Com. v. Johnson, T.

J-A03003-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
TRAVELLE JOHNSON
Appellee No. 907 MDA 2016
Appeal from the Order Entered May 6, 2016
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0000454-2016
BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 02, 2017
The Commonwealth of Pennsylvania appeals from the order, entered in
the Court of Common Pleas of York County, granting Travelle Johnson’s
motion to suppress.1 After our review, we affirm.
The trial court set forth the facts of this case as follows:
On November 5, 2015, Trooper Jason Kaczor of the Pennsylvania
State police was traveling northbound on Interstate 83 in York
County when he observed [Johnson] traveling in the same
direction. Trooper Kaczor followed [Johnson] as he traveled
from mile marker 9 to mile marker 14. Trooper Kaczor initiated
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1
See Pa.R.A.P. 311(d) (Commonwealth may appeal as of right from order
that does not end entire case where Commonwealth certifies in notice of
appeal that order will terminate or substantially handicap prosecution). The
Commonwealth included in its notice of appeal a certification that the May 6,
2016 order, granting Johnson’s motion to suppress, “will terminate or
substantially handicap the prosecution of this criminal offense.” Rule 311(d)
Certification, 6/2/16.
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a traffic stop of [Johnson’s] vehicle after witnessing the vehicle
cross over the fog line three (3) times and [drive] on the dotted
line two (2) times. Trooper Kaczor also clocked [Johnson’s]
vehicle traveling 70 miles per hour in a 55 mile[] per hour zone.
The trooper approached [Johnson’s] vehicle and directed him to
roll down his window. As [Johnson] rolled down the driver’s side
window, Trooper Kaczor detected an odor of burnt marijuana.
Subsequently, after checking [Johnson’s] registration and based
upon his observations, the trooper directed [Johnson] out of the
vehicle. Trooper Kaczor asked [Johnson] to submit to the
standard field sobriety testing. After exiting his vehicle,
[Johnson] staggered back towards the vehicle. While
administering the field sobriety test, Trooper Kaczor observed
[Johnson’s] pupils as dilated and the corners of his eyes to be
bloodshot. [Johnson] became uncooperative and refused to
finish the tests. [Johnson] indicated he would be unable to
perform the test due to being cold and asked if he could obtain
sweatpants from inside his vehicle. His request was denied.
[Johnson] tried to pull a cell phone from his pocket after being
told to stop. At that point, [Johnson] was restrained, placed
under arrest, and placed in the back of the patrol unit.
[Johnson’s] vehicle was searched and a brown burnt cigar was
found in an ashtray in the driver side door. Trooper Kaczor
stated the burnt cigar smelled like burnt marijuana. Also, in the
middle console beside the driver seat, a clear plastic bag of
green leafy substance was found in an open Backwoods
container with three (3) cigars inside. While being transported
to York County Central Booking, [Johnson] related that he had
drunk a few beers while bowling that night.
Trial Court Opinion, 5/6/16, at 1-2.
Johnson was charged with possession of a small amount of marijuana
for personal use,2 possession of drug paraphernalia,3 driving under the
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2
35 P.S. 780-113(a)(31)(i).
3
35 P.S. 780-113(a)(32).
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influence (DUI)-controlled substance (schedule I), 2nd offense,4 DUI-
controlled substance (schedule I, II, or III), 2nd offense,5 DUI-alcohol or
controlled substance,6 disorderly conduct,7 driving on roadways laned for
traffic,8 exceeding maximum speed limits9, and DUI-alcohol or controlled
substance-general impairment.10
Johnson filed an omnibus pretrial motion. Following a suppression
hearing, the Honorable Maria Musti Cook entered an order granting
Johnson’s motion to suppress. The Commonwealth appealed, and now
presents three issues for our review:
1. Did the lower court err in granting [Johnson’s] motion to
suppress on the basis of a stop not supported by
reasonable suspicion where [Johnson] failed to raise this
issue in his omnibus pretrial motion with specificity and
particularity as required by Pa.R.Crim.P. 581(D)?
2. Did the lower court err in granting [Johnson’s] motion to
suppress on the basis of a stop not supported by
reasonable suspicion where the trooper had probable
cause to effectuate a traffic stop where the trooper
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4
75 Pa.C.S.A. § 3802(d)(1)(i).
5
75 Pa.C.S.A. § 3802(d)(1)(iii).
6
75 Pa.C.S.A. § 3802(d)(3).
7
18 Pa.C.S.A. § 5503(a)(4).
8
75 Pa.C.S.A. § 3309(1).
9
75 Pa.C.S.A. § 3362(a)(2).
10
75 Pa.C.S.A. § 3802(a)(1).
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observed [Johnson’s] vehicle cross over the roadway lines
multiple times and where [Johnson] was driving at a rate
of speed of 70 miles per hour in a 55 mile[-]per[-]hour
zone?
3. Did sufficient probable cause exist to arrest [Johnson] for
DUI where the trooper smelled burnt marijuana emanating
from [Johnson’s] car, [Johnson] was the sole occupant of
the vehicle, and [Johnson] displayed other classic indicia of
impairment?
Commonwealth’s Brief, at 4.
When reviewing an order granting a defendant’s motion to suppress,
we must determine “whether the record supports the trial court’s factual
findings and whether the legal conclusions drawn therefrom are free from
error.” Commonwealth v. McClease, 750 A.2d 320, 323 (Pa. Super.
2000).
In conducting our review, we may only examine the evidence
introduced by [Johnson] along with any evidence introduced by
the Commonwealth which remains uncontradicted. Our scope of
review over the suppression court’s factual findings is limited in
that if these findings are supported by the record we are bound
by them. Our scope of review over the suppression court’s legal
conclusions, however, is plenary.
Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012)
(citation omitted).
When determining whether reasonable suspicion or
probable cause is required to make a vehicle stop, the
nature of the violation has to be considered. If it is not
necessary to stop the vehicle to establish that a violation
of the Vehicle Code has occurred, an officer must possess
probable cause to stop the vehicle. Where a violation is
suspected, but a stop is necessary to further investigate
whether a violation has occurred, an officer need only
possess reasonable suspicion to make the stop.
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Illustrative of these two standards are stops for speeding
and DUI. If a vehicle is stopped for speeding, the officer
must possess probable cause to stop the vehicle. This is
so because when a vehicle is stopped, nothing more can
be determined as to the speed of the vehicle when it was
observed while traveling upon a highway. On the other
hand, if an officer possesses sufficient knowledge based
upon behavior suggestive of DUI, the officer may stop the
vehicle upon reasonable suspicion of a Vehicle Code
violation, since a stop would provide the officer the needed
opportunity to investigate further if the driver was
operating under the influence of alcohol or a controlled
substance.
Commonwealth v. Salter, 121 A.3d 987, 993 (Pa. Super. 2015) (emphasis
added).
The Commonwealth first argues that Johnson waived his claim
challenging the legality of the traffic stop, asserting that Johnson’s omnibus
pretrial motion did not comply with Pennsylvania Rule of Criminal Procedure
581(D). The Commonwealth contends the suppression court, therefore,
should not have reviewed the suppression claim.
Rule 581(D) provides that a motion for suppression of evidence “shall
state specifically and with particularity the evidence sought to be
suppressed, the grounds for suppression, and the facts and events in
support thereof.” Pa.R.Crim.P. 581(D). Johnson’s omnibus pretrial motion
sets forth the facts leading up to the stop, Johnson’s interaction with Trooper
Kazcor, and the evidence Johnson sought to be suppressed and the grounds
therefor. See Omnibus Pretrial Motion 4/13/16, at ¶¶ 1-15. We find no
merit to the Commonwealth’s position that appellant waived this claim.
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In its next two issues, the Commonwealth argues the suppression
court erred in granting Johnson’s motion to suppress and in finding Trooper
Kaczor had neither reasonable suspicion nor probable cause to stop Johnson.
Our review of the record reveals that Trooper Kaczor stopped Johnson’s
vehicle due to an alleged violation of driving on a roadway laned for traffic
and for exceeding the posted speed limit. Neither of these violations of the
Vehicle Code required further investigation. Accordingly, in order to
effectuate a legal stop of Johnson’s vehicle, Trooper Kaczor needed
probable cause. See Commonwealth v. Busser, 56 A.3d 419 (Pa. Super.
2012); see also Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa.
Super. 2010) (en banc) (where police officer stopped defendant's vehicle
solely based on defendant’s failure to maintain single lane in accordance
with 75 Pa.C.S.A. § 3309, vehicle stop could be constitutionally valid only if
officer could “articulate specific facts possessed by him, at the time of the
questioned stop, which would provide probable cause to believe that the
vehicle or the driver was in violation of some provision of the [Vehicle]
Code.”).
In determining whether Trooper Kaczor had probable cause, courts
look to the totality of the circumstances as viewed through the eyes of a
reasonable police officer guided by experience and training.
Commonwealth v. Wells, 916 A.2d 1192 (Pa. Super. 2007); see also
Commonwealth v. Thompson, 985 A.2d 928 (Pa. 2009) (holding police
officer's experience is relevant factor in determining probable cause).
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Pennsylvania law makes clear, however, that a police officer has probable
cause to stop a motor vehicle if the officer observed a traffic code violation,
even if it is a minor offense. Commonwealth v. Chase, 960 A.2d 108, 113
(Pa. 2008).
At the suppression hearing, Trooper Kaczor testified that he observed
a gray Acura “cross over the lines, the roadway lines, multiple times[.]”
N.T. Suppression Hearing, 5/4/16, at 6. While following Johnson’s car for
about four miles, he “clocked it with [his] patrol unit, which is certified,
going 70 in a 55 mile[] per hour zone.” Id. At that point, he and Trooper
Kabacinski, who was riding with him, decided to initiate a traffic stop. Id.
When questioned on cross-examination, however, Trooper Kaczor
acknowledged that he had nothing to prove that his speedometer was
actually certified. Id. at 11.
Trooper Kaczor could not recall how far Johnson’s wheels went over
the fog line. Id. at 14. He could not recall whether Johnson’s wheels were
straddling the line. Id. at 14. When asked whether Johnson’s wheels were
over the center dotted line or just touching it, Trooper Kaczor stated he
“believe[d] they were slightly over[,]” but could not recall if that was the
case both times. Id.
The court viewed the dash cam video and determined that it did not
bear out the trooper’s testimony. Trial Court Opinion, 5/6/16, at 5. The
court observed that Trooper Kaczor “did not activate his lights to initiate a
stop shortly after observing [Johnson] exceed the speed limit[.]” Id. at 4.
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The court also considered that Trooper Kaczor had recently graduated from
the State Police Academy, and he had been patrolling for approximately
three months prior to stopping Johnson’s vehicle. Trooper Kaczor testified
that this was his first DUI stop that was drug related. Id. at 13.
Our review of the record, the trooper’s equivocal testimony, and the
dash cam video, support the suppression court’s findings. Gutierrez,
supra. In light of these facts, we are constrained to conclude that Trooper
Kaczor did not possess the requisite probable cause to stop Johnson’s
vehicle for a speeding violation under 75 Pa.C.S.A. § 3362(a)(2), or violation
of driving on roadways laned for traffic under 75 Pa.C.S.A. § 3362(a)(2).
The trial court, therefore, properly granted Johnson’s motion to suppress.
Order affirmed
DUBOW, J., joins this Memorandum.
STABILE, J., files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/2/2017
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