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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
:
ALICIA DEE MCGRAW :
:
: No. 762 WDA 2014
Appeal from the Order Entered April 17, 2014
In the Court of Common Pleas of Greene County
Criminal Division No(s).: CP-30-CR-0000416-2012
BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JANUARY 30, 2015
The Commonwealth appeals from the order of the Greene County
Court of Common Pleas granting the suppression motion of Appellee, Alicia
Dee McGraw.1 The Commonwealth claims the trial court erred in concluding
that it failed to demonstrate reasonable suspicion justifying the traffic stop
of the vehicle Appellee was operating. We affirm.
*
Former Justice specially assigned to the Superior Court.
1
We note that this matter was captioned in the Court of Common Pleas as
“Commonwealth v. Alicia Dawn McGraw.”
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The facts underlying this appeal are relatively straightforward.2 On
August 23, 2012, at 9:20 a.m., Pennsylvania State Trooper Brian Siege was
in a marked patrol vehicle traveling east on State Route 21 in Franklin
Township, Greene County, Pennsylvania. N.T., 9/24/13, at 5. He observed
an Oldsmobile “quickly” pull out from a “Seven Eleven” onto State Route 21.
Id. He saw a female operating the Oldsmobile and passengers inside. Id.
The trooper followed the Oldsmobile through Morrisville and searched the
Commonwealth Law Enforcement Assistance Network (“CLEAN”) database
for the vehicle’s license plate number. Id. at 5, 7. The trooper received a
report indicating the owner of the Oldsmobile was Crystal Wilson, a female,
whose operating privilege was suspended for a driving under the influence
(DUI) offense.3 Id. at 5. The trooper activated his emergency lights and
stopped the vehicle. Id.
The trooper made contact with the driver, later identified as Appellee.
Appellee was not wearing a seat belt. Id. There were two other females in
2
The trial court did not record its findings of fact when granting Appellee’s
suppression motion. See Pa.R.Crim.P. 581(I).
3
Trooper Siege testified that he could obtain the registered owner’s driving
record when searching for a license plate. N.T. at 13. When he obtained
the report in the instant matter, “it came back as Crystal Wilson on a 1992
Oldsmobile with the same license plate that I ran and then when the owner
information came up, it came back to Crystal Wilson, same address and it
said suspension, yes DUI related.” Id.
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4
the Oldsmobile. Id. at 6. Crystal Wilson was in the passenger seat. Id.
When the trooper informed them of the reason for the stop, Wilson identified
herself as the owner of the vehicle. Id. at 6.
The trooper asked Appellee for her driver’s license. Id. Appellee
stated she did not have it with her. Id. The trooper asked for her name,
date of birth, and if she had any other form of identification. Id. Appellee
initially stated that her name was “Jacklyn Metcalf,” her birth date was
“January 21, 1981,” and she did not have another type of identification. Id.
When the trooper asked her how he could know if her information was
correct, Appellee responded she would never lie to the police. Id.
The trooper searched the database with the information provided by
Appellee, but was not able to find such an individual. Id. at 6-7. After
attempting to clarify Appellee’s information with her, she stated she was not
being truthful and gave her real name and date of birth. Id. at 7. The
trooper then obtained Appellee’s driving record, which indicated her driving
privilege was suspended for non-DUI offenses. Id. at 9. The trooper did not
cite Appellee at the scene.
One month later, on October 12, 2012, the trooper filed a complaint
charging Appellee with false identification to law enforcement authorities,
driving while operating privilege is suspended or revoked, and restraint
4
The third female was not identified by the trooper. N.T. at 12.
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systems for a seat belt violation.5 Appellee, on August 14, 2013, filed a
motion to suppress, asserting the trooper “had no reason to stop [her].”
Appellee’s Omnibus Pre-Trial Mot., 8/14/13, at 1. A suppression hearing
was held on September 24, 2013, at which Trooper Siege testified. On April
17, 2014, after consideration of briefs from the parties, the trial court
entered an order granting Appellee’s motion to suppress. Order, 4/17/14, at
1. The court concluded “the arresting officer did not have reasonable
suspicion that the female driving the car was the occupant who was the
suspended owner[,]” but did not enter findings of fact. Id.; see
Pa.R.Crim.P. 581(I). The court further dismissed the charges against
Appellee. Id.
The Commonwealth filed a timely notice of appeal and a certificate
that the trial court’s ruling effectively terminated its prosecution. See
Pa.R.A.P. 311(d), 904(e). The Commonwealth complied with the court’s
Pa.R.A.P. 1925(b) order. The trial court filed a responsive opinion holding
that the reasonable suspicion to conduct the traffic stop did not exist under
Commonwealth v. Andersen, 753 A.2d 1289 (Pa. Super. 2000). Trial Ct.
Op., 6/11/14, at 3-4.
The Commonwealth presently claims the trial court erred in
suppressing all evidence obtained from the August 23, 2012 traffic stop.
5
18 Pa.C.S. § 4914(a); 75 Pa.C.S. §§ 1543(a), 4581(a)(2).
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The Commonwealth contends Trooper Siege possessed reasonable suspicion
to conduct an investigatory traffic stop to determine whether the registered
owner, who was under suspension, was operating the vehicle.
Commonwealth’s Brief at 9-10. It argues the trooper possessed the
following information relevant to his decision to stop the vehicle. First, the
Oldsmobile “pulled out abruptly from a 7-11 gas station.” Id. at 9. Second,
the Oldsmobile was owned by a female with a “DUI suspended license.” Id.
Third, “the car was being driven by a female, appearing to be around the
same age as the owner of the vehicle.” Id. (emphasis added).
According to the Commonwealth, these factors amounted to a specific and
articulable basis to believe Appellee was driving under a suspended license
under Commonwealth v. Hilliar, 943 A.2d 984 (Pa. Super. 2008), and
Commonwealth v. Farnan, 55 A.3d 113 (Pa. Super. 2012).
Commonwealth’s Brief at 9-10. We conclude that the record does not
support the Commonwealth’s factual assertions and that the Commonwealth
has not asserted a basis for appellate relief.
When reviewing the propriety of a suppression order, an
appellate court is required to determine whether the record
supports the suppression court’s factual findings and
whether the inferences and legal conclusions drawn by the
suppression court from those findings are appropriate.
Where the defendant prevailed in the suppression court,
we may consider only the evidence of the defense and so
much of the evidence for the Commonwealth as remains
uncontradicted when read in the context of the record as a
whole. Where the record supports the factual findings of
the suppression court, we are bound by those facts and
may reverse only if the legal conclusions drawn therefrom
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are in error. However, where the appeal of the
determination of the suppression court turns on allegations
of legal error, the suppression court’s conclusions of law
are not binding on an appellate court, whose duty it is to
determine if the suppression court properly applied the law
to the facts.
Commonwealth v. Cartagena, 63 A.3d 294, 298 (Pa. Super. 2013) (en
banc) (citation and punctuation omitted), appeal denied, 70 A.3d 808 (Pa.
2013). We may affirm “for reasons other than those relied upon by the trial
court.” Commonwealth v. Dales, 820 A.2d 807, 813 n.2 (Pa. Super.
2003).
It is well settled that the Commonwealth bears the burden “of going
forward with the evidence and of establishing that the challenged evidence
was not obtained in violation of the defendant’s rights.” Pa.R.Crim.P.
581(H); accord Commonwealth v. Wallace, 42 A.3d 1040, 1047-48 (Pa.
2012). The parties and trial court here agree the appropriate standard for
justifying the underlying traffic stop was whether Trooper Siege had
reasonable suspicion to believe he observed a violation of the Motor Vehicle
Code. See 75 Pa.C.S. § 6308(b); Commonwealth’s Brief at 7; Appellee’s
Brief at 13; Trial Ct. Op. at 3.
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 order to justify the
seizure, a police officer must be able to point to “specific
and articulable facts” leading him to suspect criminal
activity is afoot. In assessing the totality of the
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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. Thus, under the present
version of Section 6308(b), in order to establish
reasonable suspicion, an officer must be able to point to
specific and articulable facts which led him to reasonably
suspect a violation of the Motor Vehicle Code[.]
“[W]hether an officer had reasonable suspicion that
criminality was afoot so as to justify an investigatory
detention is an objective one, which must be considered in
light of the totality of the circumstances.”
Farnan, 55 A.3d at 116 (citation and emphases omitted). The touchstone
of a reasonable suspicion inquiry is whether “the facts available to the officer
at the moment of the seizure or the search warrant a man of reasonable
caution in the belief that the action taken was appropriate?”
Commonwealth v. Holmes, 14 A.3d 89, 96 (Pa. 2011) (citation and
punctuation omitted).
This Court has previously considered the quantum of evidence
necessary to stop a person for suspicion of driving while operating privilege
are suspended or revoked in Andersen, Hilliar, and Farnan. A review of
these cases is helpful.
In Andersen, this Court considered the following scenario:
At approximately 2:00 a.m. on April 7, 1999, Police
Officers Steven Hillias and Earl Clark of the Perkasie
Borough Police Department, along with other police
officers, responded to a police call concerning a
disturbance in the vicinity of a local tavern. Upon arriving
at this location, the police officers encountered [the
defendant] conversing with his girlfriend while he was
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seated in a black Camaro. The police officers checked the
records of the Camaro and learned that the automobile
was registered to [the defendant]. Furthermore, the
record check revealed that the driving privileges of both
[the defendant] and his girlfriend were currently
suspended.
As this encounter progressed, the police officers
arrested [the defendant]’s girlfriend for disorderly conduct.
Noting the suspension of [the defendant]’s driving
privileges, the police officers advised [the defendant] not
to drive his vehicle. [The defendant] informed the police
officers that he would walk to the nearby residence of his
friend and stay there for the night.
Later that day, at approximately 11:00 p.m., Officer
Hillias observed [the defendant]’s automobile parked
unattended in a different location than where [the
defendant] had left it during the previous encounter. On
April 8, 1999, at approximately 2:30 a.m., Officer Clark
communicated to Officer Hillias via radio that he was
following the “same ones from last night.” Although
Officer Hillias understood this reference to mean [the
defendant] and [the defendant]’s girlfriend, Officer Clark
had yet to identify either driver. Officer Hillias proceeded
in his marked police car to Officer Clark's location.
Officer Clark had been following a black Camaro and a
white Sable. Before the arrival of Officer Hillias, Officer
Clark activated his emergency lights in an attempt to stop
both vehicles. At [t]his point, Officer Clark had not
observed who was driving the Camaro or the Sable. The
Camaro pulled over and the Sable continued driving with
Officer Clark in pursuit. The record indicates that Officer
Clark observed [the defendant] as the driver of the
Camaro as he passed [the defendant]’s automobile in
pursuit of the Sable. However, the record provides no
indication that Officer Clark communicated this observation
to Officer Hillias. After stopping the Sable, Officer Clark
determined the driver to be [the defendant]’s girlfriend.
When Officer Hillias arrived, he observed from a
distance that Officer Clark’s vehicle was stopped by the
side of the road with its emergency lights in operation. In
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addition, Officer Hillias saw a black Camaro bearing the
same license plate as [the defendant]’s automobile. The
Camaro was traveling at a slow rate of speed towards
Officer Clark’s position. Although Officer Hillias did not
observe the driver of the Camaro, he activated the
emergency lights of his police car and proceeded to stop
the Camaro. Officer Hillias determined that [the
defendant] was the driver of the Camaro and detected a
strong odor of alcohol emanating from [the defendant]’s
automobile. Officer Hillias administered several field
sobriety tests upon [the defendant] who failed each one.
During the course of the sobriety tests, Officer Hillias
observed a bulge in [the defendant]’s sock that turned out
to be a baggie containing 1.09 grams of marijuana. After
[the defendant] was arrested he underwent a blood test
that revealed a blood alcohol content of 0.16 percent.
Andersen, 753 A.2d at 1291-92. The defendant filed a motion to suppress,
which was denied, and he was subsequently convicted for driving under the
influence, possession of a small amount of marijuana, and driving while
operating privilege was suspended. Id. at 1291.
The Andersen Court concluded the trial court erred in denying the
defendant’s suppression motion, reasoning
the knowledge a vehicle is owned by an individual whose
driving privileges are suspended coupled with the mere
assumption that the owner is driving the vehicle, does
not give rise to articulable and reasonable grounds to
suspect that a violation of the Vehicle Code is occurring
every time this vehicle is operated during the owner’s
suspension. Therefore, based on the totality of the
circumstances, we cannot find that Officers Clark and
Hillias had articulable and reasonable grounds to suspect
that a violation of the Vehicle Code had occurred.
Id. at 1294 (emphasis in original). We emphasized
the record reveals that Officer Clark did not actually
determine the identity of the drivers until after both
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vehicles had been pulled over.[ ] Likewise, Officer Hillias
did not actually know who was driving [the defendant]’s
vehicle when he stopped it. The Commonwealth further
supports the legality of the traffic stops by pointing to the
following additional information: 1) Officer Hillias observed
that the Camaro he was following possessed the same
license plate as [the defendant]’s vehicle; 2) the traffic
stop occurred on the same street as the tavern near where
the police encountered [the defendant] and his girlfriend
the day before; 3) Officer Hillias observed [the
defendant]’s vehicle traveling at a slow rate of speed
towards Officer Clark’s vehicle.
In reviewing the facts set forth by the Commonwealth,
we note that neither Officer Clark nor Officer Hillias
specifically observed [the defendant]’s vehicle violate the
Vehicle Code prior to the traffic stops. In addition, we fail
to recognize the significance of the fact that [the
defendant]’s vehicle was being driven near a location
where the police previously had encountered [the
defendant]. The only relevant information possessed by
Officers Clark and Hillias prior to the traffic stops was that
[the defendant]’s driving privileges were suspended and
that the Camaro registered to [the defendant] was being
operated. Thus, both traffic stops were based on the
mere assumption that [the defendant] was driving the
black Camaro.
Id. at 1293 (emphasis in original).
In Hilliar,
The arresting police officer’s attention was called to the
defendant’s vehicle as he proceeded east on Market Street
in West York Borough. The police officer ran the
defendant’s license plate, and determined that the owner
of the vehicle’s license was under suspension. The officer
also discovered the owner’s age and that he was a male.
From his observation of the driver the officer believed that
the defendant was male, and was about the same age as
the owner. Based on the officer’s conclusion that it was
likely that the person operating the vehicle was the owner
because he was a male of the same age as the owner and
had possession of the owner’s vehicle, the police officer
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decided to stop the vehicle for suspicion of driving on a
suspended license.
Hilliar, 943 A.2d at 987-88. The defendant was convicted for DUI and
driving while operating privilege was suspended. Id. at 988.
Although Hilliar ultimately considered whether the arresting officer
complied with the Municipal Police Jurisdiction Act, 42 Pa.C.S. §§ 8951-
8954, which governs an officer’s law enforcement powers outside his
primary jurisdiction, we noted
[U]nder the facts of this case, the officer’s suspicion that
the driver of the vehicle was also the owner was a
reasonable one because the driver matched the description
of the owner as a middle aged man.[ ] Consequently, had
the officer initiated a traffic stop while in his primary
jurisdiction it would have been entirely legal.
Id. at 990. The Hilliar Court distinguished Andersen because, inter alia,
the arresting officer in Andersen made no mention of an observation of the
physical characteristics of the driver. Id. at 990 n.1.
In Farnan, this Court considered the following facts:
On September 21, 2010, Sergeant David Mazza of the
Sewickley Borough Police Department responded to a call
received at approximately 4:40 p.m. The call involved a
potential problem involving a custody dispute. K.L. ([the
defendant]’s ex-wife) requested police assistance at her
home on Bank Street. K.L. informed Sergeant Mazza that
[the defendant] was on his way to pick up the couple’s
children, contrary to their custody order. She indicated to
Sergeant Mazza that she thought that there was going to
be a problem between she and [the defendant], which was
why she called the police. Sergeant Mazza was familiar
with both K.L. and [the defendant], having been involved
in past incidents between the two.
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Sergeant Mazza was one of three (3) officers in two (2)
marked cars who arrived at the scene. At the time of his
arrival, [the defendant] was not present at K.L.’s. While
the officers were speaking with K.L., she pointed to a
vehicle that was traveling along Bank Street and said
“Here he comes.” A vehicle approached K.L.’s house and
then proceeded down the street without stopping.
Sergeant Mazza was able to identify [the defendant] as the
driver of the vehicle, as well.
Sergeant Mazza testified that, within thirty (30) days
before this incident, K.L. had informed him that [the
defendant] was driving with a suspended license. Upon
receiving the information, Sergeant Mazza had confirmed
that [the defendant’s] license was suspended for a DUI-
related matter. [The defendant] drove past K.L.’s house
after looking at the officers and K.L. standing outside.
Sergeant Mazza then got into his police car and followed
[the defendant]. After approximately 20 seconds,
Sergeant Mazza activated his lights and stopped [the
defendant] Appellant. Sergeant Mazza testified that he
pulled [the defendant] over for three (3) reasons: (1) the
suspended license; (2) the suspicious behavior in driving
past K.L.’s house due to the presence of police vehicles
and personnel; and (3) the need to investigate K.L.’s
complaint.
Farnan, 55 A.3d at 114-15 (some punctuation omitted).
Farnan principally considered the “freshness” of the arresting officer’s
knowledge that the defendant’s license was suspended. Id. at 118. We
concluded that “under the totality of circumstances . . . , the 30–day delay
between the time Sergeant Mazza learned that [the defendant’s] license was
suspended and the date the officer conducted a traffic stop was not so
lengthy that it rendered the officer’s information stale.” Id. We further
determined “Sergeant Mazza articulated sufficient facts to support a
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reasonable belief that Appellant was in violation of the Motor Vehicle Code at
the time of the traffic stop.” Id.
Reading Andersen,6 Hilliar, and Farnan together, it is apparent that
information that an owner of a vehicle had her license suspended alone
cannot justify the stop of the vehicle. See Andersen, 753 A.2d at 1294.
Similarly, an observation that a vehicle “quickly pulled” into the roadway is
of little relevance where there is no indication the maneuver constituted a
reason to believe the vehicle was being operated contrary to the Vehicle
Code. See id. Thus, to justify a stop to investigate whether an owner
under suspension is operating the vehicle, the Commonwealth must adduce
additional evidence to justify the belief that the driver is the owner whose
license was suspended. See id.; Farnan, 55 A.3d at 114-15, 118; Hilliar,
943 A.2d at 990.
Instantly, the Commonwealth argues it established reasonable
suspicion because the trial court found that Appellee was the same gender
6
We note that the continued validity of Andersen has been questioned.
See Hilliar, 943 A.2d at 990 n.1. Specifically, the Hilliar Court observed
Andersen was decided under the prior “articulable and reasonable grounds”
standard, which was equated with “probable cause,” but later abrogated by
amendments to 75 Pa.C.S. § 6308(b) in favor of a “reasonable suspicion”
standard. Id. Although the Andersen Court applied the “articulable and
reasonable grounds” standard, it observed that the “reasonable basis
necessary to justify a stop is less stringent than probable cause . . . .”
Andersen, 753 A.2d at 1293 (citation omitted and emphasis added).
Accordingly, Andersen remains persuasive authority with respect to the
issue raised in this appeal.
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and appeared to be the same age as the owner of the vehicle. See
Commonwealth’s Brief at 9; Trial Ct. Op. at 3. If the record supported such
a finding, Hilliar would control the instant matter.
Our review of the record reveals Trooper Siege, after seeing the
Oldsmobile pull into the roadway in front of him, entered the vehicle’s
license plate information into his computer. N.T. at 5. The trooper,
however, testified:
The report came back that the owner of the registered
vehicle was a female named Crystal Wilson and she was
under a DUI related suspension. I noted at that time that
there was a female operator driving the vehicle and there
w[ere] also passengers inside the vehicle.
* * *
Driving on DUI related suspension is a serious traffic
offense. Like I said, it came back for Crystal Wilson, you
know, and there was a female driving the car at the time.
I thought that would be the owner . . . would be the
operator and wanted to verify that.
Id. at 5-6.
On cross-examination by Appellee’s counsel, the trooper reiterated
that “the license came back to a female that was under DUI related
suspension[ and t]here was a female driving the car.” Id. at 12. The
trooper conceded that he was not familiar with any of the vehicles’
occupants. Id. at 13. The Commonwealth did not present further evidence
describing what additional identifying information the trooper obtained
before stopping the Oldsmobile.
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Thus, even reviewing the record in a light most favorable to the
Commonwealth, we discern no record support for the trial court’s and the
Commonwealth’s suggestion that Appellee appeared to be the same age as
Crystal Wilson, the suspended vehicle owner, or that the trooper believed
that to be the case. See Commonwealth’s Brief at 9; Trial Ct. Op. at 3. The
Commonwealth’s instant argument thus rests upon a faulty premise, and
Hilliar, where the stop based on observations that the defendant-driver
matched the owner’s description as “a middle aged man,” does not control.
Moreover, because there is no record evidence that the trooper was familiar
with Appellee, the present matter is distinguishable from the stop based on
an identification of the driver made by an officer familiar with the defendant-
driver in Farnan.
We are mindful that the Commonwealth established Appellee and the
owner of the vehicle were both female. However, the Commonwealth does
not assert that this similarity alone was adequate to establish reasonable
suspicion, nor did it do so before the trial court. See Commonwealth’s Brief
at 9-10; Commonwealth’s Opp’n to Suppression of Evidence, 10/16/13, at 4.
Therefore, we decline to address sua sponte whether a common gender was
a sufficient, under the circumstances of the present case, to sustain a belief
that Appellee was the registered owner subject to a license suspension. See
Commonwealth v. B.D.G., 959 A.2d 362, 371-72 (Pa. Super. 2008).
Order affirmed.
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Judge Donohue joins the memorandum.
Judge Mundy notes dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2015
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