Com. v. Copenhaver, V.

J-S69043-18
2020 Pa. Super. 214
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VICTOR LEE COPENHAVER :
:
Appellant : No. 383 MDA 2018
Appeal from the Judgment of Sentence entered September 18, 2017
In the Court of Common Pleas of Adams County Criminal Division
at No: CP-01-CR-0001070-2015
BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.
OPINION BY MURRAY, J.: FILED SEPTEMBER 02, 2020
This case is before us on remand from the Pennsylvania Supreme Court.
Commonwealth v. Copenhaver, 229 A.3d 242 (Pa. 2020). Victor Lee
Copenhaver (Appellant) has appealed the judgment of sentence imposed after
the trial court convicted him of two counts of driving under the influence of
alcohol and a controlled substance (DUI), possession of a small amount of
marijuana, and three summary violations of the Vehicle Code. Appellant
challenges, inter alia, the denial of his suppression motion. With the benefit
of the Supreme Court’s decision, we vacate Appellant’s judgment of sentence,
reverse the order denying suppression, and remand to the trial court.
We previously summarized the underlying facts:
On August 31, 2015, Adams County Deputy Sheriff Timothy Beall
initiated a traffic stop of Appellant’s vehicle because it had an
expired registration. . . . At trial, Deputy Beall testified that after
he stopped Appellant’s vehicle, he asked Appellant to produce his
license, registration, and insurance information. Appellant flailed
his hands in the air and stated that he didn’t have a license and
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was suspended. While speaking with Appellant, Sheriff Deputy
Beall observed an odor of alcohol and marijuana emanating from
the passenger compartment of the vehicle. Sheriff Beall noticed
that Appellant had bloodshot eyes and slurred speech. Sheriff
Deputy Beall asked Appellant to exit the vehicle. Appellant
complied and stated, “I have a bowl in my pocket.” Sheriff Deputy
Beall took the smoking device out of Appellant’s pocket. In
addition, Sheriff Deputy Beall recovered suspected marijuana
from the glove box in Appellant’s vehicle. Sheriff Deputy Beall
advised Appellant that he was going to conduct Standard Field
Sobriety Tests (SFSTs) and then led Appellant to a flat, well-
lighted area. Appellant showed signs of impairment and stated
that he could not complete the SFSTs. For Appellant’s safety,
Sheriff Deputy Beall concluded the SFSTs. Based on the totality
of the circumstances, Sheriff Deputy Beall suspected that
Appellant was under the influence of drugs, alcohol, or a
combination of both. Sheriff Deputy Beall took Appellant into
custody.
Commonwealth v. Copenhaver, 200 A.3d 956 (Pa. Super. 2018) (citation
omitted), appeal granted, 215 A.3d 970 (Pa. 2019), and vacated, 229 A.3d
242 (Pa. 2020).
The Commonwealth charged Appellant with DUI and other offenses. In
response, Appellant filed an omnibus pre-trial motion asking the trial court to
suppress evidence from the vehicle stop on the basis that Appellant had not
breached the peace, and therefore Deputy Beall lacked authority to enforce
the Vehicle Code. Appellant’s Omnibus Pre-Trial Motion, 12/31/15, at 1
(unnumbered).
At the suppression hearing, in lieu of testimony, the parties stipulated
to facts, which the trial court memorialized in a pre-trial order.1 See Pre-Trial
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1 The order also set a briefing schedule and continued the trial date at
Appellant’s request.
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Order, 1/12/16, at 1-2. On March 11, 2016, the court entered an order
denying Appellant’s suppression motion.
Following a bench trial, the trial court convicted Appellant of DUI and
other offenses, and sentenced him to 72 hours to six months of partial
incarceration. Appellant timely appealed to this Court, again arguing that the
court erred in denying his suppression motion “because operating a vehicle
with an expired registration sticker does not by itself constitute a breach of
the peace.” Copenhaver, 229 A.3d at 244.
Based on the Pennsylvania Supreme Court’s holdings in
Commonwealth v. Leet, 641 A.2d 299 (Pa. 1994) and Commonwealth v.
Marconi, 64 A.3d 1036 (Pa. 2013), we could not conclude that an expired
registration sticker fell outside the type of Vehicle Code violation that
constituted a breach of the peace. We explained:
Although “sheriffs and their deputies are not ‘police officers’ under
the Vehicle Code,” Marconi, 64 A.3d at 1041, in Leet, our
Supreme Court held “that the common law powers of the sheriff
include the power to enforce the motor vehicle code, and that such
powers have not been abrogated by statute or otherwise.” Leet,
641 A.2d at 301. The Supreme Court stated: “a sheriff (and his
deputies) may make arrests for motor vehicle violations which
amount to breaches of the peace committed in their presence,”
where the sheriff or deputy has “complete[d] the same type of
training that is required of police officers throughout the
Commonwealth.” Id. at 303. Notably, the Supreme Court in Leet
did not identify violations which would amount to “breaches of the
peace.” See Marconi, 64 A.3d at 1049 n.5 (“At the very least,
Leet should have considered the consequences of overlaying
common-law arrest powers for one category of peace officers,
cabined only by an undefined breach-of-the-peace litmus to
determine arrest authority, over such a more refined statutory
scheme.”) (emphasis added).
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Copenhaver, 200 A.3d at 961. We continued, “Given this guidance – where
we determined that driving while under suspension is a breach of the peace –
we cannot say in Appellant’s case that driving with an expired registration is
not.” Id. at 963. Accordingly, we discerned no error in the trial court’s denial
of Appellant’s suppression motion.2
Appellant petitioned for allowance of appeal. On June 27, 2019, the
Pennsylvania Supreme Court granted the petition. The Supreme Court
phrased the issue 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, 215 A.3d 970 (Pa. 2019) (per curiam).
On April 22, 2020, the Supreme Court issued its decision finding in
Appellant’s favor. The Court opined:
[F]or 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 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.
Copenhaver, 229 A.3d at 246.
Applying the above definition to Deputy Beall’s common law authority
to stop Appellant for violating the Vehicle Code, the Supreme Court continued:
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2 Adopting the trial court’s analyses addressing Appellant’s remaining
sufficiency and weight claims, we affirmed Appellant’s judgment of sentence.
Copenhaver, 200 A.3d at 964.
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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.
Id. at 246-47.
Consistent with the foregoing, the Pennsylvania Supreme Court
reversed our previous decision, “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.” Id. at 247. Because we
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,” the Supreme Court
instructed us to resolve these issues on remand.3 Id. Accordingly, we revisit
whether the trial court erred in denying Appellant’s suppression motion.
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3 In his concurring and dissenting opinion, Justice Wecht joined the Majority’s
holding that driving with an expired registration does not constitute a breach
of the peace. Copenhaver, 229 A.3d at 247 (J. Wecht, concurring and
dissenting). However, Justice Wecht wrote separately to opine: 1. given the
factual record, remand to this Court was unnecessary; 2. driving a vehicle
with a registration sticker belonging to another vehicle does not amount to a
breach of the peace as defined by the Majority; and 3. the Pennsylvania
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It bears repeating that:
When we review the ruling of a suppression court we must
determine whether the factual findings are supported by the
record. When it is a defendant who has appealed, we must
consider only the evidence of the prosecution and so much of the
evidence for the defense as, fairly read in the context of the record
as a whole, remains uncontradicted. Assuming that there is
support in the record, we are bound by the facts as are found and
we may reverse the suppression court only if the legal conclusions
drawn from those facts are in error.
Commonwealth v. Hicks, 208 A.3d 916, 925 (Pa. 2019) (citation omitted).
“[O]ur scope of review from a suppression ruling is limited to the evidentiary
record that was created at the suppression hearing.” Commonwealth v.
Rapak, 138 A.3d 666, 670 (Pa. Super. 2016) (citing In re L.J., 79 A.3d 1073,
1087 (Pa. 2013)).
As we stated previously, Appellant argues he “was deprived of his Fourth
Amendment and Article I, Section 8 guarantees when the trial court failed to
suppress evidence that was obtained as the result of an illegal stop and
search.” Copenhaver, 200 A.3d at 960 (citation omitted). Now, after the
Pennsylvania Supreme Court has expressly held that Appellant’s expired
registration does not entail a breach of the peace, we determine whether
Deputy Beall had a legal basis for initiating the traffic stop.
It is well settled that police officers may initiate a traffic stop when they
have probable cause that a violation of the Vehicle Code has occurred.
____________________________________________
Supreme Court’s decision in Commonwealth v. Leet, 641 A.2d 299 (Pa.
1994), should be overruled. Copenhaver, 229 A.3d at 247 (J. Wecht,
concurring and dissenting).
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Commonwealth v. Brown, 64 A.3d 1101, 1105 (Pa. Super. 2013), appeal
denied, 79 A.3d 1096 (Pa. 2013). Although “sheriffs and their deputies are
not ‘police officers’ under the Vehicle Code,” Marconi, 64 A.3d at 1041, the
Supreme Court held that “the common law powers of the sheriff include the
power to enforce the motor vehicle code, and that such powers have not been
abrogated by statute or otherwise.” Leet, 641 A.2d at 301. The Supreme
Court stated, “a sheriff (and his deputies) may make arrests for motor vehicle
violations which amount to breaches of the peace committed in their
presence,” where the sheriff or deputy has “complete[d] the same type of
training that is required of police officers throughout the Commonwealth.” Id.
at 303.
The Commonwealth has intimated that Deputy Beall knew the
registration sticker on Appellant’s vehicle belonged to a different vehicle prior
to stopping Appellant. See Commonwealth Brief at 6 (“Appellant’s vehicle
was bearing an expired tag belonging to a different vehicle. The resulting
distinct and reasonable possibility that the vehicle had been stolen constituted
a breach of the peace and authorized the detention of Appellant’s vehicle.”).
The pre-trial order memorializing the factual stipulations between
Appellant and the Commonwealth states that Deputy Beall “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.” Pre-Trial Order, 1/15/16, at 1 ¶ 2. The
stipulated facts do not specify whether Deputy Beall discovered that the
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registration sticker belonged to a different vehicle before or after he initiated
the traffic stop. See id.
Further, the Commonwealth’s affidavit of probable cause reads:
On August 31, 2015 Deputies Beall and Garcia were in uniform,
operating an unmarked patrol vehicle. While travelling west on
Cherry Street approaching Gettysburg Street in Arendtsville
Borough, Deputies’ attention was attracted to a gray Dodge Truck
traveling westbound in front of them. This truck displayed a PA
registration, HZD1558. Further examination revealed the tag
had an expired sticker, 2/15. The truck made a right onto
Gettysburg Street, a left onto Chestnut and a right onto South
High Street, where Deputies stopped the vehicle for the violation
at 1745 hours.
Deputy Beall approached the driver, later identified as [Appellant],
who was the only occupant in the vehicle. [Appellant] was advised
why he was stopped and asked to produce his license, registration
and insurance information. [Appellant] threw his hands in the air
and stated, “I don’t got a license, I’m suspended.” While speaking
to [Appellant], Deputy Beall could smell an odor of marijuana
coming from the passenger compartment of the vehicle, as well
as a strong odor of an alcoholic beverage coming from
[Appellant].” Deputy Beall also noted that [Appellant] had
bloodshot eyes and slurred speech.
[Appellant] also stated that he had an outstanding arrest warrant
(CP-01-MD-0003003-2014). Deputy Beall checked [Appellant’s]
information via the dispatcher and it was learned that
[Appellant’s] driver’s license was expired (9-30-1993) and the
warrant was active. Additionally, the registration displayed on
the truck came back to a 2001 Pontiac and was verified as
expired.
Affidavit of Probable Cause, 9/3/15, at 1 (emphasis added).
The affidavit of probable cause indicates that Deputy Beall discovered
the registration sticker belonged to another vehicle after he stopped
Appellant’s vehicle. Thus, as Justice Wecht correctly observed, “nothing in
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the record suggests that Deputy Beall knew—before he stopped [Appellant]—
that the registration belonged to another vehicle.” Copenhaver, 229 A.3d at
249 (J. Wecht, concurring and dissenting). Because the expired registration
sticker did not amount to a breach of the peace, and there is no record
evidence of a breach of the peace prior to Deputy Beall initiating the traffic
stop, we conclude that the stop was illegal.4
In sum, with the benefit of the Supreme Court expressly determining
that driving a vehicle with an expired registration does not entail a breach of
the peace, we conclude that the traffic stop in this case was improper. The
trial court thus erred in denying Appellant’s motion to suppress the evidence
derived from the stop. Accordingly, we vacate Appellant’s judgment of
sentence, reverse the order denying the suppression motion, and remand to
the trial court for proceedings consistent with this decision.
Judgment of sentence vacated. Suppression order reversed. Case
remanded. Jurisdiction relinquished.
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4 The Pennsylvania Supreme Court observed, “Both parties acknowledged that
[Deputy Beall] was aware that the truck’s tailgate was down at the time of the
stop.” Copenhaver, 229 A.3d at 260 n.1. However, “[t]hat factor . . . does
not give rise to a Vehicle Code violation[.]” Id.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/02/2020
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