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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  :   IN THE SUPERIOR COURT OF
                                                  :        PENNSYLVANIA
                                                  :
                v.                                :
                                                  :
                                                  :
    RONALD TORRES-SANTOS                          :
                                                  :
                       Appellant                  :   No. 1216 MDA 2019


         Appeal from the Judgment of Sentence Entered June 24, 2019,
                 in the Court of Common Pleas of Berks County,
             Criminal Division at No(s): CP-06-CR-0001344-2018.


BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                   FILED: MAY 11, 2020

        Ronald Torres-Santos appeals from the judgment of sentence of 30 days

to six months in the county jail, which the trial court imposed after convicting

him on two counts of driving under the influence and related summary

offenses.1 Mr. Torres-Santos challenges the denial of his motion to suppress

evidence that he believes police seized during an unconstitutional traffic stop.

We affirm.

        When reviewing the denial of a suppression motion, the appellate court

may only determine if the record supports the trial court’s factual findings and

whether the legal conclusions drawn from those factual findings are correct.

Commonwealth v. Smith, 177 A.3d 915, 918 (Pa. Super. 2017). Because

the Commonwealth won below, our scope of review encompasses only its
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1   See 75 Pa.C.S.A. §§ 3802(a)(1), 3802(b), 3309(1), and 3714(a).
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evidence and any uncontradicted evidence from the defense. See id.         Also,

it includes only the record of the suppression hearing. See In re L.J., 79

A.3d 1073, 1085 (Pa. 2013). That said, because Mr. Torres-Santos challenges

the constitutionality of a warrantless traffic stop, our standard of review is de

novo. See Commonwealth v. Romero, 183 A.3d 364, 377 (Pa. 2018).

      The only witness at the suppression hearing was Pennsylvania State

Trooper Benjamin Scott, whom the suppression court found credible.          See

Trial Court Opinion, 10/18/18, at 2-4. Trooper Scott’s rendition of the facts

is therefore conclusive for purposes of our review.

      According to Trooper Scott, around 2:40 a.m. on January 3, 2018, he

was driving in the right-hand lane of a public roadway, while Mr. Torres-Santos

was driving the car in front of him. The trooper followed Mr. Torres-Santos

for less than a mile, during which time he observed the right tires of Mr.

Torres-Santos’ vehicle drift completely across the fog line twice and his left

tires drift completely across the lane-dividing line twice. These observations

were, in Trooper Scott’s opinion, “[s]igns of impairment, drunk driving.” N.T.,

8/31/18, at 12. He activated his lights and sirens to initiate a traffic stop and

thereby gained evidence proving that Mr. Torres-Santos was DUI. The trooper

arrested him.

      The suppression court concluded that “Trooper Scott had probable cause

to believe [Mr. Torres-Santos] violated Section 3309(1) of the Vehicle Code,

because he saw the tires of [Mr. Torres-Santos’] vehicle cross over the center,

dotted line twice and the white fog line twice.” Trial Court Opinion, 10/18/18,

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at 5. “Therefore, the motor vehicle stop was lawful.”       Id. The trial court

subsequently convicted and sentenced Mr. Torres-Santos as described above,

and this timely appeal followed.

      Mr. Torres-Santos raises one issue on appeal.       He asks whether the

trooper’s “stop of [his] vehicle was not based on the requisite probable cause

and/or reasonable suspicion,” such that the suppression court “erred in

denying [his] suppression motion . . . .” Mr. Torres-Santos’ Brief at 4.

      He argues that, by drifting from his lane four times, in less than a mile,

his actions did not “give rise to a Vehicle Code violation and were also not

enough to provide reasonable suspicion for a stop.” Id. at 8. Specifically, Mr.

Torres-Santos claims this did not rise to the level of “severe driving issues and

a safety danger to allow for a defendant to be pulled over” for violating Section

3309 of the Vehicle Code. Id. at 15. Thus, he disagrees with the suppression

court’s holding that there was probable cause for the trooper to stop him for

failing to stay in his lane of traffic.

      We observe that Mr. Torres-Santos does not claim the Constitution of

the Commonwealth of Pennsylvania affords him any greater protection from

this traffic stop than does the Constitution of the United States. Thus, we

review his state and federal claims together and analyze the respective

safeguards of the two constitutions as coextensive.

      The Fourth Amendment to the federal constitution dictates:

          The right of the people to be secure in their persons, houses,
          papers, and effects, against unreasonable searches and
          seizures, shall not be violated, and no warrants shall issue,

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         but upon probable cause, supported by oath or affirmation,
         and particularly describing the place to be searched, and the
         persons or things to be seized.

U.S. Const. amend. IV. Similarly, the state constitution provides, “The people

shall be secure in their persons, houses, papers and possessions from

unreasonable searches and seizures, and no warrant to search any place or to

seize any person or things shall issue without describing them as nearly as

may be, nor without probable cause . . . .” Pa. Const. art. I, § 8.       When

applying search-and-seizure jurisprudence, we use the “totality-of-the-

circumstances approach” to review state action. Illinois v. Gates, 462 U.S.

213, 231 (1983).

      Under Pennsylvania law, “Whenever a police officer . . . has reasonable

suspicion that a violation of [the Vehicle Code] is occurring or has occurred,

he may stop a vehicle, upon request or signal . . . 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). Interpreting this statute

as amended, the Supreme Court of Pennsylvania explained, “the legislature

did not wish to create a higher standard than that required under the

Constitution.” Commonwealth v. Chase, 960 A.2d 108, 115 (Pa. 2008).

Thus, the application of Section 6308(b) coincides with the constitutional tests

of either (1) reasonable suspicion to stop a car to investigate further whether

crime is afoot or (2) probable cause to stop a car because the driver has

probably violated the Vehicle Code. See id.




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       The constitutions demand varying degrees of certainty depending on the

nature of the offense for which a police officer stops a vehicle. For example,

the police may stop for DUI based on reasonable suspicion, because further

investigation is needed to substantiate whether a crime is in progress. See

id. at 116. However, police cannot stop a vehicle stop for moving violations

and other similar “offenses [that are] not ‘investigatable’ [based on]

reasonable suspicion, because the purposes of a Terry stop[2] do not exist . .

. .” Id. For moving violations, officers must “have probable cause to make a

constitutional vehicle stop . . . .” Id.

       Here, the suppression court determined that the trooper had probable

cause to stop Mr. Torres-Santos for a moving violation, under 75 Pa.C.S.A. §

3309(1). We agree.

       Section 3309(1) mandates that, if a roadway has two or more clearly

marked lanes for traffic, 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 with safety.” 75

Pa.C.S.A. § 3309(1). Because a driver can only violate this provision while a

car is in motion, under Chase, supra, further investigative purposes cannot

exist once a traffic stop has occurred. Thus, an officer must possess probable

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2 See Terry v. Ohio, 392 U.S. 1 (1968) (holding that that the Fourth
Amendment’s prohibition against unreasonable searches and seizures is not
violated when a police officer stops a suspect to investigate her, if the officer
has a reasonable suspicion that she has committed, is committing, or is about
to commit a crime).

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cause to stop someone for a violation of Section 3309(1); reasonable suspicion

alone will not suffice. See Commonwealth v. Feczko, 10 A.3d at 1285,

1292 (Pa. Super. 2010) (en banc), appeal denied, 10 A.3d 1285 (Pa. 2011).

      Probable cause is “a practical, nontechnical conception. In dealing with

probable cause, as the very name implies, we deal with probabilities. These

are not technical; they are the factual and practical considerations of everyday

life on which reasonable and prudent men, not legal technicians, act.” Gates,

462 U.S. at 231.       “[P]robable cause is a fluid concept—turning on the

assessment of probabilities in particular factual contexts—not readily, or even

usefully, reduced to a neat set of legal rules.” Id. at 232. Thus, the critical

inquiry for us is “whether the facts and circumstances which are within the

knowledge of the officer at the time of the [stop] . . . are sufficient to warrant

a man of reasonable caution in the belief that the suspect has committed or

is committing a crime.” Commonwealth v. Cephus, 208 A.3d 1096, 1099

(Pa. Super. 2019), reconsider denied (June 13, 2019), appeal denied, 219

A.3d 596 (Pa. 2019).

      In Cephus, this Court held that the Commonwealth presented sufficient

evidence to establish probable cause that a driver had likely violated Section

3309(1) of the Vehicle Code. There, the officer followed the suspect driver for

over “a couple hundred yards.” Id. at 1098. He observed the driver’s wheel

cross the left line demarcating the driver’s lane of traffic on at least four

occasions. The suppression court denied the defendant’s request to suppress

the evidence seized following a traffic stop of his vehicle. This Court affirmed.

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We concluded that “the trial court did not err in finding . . . probable cause to

stop [Cephus’] vehicle when [the trooper] observed the vehicle failing to

maintain its lane on multiple occasions and stopped the vehicle only after

observing repeated violations.”     Id. at 1100 (quotation marks and citation

omitted).

      Mr. Torres-Santos, like the defendant in Cephus, drifted from the right-

hand lane at least four times. He drifted twice to his left, i.e., into a lane

reserved for other vehicles. Thus, pursuant to Cephus, Mr. Torres-Santos

displayed conduct warranting a reasonably cautious person to believe that he

probably violated 75 Pa.C.S.A. § 3309(1).            Thus, we agree with the

suppression court; the trooper possessed probable cause to stop Mr. Torres-

Santos for the traffic offense of failing to remain in his lane of travel.

      The evidence that Trooper Scott discovered and seized as a result of this

constitutional traffic stop is not fruit of the poisonous tree, see, e.g., Wong

Sun v. United States, 371 U.S. 471 (1963), and the court of common pleas

properly admitted it into evidence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/11/2020


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