J-A35026-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
LEA ANN MYERS,
Appellee No. 428 WDA 2015
Appeal from the Order February 6, 2015
In the Court of Common Pleas of Butler County
Criminal Division at No(s): CP-10-CR-0001375-2014
BEFORE: BENDER, P.J.E., SHOGAN, and MUSMANNO, JJ.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 05, 2016
The Commonwealth appeals from the order of the trial court granting
the motion filed by Appellee, Lea Ann Myers, seeking to suppress all
evidence obtained as a result of her vehicle stop. We affirm.
We summarize the history of this case as follows. At approximately
9:00 p.m. on June 8, 2014, Butler Township Police Officer Paul Kuss was
patrolling in an unmarked cruiser when he noticed Appellee’s vehicle make a
turn behind him. Officer Kuss turned around to follow Appellee and
observed her vehicle allegedly exceeding the speed limit. The officer
increased his speed but lost sight of Appellee when he stopped at a traffic
light. Officer Kuss was unable to catch up to the vehicle to perform a
measure of distance and time to ascertain Appellee’s actual speed. Officer
Kuss eventually spotted Appellee’s vehicle again and began to follow it.
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While following Appellee’s vehicle the second time, Officer Kuss claims he
observed her car move onto or across the double yellow lines and the white
fog line. Officer Kuss activated his emergency lights and sirens, and
Appellee drove approximately one-half mile before pulling over. Appellee
was charged with Driving on Roadways Laned for Traffic, pursuant to 75
Pa.C.S. § 3309(1); Driving Under the Influence, pursuant to 75 Pa.C.S. §
3802(A)(1); and Driving Under the Influence with a BAC of .16% or higher,
pursuant to 75 Pa.C.S. § 3802(C).
On October 14, 2014, Appellee filed a motion to suppress evidence
gained during the traffic stop. A suppression hearing was held on November
10, 2014. In an order dated February 6, 2015, the suppression court
granted Appellee’s motion to suppress. The order was docketed on February
12, 2015. On March 3, 2015, the Commonwealth filed a motion for
reconsideration and a motion to vacate, which were denied on March 20,
2015. The Commonwealth initiated this appeal on March 10, 2015, noting
that under Pa.R.A.P. 311(d), the order dated February 6, 2015, and
docketed on February 12, 2015, substantially handicaps or terminates
prosecution. Both the Commonwealth and the trial court have complied with
Pa.R.A.P. 1925.
The Commonwealth presents the following issues, which we have
renumbered for purposes of our review:
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I. Did the Trial Court err in proceeding to conduct a probable
cause analysis when the Appellee was only challenging the initial
stop?
II. Did the Trial Court commit an error of law when it granted the
Appellee’s Pre-Trial Motion to Suppress by concluding that
Officer Kuss did not have reasonable suspicion or probable cause
that the vehicle or driver was in violation of some provision of
the vehicle code to initiate a traffic stop of Appellee’s vehicle?
Commonwealth’s Brief at 1.
The Commonwealth first argues that, in addressing Appellee’s motion
to suppress, the trial court erred in conducting a probable cause analysis.
Commonwealth’s Brief at 8. The Commonwealth contends that “[b]ecause
the Appellee only challenged the vehicle stop and not the cause for arrest
after the vehicle was pulled over, the lower court only needed to use a
reasonable suspicion framework.” Id. We disagree with the
Commonwealth’s claim.
“The issue of what quantum of cause a police officer must possess in
order to conduct a vehicle stop based on a possible violation of the Motor
Vehicle Code [(“MVC”)] is a question of law, over which our scope of review
is plenary and our standard of review is de novo.” Commonwealth v.
Holmes, 14 A.3d 89, 94 (Pa. 2011). The MVC provides the following
statutory authorization for a police officer to stop a motor vehicle:
Whenever a police officer . . . has reasonable suspicion that a
violation of this title is occurring or has occurred, he may stop a
vehicle, upon request or signal, for the purpose of checking the
vehicle’s registration, proof of financial responsibility, vehicle
identification number or engine number or the driver’s license, or
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to secure such other information as the officer may reasonably
believe to be necessary to enforce the provisions of this title.
75 Pa.C.S. § 6308(b). However, this Court has explained the following:
[Section 6308(b)] requires only reasonable suspicion in support
of a stop for the purpose of gathering information necessary to
enforce the [MVC] violation. However, in Commonwealth v.
Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en banc),
appeal denied, 611 Pa. 650, 25 A.3d 327 (Pa. 2011), this Court
held that a police officer must have probable cause to support a
vehicle stop where the officer’s investigation subsequent to the
stop serves no “investigatory purpose relevant to the suspected
[MVC] violation.” In Feczko, the police officer observed the
defendant’s vehicle cross over the double yellow median line and
the fog line. Id. at 1286. During the ensuing vehicle stop, the
officer noticed the scent of alcohol on the defendant’s breath.
Id. Importantly, the officer did not testify that the stop was
based on suspicion of DUI. Id. The defendant was convicted of
DUI and a [MVC] violation, and argued on appeal that the
vehicle stop was illegal. Id. at 1287.
This Court noted the distinction between “the investigative
potential of a vehicle stop based on a reasonable suspicion of
DUI as compared to other suspected violations of the [MVC].”
Id. at 1289 (citing Commonwealth v. Sands, 887 A.2d 261,
270 (Pa. Super. 2005)). Whereas a vehicle stop for suspected
DUI may lead to further incriminating evidence such as an odor
of alcohol or slurred speech, a stop for suspected speeding is
unlikely to lead to further evidence relevant to that offense. Id.
Therefore:
a vehicle stop based solely on offenses not
“investigable” cannot be justified by a mere
reasonable suspicion, because the purposes of a
Terry1 stop do not exist - maintaining the status quo
while investigating is inapplicable where there is
nothing further to investigate. An officer must have
probable cause to make a constitutional vehicle stop
for such offenses.
1
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20
L.Ed.2d 889 (1968).
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[Feczko, 10 A.3d] at 1290 (quoting Commonwealth v. Chase,
960 A.2d 108, 116 (Pa. 2008)).
Commonwealth v. Busser, 56 A.3d 419, 423 (Pa. Super. 2012) (footnote
in original).
Our review of the record reflects that on June 8, 2014, Officer Paul
Kuss, of the Butler Township police department, stopped Appellee’s vehicle
due to an alleged violation of driving on a roadway laned for traffic and of
exceeding the posted speed limit. Neither of these MVC violations allegedly
witnessed by Officer Kuss required further investigation. Accordingly, in
order to effectuate a legal stop of Appellee’s vehicle, Officer Kuss would have
needed to possess probable cause. Busser, 56 A.3d at 423. Thus, we
conclude that the trial court utilized the appropriate standard in conducting
its analysis, and the Commonwealth’s contrary claim lacks merit.
The Commonwealth next argues that the trial court erred in granting
Appellee’s motion to suppress. Commonwealth’s Brief at 5-7. The
Commonwealth contends that Officer Kuss possessed the requisite
reasonable suspicion to stop Appellee for violations of speeding under 75
Pa.C.S. § 3362 and driving within a single lane under 75 Pa.C.S. § 3309(1).
We have stated the following with regard to reviewing an order
granting a defendant’s motion to suppress evidence:
we are bound by that court’s factual findings to the extent that
they are supported by the record, and we consider only the
evidence offered by the defendant, as well as any portion of the
Commonwealth’s evidence which remains uncontradicted, when
read in the context of the entire record. Our review of the legal
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conclusions which have been drawn from such evidence,
however, is de novo, and, consequently, we are not bound by
the legal conclusions of the lower courts.
Busser, 56 A.3d at 421 (quoting Commonwealth v. Wallace, 42 A.3d
1040, 1048 (Pa. 2012)).
We begin our assessment of the trial court’s decision to grant the
motion to suppress by again noting that the trial court properly concluded
that Officer Kuss was required to possess probable cause to justify the stop
of Appellee’s vehicle for violations of 75 Pa.C.S. §§ 3362 and 3309(1), as
the stop did not “serve a stated investigatory purpose.” Feczko, 10 A.3d at
1291. In Feczko, this Court held the following:
“[m]ere reasonable suspicion will not justify a vehicle stop when
the driver’s detention cannot serve an investigatory purpose
relevant to the suspected violation. In such an instance, it is
encumbent [sic] upon the officer to articulate specific facts
possessed by him, at the time of the questioned stop, which
would provide probable cause to believe that the vehicle or the
driver was in violation of some provision of the [MVC].”
Id. at 1291 (citations, internal quotation marks, and emphasis omitted).
Thus, because these two alleged violations do not require additional
investigation, Officer Kuss was required to possess probable cause to make
the stop, not merely reasonable suspicion. Therefore, we will conduct our
review using the appropriate probable cause requirement.
“Probable cause is made out when the facts and circumstances which
are within the knowledge of the officer at the time of the arrest, and of
which he has reasonably trustworthy information, are sufficient to warrant a
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[person] of reasonable caution in the belief that the suspect has committed
or is committing a crime.” Commonwealth v. Thompson, 985 A.2d 928,
931 (Pa. 2009) (quotation marks omitted).
The question we ask is not whether the officer’s belief was
correct or more likely true than false. Rather, we require only a
probability, and not a prima facie showing, of criminal activity.
In determining whether probable cause exists, we apply a
totality of the circumstances test.
Id. (emphasis in original) (citations and quotation marks omitted).
Pennsylvania law makes clear, however, that a police officer has probable
cause to stop a motor vehicle if the officer observed a traffic code violation,
even if it is a minor offense. Commonwealth v. Chase, 960 A.2d 108, 113
(Pa. 2008).
The trial court concluded that Officer Kuss failed to prove that he had
probable cause to believe that Appellee’s vehicle had committed a violation
of the MVC. As the Commonwealth correctly states, section 3362 of the
MVC addresses maximum speed limits and provides, in relevant part, as
follows:
§ 3362. Maximum speed limits.
(a) General rule. -- Except when a special hazard exists that
requires lower speed for compliance with section 3361 (relating
to driving vehicle at safe speed), the limits specified in this
section or established under this subchapter shall be maximum
lawful speeds and no person shall drive a vehicle at a speed in
excess of the following maximum limits[.]
75 Pa.C.S. § 3362(a).
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In addition, the MVC defines the offense of roadways laned for traffic
as follows:
§ 3309. Driving on roadways laned for traffic
Whenever any roadway has been divided into two or more
clearly marked lanes for traffic the following rules in addition to
all others not inconsistent therewith shall apply:
(1) Driving within single lane. --A vehicle shall be
driven as nearly as practicable entirely within a
single lane and shall not be moved from the lane
until the driver has first ascertained that the
movement can be made with safety.
75 Pa.C.S. § 3309(1).
Our review of the record reflects that at the time Officer Kuss stopped
Appellee’s vehicle, he was not certain of the speed Appellee was actually
driving or even the speed that Officer Kuss was driving himself. As the
officer’s testimony explains, he first encountered Appellee’s vehicle when she
was driving behind him and she turned onto a different road. N.T.,
11/10/14, at 6. The officer stated that he was looking for vehicles to follow
to see any violations. Id. at 15. Officer Kuss then decided to follow
Appellee’s vehicle, performed a U-turn, and attempted to catch up to
Appellee. Id. at 6. In fact, Officer Kuss admitted that he was not using
VASCAR at the time, and he did not clock Appellee’s vehicle for three/tenths
of a mile. Id. at 10, 16. Rather, Officer Kuss stated, “To me, my
experience, this vehicle was going over the speed limit.” Id. at 6. In
addition, the officer testified that Appellee’s vehicle “seemed to be exceeding
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the speed limit.” Id. at 10. Interestingly, when asked how fast he was
traveling in relation to the speed limits, Officer Kuss admitted that he was
not watching his speedometer. Id. at 8. Moreover, Officer Kuss explained
that he calculated his own speed during the incident by use of his car video
only “[w]hen [he] received notice of the [suppression] hearing.” Id. at 12.
Again, after the fact, the officer calculated only his own speed and did not
calculate Appellee’s speed. Id. at 13. In light of these facts, we are
constrained to conclude that the officer did not possess the requisite
probable cause to stop Appellee’s vehicle for a speeding violation.
We next address whether Officer Kuss had probable cause to stop
Appellee’s vehicle for failure to properly remain in her lane of traffic. Our
review of the record reflects that Officer Kuss testified that from a distance
of about thirty feet, he saw Appellee’s vehicle “go onto the fog line” one
time, and “go onto the double yellow line” one time. N.T., 11/10/14, at 9,
14. The officer indicated that he did not know “the distance between when
Appellee’s vehicle hit the fog line and then later when it hit the double yellow
line.” Id. at 19. Furthermore, the officer could not state whether there
were other vehicles traveling in the opposite direction when Appellee’s
vehicle drove onto the double yellow line. Id. at 18. Hence, we must
conclude that the trial court did not err in determining that Officer Kuss
lacked probable cause to stop Appellee’s vehicle for a violation of driving on
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roadways laned for traffic under 75 Pa.C.S. § 3309(1). Therefore, the trial
court properly granted Appellee’s motion to suppress.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/5/2016
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