was pretty close to being
perpendicular to the [Woodhaven] exit sign” and Appellee “had to make a
hard right turn to make it to the ramp[]” and “had to cross over the right-
hand lane to get to the exit ramp.” Id. at 50-51. Trooper Hand stated that
Appellee also “cut across” the “gore” in the road that he described as the “V”
where “the exit separates from the highway.” Id. at 88, 97. Moreover,
Trooper Hand testified that, while making the turn, Appellee “activated [his]
left turn signal and made a right turn.” Id. at 51. Trooper Hand agreed that
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Appellee’s vehicular movements were consistent with a last second decision
to exit the roadway.2 Id. at 84.
At the time that Trooper Hand made his observations, he was “on
stationary patrol in the turn-around between 95 northbound and
southbound, just north of the Woodhaven exit” and facing the same
direction as Appellee, approximately a quarter of a mile away. Id. at 47,
101. Trooper Hand followed Appellee off the Woodhaven exit and was
approximately 10 – 15 car lengths behind Appellee when Appellee made a
left turn at a traffic light near the Franklin Mills Mall. Id. 52-53. At that
time, Trooper Hand activated his emergency lights and pulled Appellee over.
Id. at 53. In all, Trooper Hand estimated that he pulled Appellee over
approximately a mile from where he first witnessed Appellee and after two
to three minutes had elapsed. Id. at 91, 98. Trooper Hand further testified
that he did not stop Appellee at the light near Franklin Mills Mall because
there was no safe place to stop at the intersection. Id. at 98. Finally,
Trooper Hand testified that he often observes traffic violations and makes
stops up to four or five miles later, “for [his] safety and the safety of the
person being stopped.” Id. at 99.
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2
Based upon this testimony, we reject the trial court’s finding that Appellee
made the turn for emergency purposes. Appellee did not present evidence
of an emergency and Trooper Hand testified that it appeared to be a last
minute decision, but said nothing about an emergency.
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The record is clear that Trooper Hand pulled Appellee over for making
a right hand turn, over another lane of traffic, without properly using his
turn signal in violation of 75 Pa.C.S.A. § 3334(a).3 Although Trooper Hand
followed Appellee for approximately one mile after originally observing the
turning infraction, this distance was reasonable. Trooper Hand was
stationary at the time of the violation, had to accelerate to catch up to
Appellee, and then waited for a safe place to effectuate the traffic stop.
Moreover, “[l]aw enforcement officers are under no constitutional duty to
call a halt to criminal investigation the moment they have the minimum
evidence to establish probable cause.” Kentucky v. King, 131 S.Ct. 1849,
1860-1861 (U.S. 2011), citing Hoffa v. United States, 385 U.S. 293, 310
(1966). We therefore reject the trial court’s factual findings and hold as a
matter of law that the trial court erred in concluding that too much time
passed before Trooper Hand initiated the traffic stop. Instead, the record
establishes that Trooper Hand initiated the traffic stop in response to
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3
“(a) General rule.--Upon a roadway no person shall turn a vehicle or
move from one traffic lane to another or enter the traffic stream from a
parked position unless and until the movement can be made with reasonable
safety nor without giving an appropriate signal in the manner provided in
this section.” 75 Pa.C.S.A. § 3334(a). “The signal shall be given during not
less than the last 300 feet at speeds in excess of 35 miles per hour.” 75
Pa.C.S.A. § 3334(b). Here, Appellee not only used the wrong signal, but
also, it appears, did not use that signal within 300 feet of the turn.
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Appellee’s turning violation and that the trooper clearly possessed valid
probable cause to stop Appellee.
Although Trooper Hand had probable cause to pull Appellee over, that
does not end our inquiry. As this Court has explained:
When conducting a routine traffic stop, an officer may
request a driver’s license and vehicle registration, run a
computer check and issue a citation. Upon producing a
valid driver’s license and registration, the driver must be
allowed to proceed on his way, without being subject to
further delay by police for additional questioning. In order
to justify detaining the driver for further questioning, the
officer must have reasonable suspicion of illegal
transactions in drugs or of any other serious crime.
Commonwealth v. Grosso, 672 A.2d 792, 794 (Pa. Super. 1996) (internal
alteration, citations, and quotation marks omitted).
We have described reasonable suspicion in the following manner:
Reasonable suspicion is a less stringent standard than
probable cause necessary to effectuate a warrantless arrest,
and depends on the information possessed by police and its
degree of reliability in the totality of the circumstances. . . .
In assessing the totality of the circumstances, courts must
also afford due weight to the specific, reasonable inferences
drawn from the facts in light of the officer’s experience and
acknowledge that innocent facts, when considered
collectively, may permit the investigative detention.
The determination of whether an officer had reasonable
suspicion . . . is an objective one, which must be considered
in light of the totality of the circumstances.
Clemens, 66 A.3d at 379 (ellipsis and citation omitted).
Trooper Hand had reasonable suspicion to believe that criminal activity
was afoot, i.e., Appellee was driving under the influence of alcohol and/or
controlled substances. Specifically, Trooper Hand testified that when he
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approached the vehicle he “observed that [Appellee’s] eyes were bloodshot”
and he “smelled the odor of an alcoholic beverage and burnt marijuana
emanating from the vehicle.” N.T., 3/27/2014, at 54. Furthermore, Trooper
Hand testified that his partner “pointed out that there [] appeared to be
loose marijuana stems [] on the passenger seat and [a marijuana] blunt in
the center cupholder console.” Id. This information gave Trooper Hand
reasonable suspicion to believe that Appellee was driving under the
influence. See Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009).
Therefore, Trooper Hand had lawful justification to request that Appellee
perform various field sobriety tests and when Appellee failed those tests,
Trooper Hand obtained probable cause to arrest Appellee for DUI. See
Commonwealth v. Cauley, 10 A.3d 321, 327 (Pa. Super. 2010).
Accordingly, Trooper Hand did not violate Appellee’s right to be free from
unreasonable searches and seizures. The trial court’s conclusion to the
contrary was an error of law and we therefore reverse the order granting
Appellee’s motion to suppress.
Order reversed. Case remanded for trial. Jurisdiction relinquished.
Panella, J., joins this memorandum.
Fitzgerald, J., notes dissent.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/28/2015
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