Commonwealth v. Copenhaver v. Aplt.

[J-109-2019]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 48 MAP 2019
:
Appellee : Appeal from the Order of the Superior
: Court at No. 383 MDA 2018 dated
: 12/7/18 affirming the judgment of
v. : sentence of the Adams County Court of
: Common Pleas, Criminal Division, at
: No. CP-01-CR-0001070-2015 dated
VICTOR LEE COPENHAVER, : 9/18/17
:
Appellant : ARGUED: November 21, 2019
OPINION
CHIEF JUSTICE SAYLOR DECIDED: April 22, 2020
In this appeal by allowance, we address whether a deputy sheriff may conduct a
traffic stop on the basis of an expired registration sticker, on the theory that such a
violation amounts to a breach of the peace.
In August 2015, a deputy sheriff conducted a vehicle stop of Appellant’s pickup
truck. Upon approaching the truck, the deputy noticed an odor of alcohol and marijuana
emanating from the passenger compartment. After administering field sobriety tests, he
arrested Appellant for suspected driving under the influence of alcohol and controlled
substances (“DUI”). See 75 Pa.C.S. §3802(d). Appellant was ultimately charged with
DUI and other offenses.
Appellant challenged the deputy’s authority to conduct a traffic stop and sought
suppression of all evidence obtained during the encounter. Rather than presenting
testimony at a suppression hearing, the parties stipulated that Appellant was driving the
vehicle in question and that the deputy had training and qualifications equivalent to that
of a police officer. The parties also agreed that:
The vehicle stop occurred as a result of the deputy . . . observing the
tailgate to the pickup truck operated by . . . [Appellant] being in a down
position. This caught his attention. He further observed that the
registration on the pickup truck was expired, and additionally, the
registration number was identified as belonging to a vehicle other than the
one on which it was attached[.]
Order of Stipulated Facts 1, ¶2, Jan. 12, 2016.1 In connection with the motion to
suppress, Appellant argued that an expired registration tag does not give rise to a
breach of the peace for purposes of a deputy’s residual common law authority to make
arrests. See Commonwealth v. Copenhaver, No. CP-01-CR-0001070-2015 (C.P.
Adams), Brief for Defendant at 3. See generally Commonwealth v. Leet, 537 Pa. 89,
96, 641 A.2d 299, 303 (1994) (concluding that appropriately trained sheriffs and their
deputies retain authority at common law to enforce the motor vehicle code whenever an
offense involving a breach of the peace occurs in their presence).
By contrast, the Commonwealth apparently interpreted the above-quoted portion
of the stipulation as signifying that the deputy was aware, before the stop, not only that
the sticker had expired, but that it belonged to another vehicle. Thus, positing that
Appellant’s actions were indicative of public risk, namely, a possible vehicle theft, the
Commonwealth argued that the factors described in the stipulation, taken together,
1 Both parties acknowledged that the deputy was aware that the truck’s tailgate was
down at the time of the stop. That factor, however, does not give rise to a Vehicle Code
violation, and the parties’ present advocacy does not elaborate on what, if any,
significance should be attributed to it. In any event, it is beyond the scope of the
question presented to this Court. As such, we do not consider it material to this appeal.
[J-109-2019] - 2
gave rise to a breach of the peace. See Copenhaver, No. CP-01-CR-0001070-2015
(C.P. Adams), Brief for Commonwealth at 4-5.
The common pleas court denied suppression. In its reasoning, the court relied
on a line of this Court’s cases reinforcing that duly-trained sheriffs’ deputies – that is,
deputies who have received the same training required of police officers – have residual
common law authority to enforce the Vehicle Code when they witness a violation that
comprises a breach of the peace. See, e.g., Commonwealth v. Marconi, 619 Pa. 401,
413-14, 64 A.3d 1036, 1043-44 (2013); Commonwealth v. Lockridge, 570 Pa. 510, 516,
810 A.2d 1191, 1194 (2002); Leet, 537 Pa. at 96, 641 A.2d at 303. Because the deputy
who stopped Appellant’s truck had received the same training required of police officers,
the court determined that he was authorized to conduct a stop if the violation he
witnessed amounted to a breach of the peace. Seemingly in agreement with the
Commonwealth’s understanding of the stipulation, the court concluded that, because
the deputy observed Appellant operating the truck with an expired registration tag,
which also belonged to a different vehicle, the truck could have been stolen, which
would “certainly [be] a breach of the peace.” Commonwealth v. Copenhaver, No. CP-
01-CR-1070-2015, slip op. at 6 (C.P. Adams Nov. 20, 2017).2
After a bench trial, Appellant was convicted of DUI and other offenses, and he
was sentenced to a term of partial confinement. Appellant lodged an appeal, arguing
that his suppression motion should have been granted because operating a vehicle with
an expired registration sticker does not by itself constitute a breach of the peace.
2 Although Appellant’s Rule 1925(b) statement expressly challenged the deputy’s
authority to stop his vehicle on the sole basis of an expired registration sticker, the trial
court, as noted, proceeded from the premise that the deputy was aware, before making
the stop, that the registration was associated with a different vehicle. However, it did
not explain why it read the stipulation in this way, nor did it address whether a
registration tag’s expired status, without more, involves a breach of the peace.
[J-109-2019] - 3
The Superior Court affirmed in a published decision. See Commonwealth v.
Copenhaver, 200 A.3d 956 (Pa. Super. 2018). The court relied on this Court’s
decisional law, noted above, affirming that appropriately trained deputies are permitted
to make arrests for Vehicle Code violations amounting to an in-presence breach of the
peace. The court highlighted that, aside from concluding that not all Vehicle Code
violations comprise a breach of the peace, see Marconi, 619 Pa. at 411 n.6, 64 A.3d at
1042 n.6 (suggesting that the failure to use a seatbelt is not a breach of the peace), this
Court has yet to expound upon which offenses rise to that level.
Although the Commonwealth maintained that the totality of Petitioner’s actions
amounted to a breach of the peace, the Superior Court nonetheless chose to limit its
discussion to whether driving with an expired registration tag, in and of itself, involved a
breach of the peace, without considering the other stipulated facts. 3 As a means of
resolving that limited question, the court relied on its decision in Commonwealth v.
Lockridge, 781 A.2d 168 (Pa. Super. 2001), aff’d on other grounds, 570 Pa. 510, 810
A.2d 1191 (2002).
3Notably, in its brief to the Superior Court, the Commonwealth conceded that operating
a vehicle with an expired registration sticker, without more, may not constitute a breach
of the peace. See Commonwealth v. Copenhaver, 200 A.3d 956 (Pa.Super. 2018),
Brief for Commonwealth at 12.
For his part, Appellant criticized the trial court’s failure to consider whether operating a
vehicle with an expired registration tag amounted to such a breach. Appellant
expressed confusion as to how the deputy could have been able to determine whether
Appellant’s expired registration sticker belonged to a different vehicle, reasoning that,
“[w]hen registration stickers were required, they only showed the date it expired, and no
further identifying information.” Id., Brief for Appellant at 19 n.9. Appellant claimed that,
in an attempt to elevate a minor Vehicle Code violation to a breach of the peace, the
trial court improperly stated that the registration on Appellant’s truck belonging to a
different vehicle evidenced a possible theft.
[J-109-2019] - 4
In Lockridge, the intermediate court rejected the defendant’s contention that
deputy sheriffs should only be permitted to issue citations for Vehicle Code violations
where the actions involved are comparable to disorderly conduct as defined by the
Crimes Code. See 18 Pa.C.S. §5503. Lockridge reasoned that such an interpretation
of Leet would illogically limit the authority of a trained deputy. Ultimately, the Lockridge
court held that driving with a suspended license was a breach of the peace. See
Lockridge, 781 A.2d at 170. Turning to the facts of the present case, the Superior Court
concluded that, in light of Lockridge, Appellant’s action in driving the pickup truck with
an expired registration tag involved a breach of the peace, thus authorizing the deputy
to conduct the traffic stop. See Copenhaver, 200 A.3d at 963.
Appellant sought further review in this Court, and framed the issue for resolution
as follows:
Did the Superior Court err in finding that an expired vehicle registration tag
constitutes a “breach of the peace”, thus granting sheriffs and citizens a
common law power to arrest on that basis alone?
Commonwealth v. Copenhaver, ___ Pa. ___, 215 A.3d 970 (2019) (per curiam).
Appellant maintains that operating a vehicle with an expired registration tag does
not entail a breach of the peace as understood at common law. Specifically, Appellant
observes that, prior to the enactment of the Crimes Code, such a breach was defined as
an “outward, visible, audible or violent demonstration; not from quiet orderly and
peaceable acts secretly done . . ..” Commonwealth v. Sherman, 14 Pa. D.&C. 4, 8
(C.P. Phila. 1930). Although Appellant acknowledges the Superior Court’s previous
determination that all indictable misdemeanors amount to breaches of the peace, see
Commonwealth v. Magaro, 175 Pa. Super. 79, 83-84, 103 A.2d 449, 452 (1954), he
stresses that summary offenses, which were recognized at common law, are
considered to be “of a petty nature or of lesser gravity than an indictable offense.”
[J-109-2019] - 5
Commonwealth v. Cano, 389 Pa. 639, 650, 133 A.2d 804, 805 (1957) (citing Duke v.
United States, 301 U.S. 492, 495, 57 S. Ct. 835, 836-37 (1937)). Because operating a
vehicle with an expired registration is a summary offense, see 75 Pa.C.S. §1301(d),
Appellant posits that the violation is of a petty nature. As such, Appellant advances that
the offense does not constitute a breach of the peace empowering a deputy sheriff to
conduct a traffic stop pursuant to any residual common law authority.4
The Commonwealth concedes that operating a vehicle with an expired
registration sticker, in and of itself, may not comprise a breach of the peace. Because
the expired registration belonged to a different vehicle, however, the Commonwealth
argues (as it did before the Superior Court) that a reasonable possibility existed that the
truck may have been stolen. Thus, the Commonwealth submits that Appellant’s Vehicle
Code violations, when considered together, gave rise to a breach of the peace.
The question before this Court, however, is limited to whether operating a vehicle
with an expired registration sticker, standing alone, amounts to a breach of the peace,
and hence, that is the only question we will resolve. See supra note 4. As “breach of
the peace” was a criminal offense prior to the enactment of the Crimes Code, and as
this Court has not yet had occasion to describe the contours of that concept, we begin
by turning to the historical definition of the phrase to determine its present application.
As Appellant highlights, before the Crimes Code was enacted, Pennsylvania
courts recognized that a breach of the peace “generally manifests [itself] by some
4 Appellant also argues that deputy sheriffs should not be authorized to effectuate traffic
stops based on supposed common law powers. His claim in this regard amounts to a
contention that the Leet line of cases should be overruled. Any issue along those lines
is beyond the scope of the question presently before this Court. See generally
Pa.R.A.P. 1115(a)(3); Commonwealth v. Metz, 534 Pa. 341, 347 n.4, 633 A.2d 125, 127
n.4 (1993) (observing that “on appeal we are limited to the issues as framed in the
petition for allowance of appeal”) (citation omitted); Rendell v. Pa. State Ethics Comm’n,
603 Pa. 292, 309, 983 A.2d 708, 718 (2009) (same).
[J-109-2019] - 6
outward, visible, audible or violent demonstration; not from quiet, orderly and peaceable
acts secretly done . . . .” Sherman, 14 Pa. D.&C. at 8. Scholarly commentary also
indicates that “breach of the peace” has been associated with violent or potentially
violent conduct. See, e.g., Thomas Y. Davies, The Fictional Character of Law-and-
Order Originalism: A Case Study of the Distortions and Evasions of Framing-Era Arrest
Doctrine in Atwater v. Lago Vista, 37 W AKE FOREST L. REV. 239, 300 (2002) (indicating
that “both the major common-law treatises and the immediate post-framing American
sources indicated that ‘breach of the peace’ was understood to refer to violent or
potentially violent public tumults or disturbances”).
Consistent with this understanding, other jurisdictions have equated a breach of
the peace with violent or dangerous activities or behavior. See, e.g., Kansas City v.
Thorpe, 499 S.W.2d 454, 458 (Mo. 1973) (“‘[B]reach of the peace,’ . . . refers only to
acts or conduct inciting violence or intended to provoke others to violence.”); People v.
Perry, 193 N.E. 175, 177 (N.Y. 1934) (“A breach of the peace is . . . a disturbance of
public order by an act of violence, or by any act likely to produce violence, or which, by
causing consternation and alarm, disturbs the peace and quiet of the community.”
(internal quotation marks and citations omitted)); accord State v. Randolph, 121 S.E.2d
349, 350 (S.C. 1961). To take one example, Wisconsin’s Court of Appeals has held
that driving under the influence of alcohol comprises a breach of the peace, as the
dangerous nature of the offense threatens public safety. See City of Waukesha v. Gorz,
479 N.W.2d 221, 223-24 (Wis. Ct. App. 1991).
We find the thrust of these judicial and scholarly expressions persuasive.
Accordingly, we now hold that – for purposes of a deputy sheriff’s common law authority
to enforce the Vehicle Code – a breach of the peace arises from an act or circumstance
[J-109-2019] - 7
that causes harm to persons or property, or has a reasonable potential to cause such
harm, or otherwise to provoke violence, danger, or disruption to public order.
In our view, operating a vehicle with an expired registration sticker does not fit
within that description, as it is not a violent or dangerous action, nor is it likely to lead to
public disorder. Indeed, to the contrary, a vehicle’s registration tag expires with the
passage of time and, as such, the expiration is passive in nature (although there may be
intentionality or knowledge with regard to the decision to drive with an expired
registration). Driving a vehicle with such a sticker, moreover, does not tend to incite
violence, disorder, public or private insecurity, or the like. That being the case, we
conclude that driving a vehicle with an expired registration does not entail a breach of
the peace.
In light of the foregoing, we will vacate the order of the Superior Court insofar as
it held that operating a vehicle with an expired registration tag involved a breach of the
peace, thus alone authorizing the deputy to stop Appellant’s vehicle. Notably, and as
developed above, in light of its holding, the Superior Court did not proceed to consider
other relevant questions, such as whether the parties’ factual stipulation should be read
as indicating that the officer’s understanding that the registration sticker was associated
with a different vehicle arose in the pre-stop timeframe – consistent with the
Commonwealth’s position throughout this litigation. These issues should be resolved in
the first instance by the intermediate court on remand.
Accordingly, the order of the Superior Court is vacated, and the matter is
remanded to that court for further proceedings consistent with this opinion.
Justices Baer, Todd, Donohue, Dougherty and Mundy join the opinion.
Justice Wecht files a concurring and dissenting opinion.
[J-109-2019] - 8