J-A07002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellant             :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 DEAN EUGENE SEAL                         :   No. 1618 MDA 2017

            Appeal from the Order Entered September 18, 2017
               In the Court of Common Pleas of Adams County
            Criminal Division at No(s): CP-01-CR-0001542-2016


BEFORE:    PANELLA, J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY PANELLA, J.                         FILED OCTOBER 11, 2018

      The Commonwealth appeals from the order of the trial court granting

the motion filed by Appellee, Dean Eugene Seal, seeking to suppress all

evidence obtained as a result of his vehicle stop. We reverse.

      The history of this case is as follows. On February 6, 2017, a Criminal

Information was filed against Seal charging him with multiple counts of Driving

Under Influence of Alcohol or Controlled Substance, 75 Pa.C.S.A. §§

3802(a)(1), (d)(1)(i) & (iii), (d)(2) & (d)(3), Possession of a Small Amount of

Marijuana, 35 P.S. § 780-113(a)(31)(i), Possession of Drug Paraphernalia, 35

P.S. § 780-113(a)(32), and two summary offenses. On May 3, 2017, Seal

filed a motion to suppress the evidence obtained during the stop of his vehicle

on October 23, 2016, alleging that the stop “was illegal and in violation of the

Fourth and Fourteenth Amendments of the United States Constitution and


____________________________________
* Former Justice specially assigned to the Superior Court.
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Article I, Section 8 of the Pennsylvania Constitution since Defendant had not

in fact committed traffic violations.” Motion to Suppress, 5-4-17 at 1-2. Seal

further contended that the observations of the interior of his vehicle and the

subsequent blood test results were all “fruits of a wrongful stop . . . .” Id.

      A hearing on the suppression motion was held on August 24, 2017.

Police Officer Shannon Hilliard, of the Gettysburg Borough Police Department,

was the only witness. Officer Hilliard testified that on October 23, 2016, at

approximately 1:30 AM, he was on patrol in Lincoln Square when he noticed

a vehicle travelling southbound onto Baltimore Street. Hearing, 8-24-17 at 4-

5. The vehicle began to drift to the left, and eventually the driver’s side tires

were both over the double yellow lines for the duration of the block from East

Middle Street up to High Street. It was a full block, approximately 500 to 600

feet. Id. at 5, 8-9. The tires were at least one foot crossing over the double

lines. Id. at 8. There were no impediments on the road which would have

required the car to cross the double lines. Id. The car did not attempt to make

a left-hand turn but rather continued southbound. Id. Officer Hilliard stopped

the vehicle based upon the crossing of the double yellow lines. Id. at 7. In

time, Seal submitted to blood tests.

      In an opinion and order dated September 18, 2017, the suppression

court granted Seal's motion to suppress. The Commonwealth initiated this

appeal on October 16, 2017, noting that under Pa.R.A.P. 311(d), the

suppression of the blood test results terminates or substantially handicaps the


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prosecution. Both the Commonwealth and the trial court have complied with

Pa.R.A.P.1925.

      The Commonwealth presents the following issue for our review:

      Did the Honorable Suppression Court err in ruling that the
      arresting officer lacked probable cause to effectuate a traffic stop
      of Appellee’s vehicle pursuant to 75 Pa.C.S.§ 3301, which resulted
      in the suppression of evidence obtained following the traffic stop?

Commonwealth's Brief at 6.

      We have stated the following with regard to our standard and scope of

review in an order granting a defendant's motion to suppress evidence:

      [W]e are bound by that court's factual findings to the extent that
      they are supported by the record, and we consider only the
      evidence offered by the defendant, as well as any portion of the
      Commonwealth's evidence which remains uncontradicted, when
      read in the context of the entire record. Our review of the legal
      conclusions which have been drawn from such evidence, however,
      is de novo, and, consequently, we are not bound by the legal
      conclusions of the lower courts.

Commonwealth         v.   Busser, 56   A.3d   419,   421   (Pa.   Super.   2012)

(quoting Commonwealth v. Wallace, 42 A.3d 1040, 1048 (Pa. 2012)).

Because there are no variances in the factual record, created entirely from the

testimony of Officer Hilliard, we will confine our analysis to the trial court's

legal conclusions.

      The Motor Vehicle Code provides the authorization for a police officer

to stop a motor vehicle:

      Whenever a police officer ... has reasonable suspicion that a
      violation of this title is occurring or has occurred, he may stop a
      vehicle, upon request or signal, for the purpose of checking the
      vehicle's registration, proof of financial responsibility, vehicle

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        identification number or engine number or the driver's license, or
        to secure such other information as the officer may reasonably
        believe to be necessary to enforce the provisions of this title.

75 Pa.C.S. § 6308(b). However, this Court has explained the following,

consistent with our Supreme Court’s clarification of constitutional principles

under the Fourth Amendment and the Pennsylvania Constitution:

        Traffic stops based on a reasonable suspicion: either of criminal
        activity or a violation of the Motor Vehicle Code under the
        authority of Section 6308(b) must serve a stated investigatory
        purpose. [Commonwealth v. Chase], 960 A.2d at 116. In
        effect, the language of Section 6308(b)—“to secure such other
        information as the officer may reasonably believe to be necessary
        to enforce the provisions of this title”—is conceptually equivalent
        with the underlying purpose of a Terry stop. Id. (quoting 75
        Pa.C.S.A. § 6308(b)).

        Mere reasonable suspicion will not justify a vehicle stop when the
        driver's detention cannot serve an investigatory purpose relevant
        to the suspected violation. In such an instance, “it is [incumbent]
        upon the officer to 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 Code.” [Commonwealth v. Gleason], 785
        A.2d at 989 (citation omitted). See also Chase, 960 A.2d at 116
        (reaffirming Gleason's probable    cause     standard     for  non-
        investigative detentions of suspected Vehicle Code violations).

Commonwealth v. Feczko, 10 A.3d 1285, 1290–91 (Pa. Super. 2010)

(emphasis in original). Therefore, there are two types of traffic stops, with

different standards of review applicable to each.       In Commonwealth v.

Salter, 121 A.3d 987 (Pa. Super. 2015), we addressed the two kinds of traffic

stops under Pennsylvania law and the different constitutional burdens for

each:




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      Accordingly, when considering whether reasonable suspicion or
      probable cause is required constitutionally 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. 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.

Salter, 121 A.3d at 993. In this case, the Commonwealth does not dispute

that the stop served no investigatory purpose, and therefore the stop is valid

only if Officer Hilliard had probable cause.

      With these guiding principles and examples in mind, we now turn to the

examination of the Vehicle Code violation subject of this appeal. Officer

Hilliard testified that the basis for the traffic stop was because Seal had drifted

left of the double yellow line for one entire block. The vehicle’s driver’s side

tires were both approximately one foot over the double yellow line for that

distance. These observations gave rise to a suspected violation of the Motor

Vehicle Code provision requiring that vehicles drive on the right side of the

roadway. See 75 Pa.C.S.A. § 3301(a).           None of the exceptions listed in

subsection (a) were present that night.


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      Based on the record of the suppression hearing, we conclude Officer

Hilliard was able to articulate specific facts possessed by him, at the time of

the questioned stop, which provided probable cause to believe that Seal was

in violation of Section 3301(a).     Officer Hilliard testified to his personal

observation of Seal’s vehicle, both front and back tires, veering across the

centerline. This testimony was uncontradicted. Probable cause is made out

when the facts and circumstances which are within the knowledge of the

officer at the relevant time, and of which he has reasonably trustworthy

information, are sufficient to warrant a man of reasonable caution in the belief

that the suspect has committed or is committing a crime. “The question we

ask is not whether the officer's belief was correct or more likely true than

false. Rather, we require only a probability, and not a prima facie showing, of

criminal activity. In determining whether probable cause exists, we apply a

totality of the circumstances test.” Commonwealth v. Thompson, 985 A.2d

928, 931 (Pa. 2009) (internal quotation marks and citations omitted).

      Seal argues that a “slight deviation over the double yellow line” is

momentary and minor, and is therefore insufficient to create the probable

cause necessary to support his vehicle stop. Seal’s Brief at 3. As stated above,

where a vehicle stop has no investigatory purpose, the police officer must

have probable cause to support it. Feczko, 10 A.3d at 1291. Here, Officer

Hilliard stopped Seal for driving over the centerline, in violation of § 3301. He

did not stop Seal for suspected DUI.


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      Additionally,   Seal    contends,     based     on Commonwealth          v.

Gleason, 785 A.2d 983 (Pa. 2001), that Officer Hilliard did not articulate facts

sufficient to create probable cause because our Court has consistently applied

a “momentary and minor” analysis to these types of cases. However, the

Supreme Court in Gleason had before it an alleged violation of 75 Pa.C.S.A.

§ 3309(1), not section 3301(a). In Gleason, a police officer observed the

defendant's vehicle cross six to eight inches over the fog line two times over

the span of a quarter mile. Id. at 985. The officer stopped the defendant's

vehicle for failing to drive within a single lane, in violation of section 3309(1)

of the Vehicle Code. That section provides that “(a) vehicle shall be driven as

nearly as practicable entirely within a single lane and shall not be moved

from the lane until the driver has first ascertained that the movement can be

made safely.” 75 Pa.C.S.A. § 3309(1) (emphasis added). Subsequent to the

vehicle stop, and similar to the instant case, the police officer observed that

the defendant was intoxicated, and that he was in possession of drugs and

drug paraphernalia. Gleason, 785 A.2d at 985. The defendant argued that

the stop was unlawful and that the trial court erred in refusing to suppress the

evidence the police officer gathered. Id. The Gleason Court concluded that

the vehicle stop was not supported by probable cause because no evidence

established that the defendant's driving “created a safety hazard.” Id. at 989.

The Gleason Court had before it the former version of 75 Pa.C.S.A. § 6308(b)

which required a law enforcement officer to have “articulable and reasonable


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grounds to suspect a violation of the (Vehicle Code)” had occurred to

effectuate a vehicle stop. See Commonwealth v. Holmes, 14 A.3d 89, 94

n. 12 (Pa. 2011).

       Seal and the trial court also rely on Commonwealth v. Garcia, 859

A.2d   820   (Pa.Super.2004).    In Garcia, a   police   officer   observed   the

defendant's vehicle momentarily drive over the right berm line two times over

the span of two blocks. Id. at 821–22. On both occasions, the defendant's car

veered slightly right in response to an oncoming vehicle traveling in the

opposite direction. Id. In executing the vehicle stop, the police officer noticed

that the defendant had glassy eyes and smelled of alcohol. Id. at 822. Again,

the defendant was charged with driving under the influence following the

stop. On appeal, the defendant argued that the police officer lacked probable

cause in support of the vehicle stop. Id. This Court held that the trial court

erred in denying the defendant's motion to suppress, as his violations were

only “momentary and minor.” Id. at 823.

       Based upon Gleason and Garcia, Seal makes similar contentions that

his Vehicle Code violation was momentary and minor and thus, cannot support

a finding of probable cause to support the stop. We disagree based upon the

sound analysis explained in Commonwealth v. Enick, 70 A.3d 843 (Pa.

Super. 2013):

       First, . . . § 3309(1) of the Vehicle Code requires motorists to
       maintain a single lane “as nearly as practicable.” 75 Pa.C.S.A. §
       3309(1). Thus, the statutory language does not foreclose minor
       deviations. In comparison, § 3301 provides that “a vehicle shall

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      be driven on the right half of the roadway” subject to
      exceptions that are not implicated in this case. 75 Pa.C.S.A. §
      3301(a). The record plainly indicates that Enick violated § 3301 in
      this case. Since the language of § 3301 does not include language
      allowing for unspecified deviations from the rule, we need not
      analyze whether she complied with § 3301 “as nearly as
      practicable.” See Commonwealth v. Chernosky, 874 A.2d 123,
      128 (Pa. Super. 2005) (en banc ) (noting that the defendant
      violated § 3301(a) by crossing the double yellow line where none
      of the statutory exceptions applied).

Enick, 70 A.3d at 847 (footnote omitted).

      Furthermore, the record before us does not evidence a minor violation

of § 3301. Both tires on the driver’s side of Seal’s vehicle crossed the double

lines to the left, for an entire block, all within the view of Officer Hilliard.

      Based on the foregoing reasons, we find that the traffic stop of Seal’s

Appellant's vehicle was legal. Accordingly, we conclude that the trial court

erred when it granted the Motion to Suppress.

      Order of September 18, 2017 reversed. Case remanded for proceedings

consistent with this Memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/2018




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