Com. v. Marino, D.

J-S63042-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DARREN WILLIAM MARINO : No. 730 WDA 2018
Appeal from the Order Entered May 4, 2018
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0001792-2017
BEFORE: OTT, J., MURRAY, J., and STEVENS, P.J.E.
MEMORANDUM BY OTT, J.: FILED DECEMBER 18, 2018
The Commonwealth appeals from the order entered May 4, 2018, in the
Mercer County Court of Common Pleas, granting a pretrial motion to suppress
evidence filed by Appellee, Darren William Marino.1 On appeal, the
Commonwealth contends the trial court erred in concluding Marino’s traffic
stop for a violation of the Motor Vehicle Code was not supported by reasonable
suspicion. For the reasons below, we affirm.
The trial court issued the following findings of fact after Marino’s
suppression hearing:
____________________________________________
 Former Justice specially assigned to the Superior Court.
1 Pursuant to Pa.R.Crim.P. 311(d), the Commonwealth properly certified in its
notice of appeal that “the pre-trial Order from which this appeal is taken
terminates or substantially handicaps its prosecution.” Notice of Appeal,
5/16/2018.
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1. Trooper Snyder is a Pennsylvania State Police trooper and has
been for four years. He is stationed at the Mercer barracks.
2. On September 5, 2017, Trooper Snyder was on duty at
approximately 4:00 p.m. in the Borough of Grove City,
Pennsylvania.
3. At that time, Trooper Snyder observed a vehicle with an object
hanging from the rear view mirror that was purple in color.
4. The object was estimated to be a baseball-sized object. The
object was swinging back and forth from the rear view mirror and
was approximately two to three inches.
5. On first observation, Trooper Snyder was approximately a car
length or less from [Marino’s] car.
6. In the opinion of the trooper, the object obstructed the view
through the windshield.
7. At the time of day, it was light out and nothing was blocking
the view of [Marino’s] vehicle.
8. Trooper Snyder then activated his lights and conducted the
traffic stop.
9. Trooper Snyder was initially going to issue a warning for the
obstruction; however, after running the information, which
determined that the driver’s license and registration were valid,
he returned to the vehicle and detected an odor of marijuana.
10. Trooper Snyder is familiar with the odor of marijuana.
****
12. Trooper Snyder then asked [Marino] whether there was any
marijuana in the car. [Marino] answered, “No.” Trooper Snyder
then asked when the last time [Marino] had smoked marijuana,
and [Marino] answered, “Approximately one hour ago.” At that
point in time, the trooper asked [Marino] to exit the vehicle to
perform field sobriety tests.
13. A video of the field sobriety test was watched as part of the
suppression hearing. … [Marino] failed all tests. At that point in
time, the trooper arrested [Marino] and advised him that he was
going to take him for a blood test.
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14. The trooper then conducted a search of the vehicle and found
marijuana in a baggie in the glove box. The trooper also found a
pipe used for smoking marijuana.
15. On cross[-]examination, the trooper indicated that the object,
again, was approximately baseball size. He further indicated that
the video camera of the MVR was above eye level because he was
driving in an SUV on that date. ...
Findings of Fact, 4/2/2018, at ¶¶ 1-15.
Marino was subsequently charged with driving under the influence of
controlled substances (three counts), possession of a small amount of
marijuana, possession of drug paraphernalia, and windshield obstructions.2
On March 1, 2018, he filed a pre-trial motion seeking suppression of the
evidence recovered following an unlawful stop, because, in his view, Trooper
Snyder had no reasonable suspicion to stop the vehicle for a violation of the
Motor Vehicle Code. See Omnibus Pre-Trial Motion, 3/1/2018, at 1-2. The
trial court conducted a suppression hearing on April 4, 2018. Both the mobile
video recording of the vehicle stop, and the actual object hanging from
[Marino’s] rear view mirror were introduced into evidence.3 See N.T.,
4/4/2018, at 12-13, 22. At the conclusion of the hearing, the trial court issued
its findings of fact. Thereafter, on May 4, 2018, the court entered an order
granting Marino’s suppression motion. The Commonwealth filed a timely
____________________________________________
2See 75 Pa.C.S. §§ 3802(d)(1)(i), (d)(1)(iii), and (d)(2); 35 P.S. §§ 780-
113(a)(31) and (a)(32); and 75 Pa.C.S. § 4524(c), respectively.
3 However, neither the video recording nor the purple object were submitted
to this Court as part of the certified record.
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motion for reconsideration, which the court promptly denied. This appeal
followed.4
The Commonwealth lists two issues on appeal, which we will address
together. It contends the trial court erred in granting Marino’s suppression
motion because Trooper Snyder’s testimony was sufficient to articulate
reasonable suspicion for the vehicle stop. Furthermore, the Commonwealth
maintains that, in rejecting the trooper’s testimony, the trial court improperly
gave more weight to the degree of obstruction of the ball hanging from the
mirror than the trooper’s own observations. See Commonwealth’s Brief at 4.
Our standard of review is well-settled:
When the Commonwealth appeals from a suppression
order, we follow a clearly defined standard of review and
consider only the evidence from the defendant’s witnesses
together with the evidence of the prosecution that, when
read in the context of the entire record, remains
uncontradicted. The suppression court’s findings of fact
bind an appellate court if the record supports those findings.
The suppression court’s conclusions of law, however, are not
binding on an appellate court, whose duty is to determine if
the suppression court properly applied the law to the facts.
Commonwealth v. Miller, 2012 PA Super 251, 56 A.3d
1276, 1278–79 (Pa. Super. 2012) (citations omitted). “Our
standard of review is restricted to establishing whether the
record supports the suppression court’s factual findings;
however, we maintain de novo review over the suppression
court’s legal conclusions.” Commonwealth v. Brown, 606
Pa. 198, 996 A.2d 473, 476 (2010) (citation omitted).
____________________________________________
4 On May 18, 2018, the trial court ordered the Commonwealth to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
The Commonwealth complied with the court’s directive, and filed a timely
concise statement on May 31, 2018.
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Commonwealth v. Korn, 139 A.3d 249, 252–253 (Pa. Super.
2016), appeal denied, 639 Pa. 157, 159 A.3d 933 (2016). “It is
within the suppression court’s sole province as factfinder to pass
on the credibility of witnesses and the weight to be given to their
testimony. The suppression court is free to believe all, some or
none of the evidence presented at the suppression hearing.”
Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa. Super.
2003) (citations omitted), appeal denied, 577 Pa. 701, 847 A.2d
58 (2004). Nevertheless, the suppression court’s conclusions of
law are not binding on an appellate court, and are subject to
plenary review. Commonwealth v. Johnson, 969 A.2d 565, 567
(Pa. Super. 2009) (citations omitted).
Commonwealth v. Byrd, 185 A.3d 1015, 1019 (Pa. Super. 2018). When a
defendant files a motion to suppress evidence, “it is the Commonwealth’s
burden to present evidence that the defendant’s constitutional rights were not
infringed.” Commonwealth v. Enimpah, 106 A.3d 695, 701 (Pa. 2014).
A police officer’s statutory authority to stop a motor vehicle is codified
in Section 6308(b) of the Motor Vehicle Code, which provides:
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.
75 Pa.C.S. § 6308(b).
In interpreting this subsection, the courts of this Commonwealth have
concluded that a vehicle stop based solely on reasonable suspicion of a motor
vehicle violation “must serve a stated investigatory purpose. In effect, the
language of Section 6308(b)—‘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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is conceptually equivalent with the underlying purpose of a Terry stop.”
Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en banc)
(internal citations omitted), appeal denied, 611 Pa. 650, 25 A.3d 327 (2011).
When no further investigation is necessary to determinate if a driver
committed a traffic violation or crime, the officer must possess “probable
cause to believe that the vehicle or the driver was in violation of some
provision of the Code.” Id. (quotation and emphasis omitted).
In the present case, Trooper Snyder stopped Marino for a violation of
Section 4524 of the Motor Vehicle Code, which provides, in pertinent part:
(c) Other obstruction.--No person shall drive any motor vehicle
with any object or material hung from the inside rearview mirror
or otherwise hung, placed or attached in such a position as to
materially obstruct, obscure or impair the driver’s vision through
the front windshield or any manner as to constitute a safety
hazard.
75 Pa.C.S. § 4524(c). The courts of this Commonwealth have held that a stop
based upon a suspected violation of Section 4524(c) requires only reasonable
suspicion. See Commonwealth v. Holmes, 14 A.3d 89 (Pa. 2011);
Commonwealth v. Shabazz, 18 A.3d 1217 (Pa. Super. 2011).
In Holmes, supra, the Pennsylvania Supreme Court explained:
Reasonable suspicion is a less stringent standard than
probable cause necessary to effectuate a warrantless arrest,
and depends on the information possessed by police and its
degree of reliability in the totality of the circumstances. In
order to justify the seizure, a police officer must be able to
point to “specific and articulable facts” leading him to
suspect criminal activity is afoot. In assessing the totality
of the circumstances, courts must also afford due weight to
the specific, reasonable inferences drawn from the facts in
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light of the officer’s experience and acknowledge that
innocent facts, when considered collectively, may permit the
investigative detention.
Thus, under the present version of Section 6308(b), in order to
establish reasonable suspicion, an officer must be able to point to
specific and articulable facts which led him to reasonably suspect
a violation of the Motor Vehicle Code, in this case, Section
4524(c).
Holmes, supra, 14 A.3d at 95-95 (internal citations omitted). Furthermore,
“[i]t is the duty of the suppression court to independently evaluate
whether, under the particular facts of a case, an objectively reasonable police
officer would have reasonably suspected criminal activity was afoot.” Id.
at 96 (emphasis supplied). The Holmes Court emphasized the need for
“specific facts justifying” the officer’s decision to conduct a vehicle stop: “To
hold otherwise would be to give the police absolute, unreviewable discretion
and authority to intrude into an individual’s life for no cause whatsoever.” Id.
(citation omitted).
In Holmes, the Supreme Court found the testimony provided at the
suppression hearing was insufficient to support the trial court’s determination
that the officer had reasonable suspicion to stop the defendant’s vehicle. See
id. at 97-98. In that case, the officer testified simply that he observed,
“objects hanging from the rearview mirror [of the defendant’s vehicle] which
were obstructing the driver’s view.” Id. at 97 (citation omitted). The Court
emphasized there was no description of the size of the objects or “how the
objects impaired” the driver’s field of vision. Id. at 98. Based on the officer’s
“bare testimony,” the Holmes Court concluded the suppression court would
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not have been able to determine if the officer had an “objectively reasonable
basis for the vehicle stop.” Id. at 99.
A panel of this Court came to a different conclusion in Commonwealth
v. Shabazz, 18 A.3d 1217 (Pa. Super. 2011). Like Holmes, in Shabazz, a
police officer initiated a traffic stop based on a suspected violation of Section
4524. Id. at 1218. During the suppression hearing, the officer described the
objects hanging from the defendant’s rearview mirror as “[r]ather large” dice
and at least four pine tree air fresheners. Id. at 1222 (citation omitted). He
estimated the dice were three inches by three inches, and hung “three or four”
inches below the mirror, “low enough to interfere with the driver if he had to
turn or if he had to go straight.” Id. (citation omitted). Based on this
testimony, the trial court found, and the panel agreed, “[t]he combination of
multiple air fresheners, three by three inch foam dice, and [the officer’s]
explanation of how these items might impair a driver’s view made it
reasonable for him to suspect the [defendant] was in violation of [Section
4524(c)], and justified the traffic stop.” Id. (citation omitted).
Turning to the present matter, the trial court distinguished the facts
presented in Shabazz, supra, and determined Trooper Snyder’s stop of
Marino’s vehicle was unlawful:
[Trooper] Snyder initiated the traffic stop in broad daylight and
was able to clearly see the object hanging from [Marino’s]
rearview mirror. … [Trooper] Snyder was able to accurately
describe the object and state that he believed the object created
an obstruction to [Marino’s] view. However, the purple object
hanging from [Marino’s] rearview mirror presents far less of an
obstruction than was present in Shabazz. More importantly, it
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hung by itself. In Shabazz, the obstruction was created by a pair
of fuzzy dice, each similar in size to [Marino’s] single purple
sphere, and several additional air fresheners.
Having seen the object and the video from [Trooper]
Snyder’s police vehicle, this Court finds that [Trooper] Snyder did
not have reasonable suspicion to believe that the object created a
material obstruction of [Marino’s] view. The object hung by itself,
and it was too small to materially impair [Marino’s] ability to drive
the vehicle safely. Accordingly, the traffic stop initiated by
[Trooper] Snyder was unlawful, and any evidence obtained
following the stop must be suppressed.
Trial Court Opinion, 5/4/2018, at 4-5 (footnote omitted).
The Commonwealth maintains Trooper Snyder’s testimony alone
provided the requisite reasonable suspicion for his stop of Marino’s vehicle,
See Commonwealth’s Brief at 17-19. It insists the trooper’s detailed
description of the hanging object, his testimony that it “swung back and forth,”
and his belief that the object “materially obstructed the driver’s view through
the front windshield,” was sufficient to demonstrate reasonable suspicion for
the stop. Commonwealth’s Brief at 19. However, the trial court did not find
Trooper Snyder’s belief - that the object “materially obstruct[ed]” Marino’s
vision - was reasonable. 75 Pa.C.S. § 4524(c). Here, the court had the
opportunity to see the actual size and shape of the purple object, and, more
importantly, view the mobile video recording of the stop. See N.T.,4/4/2018,
at 13, 22; Trial Court Opinion, 5/4/2018, at 5. In a subsequent opinion
accompanying its order denying the Commonwealth’s motion for
reconsideration, the court elaborated:
[T]his Court was able to make its own determination as to the
reasonableness of [Trooper] Snyder’s belief. In making that
determination, the degree of the obstruction caused by the object
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was relevant to this Court’s determination. Due to the size of the
object, [Trooper] Snyder could have observed, at most, a minor
obstruction. Therefore, [Trooper] Snyder’s subjective belief that
the object created a material obstruction was unreasonable.
Trial Court Opinion, 5/14/2018, at 3.
Pursuant to Holmes, the trial court was required “to independently
evaluate whether, under the particular facts of [the] case, an objectively
reasonable police officer would have reasonably suspected” Marino was
committing a traffic violation. Holmes, supra, 14 A.3d at 96. Otherwise, as
the Holmes Court points out, police officers would be given “absolute,
unreviewable discretion and authority to intrude into an individual’s life for no
cause whatsoever.” Id. (citation omitted). Furthermore, the Holmes Court
emphasized Section 4524(c) does not prohibit a driver from hanging an object
from his rearview mirror; “rather, an essential element is that the object or
material hanging from the mirror materially obstructs, obscures, or impairs
the driver’s vision.” Id. at 97. In this case, the trial court concluded no
reasonable person could conclude that Marino’s view was materially
obstructed under the circumstances present.
The Commonwealth also insists, however, the trial court’s independent
consideration of the “degree of obstruction” was improper at this stage in the
proceedings. Commonwealth’s Brief at 21. It maintains the degree to which
the object obstructed Marino’s view was relevant only in determining whether
Marino was guilty beyond a reasonable doubt of a violation of Section 4524(c),
that is, a sufficiency challenge. See id. The Commonwealth argues such a
consideration is not relevant in determining whether a police officer lawfully
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effectuated a traffic stop, when all that is required is reasonable suspicion of
a potential violation. See id. Relying on Justice Eakin’s Dissenting Opinion in
Holmes, supra, the Commonwealth contends, “[i]t is not the degree of
obstruction that provides reasonable suspicion, … but Trooper Snyder’s own
observations regarding a possible material obstruction.” Id. at 24. See
Holmes, supra, 14 A.3d at 100 (Eakin, J. Dissenting) (“The issue is whether
what the officer saw gave him reason to suspect there was such a violation.
What the officer finds after the stop does not matter—it is whether he
reasonably believes a criminal violation may be afoot that counts.”).
In responding to Judge Eakins’ Dissent, the Holmes Majority stated:
The dissent, it seems, would write the materiality element out of
Section 4524(c) for purposes of a vehicle stop. Although the
dissent recognizes that the critical issue in evaluating the legality
of a traffic stop is whether the police officer reasonably believes a
criminal violation may be afoot, the dissent opines that an officer
need not observe a material obstruction; rather, he may observe
any obstruction and then “investigate whether vision is blocked to
the point of comprising a violation.” Such an approach is contrary
to the principles underlying Terry. Further, it would give police
officers carte blanche to stop any vehicle with an object hanging
from the rearview mirror, as any hanging object would arguably
obstruct the driver’s view to some degree. Yet, as discussed
supra, Section 4524(c) does not prohibit a driver from hanging
any object from the vehicle’s rearview mirror; it prohibits only
material obstructions. Thus, unless [the police officer] reasonably
believed that the object hanging from [the defendant’s] rearview
mirror materially obstructed his view—which [the officer] did not
claim at the suppression hearing—he had no legal basis upon
which to stop [the defendant’s] vehicle.
Holmes, supra, 14 A.3d at 98 n.14 (citation omitted and emphasis in
original). Although, in the present case, Trooper Snyder did testify that he
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believed the purple object hanging from Marino’s rearview mirror “materially
obstructed the driver’s … view[,]” the trial court was not compelled to accept
the trooper’s testimony. Rather, the court considered the testimony in light
of the other evidence - particularly the object itself and the mobile video
recording – and concluded Trooper Snyder’s characterization of the
obstruction as material was unreasonable. The role of the suppression court
is to ensure “there is an objectively reasonable basis for the vehicle stop[.]”
Holmes, supra, 14 A.2d at 99. Here, the trial court found there was no
reasonable basis for the stop, and we find no reason to disagree. Accordingly,
the Commonwealth is not entitled to relief.
Order affirmed.
Judge Murray joins this memorandum.
President Judge Emeritus Stevens files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2018
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