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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
____________________________________________


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


____________________________________________


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
____________________________________________


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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