J-A33003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

RONALD CARL ENYEART

                            Appellant                    No. 90 WDA 2016


          Appeal from the Judgment of Sentence December 18, 2015
              In the Court of Common Pleas of Clearfield County
             Criminal Division at No(s): CP-17-CR-0000212-2015


BEFORE: LAZARUS, J., SOLANO, J., and STRASSBURGER, J.*

DISSENTING MEMORANDUM BY LAZARUS, J.:                     FILED JULY 19, 2017

        I respectfully dissent.     In my opinion, the initial stop was unlawful,

requiring exclusion of all evidence seized as a result. I would reverse the

judgment of sentence.

        As the trial court points out, the video shows a “few instances” of

Enyeart’s vehicle “nudging the center line,” and one instance where

Enyeart’s right tires cross the fog line on the right after negotiating a curve

in the road.      See Trial Court Opinion, 4/13/16, at 2.       According to his

preliminary hearing testimony, Trooper Michael Gregory Meko noticed the

odor “of an adult alcoholic beverage, and marijuana[.]”          N.T. Preliminary



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Hearing, 3/20/15, at 6.         Trooper Meko then ordered Enyeart out of the

vehicle to perform field sobriety tests. Trooper Meko testified:

       Q: . . . [W]hat were the results of those tests?

       A: . . .[T]hrough the uh, horizontal nystagmus, one legged
       stand, and walk and turn he showed enough clues that showed
       that he was probably over the legal limit to, for a DUI.

Id. at 7.

       Trooper Meko placed Enyeart under arrest and transported him to

Penn Highlands Hospital, where his blood was drawn.1                Enyeart filed a

motion to suppress, which was denied. As the majority points out, at trial,

the Commonwealth presented forensic toxicologist Ayako Chan-Hosokawa,

who testified that the margin of error in the BAC testing was between 6 and

7 percent. N.T. Trial, 11/5/15, at 101.          At the close of the Commonwealth’s

case, the court granted Enyeart’s motion for demurrer on the charge of DUI-

general impairment (BAC .08–.10), 75 Pa.C.S.A. § 3802(a)(2).               Enyeart

admitted at trial that he had smoked marijuana earlier that day. The jury

convicted him of Driving Under the Influence of a Controlled Substance

____________________________________________


1
   As the majority notes, Trooper Meko gave Enyeart the O’Connell
warnings and read Enyeart the DL-26 form (Chemical Testing Warnings),
which includes Pennsylvania’s Implied Consent laws and a statement that
the operator could face increased criminal penalties for refusing a blood
draw. See N.T. Trial, 11/5/15, at 51. Enyeart consented to a blood draw,
which revealed the presence of marijuana components (THC), a Schedule I
Controlled Substance, and a blood alcohol content (BAC) of .082. See N.T.
Trial, 11/5/15, at 92. See also 35 P.S. § 780-104; 75 Pa.C.S.A. §
3802(d)(1)(i).



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(DUI), under 75 Pa.C.S.A. § 3802(d)(1)(i).2 The trial court found Enyeart not

guilty of the summary offenses of Careless Driving3         and Roadways Laned

for Traffic.4

        In denying Enyeart’s suppression motion, the trial court found that

Trooper Meko had “reasonable suspicion” to believe that Enyeart was

violating the Vehicle Code, in particular, driving under the influence.         The

court stated:

           Officer Meko’s credible testimony that the Defendant was
           swerving in his lane of travel; that the Defendant’s vehicle
           straddled the center line; that the Defendant’s vehicle
           crossed the white fog line; coupled with the dash-cam
           video that showed some similar driving was sufficient to
           lead him to reasonably suspect that the driver of the
           vehicle may be intoxicated.

Trial Court Opinion, 4/1/16, at 3.




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2
    Section 3802(d)(1)(i) of the Vehicle Code provides:

        (d) Controlled substances.--An individual may not drive,
        operate or be in actual physical control of the movement of a
        vehicle under any of the following circumstances:

                (1) There is in the individual’s blood any amount of a:

                (i) Schedule I controlled substance, as defined in the act of
                April 14, 1972 (P.L. 233, No. 64),1 known as The
                Controlled Substance, Drug, Device and Cosmetic Act[.]
3
    75 Pa.C.S.A. § 3714(a).
4
    75 Pa.C.S.A. § 3309.



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      Reasonable suspicion is a less stringent standard than the probable

cause necessary to effectuate a warrantless arrest, and depends on the

information possessed by police and its degree of reliability in the totality of

the circumstances. Commonwealth v. Rogers, 849 A.2d 1185, 1189 (Pa.

2004); Commonwealth v. Salter, 121 A.3d 987, 993 (Pa. Super. 2015).

In order to justify the seizure, a police officer must be able to point to

“specific and articulable facts” leading him to suspect criminal activity is

afoot. Commonwealth v. Melendez, 676 A.2d 226, 228 (Pa. 1996) (citing

Terry v. Ohio, 392 U.S. 1, 21 (1968).        “In assessing the totality of the

circumstances, courts must also afford due weight to the specific, reasonable

inferences drawn from the facts in light of the officer’s experience.”

Commonwealth v. Cook, 735 A.2d 673, 676 (Pa. 1999).

      Thus, under the present version of section 6308(b) of the Vehicle

Code, in order to establish reasonable suspicion, an officer must be able to

point to specific and articulable facts that led him to reasonably suspect a

violation, in this case, driving under the influence of alcohol or a controlled

substance.    “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.”    Commonwealth v. Reppert, 814 A.2d 1196, 1203

(Pa. Super. 2002)      Therefore, the fundamental inquiry of a reviewing court

must be an objective one, “namely, whether ‘the facts available to the officer

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at the moment of the [stop] warrant a man of reasonable caution in the

belief    that   the    action    taken        was   appropriate.’”    Id.   (quoting

Commonwealth v. Zhahir, 751 A.2d 1153, 1156 (Pa. 2000)).

         Here, Trooper Meko testified that Enyeart’s vehicle “appeared to be

swerving on the roadway.”             N.T. Suppression Hearing, 8/25/15, at 4.

Trooper Meko testified that Enyeart’s vehicle was “straddling the yellow

center turning lane, slightly going across it.”             Id.   Trooper Meko then

activated his MVR, and at that point he observed Enyeart’s vehicle “slightly

nudging the center turning lane[.]”            Id. at 8. He also observed Enyeart’s

vehicle “crossing the fog line as it came out of the turn.” Id.5

         Our Supreme Court has stated:

           the limited intrusion permitted by [75 Pa.C.S.A. §] 6308(b)
           in the case of a vehicular stop based upon a reasonable
           suspicion that the driver is driving under the influence, as
           balanced against the Commonwealth’s salutary interest in
           preventing DUI violations, violates neither the Fourth
           Amendment nor Article I, Section 8. In such cases, the
           officer must be able to relay specific and articulable
           facts that would give rise to a reasonable suspicion
           that the person is driving under the influence, and we
           conclude that this requirement is sufficient to ensure that
           the police do not infringe upon the citizens’ rights to be
           free from unreasonable searches and seizures.




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5
  At the preliminary hearing, however, Trooper Meko testified that he was
“pretty sure the entire stop was on [the video]. . . .[i]ncluding the driving
and the observations.” N.T. Preliminary Hearing, 3/20/15, at 10.



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Commonwealth v. Sands, 887 A.2d 261, 271-72 (Pa. 2005) (emphasis in

original).

       In Sands, the arresting officer stopped the appellant’s vehicle based

upon a suspected DUI. Id. at 263. In the early morning hours, the officer

observed that on three occasions, the appellant’s vehicle drifted across the

fog line, extending approximately three feet into the berm. Id.       The officer

stated that the appellant’s “inability to maintain a straight trajectory within

the right lane of travel” and his “weaving onto the eastbound berm,

indicated that he might strike one of the stationary objects located along

[the highway].”      Id.    The officer was particularly concerned that the

appellant’s vehicle “would strike the power source generator or the adjacent

utility pole.” Id. We concluded the officer had reasonable suspicion that the

appellant was driving under the influence, thus justifying the traffic stop.

       By contrast, here, Trooper Meko acknowledged that there was no

traffic.   He did not indicate that there were any safety concerns.      He also

acknowledged that Enyeart’s vehicle did not make any sudden movements,

but stated that the basis for his stop was “the entirety of the circumstances.”

N.T. Suppression Hearing, supra at 10. Cf. Commonwealth v. Hughes,

908 A.2d 924 (Pa. Super. 2006) (officer had reasonable suspicion to stop

defendant for DUI where officer observed defendant’s vehicle swerving

across divided line into other lane on three occasions).

       In my opinion, Trooper Meko’s testimony that there was momentary

“nudging” of the center line and a brief crossing of the fog line after

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negotiating a curve in the road, along with his equivocal observations prior

to starting the MVR, is insufficient to establish reasonable suspicion that

Enyeart was driving under the influence of alcohol or a controlled substance.

Having studied the record, particularly Trooper Meko’s dash cam video, I

would find that the record does not support the trial court’s finding that

Trooper Meko had reasonable suspicion to stop Enyeart for DUI.




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