J-S63042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                    Appellant              :
                                           :
                                           :
              v.                           :
                                           :
                                           :
 DARREN WILLIAM MARINO                     :   No. 730 WDA 2018

                Appeal from the Order Entered May 4, 2018
    In the Court of Common Pleas of Mercer County Criminal Division at
                      No(s): CP-43-CR-0001792-2017


BEFORE:    OTT, J., MURRAY, J., and STEVENS*, P.J.E.

DISSENTING MEMORANDUM BY STEVENS, P.J.E.:

FILED: December 18, 2018

      The Majority opines this Court is bound by the subjective findings of the

suppression court that Trooper Snyder’s characterization of the object, when

viewed along with the object itself and the mobile video recording, was

“unreasonable.” See Majority Memorandum at *12.          Because the applicable

standard of review is an objective one requiring this Court to determine

whether an objectively reasonable police officer had reasonable suspicion that

criminality was afoot so as to justify an investigatory detention, I respectfully

dissent.

      In Holmes, the Pennsylvania Supreme Court analyzed the reasonable

suspicion standard as it relates to a vehicle stop based upon an officer’s

suspected violation of 75 Pa.C.S.A. § 4524(c) as follows:



____________________________________
* Former Justice specially assigned to the Superior Court.
J-S63042-18


           As noted above, Section 6308(b) allows a police officer to
     conduct a vehicle stop if he has reasonable suspicion to believe
     that a violation of the Motor Vehicle Code is occurring or has
     occurred. [We have defined rea]sonable suspicion as follows:

          Reasonable suspicion is a less stringent standard than
          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. 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, [544 Pa. 323, 676
          A.2d 226], at 228 [ (1996) ] (citing Terry [v. Ohio, 392
          U.S. 1], at 21 [88 S.Ct. 1868, 20 L.Ed.2d 889 (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 and acknowledge that innocent facts, when
          considered collectively, may permit the investigative
          detention. Commonwealth v. Cook, 558 Pa. 50, 735
          A.2d 673, 676 (1999) (citations omitted).

     Commonwealth v. Brown, 606 Pa. 198, 996 A.2d 473, 477
     (2010) (emphasis added). Thus, under the present version of
     Section 6308(b), in order to establish reasonable suspicion, an
     officer must be able to point to specific and articulable facts which
     led him to reasonably suspect a violation of the Motor Vehicle
     Code, in this case, Section 4524(c).
            The determination of whether an officer had reasonable
     suspicion that criminality was afoot so as to justify an
     investigatory detention is an objective one, which must be
     considered in light of the totality of the circumstances. See
     Chase, 599 Pa. at 101, 960 A.2d at 120 (“[r]easonable suspicion
     sufficient to stop a motorist must be viewed from the standpoint
     of an objectively reasonable police officer” (citing Ornelas v.
     United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911
     (1996))); Commonwealth v. Rogers, 578 Pa. 127, 134, 849
     A.2d 1185, 1189 (2004) (in determining whether police officer had
     reasonable suspicion, “the totality of the circumstances must be
     considered”). It is the duty of the suppression court to
     independently evaluate whether, under the particular facts of a
     case, an objectively reasonable police officer would have


                                     -2-
J-S63042-18


     reasonably suspected criminal activity was afoot. As the United
     States Supreme Court has explained:

         [I]n justifying the particular intrusion the police officer
         must be able to point to specific and articulable facts
         which, taken together with rational inferences from
         those facts, reasonably warrant that intrusion. The
         scheme of the Fourth Amendment becomes meaningful
         only when it is assured that at some point the conduct
         of those charged with enforcing the laws can be
         subjected to the more detached, neutral scrutiny of a
         judge who must evaluate the reasonableness of a
         particular search or seizure in light of the particular
         circumstances. And in making that assessment it is
         imperative that the facts be judged against an objective
         standard: would the facts available to the officer at the
         moment of the seizure or the search ‘warrant a man of
         reasonable caution in the belief’ that the action taken
         was appropriate? Anything less would invite intrusions
         upon constitutionally guaranteed rights based on
         nothing more substantial than inarticulate hunches, a
         result this Court has consistently refused to sanction.
         And simple “‘good faith on the part of the arresting
         officer is not enough.’ * * * If subjective good faith alone
         were the test, the protections of the Fourth Amendment
         would evaporate, and the people would be ‘secure in
         their persons, houses, papers and effects,’ only in the
         discretion of the police.[”]

     Terry v. Ohio, 392 U.S. 1, 21–22, 88 S.Ct. 1868, 20 L.Ed.2d 889
     (1968) (citations and footnotes omitted).

           This Court has recognized the concerns expressed by the
     Supreme Court in Terry, noting, for example, “before the
     government may single out one automobile to stop, there must
     be specific facts justifying this intrusion. To hold otherwise would
     be to give the police absolute, unreviewable discretion and
     authority to intrude into an individual's life for no cause
     whatsoever.” Commonwealth v. Swanger, 453 Pa. 107, 112,
     307 A.2d 875, 878 (1973); see also Commonwealth v. Murray,
     460 Pa. 53, 331 A.2d 414 (1975) (same). Moreover, as we
     explained in Cook, supra, to demonstrate reasonable suspicion,
     an officer “must be able to point to specific and articulable facts
     and reasonable inferences drawn from those facts in light of the

                                    -3-
J-S63042-18


      officer's experience.” 558 Pa. at 57, 735 A.2d at 677 (citation
      omitted). Thus, in order to establish reasonable suspicion, an
      officer must articulate specific facts in addition to inferences based
      on those facts, to support his belief that criminal activity was
      afoot.
             As noted above, Section 4524(c) prohibits an individual from
      driving a motor vehicle “with any object or material hung from the
      inside rearview mirror or otherwise hung, placed or attached in
      such a position as to materially obstruct, obscure or impair the
      driver's vision through the front windshield or any manner as to
      constitute a safety hazard.” 75 Pa.C.S.A. § 4524(c). Under its
      plain language, a driver is not in violation of the statute simply
      because he has an object hanging from the rearview mirror;
      rather, an essential element is that the object or material hanging
      from the mirror materially obstructs, obscures, or impairs the
      driver's vision. Thus, while we agree with the Commonwealth that
      the law does not require that police be able to identify the object
      before making a vehicle stop, see Commonwealth's Brief, at 10,
      in order to support a suppression court's finding that an officer
      possessed reasonable suspicion to believe that a violation of 75
      Pa.C.S.A. § 4524(c) has occurred, the officer must articulate at
      least some fact or facts to support his inference or conclusion that
      the object materially impaired the driver's view.


Commonwealth v. Holmes, 609 Pa. 1, 11–15, 14 A.3d 89, 95–97 (2011)

(emphasis in original) (footnotes omitted).

      Under Holmes, while an officer need not be able to identify specifically

the obstructing object prior to the stop, he or she must be able to articulate,

at a minimum, some fact or facts to support his or her view that the object

materially impaired the driver's view. There, the officer’s sole testimony at

the suppression hearing was that he had observed a black vehicle, at

approximately 9:00 p.m., “traveling north on 315 with objects hanging from

the rearview mirror which were obstructing the driver's view.” Holmes, 609

Pa. at 4-5, 14 A.3d at 91.

                                      -4-
J-S63042-18


      The officer provided no testimony pertaining to the size or general

description of the objects, nor did he indicate how they materially impaired

the driver’s view or created a safety hazard. As a result, our Supreme Court

found that the officer’s testimony had been insufficient to support the

independent evaluation and subsequent finding by the suppression court that

the officer had reasonable suspicion to stop the defendant’s vehicle for a

suspected violation of Section 4524(c). Id. 609 Pa. at 15, 14 A.3d at 97.

      Instantly, Trooper Snyder testified that at approximately 4:00 p.m. on

September 5, 2017, at which time it was still daylight, he was traveling one

car length behind Marino’s vehicle when he clearly observed a purple ball three

to four inches in diameter and hanging two to three inches below the rearview

mirror swinging freely, especially when the vehicle it a bump in the road.

Based upon his observations, Trooper Snyder surmised the object “materially

obstructed the driver’s mirror-or view- through the front windshield” and

initiated a traffic stop to investigate the suspected violation further and to

issue a warning.

      Unlike the officer in Holmes who provided no testimony regarding the

size or general description of the hanging objects, or an explanation as to how

the object impaired the driver’s vision, Trooper Snyder testified regarding the

object’s size, color, and its location on the rearview mirror. He further related

his inference that its swinging motion would materially obstruct the driver’s




                                      -5-
J-S63042-18


view through the front windshield in violation of Section 4524(c) so as to

justify his stop of Appellee’s vehicle.

      Thus, Trooper Snyder had specific and articulable facts prior to the stop

sufficient to form a reasonable suspicion that Marino was violating the Motor

Vehicle Code. This justified an investigatory detention to allow Trooper Snyder

to investigate further. Because the traffic stop was supported by reasonable

suspicion, the trial court erred in granting Marino’s suppression motion.

      While the suppression court specifically identified reasonable suspicion

as the applicable legal standard, the court admitted it had made its “own

determination” as to the reasonableness of Trooper Snyder’s belief at the time

he stopped Marino’s vehicle. Suppression Court Opinion, filed 5/14/18, at 2-

3. In doing so, the court essentially ignored the fact that “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 man of

reasonable caution in the belief that the action taken was appropriate” under

the totality of the circumstances.    Commonwealth v. Reppert, 814 A.2d

1196, 1204 (Pa.Super. 2002).

      Instead, the suppression court supplanted this requisite legal standard

with it with its own, subjective conclusions drawn from its observations of the

Mobile Video Recording and the object as it appeared in isolation in the

courtroom setting to conclude that the object herein created “far less an

obstruction than in [Commonwealth v.] Shabazz [18 A.3d 1217 (Pa.Super.


                                          -6-
J-S63042-18


2011)],” because it “hung by itself and was too small to materially impair

[Marino’s] ability to drive the vehicle safely” and that Trooper Snyder, “could

have observed, at most, a minor obstruction.” Suppression Court Opinion and

Order, 5/4/18, at 4-5; Suppression Court Opinion, 5/14/18, at 3.1 However,

the way the object appeared in court or on the MVR recording is not indicative

of how Officer Snyder observed it swaying from Marino’s rearview mirror on

September 5, 2017, at which time he deemed it to be a material obstruction

to Marino’s view through the front windshield.

        The suppression court acknowledged that it had a “very complete

record,” that Trooper Snyder “initiated the traffic stop in broad daylight and

was able to clearly see the object hanging from [Marino’s] rearview mirror,”

and that he “was able to accurately describe the object and state that he

believed the object created an obstruction to [Marino’s] view.”   Suppression

Court Opinion and Order, 5/4/18, at 4. See also Suppression Court Opinion,

5/14/18, at 2. As the Commonwealth observes, if it attempts to convict Marino

of the windshield violation, the degree of obstruction will be significant in

determining guilt or innocence; however, “[i]t is not the degree of obstruction

that provides reasonable suspicion, as the trial court has assumed, but

Trooper Snyder’s own observations regarding a possible material obstruction.”

Commonwealth’s Brief at 24.



____________________________________________


1   See Majority Memorandum at *8 for discussion of Shabazz.

                                           -7-
J-S63042-18


      Stated another way, the ultimate degree to which Marino’s view actually

had been impaired is not determinative, for the legal standard is based upon

an officer’s specific and articulable observations and resultant reasonable

belief further investigation is necessary to justify a stop. Indeed, “[a] finding

of reasonable suspicion does not demand ‘a meticulously accurate appraisal’

of the facts. [E]ven stops based on factual mistakes generally are

constitutional if the mistake is objectively reasonable.” Commonwealth v.

Chase, 599 Pa. 80, 102, 960 A.2d 108, 120 (2008) (citations and quotations

omitted).

      In light of the foregoing, I would find the facts of this case to be

analogous to those in Shabazz and hold that the traffic stop of Marino’s

vehicle was legal.   Accordingly, I would conclude that the trial court erred

when it granted the Omnibus Motion to Suppress and reverse the Order

entered on May 4, 2018.




                                      -8-
