J-S81014-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT
              Appellant                     :       OF PENNSYLVANIA
                                            :
                  V.                        :
                                            :
                                            :
    PEDRO MANUEL RODRIGUEZ LUACES           :
               Appellee                     :
                                            :   No. 969 MDA 2018

                  Appeal from the Order Entered May 31, 2018
                 In the Court of Common Pleas of Centre County
                Criminal Division at No: CP-14-CR-0000380-2017

BEFORE: STABILE, J., DUBOW, J., and STEVENS,* P.J.E.

MEMORANDUM BY STABILE, J.:                             FILED MARCH 22, 2019

        The Commonwealth appeals from an order granting the motion to

suppress of Appellee, Pedro Manuel Rodriguez Luaces, on the ground that a

state trooper lacked probable cause to stop Appellee’s vehicle on the highway.

We affirm.

        On February 2, 2017, Appellee was arrested during a traffic stop on

Interstate 80 and charged with possession with intent to deliver a controlled

substance1 and related offenses. Appellee filed a motion to suppress, and

after an evidentiary hearing, the trial court granted the motion on the ground

that Trooper Hoy lacked probable cause to stop Appellee’s vehicle.

        The trial court made the following findings of fact:




* Former Justice specially assigned to the Superior Court.

1   35 Pa.C.S.A. § 780-113(a)(30).
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     1. On February 2, 2017, Trooper Jeremy Hoy was employed by
     the Pennsylvania State Police and assigned to the Bureau of
     Criminal Investigation’s Drug Law Enforcement Division as a
     member of the central SHIELD Unit, a highway criminal
     interdiction team.

     2. At approximately noon on February 2, 2017, Trooper Hoy was
     on duty in a marked police car in the emergency crossover on
     Interstate 80 at mile marker 151 observing eastbound traffic.

     3. Trooper Hoy testified that 1-80 is a common drug corridor.

     4. From his position at mile marker 151, Trooper Hoy observed a
     black Nissan pickup truck pass by him at a speed that was much
     slower than the normal pace of traffic.

     5. Trooper Hoy testified that his vehicle was not hidden and could
     be seen for about one half mile on approach, and eight-tenths of
     a mile past.

     6. Trooper Hoy noted the pick-up truck had a temporary
     registration tag.

     7. Trooper Hoy pulled out and followed the Nissan truck.

     8. He testified that, as he got closer, he could see numbers on the
     temporary registration tag, but he could not see a state of origin
     or expiration.

     9. Trooper Hoy testified he was in the left lane and [Appellee]’s
     vehicle was in the right lane and he “got as close as [he] could to
     attempt to read the vehicle or the information on the temporary
     tag.” Trooper Hoy stated he could only see the numbers, not the
     state or expiration.

     10. Trooper Hoy did not provide a description of how close he was
     to [Appellee]’s vehicle when making this observation.

     11. Trooper Hoy conducted a traffic stop of the pick-up truck at
     mile marker 158 in Boggs Township, Centre County.




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Opinion and Order, 5/31/18 (“Opinion”), at 1-2 (citations omitted).           In

addition, the trial court found that the temporary tag’s state of registration

and expiration were “clearly visible.”2 Id. at 14.

      The Commonwealth filed a timely appeal to this Court, and both the

Commonwealth and the trial court complied with Pa.R.A.P. 1925. The lone

issue raised by the Commonwealth on appeal is whether the lower court erred

in granting the motion to suppress.

      When the Commonwealth appeals from a suppression order,

      we follow a clearly defined standard of review and 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. The suppression court's
      findings of fact bind an appellate court if the record supports those
      findings. The suppression court's conclusions of law, however, are
      not binding on an appellate court, whose duty is to determine if
      the suppression court properly applied the law to the facts.

Commonwealth v. Miller, 56 A.3d 1276, 1278–1279 (Pa. Super. 2012).

“Our standard of review is restricted to establishing whether the record

supports the suppression court’s factual findings; however, we maintain de

novo review over the suppression court’s legal conclusions.” Commonwealth

v. Brown, 996 A.2d 473, 476 (Pa. 2010).

      Having carefully reviewed the record, we conclude that the record

supports the trial court’s factual findings. In particular, our review of a color


2 The trial court made additional findings of fact concerning the events
following the stop, including conversations with Appellee and the search of his
vehicle. We need not recite these additional findings given our decision that
Trooper Hoy lacked probable cause to stop the vehicle in the first place.


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photograph of Appellee’s temporary license plate, admitted as Commonwealth

Exhibit 3 during the suppression hearing, confirms that the state of

registration and expiration on the plate were clearly visible.

      Turning to the trial court’s legal conclusions, we first address whether

Trooper Hoy needed probable cause or reasonable suspicion to stop Appellee’s

vehicle. Section 6308(b) of the Vehicle Code defines the requisite cause for a

traffic stop:

      (b) Authority of police officer.—Whenever a police officer is
      engaged in a systematic program of checking vehicles or drivers
      or 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 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.A. § 6308(b). “Although subsection 6308(b) delineates the general

rule, it does not apply in all instances, because not all vehicle offenses require

further investigation to determine whether a motorist has committed that

offense.”   Commonwealth v. Ibrahim, 127 A.3d 819, 823 (Pa. Super.

2015). Instead, “some offenses, by their very nature, require a police officer

to possess probable cause before he or she may conduct a traffic stop.” Id.

We explored this subject at length in a recent decision:

      [W]hen 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


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      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. Compare Commonwealth v. Enick,
      70 A.3d 843, 846 (Pa. Super. 2013) (probable cause required to
      stop for failure to drive on right side of roadway),
      Commonwealth v. Brown, 64 A.3d 1101, 1105 (Pa. Super.
      2013) (probable cause required to stop for failure to use turn
      signal), Commonwealth v. Busser, 56 A.3d 419, 424 (Pa.
      Super. 2012) (probable cause required to stop for failure to yield
      to emergency vehicles), and [Commonwealth v.] Feczko, 10
      A.3d [1285,] 1291 [(Pa. Super. 2010) (en banc)] (probable cause
      required to stop for failure to maintain lanes), with
      Commonwealth v. Holmes, [] 14 A.3d 89, 96–97 ([Pa.] 2011)
      (reasonable suspicion sufficient to stop to investigate front
      windshield obstruction), Commonwealth v. Bailey, 947 A.2d
      808, 812–14 (Pa. Super. 2008) (reasonable suspicion sufficient to
      stop to investigate faulty exhaust system or muffler); see also
      Commonwealth v. Landis, 89 A.3d 694, 703 (Pa. Super. 2014)
      (noting that where trooper stopped motorist for failing to drive
      within a single lane—and not to investigate possible DUI—he
      needed probable cause to stop).

Commonwealth v. Salter, 121 A.3d 987, 993 (Pa. Super. 2015) (emphasis

added).

      To establish grounds for the less demanding standard of reasonable

suspicion,

      the officer must articulate specific observations which, in
      conjunction with reasonable inferences derived from those
      observations, led him reasonably to conclude, in light of his


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      experience, that criminal activity was afoot and that the person
      he stopped was involved in that activity. The question of whether
      reasonable suspicion existed at the time [the officer conducted the
      stop] must be answered by examining the totality of the
      circumstances to determine whether the officer who initiated the
      stop had a particularized and objective basis for suspecting the
      individual stopped. Therefore, the fundamental inquiry of a
      reviewing court must be an objective one, namely, whether the
      facts available to the officer at the moment of the [stop] warrant
      a [person] of reasonable caution in the belief that the action taken
      was appropriate . . . While an actual violation need not be
      established, a reasonable basis for the officer's belief is required
      to validate the stop.

Commonwealth v. Postie, 110 A.3d 1034, 1039-40 (Pa. Super. 2015).

Probable cause, the more demanding test, “does not require certainty, but

rather exists when criminality is one reasonable inference, not necessarily

even the most likely inference.” Commonwealth v. Spieler, 887 A.2d 1271,

1275 (Pa. Super. 2005).

      The trial court correctly determined that Trooper Hoy needed probable

cause to stop Appellee’s vehicle.     Trooper Hoy testified that the basis for

initiating a traffic stop was because he could not see the state or the expiration

on the temporary license plate of Appellee’s vehicle. Section 1332(b)(4) of

the Vehicle Code states in relevant part that “[i]t is unlawful to display on any

vehicle a registration plate which . . . is obscured, covered or otherwise

obstructed in a manner which inhibits the visibility of the issuing jurisdiction

at a reasonable distance.” 75 Pa.C.S.A. § 1332(b)(4) (emphasis added). Like

a traffic stop for speeding, a traffic stop for an obstructed or covered license

plate depends entirely upon observations that the officer makes before the



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stop. Before making the stop, the officer must observe a license plate that is

“obscured, covered or otherwise obstructed in a manner which inhibits

visibility at a reasonable distance.” Id. There is nothing further to investigate

after the stop—that is, the officer cannot conduct further investigation after

the stop as to whether the plate’s visibility is obscured from a reasonable

distance.

      The trial court concluded correctly that the evidence did not give rise to

probable cause. A driver does not violate Section 1332(b)(4) simply because

his license plate cannot be viewed at any distance at all. Instead, an essential

element is that the license plate cannot be viewed “from a reasonable

distance.”   Id. Trooper Hoy testified: “I got as close as I could to attempt to

read the vehicle or the information on the temporary tag. All I could see were

the numbers. I could not see the state or the expiration written on it.” N.T.,

9/8/17 at 16. He added that he was not able to ascertain what state Appellee’s

vehicle was from at a “reasonable distance.” Id. at 51. He failed, however,

to provide sufficient facts to support his subjective definition of “reasonable

distance,” such as the number of car lengths between his vehicle and

Appellee’s or any other measurement. Cf. Commonwealth v. Holmes, 14

A.3d 89, 97-98 (Pa. 2011) (evidence was insufficient to support conclusion

that officer had reasonable suspicion to stop vehicle for windshield

obstruction; although officer testified that objects were hanging from rearview

mirror that obstructed driver’s vision, record was devoid of any description of



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objects or how they materially impaired driver’s vision or created safety

hazard). Moreover, the photograph of Appellee’s license plate shows that the

state of registration and expiration date were “clearly visible” and not

obstructed at all. Opinion at 14. As the trial court aptly observed, while it

was “possible” that “these details were less clear from a position farther away

than that from which the photograph was taken,” there was “no factual

testimony to establish that to be true or [show] that the state of origin and

expiration date could not be seen from a ‘reasonable distance.’” Id.

      The Commonwealth’s reliance on Commonwealth v. Wilbert, 858

A.2d 1247 (Pa. Super. 2004), is misplaced. There, we held that an officer had

probable cause to stop the defendant’s vehicle because, inter alia, mud

obscured multiple characters on his license plate and prevented the officer

from discerning the characters from a distance of three to four car lengths.

Here, in contrast, the state and expiration date on Appellee’s license plate

were clearly visible and not obscured in any way. Further, unlike the officer

in Wilbert, Trooper Hoy failed to testify how many car lengths he was driving

behind Appellee’s vehicle.

      Order affirmed. Case remanded for further proceedings. Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/2019




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