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                               2019 PA Super 1

 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: CP-67-CR-0000454-2016


BEFORE: BENDER, P.J.E., PANELLA, SHOGAN, LAZARUS, OLSON, STABILE,
        DUBOW, KUNSELMAN, and MURRAY, JJ.

OPINION BY STABILE, J.:                     FILED: JANUARY 3, 2019

        The Commonwealth appeals from the May 6, 2016 order granting the

motion of Appellee, Travelle Johnson, to suppress evidence. We reverse and

remand.

        On November 5, 2015, Pennsylvania State Police Trooper Jason Kaczor

followed Appellee’s vehicle for a span of five miles on Interstate 83 in York

County. Trooper Kaczor stopped Appellee because he believed he observed

Appellee’s vehicle cross the fog line multiple times. Dash cam video from

Trooper Kaczor’s police cruiser failed to confirm that Appellee crossed the fog

line.   Additionally, Trooper Kaczor used his vehicle’s speedometer to clock

Appellee at 70 miles per hour in a 55-mile-per-hour zone over a span of four

miles, in violation of 75 Pa.C.S.A. § 3362(a)(2).
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       Appellee’s vehicle contained a quantity marijuana, including a partially

burned cigar and several unburned cigars.              The Commonwealth charged

Appellee with, among other things, possession of a small amount of marijuana

for personal use, possession of drug paraphernalia, and driving under the

influence of a controlled substance.1 After the trial court granted Appellee’s

motion to suppress the drugs and paraphernalia because of an unlawful

vehicle stop, the Commonwealth filed a timely appeal.2 A three-judge panel

of this court affirmed the order on August 2, 2017. Subsequently, we granted

reargument      en   banc     and    withdrew    the   prior   memorandum.    The

Commonwealth presents the following questions:

       1. Did the lower court err in granting [Appellee’s] motion to
          suppress when the trooper had probable cause to effectuate a
          traffic stop where uncontradicted evidence showed that the
          trooper clocked [Appellee] driving at a rate of speed of 70 miles
          per hour in a 55 mile per hour zone and the trial court credited
          this evidence?

       2. Did sufficient probable cause exist to arrest [Appellee] for DUI
          where the trooper smelled burnt marijuana emanating from
          [Appellee’s] car, [Appellee] was the sole occupant of the
          vehicle, and [Appellee] displayed other classic indicia of
          impairment?

Commonwealth’s Brief at 4.


____________________________________________


1   35 P.S. § 780-113(a)(31)(i) and (32), 75 Pa.C.S.A. § 3802(d)(1)(i).

2  The Rules of Appellate Procedure permit the Commonwealth to take an
interlocutory appeal as of right when the Commonwealth certifies that the
order will “terminate or substantially handicap the prosecution.” Pa.R.A.P.
311(d)


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       On review from an order suppressing evidence, we “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.”      Commonwealth v. Miller, 56 A.3d 1276, 1278-79 (Pa.

Super 2012), appeal denied, 70 A.3d 810 (Pa. 2013). As we already noted

uncontradicted evidence indicates that Trooper Kaczor observed Appellee’s

vehicle travelling 70 miles per hour in a 55 mile-per-hour zone.        Trooper

Kaczor therefore had probable cause to stop Appellee for speeding.3

       Trooper Kaczor testified that he stopped Appellee for crossing the fog

line, not for speeding. The trial court found the stop to be unlawful because:

(1) Trooper Kaczor testified that he stopped Appellee for swerving, (2) the

officer’s account of the swerving was not credible, and 3) the fact the officer

did not activate his lights to initiate the stop led the trial court to conclude

that speeding was not the legal basis for the stop. Trial Court Opinion, 5/6/16,

at 4-5.    For the reasons that follow, we conclude the trial court erred in




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3 An officer needs probable cause in order to stop a vehicle for speeding. See
Commonwealth v. Salter, 121 A.3d 987, 993 (Pa. Super. 2015) (“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[.]”). Probable cause exists
“when the facts and circumstances within the police officer’s knowledge and
of which the officer has reasonably trustworthy information are sufficient in
themselves to warrant a person of reasonable caution in the belief that an
offense has been committed.” Id. at 996–97.


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deciding the suppression motion based on what it perceived to be Trooper

Kaczor’s subjective reason for effecting the vehicle stop.

      The proper analysis, when considering whether a police officer’s actions

violated the Fourth Amendment to the United States Constitution, is an

objective one. In Brigham City Utah v. Stuart, 547 U.S. 398 (2006), the

United States Supreme Court held that the Utah Supreme Court erred when

it “considered the officers’ subjective motivations relevant” in an exigent

circumstances case. Id. at 404. “Our cases have repeatedly rejected this

approach. An action is ‘reasonable’ under the Fourth Amendment, regardless

of the individual officer’s state of mind, ‘as long as the circumstances, viewed

objectively, justify the action.”   Id. (quoting Scott v. United States, 436

U.S. 128, 138 (1978)) (emphasis added in Stuart). In Maryland v. Macon,

472 U.S. 463 (1985), a case assessing the validity of a seizure of obscene

magazines, the Supreme Court wrote:          “Whether a Fourth Amendment

violation has occurred ‘turns on objective assessment of the officer’s actions

in light of the facts and circumstances confronting him at the time’ […] and

not on the officer’s actual state of mind at the time the challenged

action was taken.”          Id. at 470-71 (quoting Scott, 436 U.S. at

136)(emphasis added).

      The courts of this Commonwealth have employed the same approach.

In Commonwealth v. Martin, 101 A.3d 706 (Pa. 2014), a warrantless arrest

case, our Supreme Court wrote that “[i]n the Fourth Amendment context, ‘the


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fact that the officer does not have the state of mind which is hypothecated by

the reasons which provide the legal justification for the officer’s action does

not invalidate the action taken as long as the circumstances, viewed

objectively, justify that action.’”   Id. at 721 (quoting Whren v. United

States, 517 U.S. 806, 813 (1996)), cert. denied, 136 S. Ct. 201 (2015).

Further:

             Fourth Amendment reasonableness is predominantly an
      objective inquiry. We ask whether the circumstances, viewed
      objectively, justify the challenged action. If so, that action was
      reasonable whatever the subjective intent motivating the relevant
      officials.   This approach recognizes that the Fourth
      Amendment regulates conduct rather than thoughts….

Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 736 (2011)) (emphasis

added).

      Despite the foregoing, the trial court’s approach was subjective rather

than objective; it focused on thoughts (or perceived thoughts) rather than

conduct:

             Lastly, this Court acknowledges that [Appellee] was
      clocked by Trooper Kaczor traveling 70 miles per hour in a
      55 mile per hour zone. In reviewing the video recording of the
      vehicle stop from Trooper Kaczor’s patrol car, this Court did not
      find evidence that Trooper Kaczor initially communicated to
      [Appellee] that he was being pulled over for exceeding the speed
      limit. The Court observed, in review of the video recording of the
      vehicle stop, that Trooper Kaczor followed [Appellee] for roughly
      five (5) miles as he travelled northbound on Interstate 83. The
      trooper testified that he utilized the speedometer to clock
      [Appellee’s] vehicle at 70 miles per hour. However, the fact that
      Trooper Kaczor did not activate his lights to initiate a stop
      shortly after observing [Appellee] exceed the speed limit,
      leads this Court to conclude that [Appellee] driving his
      vehicle in excess of the maximum lawful speed limit on

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      Interstate 83 was not the legal basis for stopping
      [Appellee’s] vehicle.

Trial Court Opinion, 5/6/16, at 5 (emphasis added).         Appellee’s speeding

violation was a valid basis for Trooper Kaczor’s vehicle stop. In analyzing what

it believed to be Trooper Kaczor’s subjective motivation for the stop, the trial

court committed a clear error of law.

      Furthermore, we note the following exchange from the suppression

hearing:

           THE COURT: Tell me why the trooper did not have probable
      cause to stop [Appellee] for speeding?

             [DEFENSE COUNSEL]: Well, he has to offer some kind of
      testimony to indicate that there was speed, and we’ve got no
      certification in court today to show that he certified it. He doesn’t
      exactly say where three-tenths of a mile started.

                                        […]

            Basically, if he’s going to prove that there is a speeding basis
      here, he at least has to have some kind of certificate saying his
      vehicle was qualified at the time, and he didn’t have any of that,
      and he asked him specific questions about it, he couldn’t offer
      anything.

N.T Suppression Hearing, 5/4/16, at 67.        The prosecutor responded that

certification of the speedometer’s accuracy is necessary for a conviction under

§ 3362(a)(2), but not for probable cause to support a vehicle stop. Id. at 68.

The trial court then took the matter under advisement. Id.

      We observe that the Vehicle Code provides that “[t]he rate of speed of

any vehicle may be timed on any highway by a police officer using a motor

vehicle equipped with a speedometer. In ascertaining the speed of a vehicle


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by the use of a speedometer, the speed shall be timed for a distance of not

less than three-tenths of a mile.” 75 Pa.C.S.A. § 3368(a). Speedometers

must be periodically calibrated for accuracy.      75 Pa.C.S.A. § 3368(d);

Commonwealth v. Kaufman, 849 A.2d 1258, 1259 (Pa. Super. 2004). Proof

of calibration is necessary to obtain a conviction for speeding. Kaufman,

849 A.2d at 1259.      The law does not require calibration to rely on a

speedometer for a vehicle stop. “[C]riterion of admissibility in evidence, to

prove the accused’s guilt, should not be applied to the facts relied upon to

show probable cause.” Commonwealth v. Weaver, 76 A.3d 562, 567 (Pa.

Super. 2013) (citing Brinegar v. United States, 338 U.S. 160, 172 (1949)),

affirmed, 105 A.3d 656 (Pa. 2014).      Thus, the prosecutor was correct in

stating that certification of Trooper Kaczor’s speedometer was unnecessary to

support a stop for speeding.

     In any event, the suppression hearing transcript does not reflect a

finding that Trooper Kaczor’s testimony as to Appellee’s speeding was not

credible. In its opinion, quoted above, the trial court acknowledged the fact

of Appellee’s speeding. Nonetheless, the trial court concluded that Trooper

Kaczor stopped Appellee for swerving, not speeding. In so doing, the court

erroneously disregarded objective evidence of a vehicle code violation.

     Given the uncontradicted evidence that Appellee was traveling 70 miles

per hour in a 55 mile-per-hour zone for roughly four miles (N.T. Suppression

Hearing, 5/4/16, at 6, 12-13), and the trial court’s acknowledgement of that


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evidence, we conclude that Trooper Kaczor had probable cause to stop

Appellee’s vehicle for speeding. The trial court erred in finding that the vehicle

stop was unlawful.

      Next, the Commonwealth argues that Trooper Kaczor had sufficient

probable cause to arrest Appellee for DUI and possession of marijuana. Given

its conclusion that the vehicle stop was unlawful, the trial court had no reason

to issue findings of fact or conclusions of law regarding the legality of the

arrest. See Pa.R.Crim.P. 580(I). We decline to address this issue in the first

instance.

      In summary, we reverse the order granting suppression of evidence and

remand for further proceedings consistent with this opinion.

      Order reversed. Case remanded. Jurisdiction relinquished.

      President Judge Emeritus Bender, Judge Shogan, Judge Olson, and

Judge Murray join the opinion.

      Judge Lazarus files a dissenting opinion in which Judge Panella, Judge

Dubow, and Judge Kunselman join.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/03/2019




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