J-A34032-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

STEPHANIE J. SALTER

                            Appellee                  No. 653 MDA 2014


                 Appeal from the Order Entered March 17, 2014
                  In the Court of Common Pleas of York County
                   Criminal Division at No: CP-67-CR-0008129


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                            FILED APRIL 29, 2015

       The Commonwealth appeals from the March 17, 2014 order of the

Court of Common Pleas of York County granting Appellee Stephanie J.

Salter’s motion to suppress evidence obtained following a traffic stop. We

reverse and remand for proceedings consistent with this memorandum.

       In relevant part, the trial court summarized the facts and the

procedural history of the case as follows:

       In the early morning hours of September 21, 2013, Officer Corey
       Sheaffer was on routine patrol when he observed that the
       vehicle ahead of him did not have lights illuminating the license
       plate.[1] To confirm his suspicion that the lights were in fact not
       working, Officer Sheaffer turned off his headlights, which
____________________________________________


1
  “[H]e was approximately 75 feet behind [Appellee]’s vehicle when he
observed the lack of illumination from around the license plate.” Trial Court
Opinion, 6/5/14, at 6.
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        “confirmed” his suspicion. At this point, Officer Sheaffer decided
        to conduct a traffic stop on the vehicle. After the vehicle pulled
        over, Officer Sheaffer approached the vehicle and spoke with the
        driver, who he identified as [Appellee]. [Appellee] provided the
        officer with all necessary documentation, and it was at this point
        that the officer . . . “noticed an odor of intoxicating beverage
        emanating from inside the vehicle.” Along with the smell, Officer
        Sheaffer observed [Appellee]’s eyes were glassy and bloodshot,
        which prompted him to ask [Appellee] how much she had had to
        drink. [Appellee] admitted that she had two glasses of wine. . .
        . At this point, the officer asked [Appellee] to submit to four
        field tests[.2] . . . After [Appellee] performed all four tests,
        Officer Sheaffer placed [Appellee] under arrest for driving under
        the influence of alcohol.

Trial Court Opinion, 6/5/14, at 2-3(citations to the record omitted).

        After the magisterial district court bound over all charges,3 the trial

court conducted a hearing on Appellee’s motion to suppress evidence.

Following the hearing, the trial court found the officer had reasonable

suspicion to conduct a traffic stop,4 but it suppressed the evidence of the

____________________________________________


2
 The tests included the Horizontal Gaze Nystagmus (HGN), walk and turn,
one-leg stand, and the Rhomberg balance tests.
3
   75 Pa.C.S.A. § 3802(a)(1) (DUI - general impairment), and
75 Pa.C.S.A. § 3802(c) (DUI - highest rate of alcohol, second offense).
4
    At the conclusion of the hearing, the trial court noted:

        We conclude that the officer did have reasonable suspicion given
        the lack of apparent illumination, and the fact he did turn off his
        lights to try to double check, the officer did have reasonable
        suspicion to stop the vehicle to investigate further at that point
        whether or not the license plate—the registration light was out.

        Given that, obviously once the stop was made, he had the right
        to approach the driver, ask the questions he did, so for [sic] that
(Footnote Continued Next Page)


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Blood Alcohol Content (BAC) test because the officer did not have probable

cause to arrest Appellee for driving under the influence (DUI).            The

Commonwealth timely appealed.5

      In its Rule 1925(a) opinion, the trial court, in addition to reiterating

the propriety of the suppression of the BAC test result, also added, for the

first time, the officer lacked probable cause to conduct a traffic stop for the

violation of failing to have a license plate illuminated.

      On appeal, the Commonwealth raises the following issues:

      1. Did the suppression court err in reversing its earlier order in
         its 1925(a) opinion?

      2. Did the suppression court err in granting [Appellee]’s omnibus
         pre-trial motion by finding that the initial stop was not
         supported by probable cause?

Appellant’s Supplemental Brief, at 4.6


                       _______________________
(Footnote Continued)

      basis, we will not conclude that the officer lacked legal cause to
      stop the vehicle to investigate the license plate issue.

N.T. Suppression, 3/17/14, at 60-61.
5
   In its Statement of Jurisdiction, the Commonwealth states the order
appealed here is final pursuant to 42 Pa.C.S.A. § 742. It is in fact an
interlocutory order from which the Commonwealth has an appeal as of right.
See Pa.R.A.P. 311(d). Despite the error, in its Notice of Appeal, the
Commonwealth did include a Rule 311(d) certification.     This appeal is
therefore properly before us.
6
  In its original brief, the Commonwealth also challenged the trial court’s
suppression of the BAC result, which we will address following the discussion
of the issues raised in the supplemental brief.



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      We do not need to address the first issue because we conclude the

trial court erred in finding the officer did not have probable cause to stop

Appellee.

      In its Rule 1925(a) opinion, the trial court, in concluding that the

officer did not have probable cause to conduct a traffic stop, reasoned as

follows:

      In the present case, Officer Sheaffer testified that while he was
      behind [Appellee]’s vehicle he noticed that her license plate was
      not illuminated. To confirm that the lights were in fact not
      working, Officer Sheaffer turned off his headlights, which he
      testified, did “confirm” his suspicion.        However on cross-
      examination, Officer Sheaffer testified that he was approximately
      75 feet behind [Appellee] when he decided to pull her over for
      failing to have her license plate illuminated.         This type of
      violation requires no further investigation after the stop.

      Section 4303 of the Pennsylvania Motor Vehicle Code requires
      that license plate lamps be operational “in conformance with []
      regulations of the [Department of Transportation].”            75
      Pa.C.S.A. § 4303(b).         The applicable regulation of the
      Department requires that if a vehicle is equipped with a license
      plate lamp, it “shall emit white light and make the registration
      plate visible from a distance of 50 feet to the rear of the
      vehicle.” 65 Pa. Code § 175.66(k). . . .There is no requirement
      that the lamp itself be visible from a distance of 50 feet. As
      stated above, Officer Sheaffer estimated that he was 75 feet
      behind [Appellee] when he initiated his traffic stop. There is no
      testimony in the record that Officer Sheaffer verified that the
      license plate did not illuminate the license plate closer than 75
      feet.

      Accordingly, we conclude that the record does not contain
      testimony which would support a finding of probable cause to
      stop [Appellee]’s vehicle for the violation of failing to have a
      license plate illuminated.




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Trial Court Opinion, 6/5/14, at 5-6 (citation to Notes of Testimony omitted)

(emphasis in original). We disagree.7

       Our standard of and scope of review in suppression matters is well-

settled:

       When reviewing the propriety of a suppression order, an
       appellate court is required to determine whether the record
       supports the suppression court’s factual findings and whether
       the inferences and legal conclusions drawn by the suppression
       court from those findings are appropriate. Because Appellee
       prevailed in the suppression court, we may consider only the
       evidence of the defense and so much of the evidence for the
       Commonwealth as remains uncontradicted when read in the
       context of the record as a whole. Where the record supports the
       factual findings of the suppression court, we are bound by those
       facts and may reverse only if the legal conclusions drawn
       therefrom are in error. However, where the appeal of the
       determination of the suppression court turns on allegations of
       legal error, “[t]he suppression court’s conclusions of law . . . are
       not binding on an appellate court, whose duty it is to determine
       if the suppression court properly applies the law to the facts.”
       As a result, the conclusions of law of the suppression court are
       subject to plenary review.

Commonwealth v. Dean, 940 A.2d 514, 516 (Pa. Super. 2008) (citations

omitted).

       In relevant part, Section 4303 of the Vehicle Code states that “[e]very

vehicle operated on a highway shall be equipped with a rear lighting system

including, but not limited to, rear lamps, rear reflectors, stop lamps and a

license plate light, in conformance with regulations of the department.” 75
____________________________________________


7
  We do not need to decide whether this is an investigatable violation
because the officer here had probable cause to believe Appellee had violated
the Vehicle Code.



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Pa.C.S.A. § 4303(b). Section 4303(b) subjects the plate light to regulatory

provisions of section 175.80(a)(9)(i), which states that a vehicle is not in

compliance with the Vehicle Code if “[a]n exterior bulb or sealed beam, if

originally    equipped      or     installed,    fails    to    light    properly,”

67 Pa. Code § 175.80(a)(9)(i) (emphasis added), and Section 175.66(k),

which requires that “the registration plate lamp shall emit white light and

make the registration plate visible from [a] distance of 50 feet to the rear of

the vehicle.” Id. § 175.66(k)

      The license plate lamp was out, which means the plate was not

illuminated, which in turn means that the registration plate could not have

been visible from a distance of 50 feet to the rear of the vehicle at 3:00 a.m.

This is a violation of the Vehicle Code sufficient to justify a traffic stop.

      It is of no moment the officer was 75 feet away from the vehicle when

he determined the plate was not illuminated, or that Officer Sheaffer did not

verify the license plate light did not illuminate the license closer than 75

feet. If the license plate was not illuminated, this fact alone gave the officer

sufficient grounds to stop the vehicle, regardless of where the officer was

when he first witnessed the violation.

      It is also worth mentioning that “probable cause does not require

certainty, but rather exists when criminality is one reasonable inference, not

necessarily even the most likely inference.”             See Commonwealth v.

Spieler, 887 A.2d 1271, 1275 (Pa. Super. 2005) (citation omitted).              Yet,


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J-A34032-14


while the officer originally merely suspected the traffic violation at issue

here, he was later able to confirm the violation by driving right behind

Appellee’s vehicle and turning his headlights off.           Once he turned his

headlights off, the officer indeed confirmed the plate was not illuminated.

Again, this is sufficient to trigger a legal traffic stop.

        We next address whether the trial court erred in suppressing the BAC

result.8 The trial court found Officer Sheaffer did not have probable cause to

arrest Appellee for several reasons, which we have addressed below. The

thrust of the trial court’s decision, however, can be summarized in the

following statement: “The totality of circumstances including the officer’s

observations of lack of impairment, and the lack of meaningful field sobriety

test results, compelled us to conclude that probable cause was lacking to

arrest [Appellee] and request a chemical test.” Trial Court Opinion, 6/5/14,

at 11. We disagree.

        The trial court found the officer did not have probable cause to arrest

Appellee because he did not observe erratic driving and slurred speech.

These circumstances, along with the “irrelevan[ce]” of the field sobriety tests

for purposes of establishing probable cause,9 led the trial court to conclude


____________________________________________


8
    The accuracy of the BAC test result is not at issue.
9
    We will address the trial court’s position on the field sobriety tests below.




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J-A34032-14


that the officer did not observe signs of intoxication to warrant Appellee’s

arrest.

        In its opinion, the trial court places significant weight on erratic driving

in determining probable cause to arrest for DUI.             Trial Court Opinion,

6/5/14, at 10.        Erratic driving is not a super-factor, much less one

determinative of DUI.          “Evidence of erratic driving is not a necessary

precursor to a finding of guilt for driving under influence (DUI)-general

impairment[.]” Commonwealth v. Mobley, 14 A.3d 887, 890 (Pa. Super.

2011).     Similarly, slurred speech, alone, may not determine impairment.

See Commonwealth v. Segida, 985 A.2d 871 (Pa. 2009).10 The applicable

standard for determining probable cause calls for a totality of circumstances

analysis, not a mechanical consideration of specific factors.           See, e.g.,

Commonwealth v. Dommel, 885 A.2d 998, 1002 (Pa. Super. 2005).

        In the absence of erratic driving and slurred speech, the trial court

believed that bloodshot/glassy eyes, odor of alcohol emanating from the

____________________________________________


10
     In Segida, the Supreme Court noted:

        The types of evidence that the Commonwealth may proffer in a
        subsection 3802(a)(1) prosecution include but are not limited
        to, the following: the offender’s actions and behavior, including
        manner of driving and ability to pass field sobriety tests;
        demeanor, including toward the investigating officer; physical
        appearance, particularly bloodshot eyes and other physical signs
        of intoxication; odor of alcohol, and slurred speech.

Id. at 879 (emphasis added).



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J-A34032-14


vehicle, Appellee’s admission that she had “two” glasses of wine, and poor

performance on the sobriety tests were not reliable clues of impairment and,

therefore, insufficient to warrant Appellee’s arrest under suspicion of DUI.

We disagree.     Probable cause “does not involve certainties, but rather the

factual and practical considerations of everyday life on which reasonable and

prudent [persons] act.” Commonwealth v. Angel, 946 A.2d 115, 118 (Pa.

Super. 2008) (citation omitted). In light of the circumstances observed, and

the officer’s experience and training relating to DUI traffic stops, we

conclude the officer had probable cause to arrest Appellee for DUI.

      We now address the second part of the trial court’s conclusion: the

irrelevance of the field sobriety tests for purposes of establishing probable

cause.   The trial court discounted the officer’s observations of Appellee’s

performance of the field sobriety tests because the officer could not

articulate, to the trial court’s satisfaction, the significance of Appellee’s

deviation from the field sobriety standards. The trial court also doubted the

reliability of these tests, and the unstandardized way they are administered

by police officers.

      A review of the record reveals the officer did explain the tests, their

administration and purposes, and how Appellee performed.         The officer,

however, was not able to articulate, according to the trial court, adequate

reasons for their reliability.




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      The trial court questioned the reliability of standardized field sobriety

tests for purposes of establishing probable cause to arrest for DUI because

they fail to show “correlation to what they demonstrate with regard to

alcohol (or drug) impaired driving.” Trial Court Opinion, 6/5/14, at 11; see

also id. at 8, 10.

      The trial court seems to ignore that our caselaw recognizes that field

sobriety tests, such as those administered here,

      are grounded in theories which link an individual’s lack of
      coordination and loss of concentration, with intoxication. This
      inter-relationship is also recognized in what is generally accepted
      as the common indicia of intoxication, within the understanding
      and experience of ordinary people.           In fact, non-expert
      testimony is admissible to prove intoxication where such
      testimony is based upon the witness’ observation of the
      defendant’s acts and speech and where the witness can opine as
      to whether the defendant was drunk.

Commonwealth v. Ragan, 652 A.2d 925, 928 (Pa. Super. 1995).

      The trial court commented on the Commonwealth’s failure to produce

“testimony regarding the percentage of actually impaired drivers who have

bloodshot/glassy eyes, or what percentage of actually impaired driver fail

the field sobriety tests generally.” Trial Court Opinion, 6/5/14.     The trial

court misses the point on what the Commonwealth had to prove at that

procedural juncture (i.e., suppression hearing) and the burden of proof

required at that proceeding.

      First, as noted above, these tests are generally accepted methods for

ascertaining alcohol or drug impairment at the time of a traffic stop. See


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Weaver, supra; Ragan, supra. Second, the trial court fails to account for

the Commonwealth’s burden of proof at a suppression hearing.             At a

suppression hearing, “the burden is on the Commonwealth to establish by a

preponderance of the evidence that the challenged evidence is admissible.”

Commonwealth v. Simmons, 17 A.3d 399, 402 (Pa. Super. 2011). Third,

and equally important, the trial court also seems to ignore that

      [t]here is a clear distinction between what is required for
      purposes of establishing probable cause for a warrantless arrest
      or search and what is required for proving guilt. The arresting
      officer need not have had in hand evidence which would suffice
      to convict, as it is only the probability, and not a prima facie
      showing of criminal activity that is the standard for justifying
      arrest. The probable cause necessary to support an arrest . . .
      cannot demand the same strictness of proof as the accused’s
      guilt upon a trial[.]

Commonwealth v. Anderson, 302 A.2d 504, (Pa. Super. 1973). See also

Brinegar v. United States, 338 U.S. 160, 174-76 (1949).

      The trial court also noted these field sobriety tests are not in fact

standardized in their administration, and the decision to arrest ultimately

depends on the officer’s subjective observations, which, in the trial court’s

view, is improper. Trial Court Opinion, 6/5/14, at 11.

      The field sobriety tests are not meant to ascertain with certainty a

driver’s BAC, but only to provide the officer with information useful to

determine whether the driver is impaired.        See Ragan, supra.        The

determination whether to arrest for DUI must be made by the officer in light




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J-A34032-14


of the circumstances surrounding the traffic stop. Probable cause to arrest

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 by the person to be arrested. Probable
               cause justifying a warrantless arrest is determined
               by the totality of the circumstances.

         Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super.
         2008) (internal citations and quotation marks omitted).

               It is the facts and circumstances within the
               personal knowledge of the police officer that
               frames the determination of the existence of
               probable cause. See, e.g., Commonwealth v.
               Lawson, 454 Pa. 23, 27, 309 A.2d 391, 394 (1973)
               (“Probable   cause  exists   if  the   facts  and
               circumstances known to the officer warrant a
               prudent man in believing that an offense has been
               committed.”).

         Commonwealth v. Galendez, 27 A.3d 1042, 1046 (Pa. Super.
         2011) (en banc) (emphasis in original).

Commonwealth v. Weaver, 76 A.3d 562, 565 (Pa. Super. 2013), aff’d,

105 A.3d 656 (Pa. 2014).

         To the extent the trial court suggests the officer did not have probable

cause to arrest Appellee because Appellee did not fail the field tests, it is

worth noting that failing these tests is not a requirement for a determination

of probable cause. Commonwealth v. Slonaker, 795 A.2d 397, 402 (Pa.




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J-A34032-14


Super. 2002) (“[T]he law is well settled that reasonable grounds to arrest

does not require the failure of field sobriety tests.”).11         Nonetheless,

performing poorly may be sufficient for a finding of impairment.            See

Commonwealth v Downing, 739 A.2d 169, 173 (Pa. Super. 1999)

(“Appellant demonstrated his impairment by doing poorly on three field

sobriety tests.”).

       The trial court also was bothered by the fact the officer did not ask

Appellee whether she had any medical condition that could affect her ability

to perform the HGN test.         While the trial court does not elaborate on the

legal relevance of this fact, it seems to imply that the officer was under a

duty to do so. The trial court, however, provided no authority for any such

duty. Additionally, there is no indication in the record that Appellee notified

the officer of any medical condition that could have precluded or limited her

ability to perform the field sobriety tests, nor is there any mention of a

circumstance that could have alerted the officer of a medical condition
____________________________________________


11
   Regarding the HGN test, the officer testified that he observed lack of
smooth pursuit, distinct and sustained nystagmus at maximum deviation,
and the onset of nystagmus prior to 45 degrees. N.T. Suppression, 3/17/14,
at 15. Regarding the walk and turn test, the officer noted that while he was
giving Appellee instructions on how to perform it, Appellee swayed side-to-
side. During the performance of this test, Appellee lifted her right arm
several times and did not touch her heel to her toe on every step, as
requested. See Trial Court Opinion, 6/5/14, at 2-3. Regarding the one-leg
stand test, the officer testified that Appellee again swayed, and raised her
right arm, despite the fact she was told to keep her hands on her sides.
Appellee substantially completed the fourth test (the Rhomberg balance
test). N.T. Suppression, 3/17/14, at 20.



                                          - 13 -
J-A34032-14


affecting Appellee.      In fact, Appellee did not argue she had a medical

condition preventing her to perform the tests. Appellee argued, and the trial

court apparently agreed, that her poor performance on the HGN test could

have been caused by reasons other than intoxication.            Similarly, the trial

court emphasized that “[a]s admitted by the District Attorney and the

officer, bloodshot/glassy eyes can be caused by numerous other things that

do not include intoxication.”     Trial Court Opinion, 6/5/14, at 10.       Even if

Appellee’s   inability   to   perform   could    have   other   explanations,   this

circumstance, alone, does not make the officer’s decision to arrest on

suspicion of DUI unreasonable.

     Probable cause exists when criminality is one reasonable
     inference; it need not be the only, or even the most likely,
     inference. See, e.g., Commonwealth v. Kendrick, 340 Pa.
     Super. 563, 571, 490 A.2d 923 (1985) (probable cause “does
     not demand any showing that ... a belief [of criminal activity] be
     correct or more likely true than false”); Commonwealth v.
     Moss, 518 Pa. 337, 344, 543 A.2d 514 (1988) (in assessing
     sufficiency of probable cause, the fact that other inferences could
     be drawn from circumstances does not demonstrate that
     inference that was drawn by police was unreasonable).

Commonwealth v. Dennis, 612 A.2d 1014, 1017 (Pa. Super. 1992).

     In light of the foregoing, we conclude the officer had probable cause to

conduct a traffic stop because the Appellee’s license plate was not

illuminated and, subsequently, for arresting Appellee under suspicion of DUI.

Accordingly, we reverse the order of the trial court and remand for

proceedings consistent with this memorandum.




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J-A34032-14



     Order reversed. Remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/29/2015




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