J. S14006/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 791 MDA 2015
:
TOBIAS KAVAUN BANKS, :
Appeal from the Order Entered May 4, 2015,
in the Court of Common Pleas of York County
Criminal Division at No. CP-67-CR-0005493-2014
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., AND STEVENS, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 26, 2016
This case concerns a motion to suppress evidence resulting from a
vehicle stop. Herein, the Commonwealth appeals from the order of May 4,
2015, which granted Tobias Kavaun Banks’ (“appellee’s”) omnibus pre-trial
motion. We affirm.1
* Former Justice specially assigned to the Superior Court.
1
The Commonwealth may appeal an interlocutory order suppressing
evidence when it provides a certification with its notice of appeal that the
order terminates or substantially handicaps the prosecution.
Commonwealth v. Whitlock, 69 A.3d 635, 636 n.2 (Pa.Super. 2013),
citing Pa.R.A.P. 311(d). In Commonwealth v. Gordon, 673 A.2d 866, 689
(Pa. 1996), our supreme court held that the Commonwealth may appeal the
grant of a defense motion in limine which excludes Commonwealth
evidence and has the effect of substantially handicapping the prosecution.
As the trial court ruling excludes Commonwealth evidence, and the
Commonwealth has certified that the effect of the ruling substantially
handicaps the prosecution, we find that this appeal is properly before this
court.
J. S14006/16
The trial court provided the following procedural and factual history:
The Appellee was charged with two counts of
Possession With Intent to Deliver for heroin and
cocaine.[2] The Appellee was also charged with a
third count of Driving While Operating Privileges
Suspended or Revoked.[3]
On October 27, 2014, counsel for the Appellee
filed a Motion for Additional Discovery and Motion to
Extend Time to File Omnibus Pre-Trial Motion and
Habeus [sic]. On December 2, 2014, a Hearing was
held on the Appellee’s motions at which testimony
was taken and, at the conclusion of that Hearing,
Appellee’s counsel was given two additional weeks to
file omnibus motions. The Appellee submitted his
Omnibus Pretrial Motion on December 15, 2014.
Commonwealth filed their Commonwealth’s Reply to
Defendant’s Omnibus Pre-Trial Motion on December
26, 2014. On May 4, 2015, this Court entered an
Order granting the Appellee’s Omnibus Pre-Trial
Motion.
....
On July 11, 2014, Officer Vincent Monte
performed a traffic stop on a gray Buick LaCrosse
with an inoperable driver’s side registration lamp.
The vehicle in question is equipped with two license
plate lights. The dash cam in the officer’s cruiser
was not functioning as designed, so there is no video
of the stop. The Appellee, who was the driver, was
able to provide the officer with the requested vehicle
documents, but Appellee, despite his representation
that he had a valid license, could not produce his
license for the officer. After consulting the computer
in his cruiser and dispatch, Officer Monte ascertained
that the Appellee’s driver’s license was suspended.
As neither the Appellee nor his passengers had valid
2
35 P.S. § 780-113(a)(30).
3
75 Pa.C.S.A. § 1543(a).
-2-
J. S14006/16
licenses, and because the vehicle was partially
blocking the lane of travel, the car was impounded.
On cross examination, Officer Monte stated
that he is unaware of any policy allowing a driver to
call a vehicle’s owner to retrieve the vehicle and the
Appellee was not offered any such chance to do so.
During an inventory search, the officer located what
he described as a large quantity of heroin and
cocaine. Officer Monte told the Suppression Court
that he was unaware, prior to the incident, that York
City has an ordinance for impounding vehicles. And,
Officer Monte was unaware of “any specific policy,
manual, or procedure guide on the exact best
practice for performing a vehicle inventory search.”
Yet, Officer Monte performed an inventory search
prior to towing the vehicle in order to protect the
police and tow operators from hazardous conditions
in the vehicle and to ward against liability.
Trial court opinion, 8/20/15 at 1-4 (citations omitted).
The Commonwealth raises the following issues for our review:
1. Did the trial court err in granting Defendant’s
motion to suppress where the officers had
probable cause to effectuate a traffic stop
where the vehicle had an inoperable driver’s
side registration lamp?
2. Did the trial court err in granting Defendant’s
motion to suppress where the officers had
reasonable suspicion to effectuate a traffic stop
where the vehicle had an inoperable driver’s
side registration lamp?
3. Did the trial court err in determining that the
evidence seized as a result of the traffic stop
constituted “fruit of the poisonous tree?”
Commonwealth’s brief at 4.
-3-
J. S14006/16
Having determined, after careful review, that the Honorable Michael E.
Bortner, in his Rule 1925(a) opinion of August 20, 2015, ably and
comprehensively disposes of the Commonwealth’s issues on appeal, with
appropriate references to the record and without legal error, we will affirm
on the basis of that opinion. Most importantly, the trial court carefully and
correctly distinguishes this court’s recent opinion in Commonwealth v.
Salter, 121 A.3d 987 (Pa.Super. 2015). Salter reversed the suppression
court’s determination that the police lacked probable cause to stop the
defendant’s vehicle based on a traffic violation where there was no license
plate illumination at all on the vehicle. Id. at 993. Instantly, the trial court
determined that the stop of the vehicle was without probable cause because
there was no testimony by the police officers that the license plate was not
illuminated by a remaining license plate lamp on the vehicle.
Order affirmed.
Panella, J. joins the Memorandum.
Stevens, P.J.E. files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/2016
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Circulated 03/31/2016 02:34 PM
IN THE COURT OF COMl\'fON PLEAS OF YORK COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMON\VEALTH
Appellant
v. NO. CP-67-CR-0005493-2014
TOBIASKAVAUN BANKS,
Def end ant/Appellee
COUNSEL Of RECORD:
Alissa Candida Cardenas, Esquire Dawn M. Cutaia, Esquire
Counsel for the Appellant Counsel for the Appellec
OPINION TN SUPPORT OF ORDER PURSUANT TO RULE 192S(a) OF THE
RULES OF APPELLATE PROCEDURE
The Court received a Notice of Appeal, docketed on May 7, 2015, that the
Commonwealth of Pennsylvania, by and through Assistant District Attorney Alissa
Cardenas, Esquire. appeals to the Superior Court of Pennsylvania the order we entered in this
case on Ma1 4. 1015. Having considered all evidence, testimony, and relevant case law, the
Court now issues this Opinion in support of our May 4, 2015 Order.
I. Procedural llistorv
The Appellee was charged with two counts of Possession With Intent co Deliver for
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cocaine. The Appcllee was also charged with a third count of Driving While
Glperating Privileges Suspended or Revoked .
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October 27, 2014, counsel for the Appellec tiled a Motion for Additional
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Discovcn~ and Motion to Extend Time to File Omnibus Pre-Trial Motion and I Iabeus, On
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""
December 2, 2014, a Hearing was held on the Appellee's motions at which testimony was
taken and, at the conclusion of that Hearing, Appellee's counsel was given two additional
weeks to file omnibus motions. The Appellee submitted his Omnibus Pretrial Motion on
December 15.2014. Commonwealth filed their Commonwealth's Reply to Defendant's
Omnibus Pre-Trial Motion on December 26, 2014. On May 4. 2015, this Court entered an
Order granting the Appellces Omnibus Pre-Trial Motion
In timely fashion. this Court received an appeal of our decision that was docketed on
May 7, 2015. In accordance with Rule t 925(b) of the Rules of Appellate Procedure. on May
12, 2015, the Appellant was Ordered to file a concise statement of matters complained of on
appeal. On May 14, 2015, the Court received Appellant's Statement of Matters Complained
of On Appeal Pursuant to the Pennsylvania Rules of Appellate Procedure Rule l925(b).
The Appellant appeals for the following reasons. First, the Appellant avers that this
Court erred in finding there was no probable cause to stop the vehicle in question. Second,
the Appellant believes we erred in ruling the stop unconstitutional because the officers had
reasonable suspicion to stop the vehicle for inoperable equipment. Third, and finally, the
Appellant states that we erred 10 our determination that the evidence seized was "fruit of the
poisonous tree" chat necessitated suppression .
•
II. Facts
On July 11, 2014, Officer Vincent Monte performed a traffic stop on a gray Buick
Lacrosse with an inoperable driver's side registration lamp. (Notes of Testimony, 12 2/ 14. at
7-8.) The vehicle in question is equipped with two license plate lights. id., at 27. The dash
cam in the officer's cruiser was not functioning as designed, so there is no video of the stop.
Id., at 7. The Appellee, wbo was the driver, was able to provide the officer with the requested
vehicle documents. but Appellee, despite his representation that he had a valid license. could
not produce his license for the officer. Id., at 8. After consulting the computer in his cruiser
and dispatch, Officer Monte ascertained that the Appellee's driver's license was suspended.
Id., at 8-9. As neither the Appellee nor his passengers had valid licenses, and because the
vehicle was partially blocking the lane of travel, the car was impounded. id., at 9-10.
On cross examination, Officer Monte stated that he is unaware of any policy allowing
a driver to call a vehicle's owner to retrieve the vehicle and the Appellee was not offered any
such chance to do so. Id., at 26. Dunng an inventory search, the officer located what he
described as a large quantity of heroin and crack cocaine. ld., at 19 Officer Monte ta!J the
Suppression Court that he was unaware, prior to the incident, that York City has an ordinance
for impounding vehicles. Id .. at l l-12. And, Officer Monte was unaware of "any speci fie
policy, manual, or procedure gutde on the exact best practice for performing a vehicle
inventory search ." Id. at J 2 Yet, Officer Monte performed an inventory search prior to
towing the vehicle in order to protect the police and tow operators from hazardous conditions
3
in U1e vehicle and to ward against liability. Id. at 15-17.
III. Matters Complained of on Appeal
A. Legality of the Stop
Though the Commonwealth has neatly broken down their matters complained of into
three easily cognizable points, they all pertain to whether or not this Court erred in finding
the vehicle stop to have been illegal. Whether under the lesser standard of reasonable
suspicion for an investigatory stop or the higher standard of probable cause, the question is
whether the stop was legal. If the stop was illegal, as we found, then, per se, the evidence
regarding seized drugs is fruit of the poisonous tree.
Firstly, the Commonwealth's second matter complained of, regarding reasonable
suspicion. is not relevant where the officer's statements clearly indicate that the stop was
effectuated under the probable cause standard as there was nothing to investigate. Officer
Monte did not equivocate in testifying to the following:
We noticed chat the vehicle in question, a gray Buick LaCrosse, Pennsylvania
registration JNC7794, had an inoperable driver's side registration plate lamp.
He was traveling south on Queen Street. We effected a traffic stop on it,
pulled it over on the comer of Queen and Boundary Avenue in York City.
tN.T., 12 '2 14. at 8.) This testimony rs in accordance with the matter-of-fact statement in the
Affidavit of Probable Cause that, "f a]t this time [the officers] stopped a gray Buick Sedan
•
(PA Reg JNC7794) for an inoperable driver [sic] side registration lamp." There is no notion
that the officers sought to investigate whether or not a license plate lamp was out; but. rather.
the officers had concluded that this was the case and that they were going to perform a traffic
4
stop as a result. "If it is not necessary to stop the vehicle to establish that a violation of the
Vehicle Code has occurred, an officer must possess probable cause to stop the vehicle," but
"[wjhere a violation is suspected, but a stop is necessary to further investigate whether 3
violation has occurred, an officer need only possess reasonable suspicion to make the stop."
Commonwealth v, Salter, ---A.3d ----. unnumbered (Pa. Super Ct. 2015); 2015 WL
4626915. at 3. As the officer's testimony makes clear that they did not require further
investigation for their conclusion, we believe our analysis is firmly locked into whether or
not there was probable cause for the officers to make the stop.
Evident from our citation supra, we are aware of Commonwealth v. Salter, in which
our colleague. the Honorable Richard K. Renn 's suppression of evidence on similar facts was
overturned. From our review of case law, it is the case most relevant to an understanding of
the case before us. In Sailer, an officer suspected that a vehicle he was following did not
have operable license plate illumination and the officer confirmed this suspicion by turning
off his own headlights. Id., at I (citing Taal Court Opinion, 6/5/14, at 2-3 (citations to the
record ornirtedr). The Superior Court found that because the seemingly singular license plate
lamp was out. "the plate was not illuminated, which in tum meant that the registration plate
could not have been visible" At first blush, the Salter case appears illuminatlve of the
,
present matter. We believe, hqwever, that it is tactually distinguishable.
Whereas the vehicle in Salter seems to have been equipped with just one license plate
lamp, the Appellee's vehicle had two. (Notes of Testimony, 12/2/14, at 27.) I'he purpose of
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license plate lamps, as alluded to by the excerpt from Salter above, is to make a license plate
visible Nowhere in Officer Monie 's testimony before this Court or in the Affidavit of
Probable Cause do we find any indication that the officers were unable to view the
Appellee's license plate. Were the officer to have told this Court that he was only able to
view a partial plate number, or that he could not make out the plate at all, then we would
have had no trouble finding that there was probable cause tu stop the vehicle. In addition,
there was no evidence before this Court that the officers did anything to confirm their
suspicion such as momentarily deactivating their own headlights, which the officer in Salter
did.
In examining the construction of the relevant sentence in the officer's Affidavit of
Probable Cause and the officer's testimony, we found that the officers were able to view the
license plate number pnor to stopping the vehicle. The Affidavit reports the vehicle license
plate number prior to noting that the vehicle was stopped. Officer Monte repeated this
phrasing at the Suppression Hearing. On our facts, we found the officers could make out the
alphanumeric scheme of the plate Moreover, 75 Pa.C.S.A § 4303(b), which covers rear
I ighting of vehicles, states in relevant part:
Every vehicle operated on a highway shall be equipped with a rear lighting
system including, but not limned to, rear lamps, rear reflectors, stop lamps and
license plate liglu, in c~nformance with regulations of the department
(emphasis added). This excerpt makes clear that a solitary license plate light is acceptable.
Appellee's vehicle had a functioning light for its license plate. (Notes of Testimony. l2/2/14.
6
at 27.) Ergo, we encountered no facts that led us to believe the officers had probable cause to
stop the Appellee.
The only manner rn which the Commonwealth can possibly establish that the officers
satisfied the probable cause requirement is through the legal analysis recited in their
Commonwealth's Reply to Defendant's Omnibus Pre-Trial Motion. Sec unnumbered pages
2-3. For the sake of economy) we summarize the Commonwealth's argument as follows.
Under 75 Pa.C.S.A. § 4704. officers may stop a vehicle to determine whether it conforms
with state inspection requirements And Commonwealth argues that 67 Pa.Code§ 175.80
provides guidance in explaining that a vehicle should fail inspection if an exterior bulb that
was originally equipped fails to properly light. Commonwealth reads this to mean that if a
bulb fails to activate then a failure is indicated. Just as likely, the passage may be interpreted
to mean that equipment must perform its function. And, where only a solitary license plate
lamp is required and we found chat the officers were able to read the Appellee 's plate, the
equipment performed as necessary. Semantics aside, suffice it to say, the Commonwealth
seeks to thread a needle. However. this Court was unconvinced by the Commonwealth's
proffered linkages. We simply viewed the Commonwealth's arguments as too attenuated and
tortured in light of a plain reading of 75 Pa.C.S.A. § 4303(b).
Though ,, e believe thc\t the possibility of reasonable suspicion undergirding the stop
hos been foreclosed, we would be remiss in failing to address rt properly. If probable cause
was not met in this case then perhaps the officer could backslide to reasonable suspicion. The
7
Salter Court stated that the officer there "did not need to stop Appellee's vehicle to
investigate further to determine if the plate lights were out, he possessed probable cause to
legally make the stop." ---A.3d -·--, unnumbered (Pa. Super. Ct. 2015), 2015 \\/L 4626915,
at 4. However, it was noted in Salter that under the reasonable suspicion standard. "fog, rain,
time of day, or obstructions impeding or blocking view of the plate illumination might
prevent a clear determination if a lighting violation exists." !d. And. "[i]f reasonable
suspicion exists that such a violation is present, but a stop is required lo confirm the
violation, then probable cause is not needed and reasonable suspicion may be sufficient." Id.
(emphasis added). We did not read about any adverse conditions that would have prevented
the officers from determining the status ofJicense plate illumination sans investigatory stop.
Rather, we encounter facts in which the officers were able to read the plate. Probable cause
was either had or it was not; reasonable suspicion is not indicated.
Believing that probable cause and not reasonable suspicion is tbe appropriate standard
in this case and chat this standard was not met, the evidence seized was fruit of the poisonous
tree. We, therefore, humbly request affirmancc .
•
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IV. Conclusion
Based upon the reasons stated above. this Court respectfully urges affirmance of our
May 4, 2015 Order in this case.
BY THE COURT,
~&~
iJcffAELE. BORTNER, JUDGE
DATED~ August .2!!._. 20l5
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