J. S14006/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                        Appellant       :
                                        :
                   v.                   :          No. 791 MDA 2015
                                        :
TOBIAS KAVAUN BANKS,                    :


                  Appeal from the Order Entered May 4, 2015,
                 in the Court of Common Pleas of York County
               Criminal Division at No. CP-67-CR-0005493-2014


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED APRIL 26, 2016

     This case concerns a motion to suppress evidence resulting from a

vehicle stop. Herein, the Commonwealth appeals from the order of May 4,

2015, which granted Tobias Kavaun Banks’ (“appellee’s”) omnibus pre-trial

motion. We affirm.1



* Former Justice specially assigned to the Superior Court.
1
    The Commonwealth may appeal an interlocutory order suppressing
evidence when it provides a certification with its notice of appeal that the
order    terminates    or   substantially  handicaps      the   prosecution.
Commonwealth v. Whitlock, 69 A.3d 635, 636 n.2 (Pa.Super. 2013),
citing Pa.R.A.P. 311(d). In Commonwealth v. Gordon, 673 A.2d 866, 689
(Pa. 1996), our supreme court held that the Commonwealth may appeal the
grant of a defense motion in limine which excludes Commonwealth
evidence and has the effect of substantially handicapping the prosecution.
As the trial court ruling excludes Commonwealth evidence, and the
Commonwealth has certified that the effect of the ruling substantially
handicaps the prosecution, we find that this appeal is properly before this
court.
J. S14006/16


        The trial court provided the following procedural and factual history:

                    The Appellee was charged with two counts of
              Possession With Intent to Deliver for heroin and
              cocaine.[2] The Appellee was also charged with a
              third count of Driving While Operating Privileges
              Suspended or Revoked.[3]

                     On October 27, 2014, counsel for the Appellee
              filed a Motion for Additional Discovery and Motion to
              Extend Time to File Omnibus Pre-Trial Motion and
              Habeus [sic]. On December 2, 2014, a Hearing was
              held on the Appellee’s motions at which testimony
              was taken and, at the conclusion of that Hearing,
              Appellee’s counsel was given two additional weeks to
              file omnibus motions. The Appellee submitted his
              Omnibus Pretrial Motion on December 15, 2014.
              Commonwealth filed their Commonwealth’s Reply to
              Defendant’s Omnibus Pre-Trial Motion on December
              26, 2014. On May 4, 2015, this Court entered an
              Order granting the Appellee’s Omnibus Pre-Trial
              Motion.

              ....

                     On July 11, 2014, Officer Vincent Monte
              performed a traffic stop on a gray Buick LaCrosse
              with an inoperable driver’s side registration lamp.
              The vehicle in question is equipped with two license
              plate lights. The dash cam in the officer’s cruiser
              was not functioning as designed, so there is no video
              of the stop. The Appellee, who was the driver, was
              able to provide the officer with the requested vehicle
              documents, but Appellee, despite his representation
              that he had a valid license, could not produce his
              license for the officer. After consulting the computer
              in his cruiser and dispatch, Officer Monte ascertained
              that the Appellee’s driver’s license was suspended.
              As neither the Appellee nor his passengers had valid


2
    35 P.S. § 780-113(a)(30).
3
    75 Pa.C.S.A. § 1543(a).


                                       -2-
J. S14006/16


            licenses, and because the vehicle was partially
            blocking the lane of travel, the car was impounded.

                   On cross examination, Officer Monte stated
            that he is unaware of any policy allowing a driver to
            call a vehicle’s owner to retrieve the vehicle and the
            Appellee was not offered any such chance to do so.
            During an inventory search, the officer located what
            he described as a large quantity of heroin and
            cocaine. Officer Monte told the Suppression Court
            that he was unaware, prior to the incident, that York
            City has an ordinance for impounding vehicles. And,
            Officer Monte was unaware of “any specific policy,
            manual, or procedure guide on the exact best
            practice for performing a vehicle inventory search.”
            Yet, Officer Monte performed an inventory search
            prior to towing the vehicle in order to protect the
            police and tow operators from hazardous conditions
            in the vehicle and to ward against liability.

Trial court opinion, 8/20/15 at 1-4 (citations omitted).

      The Commonwealth raises the following issues for our review:

            1.    Did the trial court err in granting Defendant’s
                  motion to suppress where the officers had
                  probable cause to effectuate a traffic stop
                  where the vehicle had an inoperable driver’s
                  side registration lamp?

            2.    Did the trial court err in granting Defendant’s
                  motion to suppress where the officers had
                  reasonable suspicion to effectuate a traffic stop
                  where the vehicle had an inoperable driver’s
                  side registration lamp?

            3.    Did the trial court err in determining that the
                  evidence seized as a result of the traffic stop
                  constituted “fruit of the poisonous tree?”

Commonwealth’s brief at 4.




                                     -3-
J. S14006/16


      Having determined, after careful review, that the Honorable Michael E.

Bortner, in his Rule 1925(a) opinion of August 20, 2015, ably and

comprehensively disposes of the Commonwealth’s issues on appeal, with

appropriate references to the record and without legal error, we will affirm

on the basis of that opinion. Most importantly, the trial court carefully and

correctly distinguishes this court’s recent opinion in Commonwealth v.

Salter, 121 A.3d 987 (Pa.Super. 2015).       Salter reversed the suppression

court’s determination that the police lacked probable cause to stop the

defendant’s vehicle based on a traffic violation where there was no license

plate illumination at all on the vehicle. Id. at 993. Instantly, the trial court

determined that the stop of the vehicle was without probable cause because

there was no testimony by the police officers that the license plate was not

illuminated by a remaining license plate lamp on the vehicle.

      Order affirmed.

      Panella, J. joins the Memorandum.

      Stevens, P.J.E. files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/26/2016




                                     -4-
                                                                                            Circulated 03/31/2016 02:34 PM




                     IN THE COURT OF COMl\'fON PLEAS OF YORK COUNTY, PENNSYLVANIA
                                            CRIMINAL DIVISION

                 COMMON\VEALTH
                          Appellant
                           v.                                             NO. CP-67-CR-0005493-2014

               TOBIASKAVAUN BANKS,
                        Def end ant/Appellee

               COUNSEL Of RECORD:

                           Alissa Candida Cardenas, Esquire                      Dawn M. Cutaia, Esquire
                           Counsel for the Appellant                             Counsel for the Appellec



                     OPINION TN SUPPORT OF ORDER PURSUANT TO RULE 192S(a) OF THE
                                    RULES OF APPELLATE PROCEDURE

                          The Court received a Notice of Appeal, docketed on May 7, 2015, that the

              Commonwealth of Pennsylvania, by and through Assistant District Attorney Alissa

              Cardenas, Esquire. appeals to the Superior Court of Pennsylvania the order we entered in this

             case on Ma1 4. 1015.          Having considered all evidence, testimony, and relevant case law, the

             Court now issues this Opinion in support of our May 4, 2015 Order.

             I.           Procedural llistorv

                          The Appellee was charged with two counts of Possession With Intent co Deliver for
             ~
                         ar?d
:-:. .
L   ,-
r- ..
     -
 -. ' .
         )
             ~roin
             N
             ....-       ··~                        .
                                cocaine. The Appcllee was also charged with a third count of Driving While

             Glperating Privileges Suspended or Revoked .
             :::,    .     ~
             "-'5 ~b1,
                  t:=~
                       October          27, 2014, counsel for the Appellec tiled a Motion for Additional
             ,c:     Ci.:..I
             Discovcn~ and Motion to Extend Time to File Omnibus Pre-Trial Motion and I Iabeus, On
             C::-J
             ""
 December 2, 2014, a Hearing was held on the Appellee's motions at which testimony was

 taken and, at the conclusion    of that Hearing, Appellee's counsel was given two additional

 weeks to file omnibus motions. The Appellee submitted his Omnibus Pretrial Motion on

 December 15.2014.     Commonwealth         filed their Commonwealth's   Reply to Defendant's

 Omnibus Pre-Trial Motion on December 26, 2014. On May 4. 2015, this Court entered an

 Order granting the Appellces Omnibus Pre-Trial Motion

        In timely fashion. this Court received an appeal of our decision      that was docketed on

May 7, 2015. In accordance      with Rule    t 925(b) of the Rules of Appellate Procedure. on May
 12, 2015, the Appellant was Ordered to file a concise statement of matters complained of on

appeal. On May 14, 2015, the Court received Appellant's Statement of Matters Complained

of On Appeal Pursuant to the Pennsylvania Rules of Appellate Procedure Rule l925(b).

        The Appellant appeals for the following reasons. First, the Appellant avers that this

Court erred in finding there was no probable cause to stop the vehicle in question. Second,

the Appellant believes we erred in ruling the stop unconstitutional because the officers had

reasonable suspicion to stop the vehicle for inoperable equipment. Third, and finally, the

Appellant states that we erred   10 our   determination that the evidence seized was "fruit of the

poisonous tree" chat necessitated suppression .

                                     •
 II.     Facts

         On July 11, 2014, Officer Vincent Monte performed a traffic stop on a gray Buick

 Lacrosse with an inoperable driver's side registration   lamp. (Notes of Testimony,    12 2/ 14. at

 7-8.) The vehicle in question is equipped with two license plate lights. id., at 27. The dash

 cam in the officer's cruiser was not functioning as designed, so there is no video of the stop.

 Id., at 7. The Appellee, wbo was the driver, was able to provide the officer with the requested

 vehicle documents. but Appellee, despite his representation that he had a valid license. could

not produce his license for the officer. Id., at 8. After consulting the computer in his cruiser

and dispatch, Officer Monte ascertained that the Appellee's driver's license was suspended.

Id., at 8-9. As neither the Appellee nor his passengers had valid licenses, and because the

vehicle was partially blocking the lane of travel, the car was impounded. id., at 9-10.

        On cross examination, Officer Monte stated that he is unaware of any policy allowing

a driver to call a vehicle's owner to retrieve the vehicle and the Appellee was not offered any

such chance to do so. Id., at 26. Dunng an inventory search, the officer located what he

described as a large quantity of heroin and crack cocaine. ld., at 19 Officer Monte ta!J the

Suppression Court that he was unaware, prior to the incident, that York City has an ordinance

for impounding vehicles. Id .. at l l-12. And, Officer Monte was unaware of "any speci fie

policy, manual, or procedure gutde on the exact best practice for performing a vehicle

inventory search ." Id. at J 2 Yet, Officer Monte performed an inventory search prior to

towing the vehicle in order to protect the police and tow operators from hazardous conditions

                                                3
 in U1e vehicle and to ward against liability. Id. at 15-17.

 III.    Matters Complained of on Appeal

         A. Legality of the Stop

         Though the Commonwealth has neatly broken down their matters complained of into

 three easily cognizable points, they all pertain to whether or not this Court erred in finding

 the vehicle stop to have been illegal. Whether under the lesser standard of reasonable

 suspicion for an investigatory stop or the higher standard of probable cause, the question is

 whether the stop was legal. If the stop was illegal, as we found, then, per se, the evidence

regarding seized drugs is fruit of the poisonous tree.

        Firstly, the Commonwealth's second matter complained of, regarding reasonable

suspicion. is not relevant where the officer's statements clearly indicate that the stop was

effectuated under the probable cause standard as there was nothing to investigate. Officer

Monte did not equivocate in testifying to the following:

        We noticed chat the vehicle in question, a gray Buick LaCrosse, Pennsylvania
        registration JNC7794, had an inoperable driver's side registration plate lamp.
        He was traveling south on Queen Street. We effected a traffic stop on it,
        pulled it over on the comer of Queen and Boundary Avenue in York City.

tN.T., 12 '2 14. at 8.) This testimony rs in accordance with the matter-of-fact statement in the

Affidavit of Probable Cause that, "f a]t this time [the officers] stopped a gray Buick Sedan
                                 •
(PA Reg JNC7794) for an inoperable driver [sic] side registration lamp." There is no notion

that the officers sought to investigate whether or not a license plate lamp was out; but. rather.

the officers had concluded that this was the case and that they were going to perform a traffic
                                                4
 stop as a result. "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," but

 "[wjhere a violation is suspected, but a stop is necessary to further investigate whether     3


 violation has occurred, an officer need only possess reasonable suspicion to make the stop."

 Commonwealth v, Salter, ---A.3d ----. unnumbered (Pa. Super Ct. 2015); 2015 WL

4626915. at 3. As the officer's testimony makes clear that they did not require further

investigation for their conclusion, we believe our analysis is firmly locked into whether or

not there was probable cause for the officers to make the stop.

        Evident from our citation supra, we are aware of Commonwealth v. Salter, in which

our colleague. the Honorable Richard K. Renn 's suppression of evidence on similar facts was

overturned. From our review of case law, it is the case most relevant to an understanding of

the case before us. In Sailer, an officer suspected that a vehicle he was following did not

have operable license plate illumination and the officer confirmed this suspicion by turning

off his own headlights. Id., at I (citing Taal Court Opinion, 6/5/14, at 2-3 (citations to the

record ornirtedr). The Superior Court found that because the seemingly singular license plate

lamp was out. "the plate was not illuminated, which in tum meant that the registration plate

could not have been visible" At first blush, the Salter case appears illuminatlve of the
                                                               ,
present matter. We believe, hqwever, that it is tactually distinguishable.

       Whereas the vehicle in Salter seems to have been equipped with just one license plate

lamp, the Appellee's vehicle had two. (Notes of Testimony, 12/2/14,        at 27.) I'he purpose of

                                                  5
 license plate lamps, as alluded to by the excerpt from Salter above, is to make a license plate

 visible Nowhere in Officer Monie 's testimony before this Court or in the Affidavit of

 Probable Cause do we find any indication that the officers were unable to view the

 Appellee's license plate. Were the officer to have told this Court that he was only able to

 view a partial plate number, or that he could not make out the plate at all, then we would

 have had no trouble finding that there was probable cause tu stop the vehicle. In addition,

 there was no evidence before this Court that the officers did anything to confirm their

suspicion such as momentarily deactivating their own headlights, which the officer in Salter

did.

        In examining the construction of the relevant sentence in the officer's Affidavit of

Probable Cause and the officer's testimony, we found that the officers were able to view the

license plate number pnor to stopping the vehicle. The Affidavit reports the vehicle license

plate number prior to noting that the vehicle was stopped. Officer Monte repeated this

phrasing at the Suppression Hearing. On our facts, we found the officers could make out the

alphanumeric scheme of the plate Moreover, 75 Pa.C.S.A § 4303(b), which covers rear

I ighting of vehicles, states in relevant part:

        Every vehicle operated on a highway shall be equipped with a rear lighting
        system including, but not limned to, rear lamps, rear reflectors, stop lamps and
        license plate liglu, in c~nformance with regulations of the department

(emphasis added). This excerpt makes clear that a solitary license plate light is acceptable.

Appellee's vehicle had a functioning light for its license plate. (Notes of Testimony. l2/2/14.

                                                  6
 at 27.) Ergo, we encountered no facts that led us to believe the officers had probable cause to

 stop   the Appellee.

          The only manner rn which the Commonwealth can possibly establish that the officers

 satisfied the probable cause requirement is through the legal analysis recited in their

 Commonwealth's Reply to Defendant's Omnibus Pre-Trial Motion. Sec unnumbered pages

 2-3. For the sake of economy) we summarize the Commonwealth's argument as follows.

 Under 75 Pa.C.S.A. § 4704. officers may stop a vehicle to determine whether it conforms

with state inspection requirements And Commonwealth argues that 67 Pa.Code§ 175.80

provides guidance in explaining that a vehicle should fail inspection if an exterior bulb that

was originally equipped fails to properly light. Commonwealth reads this to mean that if a

bulb fails to activate then a failure is indicated. Just as likely, the passage may be interpreted

to mean that equipment must perform its function. And, where only a solitary license plate

lamp is required and we found chat the officers were able to read the Appellee 's plate, the

equipment performed as necessary. Semantics aside, suffice it to say, the Commonwealth

seeks to thread a needle. However. this Court was unconvinced by the Commonwealth's

proffered linkages. We simply viewed the Commonwealth's arguments as too attenuated and

tortured in light of a plain reading of 75 Pa.C.S.A. § 4303(b).

         Though ,, e believe thc\t the possibility of reasonable suspicion undergirding the stop

hos been foreclosed, we would be remiss in failing to address rt properly. If probable cause

was not met in this case then perhaps the officer could backslide to reasonable suspicion. The

                                                 7
 Salter Court stated that the officer there "did not need to stop Appellee's vehicle to

 investigate further to determine if the plate lights were out, he possessed probable cause to

 legally make the stop." ---A.3d -·--, unnumbered (Pa. Super. Ct. 2015), 2015 \\/L 4626915,

 at 4. However, it was noted in Salter that under the reasonable suspicion standard. "fog, rain,

 time of day, or obstructions impeding or blocking view of the plate illumination might

prevent a clear determination if a lighting violation exists." !d. And. "[i]f reasonable

suspicion exists that such a violation is present, but a stop is required lo confirm the

violation, then probable cause is not needed and reasonable suspicion may be sufficient." Id.

(emphasis added). We did not read about any adverse conditions that would have prevented

the officers from determining the status ofJicense plate illumination sans investigatory stop.

Rather, we encounter facts in which the officers were able to read the plate. Probable cause

was either had or it was not; reasonable suspicion is not indicated.

       Believing that probable cause and not reasonable suspicion is tbe appropriate standard

in this case and chat this standard was not met, the evidence seized was fruit of the poisonous

tree. We, therefore, humbly request affirmancc .




                             •



                                               8
IV.    Conclusion

       Based upon the reasons stated above. this Court respectfully urges affirmance of our

May 4, 2015 Order in this case.


                                            BY THE COURT,




                                        ~&~
                                         iJcffAELE. BORTNER, JUDGE
DATED~ August       .2!!._. 20l5




                               I




                                              9
