Com. v. White, B. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRIAN GLEN WHITE
Appellant No. 133 MDA 2014
Appeal from the Judgment of Sentence December 13, 2013
In the Court of Common Pleas of Wyoming County
Criminal Division at No(s): CP-66-CR-0000127-2013
BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.
MEMORANDUM BY MUNDY, J.: FILED OCTOBER 10, 2014
Appellant, Brian Glen White, appeals from the December 13, 2013
aggregate judgment of sentence of 72 hours to six months’ imprisonment, to
be followed by six months’ probation, imposed after the trial court found him
guilty of driving under the influence (DUI) – general impairment, DUI –
highest rate of alcohol, and two counts of failure to drive within a single
traffic lane.1 After careful review, we affirm.
The trial court has summarized the relevant factual and procedural
history of this case as follows.
[O]n December 1, 2012 Tunkhannock Police
Officer Keith Carpenter (hereinafter “Carpenter”) was
on patrol duty for traffic enforcement and was
dressed in full uniform in a marked Tunkhannock
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1
75 Pa.C.S.A. §§ 3802(a)(1), 3802(c), and 3309(1), respectively.
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[B]orough patrol vehicle. While on duty, Carpenter
received a call from the Communications Center
advising him that
a Rob Steel had contacted and relayed
information for a Mary Shipman, or a Mia
Shipman, that there was a vehicle that was
going to be traveling State Route 92, the
Northeast Extension, down to Route 6 from a
residence on State Route 92, the occupant of
the vehicle, the driver of the vehicle, was
drinking what they had called moonshine. The
vehicle was going to be traveling to State
Route 6 and then westbound to Tunkhannock
Borough where it would then pick up the
Southeast Extension of State Route 92 to
travel to Rivercrest.
Carpenter was also told that the vehicle was a Chevy
Trailblazer, blue in color, that the driver was
intoxicated on moonshine, that there was a hunting
rifle and an eleven (11) year old boy in the vehicle.
After receiving the call, Carpenter proceeded to the
Tunkhannock Borough, Tunkhannock Township line
and parked in the parking lot of Ace Robbins Service
Station. From this location, Carpenter was able to
see vehicles traveling Route 6 coming westbound
into the Borough and the split for the bypass to State
Route [92].
While parked at this location, Carpenter
observed a blue Chevy Trailblazer traveling
westbound on State Route 6. Carpenter then began
to follow the vehicle at which time Carpenter
observed the front and rear tires on the passenger
side of the vehicle travel over the fog line and make
an abrupt correction. Carpenter then observed the
front and rear tires of the driver side of the vehicle
travel over the double yellow lines in the center of
the roadway and make another abrupt correction. At
this point, Carpenter activated his emergency
lighting motioning for the vehicle to stop. The
vehicle eventually stopped on State Route 92 on the
southbound berm.
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Carpenter approached [Appellant]’s vehicle
with caution because of the information that there
was a possible riffle [sic] in the vehicle with a child.
Upon approaching the vehicle, Carpenter observed
that [Appellant] had glossy eyes, that [Appellant]
was nervous and that there was an extremely strong
odor of alcohol emanating from the vehicle. There
was no child in the car. A rifle was not in
[Appellant]’s immediate reach so Carpenter did not
pursue the issue of a rifle. Upon speaking with
[Appellant], Carpenter realized that the alcohol odor
was coming from [Appellant]’s breath. [Appellant]
told Carpenter that he had two (2) beers. As a
result, Carpenter conducted field sobriety tests,
namely, the horizontal gaze nystagmus, the nine-
step walk[,] and a preliminary breath test.
[Appellant] failed the nine-step walk and the result
of the preliminary breath test was a 0.164.
Carpenter then placed [Appellant] under arrest and
[Appellant] was transported to Tyler Memorial
Hospital for a blood draw for the offense. The blood
was drawn from [Appellant][,] and [Appellant] had a
Blood Alcohol Content of 0.224%.
A hearing was held on [Appellant]’s Pre-Trial
Omnibus Motion that Carpenter did not have
reasonable suspicion to stop [Appellant]’s vehicle on
August 5, 2013. Said Motion was denied by Order
dated August 7, 2013. A non-jury trial was held on
October 24, 2013[,] and [Appellant] was found guilty
of all four (4) charges as is reflected by th[e trial
c]ourt’s [o]rders dated October 24, 2013.
Trial Court Opinion, 2/4/14, at 1-4 (internal citations omitted).
On December 13, 2013, Appellant was sentenced to not less than 72
hours nor more than six months’ imprisonment, followed by a period of
probation for the remaining balance of whatever portion of Appellant’s
maximum sentence remains unserved upon parole, and a $1,500.00 fine for
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DUI – general impairment. That same day, the trial court filed a second
order sentencing Appellant to six months’ probation for DUI – highest rate,
to be served concurrently to the previous sentence. The trial court imposed
no further penalty for the two counts of disregarding traffic lanes. On
December 18, 2013, Appellant filed a timely post-sentence motion, which
the trial court denied the same day. On January 16, 2014, Appellant filed a
timely notice of appeal.2
On appeal, Appellant raises the following issue for our review.
I. Whether, the officer who conducted the traffic
stop that lead to the arrest of [] Appellant, had
probable cause in which to perform a legal
stop, and whether the evidence obtained from
that stop should have been suppressed?
Appellant’s Brief at 7.
We begin by noting our well-settled standard of review.
[I]n addressing a challenge to a trial court’s denial of
a suppression motion [we are] limited to determining
whether the factual findings are supported by the
record and whether the legal conclusions drawn from
those facts are correct. Since the Commonwealth
prevailed in the suppression court, we may consider
only the evidence of the Commonwealth and so
much of the evidence for the defense as remains
uncontradicted when read in the context of the
record as a whole. Where the record supports the
factual findings of the trial court, we are bound by
those facts and may reverse only if the legal
conclusions drawn therefrom are in error.
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2
Appellant and the trial court have complied with Pa.R.A.P. 1925.
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Commonwealth v. Washington, 63 A.3d 797, 802 (Pa. Super. 2013)
(some brackets and citation omitted).
The Fourth Amendment of the Federal Constitution and Article I,
Section 8 of the Pennsylvania Constitution, protect individuals from
unreasonable searches and seizures. “While warrantless seizures such as a
vehicle stop are generally prohibited, they are permissible if they fall within
one of a few well-delineated exceptions.” Commonwealth v. Brown, 996
A.2d 473, 476 (Pa. 2010) (citation omitted). One such exception is where,
“[a] police officer … has reasonable suspicion that a violation of the
vehicle code has taken place, for the purpose of obtaining necessary
information to enforce the provisions of the code.” Commonwealth v.
Brown, 64 A.3d 1101, 1105 (Pa. Super. 2013) (emphasis in original),
appeal denied, 79 A.3d 1096 (Pa. 2013); accord 75 Pa.C.S.A. § 6308(b).
It is axiomatic that to establish reasonable suspicion, an officer “must
be able to articulate something more than an inchoate and unparticularized
suspicion or hunch.” United States v. Sokolow, 490 U.S. 1, 7 (1989)
(internal quotation marks and citation omitted). A suppression court is
required to “take[] into account the totality of the circumstances—the whole
picture.” Navarette v. California, 134 S. Ct. 1683, 1687 (2014) (internal
quotation marks and citation omitted). When conducting a reasonable
suspicion analysis, it is incumbent on the suppression court to inquire, based
on all of the circumstances known to the officer ex ante, whether an
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objective legal basis for the seizure was present. Adams v. Williams, 407
U.S. 143, 146 (1972).
Appellant’s issue on appeal is limited to the argument that Officer
Carpenter lacked probable cause to stop his vehicle on the basis of his
violating Section 3309(1) of the Motor Vehicle Code, by crossing out of his
lane of traffic twice. Appellant’s Brief at 13-14. The Commonwealth
counters that Officer Carpenter had reasonable suspicion to stop Appellant’s
vehicle on the basis of the call from the known informant, the specificity of
that call, and Officer Carpenter’s own observations of Appellant’s vehicle
after following it. Commonwealth’s Brief at 4. Appellant is correct that our
cases require probable cause to effectuate a traffic stop under Section 3309.
See generally Commonwealth v. Feczko, 10 A.3d 1285, 1291-1292 (Pa.
Super. 2010) (en banc), appeal denied, 25 A.3d 327 (Pa. 2011). However,
as we discuss infra, we agree with the Commonwealth that Officer Carpenter
did have reasonable suspicion of DUI to render the traffic stop in this case
constitutional. Therefore, we need not decide whether Officer Carpenter
separately had probable cause to stop Appellant’s vehicle based on Section
3309(1).3
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3
As an appellate court, we may affirm the trial court on any legal basis
supported by the record. Commonwealth v. Charleston, 16 A.3d 505,
529 n.6 (Pa. Super. 2011) (citation omitted), appeal denied, 30 A.3d 486(Pa. 2011).
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In this case, Officer Carpenter testified to the following facts, which led
him to stop Appellant’s vehicle.
[Commonwealth]:
Q: OK, please draw your attention to December 1,
2012 at about 9:00 p.m. OK, were you on duty?
[Officer Carpenter]:
A: Yes, I was.
…
Q: Ok, what happened … at that time while you
were on duty?
A: My shift began at … approximately [9:00 p.m.]
… I was dispatched by the Wyoming County
Communication Center to assist Tunkhannock
Township Police with an incident which had come
into them. The incident had come into Tunkhannock
Township Police as they were busy with other
incoming calls. They had transferred it to State
Police, Tunkhannock. State Police was also busy
with other calls coming in, a volume of other calls, so
they had transferred it back to the Communications
Center to give it to me.
Q: Ok, what were you told by the
[Communication] Center?
A: I was advised … that a Steel, a Rob Steel, had
contacted and relayed information for a Mary
Shipman-or a Mia Shipman, that there was a vehicle
that was going to be traveling the state route 92, the
northeast extension down to route 6 from a
residence on state route 92 and at that residence,
the occupant of the vehicle, the driver of the vehicle,
was drinking what they had called moonshine. The
vehicle was going to be traveling on state route 6
and then west bound to Tunkhannock Borough where
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it would then pick up the southeast extension of
state route 92 to travel to Rivercrest.
Q: Were you told what vehicle the driver was
driving?
A: They described it blue in color, [a] Chevy
[T]railblazer.
Q: So when you got that call, what did you do?
A: When I got the call, I traversed to the edge of
the Tunkhannock Borough, Tunkhannock Township
line, which is the eastern corner of Ace Robbins
parking lot, where Sunny Side Road meets Route 6.
Q: Where did you park there?
A: I traversed to the far east corner of the
parking lot and parked right at the entrance of the
parking lot.
Q: What vantage [point] did that vie you in terms
of viewing the road?
A: It’s right on the borough township line and
with that vantage [point], I can see vehicles
traveling route 6 coming westbound into the borough
and also that’s where the split is for the bypass.
Vehicles traveling westbound have the option to
either travel directly into the borough or they can
take the bypass towards state route 92 that way and
where I was positioned, I was on the upper end of
that intersection so where I … could actually see
vehicles whichever way they traveled.
Q: Ok, as you were waiting there, what happened
as you were there?
A: As I was sitting there, I observed that blue-
color Chevy [T]railblazer, which was traveling
westbound on state route 6.
…
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Q: Ok, what did you do then?
A: The vehicle turned onto the bypass, state route
6, the bypass, and I pulled out immediately behind
the vehicle and began to follow it.
Q: OK, what did you observe?
A: I observed the vehicle after I pulled out behind
it to first travel over the fog line painted on the side
of the road distinguishing the lanes used for travel.
The vehicle traveled over the fog line, but what had
caught my attention was the abrupt correction
maneuver to bring it back into the correct lane of
travel.
Q: Ok, when you say the tires were over the fog
line, was it the front and rear tire or just one of the
tires went over the fog line?
A: The front rear tires-in order to-
Q: I’m sorry. On one side-on the passenger side,
was it the front and rear tire?
A: Yes, front and rear tire on the passenger side.
…
Q: What did the vehicle do next?
A: The vehicle traveled a little bit further west
towards the intersection. Prior to it reaching the
intersection, it again traveled over the lines, but this
time, the double yellow lines painted in the center of
the roadway distinguish the lanes used for travel.
Q: How-what tires went over those lines?
A: The driver[-]side tires went over the double
yellow lines.
…
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Q: What happened after that, after they went
over the double yellow lines?
A: Again, what caught my attention was the
abrupt correct back to the correct travel lane, the
sudden maneuver to get back to the correct travel
lane.
Q: What did the vehicle do next?
A: It approached the intersection of state route
92, the south extension and made the left hand turn
onto state route 92 to begin travel south.
…
Q: Ok, and what happened next?
A: I activated the patrol vehicle’s emergency
lighting motioning for the vehicle to stop.
Q: And did you stop the vehicle?
A: I stopped the vehicle. After I activated the
lighting, it traveled a little bit further and pulled off
on the south berm of the route 92.
Q: And what time did you stop the vehicle?
A: I believe the documented time was [9:25
p.m.]
…
Q: Ok, so what was your-if you could summarize,
what was your basis for stopping that vehicle?
A: The basis was the original call. The caller had
left her information[,] so it wasn’t an anonymous
call. It was an actual complaint which we have an
obligation to investigate. The detailed description
that the caller had when she had contacted. There
was also information in the call that there was an
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eleven-year-old boy in the car so the safety of that
and that initiated the original call, which was have an
obligation to investigate. After that, it was the
observations of the driving and the totality of the
circumstances of the call, the information received,
obligation, and the vehicle code violations, which
were observed.
N.T, 8/5/13, at 11-21.
The Commonwealth argued based on “the totality of the
circumstances, [Officer Carpenter] had reasonable suspicion to stop
[Appellant]’s vehicle.” Commonwealth’s Brief at 4.
First, there was a complaint from a known individual
who specifically accused [Appellant] of drinking
alcohol and driving a vehicle. Second, the suspect
vehicle was specifically identified in that complaint.
Third, [Officer Carpenter] saw that same vehicle a
short time later. Fourth, [Officer Carpenter] saw
both the passenger and driver side tires veer
completely out of the lane of travel, over the white
fog lines and double yellow lines respectively and
both involved an abrupt correction.
Id.Our previous cases involving citizen tips about moving vehicles require
specificity in terms of the quantity and quality of information in order to
support reasonable suspicion. Cf. Commonwealth v. Knotts, 663 A.2d
216, 220 (Pa. Super. 1995) (officer lacked reasonable suspicion to stop
vehicle matching make and model and color of vehicle involved in a hit and
run 16 days earlier where the tip was anonymous and the officer testified
that “she did not witness Knotts commit a violation of the Vehicle Code[]”).
However, in this case, the information did not come from an anonymous tip
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but from a known informant. The United States Supreme Court has
previously explained that tips from known informants carry a higher degree
of weight in a reasonable suspicion analysis. See Florida v. J.L., 529 U.S.
266, 270 (2000) (stating, “[u]nlike a tip from a known informant whose
reputation can be assessed and who can be held responsible if her
allegations turn out to be fabricated, an anonymous tip alone seldom
demonstrates the informant’s basis of knowledge or veracity[]”); Adams,
supra (concluding that information from an informant that “an individual
seated in a nearby vehicle was carrying narcotics and had a gun at his waist”
who was “known to [the officer] personally and had provided him with
information in the past” established reasonable suspicion).
In addition, Officer Carpenter personally observed Appellant’s vehicle
twice swerve out of its lane of traffic and then abruptly swerve back in.
N.T., 8/5/13, at 15-17. This Court has previously explained that such
observations may give rise to reasonable suspicion for a traffic stop. See
Commonwealth v. Fulton, 921 A.2d 1239, 1243 (Pa. Super. 2007)
(holding that officer’s observations of defendant’s vehicle “swerv[ing] out of
his lane of travel three times in a mere 30 seconds, in dense fog, on a road
shared by oncoming traffic” were sufficient for reasonable suspicion), appeal
denied, 934 A.2d 72 (Pa. 2007); Commonwealth v. Hughes, 908 A.2d
924, 927-928 (Pa. Super. 2006) (holding that officer’s observations of the
defendant’s “vehicle … swerving across the divided line into the other lane …
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[and] follow[ing] [the defendant] for less than a mile and observ[ing] him
commit the same traffic violation at least twice” were sufficient for
reasonable suspicion of DUI).
In this case, Officer Carpenter received a tip from a known informant
that identified a specific make, model, and color vehicle travelling on a
specific road, alleging that the driver had been drinking moonshine and was
driving with an 11-year-old in the car. N.T., 8/5/13, at 12-13, 21. Officer
Carpenter observed this same make, model, and color vehicle drive at the
specified location. Id. at 14-15. Officer Carpenter followed the vehicle and
personally observed the vehicle swerve in and out of its lane of travel twice.
Id. at 15-17. In our view, these factors, in their totality, gave Officer
Carpenter the required level of reasonable suspicion of DUI to render the
traffic stop of Appellant’s vehicle constitutional. See J.L., supra; Adams,
supra; Fulton, supra; Hughes, supra. As a result, we conclude the trial
court properly denied Appellant’s motion to suppress. See Washington,
supra.Based on the foregoing, we conclude Appellant’s sole issue on appeal
is devoid of merit. Accordingly, the trial court’s December 13, 2013
judgment of sentence is affirmed.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/2014
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