Com. v. Khan, A. ( 2021 )

J-S10036-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AWAIS AHMED KHAN :
:
Appellant : No. 1246 MDA 2020
Appeal from the Judgment of Sentence Entered September 14, 2020
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-SA-0000310-2019
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: MAY 3, 2021
Awais Ahmed Khan (Khan) appeals from the September 14, 2020
judgment of sentence imposed by the Court of Common Pleas of Cumberland
County (trial court) following his conviction for one count of driving under
suspension. Khan argues that the trial court erred in denying his motion to
suppress. We affirm.
We glean the following facts from the certified record. At approximately
1:49 a.m. on August 3, 2019, Officer Johannes Notz (Officer Notz) of the
Hampden Township Police Department stopped a black Toyota Prius because
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* Retired Senior Judge assigned to the Superior Court.
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it had an inoperable license plate light and darkly tinted windows.1 He
identified Khan as the driver of the vehicle and learned that his driver’s license
was suspended as a result of a DUI conviction. After stopping the vehicle,
Officer Notz used his tint meter on the vehicle’s windows and obtained a
reading of 14% light transmittance.2
Officer Notz explained that prior to pulling Khan over, he observed that
the tint on his windows was darker than normal, making it difficult to see
inside the vehicle. The tint covered the vehicle’s front and back passenger
windows. He explained that he could tell that there were people inside the
vehicle, but he was unable to identify the driver from the outside because of
the tint. Officer Notz did not look for any manufacturers’ stickers on the
windows that would have explained the tint. Regarding the license plate light,
Officer Notz explained that a license plate typically has two lights and the one
on the driver’s side of Khan’s vehicle was not working. The functioning light
illuminated half of the license plate. Officer Notz could not recall whether he
had been able to read the full license plate with the single functioning light.
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1 Officer Notz testified that he had some “basic training” regarding tinted
windows and the tint meter he used to measure a window’s tint. Notes of
Testimony, 7/24/20, at 4.
2 The trial court sustained Khan’s objection to the admission of this evidence
for the truth of the matter asserted, but admitted it limited to determining the
constitutionality of the stop. Notes of Testimony, 7/24/20, at 8. As discussed
infra, we do not consider this evidence in determining that the stop was
supported by reasonable suspicion.
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Officer Notz cited Khan for driving under suspension, 75 Pa.C.S.
§ 1543(b)(1)(i), and unlawful activities based only on the window tint, 75
Pa.C.S. § 4107(b)(2). Khan was found guilty in the magisterial district court
and filed a summary appeal for a de novo trial in the trial court. Officer Notz
was the sole witness at trial and the hearing focused primarily on Khan’s
motion for suppression on the basis that the traffic stop was not supported by
reasonable suspicion or probable cause.3
The trial court denied the motion to suppress and found Khan guilty of
driving under suspension and not guilty of unlawful activities. It subsequently
sentenced him to 90 days of electronic monitoring and house arrest. Khan
timely appealed and he and the trial court have complied with Pa.R.A.P. 1925.
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3 Khan did not file a written motion to suppress prior to his de novo trial.
However, at the beginning of the trial, Khan’s counsel stipulated that Khan’s
license had been suspended and stated “[o]ur only issues are with suppression
for the reason for the stop.” Notes of Testimony, 7/24/20, at 3. The trial
record is clear that the parties and the trial court were examining Officer Notz
for the purpose of determining his basis for conducting the traffic stop of
Khan’s vehicle. The Commonwealth and Khan made argument following the
hearing regarding suppression, and the trial court ruled on the merits. Id. at
19-26. The trial court further addressed the merits of the suppression claim
in its opinion pursuant to Pa.R.A.P. 1925(a). We have previously declined to
find waiver in similar circumstances where the defendant did not file a written
motion to suppress in a summary proceeding, but the Commonwealth did not
object to consideration of the motion at trial, the lower court addressed the
issue on the merits, and the adjudication of summary proceedings in general
“entails truncated procedures.” See Commonwealth v. Downey, 39 A.3d
401, 404 (Pa. Super. 2012). Thus, we address the merits of Khan’s claim.
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Khan presents one question on appeal: whether the trial court erred in
denying his motion to dismiss4 the citations based on its finding that Officer
Notz had reasonable suspicion or probable cause to stop his vehicle. 5 Khan
contends that his single burnt-out license plate light and the window tint on
his vehicle did not provide the requisite reasonable suspicion or probable
cause for Officer Notz to stop his vehicle.
The Vehicle Code provides that:
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
to secure such other information as the officer may reasonably
believe to be necessary to enforce the provisions of this title.
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4 Khan refers to his motion in his brief and in the trial court as a motion to
dismiss, as suppression of the traffic stop would result in dismissal of the
citations. It is clear from the record that Khan was seeking to suppress any
evidence obtained during an unlawful traffic stop.
5 An appellate court’s standard of review in addressing a challenge
to a trial court’s denial of a suppression motion is limited to
determining whether the factual findings are supported by the
record and whether the legal conclusions drawn from those facts
are correct. [Because] the prosecution prevailed in the
suppression court, we may consider only the evidence of the
prosecution 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.
Commonwealth v. Postie, 110 A.3d 1034, 1039 (Pa. Super. 2015) (citation
omitted).
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75 Pa.C.S. § 6308(b). A traffic stop based on reasonable suspicion must serve
an investigatory purpose, while a stop based on an observed vehicle code
violation or “non-investigable offense” must be supported by probable cause.
Commonwealth v. Harris, 176 A.3d 1009, 1019 (Pa. Super. 2017). To
establish reasonable suspicion that a violation of the Vehicle Code has
occurred, “the officer must articulate specific observations which, in
conjunction with reasonable inferences derived from those observations, led
him reasonably to conclude, in light of his experience, that criminal activity
was afoot and that the person he stopped was involved in that activity.”
Commonwealth v. Muhammed, 992 A.2d 897, 900 (Pa. Super. 2010)
(citation omitted). Put simply, the officer must have a reasonable belief that
a violation of the Vehicle Code is occurring or has occurred at the time of the
stop. Id. at 900-01.
Officer Notz charged Khan with one count of unlawful activities based
on the window tint. 75 Pa.C.S. § 4107(b)(2). That section of the Vehicle
Code prohibits an individual from operating a motor vehicle that is in violation
of the Pennsylvania Department of Transportation (PennDOT) regulations. Id.
The Commonwealth argues that Officer Notz had reasonable suspicion to
believe Khan’s vehicle was in violation of the PennDOT regulations related to
glazing. See 67 Pa. Code § 175.67(d). Under § 175.67(d), subject to certain
exceptions and specific requirements, “[a] sun screening device or other
material which does not permit a person to see or view the inside of the vehicle
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is prohibited.” The regulation refers to Table X, which requires that windows
in a passenger vehicle meet at least a 70% light transmittance requirement.
67 Pa. Code § 175 Table X. Based on his observations of Khan’s vehicle, the
Commonwealth contends that Officer Notz had reasonable suspicion to stop
the vehicle and investigate whether the windows were in compliance with that
regulation. We agree.
Because the offense of unlawful activities based on the window tint
required additional investigation for Officer Notz to determine whether Khan’s
vehicle complied with the light transmittance requirements of the Vehicle
Code, reasonable suspicion was required to support the traffic stop.6 See 75
Pa.C.S. § 4107(b)(2); 67 Pa. Code § 175 Table X. Officer Notz testified that
prior to the vehicle stop, he observed that Khan’s windows were darker than
windows he normally sees on cars, making it difficult to see inside the vehicle.
He could not see inside the vehicle to identify the driver before the stop but
could see outlines of individuals sitting in the car. He testified that the tint
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6 Khan cites Commonwealth v. Brubaker, 5 A.3d 261 (Pa. Super. 2010),
for the proposition that there was no probable cause or reasonable suspicion
to stop his vehicle for a violation of 75 Pa.C.S. § 4524(e) (“sunscreening and
other materials prohibited”) when Officer Notz was able to see outlines of
individuals in the car and the view was not completely obstructed. However,
Officer Notz did not stop Khan’s vehicle to investigate a possible violation of
that subsection of the Vehicle Code. He believed Khan was in violation of
§ 4107(b)(2) for operating a vehicle with tinted windows that did not comply
with PennDOT regulations related to light transmittance, making Brubaker
inapplicable.
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was applied to all four passenger windows and the rear window. Based on
these observations, he had reasonable suspicion to stop the vehicle and
conduct further investigation into whether Khan’s vehicle complied with the
Table X related to vehicle tint. See 75 Pa.C.S. § 6308(b); Muhammed,
supra. In the course of conducting this investigation by speaking with Khan
and using the tint measurement device, Officer Notz learned that Khan’s
driver’s license was suspended.
Much of Khan’s argument on appeal focuses on the scientific validity of
the tint measurement device that Officer Notz used on Khan’s windows after
stopping the vehicle. See Khan’s Brief at 15-18. However, the information
Officer Notz gleaned from this device is not relevant to our analysis of whether
the stop itself was supported by reasonable suspicion. By the time Officer
Notz used the device to measure the window tint, Khan had already been
seized.7 In determining whether this seizure was supported by reasonable
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7 Khan points to an exchange between Officer Notz and the trial court as
evidence that Officer Notz relied on the tint meter as retroactive justification
for the vehicle stop:
[The court]: I want to ask a couple questions or have you describe
to me what you saw with this window tint, not what you tested,
but what you saw when you pulled him over in part for the window
tint?
[Officer Notz]: Like the reason for the pull—
Q: Yeah. What does his windows look like compared to what
normal windows look like?
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suspicion, we consider only the facts known to Officer Notz prior to
effectuating the traffic stop. Muhammed, supra. Arguments related to the
scientific validity and reliability of the measurement device were properly
addressed by Khan to the admissibility of the evidence at trial or the
sufficiency of the evidence to support a conviction for unlawful activities.8 As
discussed supra, Officer Notz’s observations of Khan’s windows prior to the
stop were sufficient to establish reasonable suspicion of a violation of
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A: So they’re darker. With 15 percent, it’s going to be hard
to see inside the vehicle. It’s going to be hard to identify the
driver which I did not identify the driver prior to the stop.
Q: So when you looked at his vehicle from your vehicle, what did
you see regarding his windows?
A: Darker windows than normal, than what I see on a normal
vehicle.
Q: And you couldn’t see through those from your vehicle?
A: Correct, not to the fact of being able to identify the driver.
Notes of Testimony, 7/24/20, at 13 (emphasis added). We do not view this
exchange as Officer Notz relying on the tint meter reading to justify the stop.
He was merely explaining how a window with a 15% light transmittance
reading would visually appear compared to other vehicles he would typically
see on the road. This comparison was relevant to establish the basis for
Officer Notz’s suspicion that Khan’s windows were not in compliance with
PennDOT regulations.
8 The trial court found Khan not guilty of the offense of unlawful activities.
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§ 4107(b)(2), necessitating his further investigation through the traffic stop.
As a result, the trial court did not err in denying the motion to suppress.9
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/03/2021
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9 Because we hold that the stop was justified based on reasonable suspicion
related to § 4107(b)(2) for the window tint, we need not address Khan’s
argument that the stop could not be justified by the inoperable license plate
light.
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