J-S56019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JESUS ANGEL JUAREZ-PANJOTA,                :
                                               :
                       Appellant.              :   No. 407 MDA 2018


           Appeal from the Judgment of Sentence, February 9, 2018,
              in the Court of Common Pleas of Lancaster County,
             Criminal Division at No(s): CP-36-CR-0001444-2017.


BEFORE: GANTMAN, P.J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:                        FILED DECEMBER 07, 2018

        Jesus Angel Juarez-Panjota appeals a judgment of sentence of one year

probation, following a non-jury conviction on three drug-possession offenses.1

He challenges the constitutionality of the Commonwealth’s physical evidence,

which a Pennsylvania State Policeman seized during a traffic stop. For the

reasons below, we affirm.

        The parties agree on the facts, which Trooper Frank Gawel recounted at

the suppression hearing. The dashboard camera on his cruiser also recorded

the traffic stop and collaborated his recollection.

        On a February afternoon in 2017, Juarez-Panjota, high on marijuana,

drove his sedan, a Chevrolet Malibu, upon a state highway. Extraordinarily

large, rear tires protruded beyond the Malibu’s body and fenders.
____________________________________________


1   35 P.S. §780-113(A)(16).
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      Trooper Gawel was sitting in his cruiser on the roadside, when Juarez-

Panjota drove by him.     Believing that the Malibu’s oversized tires violated

Pennsylvania’s Vehicle Code, the trooper pulled out and followed the car for

about five minutes. From behind the Malibu, Trooper Gawel could tell that its

“fender did not cover the wheels and tires.” N.T., 8/28/17, at 5-7. He initiated

a traffic stop.

      Upon approaching the car, Trooper Gawel smelled freshly burnt

marijuana, arrested Juarez-Panjota, and searched the vehicle. That search

uncovered various drugs stashed throughout the Malibu.

      Juarez-Panjota filed a motion to suppress those drugs, on the grounds

that the trooper did not have probable cause to stop him for a Vehicle Code

violation.   At the suppression hearing, Trooper Gawel testified that the

Malibu’s protruding tires violated “the Vehicle Code [at section] 4107(b)(2),

which then refers to the PA Code 67, Inspection, Regulations and violations .

. . under Section 175 [b].” Id. at 7.

      After defense counsel challenged the trooper’s lack of familiarity with

the Vehicle Code on cross-examination, the Commonwealth rehabilitated him

by highlighting that Trooper Gawel relied upon “a short guide . . . a condensed

form of the vehicle code.” Id. at 12. As he flipped through this book on the

stand, the trooper then cited “two other sections here under tires and wheels,

which would be 175.65, which also then falls under 177.5 under the fender

section.” Id. The prosecutor then asked:

          You could have gone with either one?

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         A:    As far as I am aware, both apply to the situation. I
               chose fender.

Id.

      Agreeing with the trooper that Juarez-Panjota’s car displayed signs of a

Vehicle Code violation, the suppression judge denied the motion to suppress.

She said, “I am satisfied that . . . a traffic stop must be supported either by

probable cause or a reasonable suspicion of a criminal violation . . . .” Id. at

20. The judge further opined that:

         [t]here is a violation of the Vehicle Code regarding tire width
         and protrusion, as I read not only the Vehicle Code section
         relied on, but the underlying regulations on which that
         Vehicle Code section is based. Therefore, I am satisfied that
         the stop was legal, in that it was based on a reasonable
         suspicion that that violation had occurred.

Id. at 21.

      The court later convicted Juarez-Panjota on various possession counts

and sentenced him to one year of probation. This appeal followed.

      Juarez-Panjota presents three issues for appeal. First, he says that the

suppression court applied an unconstitutional standard of review – namely,

reasonable suspicion.    See Juarez-Panjota’s Brief at 3.      Second, he asks

whether “a mistake of law can provide the objectively reasonable grounds for

probable cause?” Id. Third, if the trooper honestly misinterpreted the Vehicle

Code, Juarez-Panjota points out that the state constitution – unlike its federal

counterpart – does not allow for a good-faith exception to the warrant

requirement. See id.



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      These issues form a three-pronged theory, and Juarez-Panjota must win

each of them in order to succeed on appeal. Essentially, he argues that:

          1. a protruding-tires violation requires courts to apply the probable

             cause standard;

          2. Trooper Gawel had no probable cause, because a protruding-tires

             violation does not exist for sedans; and

          3. Trooper Gawel’s bona fide misinterpretation of the law does not

             excuse his failure to procure a warrant under Article I, § 8 of the

             Constitution of the Commonwealth of Pennsylvania.

Because Juarez-Panjota’s second point rests upon an incorrect reading of the

Vehicle Code and disposes of this appeal, we will address only that issue.

      At the heart of his second appellate issue, Juarez-Panjota claims that

there is no violation for driving a sedan with tires that extend beyond its

fender.   He believes that the Pennsylvania Department of Transportation’s

(“PennDoT”) regulation prohibiting overly-wide tires only applies to heavy

trucks and buses. The court of common pleas and the Commonwealth both

disagree with Juarez-Panjota’s reading of the regulations. We do, too.

      Interpreting the Vehicle Code and PennDoT’s regulations in pursuance

thereof presents a pure question of law. Thus, “our scope of review is plenary,

and the standard is de novo.” Commonwealth v. Cooper, 27 A.3d 994, 998

(Pa. 2011). See also Ramalingam v. Keller Williams Realty Group, Inc.,

121 A.3d 1034, 1042 (Pa. Super. 2015) (indicating that this Court reviews

“code provisions” de novo).

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      Trooper Gawel stopped Juarez-Panjota’s Malibu, because he saw that its

rear tires extended outside the fenders. PennDoT has forbidden sedans from

passing inspection if a tire’s “tread extends beyond the outer edge of the wheel

housing inclusive of fender flares.”      67 Pa.Code § 175.80(e)(1)(ix).     The

“tread” is “[t]hat portion of the tire that comes into contact with the road.”

67 Pa.Code § 102 (definition of “Tread”).

      Moreover, PennDoT requires that a sedan’s “[t]ires and wheels shall be

in safe operating condition as described in § 175.80.” 67 Pa.Code § 175.65.

Thus, PennDoT, in its expertise as the regulating agency of vehicles in this

Commonwealth, has determined that protruding-tires render a car unsafe for

driving.   Hence, Juarez-Panjota’s Malibu was an unsafe car, equipped with

tires in violation of PennDoT regulations.

      The General Assembly, in turn, has outlawed the driving of any vehicle

that violates PennDoT’s regulations on the Commonwealth’s roadways. “It is

unlawful for any person to . . . [o]perate . . . on any highway in this

Commonwealth any vehicle . . . which is not equipped as required under this

part or under department regulations . . . .”         75 Pa.C.S.A. § 4107(b)(2)

(relating to unlawful activates on the highways). If Juarez-Panjota’s tires were

wider than his fenders, he committed a violation under Section 4107(b)(2).

      Thus, we fully agree with the learned Court of Common Pleas Judge

Margaret C. Miller, who correctly held:

           Regardless of whether Trooper Gawel included an inaccurate
           citation in [the] criminal complaint, or misspoke while
           testifying, the fact remains that the vehicle stop at issue was

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          neither based upon mistake of fact nor law. [Juarez-
          Panjota] was stopped for operating a vehicle with illegal and
          unsafe equipment, because the vehicle’s tires extended
          beyond the vehicle’s fender.

Trial Court Opinion, 5/8/16, at 16.

       At the suppression stage, we are concerned with the facts as Trooper

Gawel (and his dashboard camera) related them, not whether he cited the

exact sections of the Vehicle Code and PennDoT regulations in the criminal

complaint or on the stand. Here, the trooper credibly described the tires, their

size, and their protrusion beyond the fenders.

       Having established that sedans tires have a size-limit under the law, we

now consider whether Trooper Gawel had grounds to stop Juarez-Panjota’s

vehicle for his oversized tires. In doing so, our scope of review is limited to

only the suppression-hearing evidence2 of the prevailing party (here, the

Commonwealth) and the uncontradicted evidence of the losing party. See

Commonwealth v. Ranson, 103 A.3d 73, 76 (Pa. Super. 2014). However,

because Trooper Gawel failed to obtain a search warrant prior to stopping and

searching Juarez-Panjota’s vehicle, the suppression court’s ruling that the

trooper possessed “reasonable suspicion and probable cause should be

____________________________________________


2 Throughout his brief, Juarez-Panjota makes multiple references to the non-
jury and sentencing hearing transcript. See, e.g., Juarez-Panjota’s Brief at
6, 24. These references are irrelevant. The Supreme Court of Pennsylvania
has made clear that, when considering claims of a suppression court’s errors,
our scope of review is “limited to the factual findings and legal conclusions of
the suppression court.” In re L.J., 79 A.3d 1073, 1080 (Pa. 2013). See also
Commonwealth v. Cruz, 166 A.3d 1249, 1254 (Pa. Super. 2017), appeal
denied, 180 A.3d 1207 (Pa. 2018).

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reviewed de novo on appeal.” Ornelas v. United States, 517 U.S. 690, 699

(1996). See also Commonwealth v. Davis, 188 A.3d 454, 458 (Pa. Super.

2018).

       Under the Fourth Amendment to the Constitution of the United States,

“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, but upon probable cause. . . .”   Likewise, Article I, §

8 of the Constitution of the Commonwealth of Pennsylvania dictates that:

          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, supported by oath or
          affirmation subscribed to by the affiant.

       “As a general rule, a search conducted without a warrant is presumed

to be unreasonable unless it can be justified under a recognized exception to

the search warrant requirement.”           Commonwealth v. Agnew, 600 A.2d

1265, 1271 (Pa. Super. 1991). One exception to the warrant requirement is

the vehicle exception, because, in most cases, a vehicle can drive away,

provided the Commonwealth can demonstrate that the stopping/searching

officer had the required level of suspicion to justify the stop and/or search.

See Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014) (plurality opinion).3
____________________________________________


3 In Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014) (plurality opinion),
four Justices agreed, albeit on differing grounds, that Pennsylvania should
adopt the federal standard for vehicle searches. Thus, only probable cause is



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Law enforcement must, depending upon “the nature of the violation” in

question, possess either reasonable suspicion or probable cause to initiate a

traffic stop.   Commonwealth v. Salter, 121 A.3d 987, 993 (Pa. Super.

2015).

       To prove reasonable suspicion, the Commonwealth need only show that

an officer made “specific observations which, in conjunction with reasonable

inferences derived from those observations, led him reasonably to conclude,

in light of his experience, that criminal activity was afoot and that the person

he stopped was involved in that activity.” Commonwealth v. Anthony, 1

A.3d 914, 919 (Pa. Super. 2010).

       On the other hand, an officer possess probable cause:

          when the facts and circumstances within the police officer’s
          knowledge and of which the officer has reasonably
          trustworthy information are sufficient in themselves to
          warrant a person of reasonable caution in the belief that an
          offense has been committed by the person to be arrested.
          Probable cause justifying a warrantless arrest is determined
          by the totality of the circumstances.

          It is the facts and circumstances within the personal
          knowledge of the police officer that frames the
          determination of the existence of probable cause.

Id. at 996–97 (citations and quotation marks omitted). Thus, the suspicion

required for reasonable suspicion is only that the person detained be involved




____________________________________________


now required to search a vehicle, rather than probable cause and an additional
exigent circumstance.

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in criminal activity, whereas probable cause requires reasonable belief that a

person committed or is committing a crime.

      We need not decide the constitutional question of which standard applies

to the violation at bar, because Trooper Gawel had probable cause. There is

no dispute that the protruding tires of Juarez-Panjota’s vehicle were clearly

visible to Trooper Gawel at the time he made this traffic stop. Thus, it was

reasonable for the trooper to believe that the driver of the Malibu was

committing a protruding-tires violation of the Vehicle Code as he drove down

the highway. In fact, defense counsel, after watching the video of the traffic

stop at the suppression hearing, acknowledged seeing the “tires sticking out.”

N.T., 8/28/18, at 18.    If the tires’ treads had not protruded beyond the

Malibu’s fenders, then the trooper and defense counsel would not have seen

them “sticking out” beyond the sides of the car. Id.

      Upon de novo review, we conclude that Trooper Gawel had ample

probable cause to believe Juarez-Panjota’s tires violated 67 Pa.Code §

175.80(e)(1)(ix) and, by extension, 67 Pa.Code § 175.65 and 75 Pa. C.S.A. §

4107. Hence, we have no need to decide whether the higher or lower standard

of constitutional scrutiny applies to 67 Pa.Code § 175.80(e)(1)(ix), because

Trooper Gawel articulated sufficient facts to clear the higher hurdle of probable

cause.

      Moreover, whether probable cause or reasonable suspicion existed at

the time a police officer stops someone or conducts a search “is predominately

an objective inquiry.”    Ashcroft v. al-Kidd, 563 U.S. 731, 736 (2011)

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(quotations and citations omitted).       The Supreme Court of the United has

made clear that, in most cases, courts must:

         ask whether “the circumstances, viewed objectively, justify
         [the challenged] action.” Scott v. United States, 436 U.S.
         128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978). If so, that
         action was reasonable “whatever the subjective intent”
         motivating the relevant officials. Whren v. United States,
         517 U.S. 806, 814, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).
         This approach recognizes that the Fourth Amendment
         regulates conduct rather than thoughts, Bond v. United
         States, 529 U.S. 334, 338, n. 2, 120 S.Ct. 1462, 146
         L.Ed.2d 365 (2000); and it promotes evenhanded, uniform
         enforcement of the law, Devenpeck v. Alford, 543 U.S.
         146, 153–154, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004).

Id. at 731.

      Thus, it does not matter which PennDoT regulations Trooper Gawel

subjectively believed Juarez-Panjota had violated when he pulled the Malibu

over, when he filled out the criminal complaint, or when he testified at the

suppression hearing. In a random traffic stop such as this one, all that matters

are the facts, as the common pleas judge found them to be, and whether

those facts, objectively speaking, add up to probable cause or reasonable

suspicion. A trooper’s subjective mistake of law is irrelevant.

      Thus, Juarez-Panjota’s second claim of error is without merit, because

his tires presented visual evidence, objectively speaking, to warrant a person

of reasonable caution to believe that their tread extended “beyond the outer

edge of the wheel housing inclusive of fender flares.”            67 Pa.Code §

175.80(e)(1)(ix). We arrive at the same conclusion as the suppression court

– this traffic stop was constitutional.

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      Because Juarez-Panjota’s success in this Court depended on the success

of all three of his appellate issues and his second has failed him, we need not

address his first and third issues.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/07/2018




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