J-A35026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                           Appellant

                      v.

LEA ANN MYERS,

                           Appellee                 No. 428 WDA 2015


                     Appeal from the Order February 6, 2015
                 In the Court of Common Pleas of Butler County
              Criminal Division at No(s): CP-10-CR-0001375-2014


BEFORE: BENDER, P.J.E., SHOGAN, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED FEBRUARY 05, 2016

         The Commonwealth appeals from the order of the trial court granting

the motion filed by Appellee, Lea Ann Myers, seeking to suppress all

evidence obtained as a result of her vehicle stop. We affirm.

         We summarize the history of this case as follows.   At approximately

9:00 p.m. on June 8, 2014, Butler Township Police Officer Paul Kuss was

patrolling in an unmarked cruiser when he noticed Appellee’s vehicle make a

turn behind him.       Officer Kuss turned around to follow Appellee and

observed her vehicle allegedly exceeding the speed limit.         The officer

increased his speed but lost sight of Appellee when he stopped at a traffic

light.    Officer Kuss was unable to catch up to the vehicle to perform a

measure of distance and time to ascertain Appellee’s actual speed. Officer

Kuss eventually spotted Appellee’s vehicle again and began to follow it.
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While following Appellee’s vehicle the second time, Officer Kuss claims he

observed her car move onto or across the double yellow lines and the white

fog line.   Officer Kuss activated his emergency lights and sirens, and

Appellee drove approximately one-half mile before pulling over.   Appellee

was charged with Driving on Roadways Laned for Traffic, pursuant to 75

Pa.C.S. § 3309(1); Driving Under the Influence, pursuant to 75 Pa.C.S. §

3802(A)(1); and Driving Under the Influence with a BAC of .16% or higher,

pursuant to 75 Pa.C.S. § 3802(C).

      On October 14, 2014, Appellee filed a motion to suppress evidence

gained during the traffic stop. A suppression hearing was held on November

10, 2014.     In an order dated February 6, 2015, the suppression court

granted Appellee’s motion to suppress. The order was docketed on February

12, 2015.     On March 3, 2015, the Commonwealth filed a motion for

reconsideration and a motion to vacate, which were denied on March 20,

2015. The Commonwealth initiated this appeal on March 10, 2015, noting

that under Pa.R.A.P. 311(d), the order dated February 6, 2015, and

docketed on February 12, 2015, substantially handicaps or terminates

prosecution. Both the Commonwealth and the trial court have complied with

Pa.R.A.P. 1925.

      The Commonwealth presents the following issues, which we have

renumbered for purposes of our review:




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      I. Did the Trial Court err in proceeding to conduct a probable
      cause analysis when the Appellee was only challenging the initial
      stop?

      II. Did the Trial Court commit an error of law when it granted the
      Appellee’s Pre-Trial Motion to Suppress by concluding that
      Officer Kuss did not have reasonable suspicion or probable cause
      that the vehicle or driver was in violation of some provision of
      the vehicle code to initiate a traffic stop of Appellee’s vehicle?

Commonwealth’s Brief at 1.

      The Commonwealth first argues that, in addressing Appellee’s motion

to suppress, the trial court erred in conducting a probable cause analysis.

Commonwealth’s Brief at 8. The Commonwealth contends that “[b]ecause

the Appellee only challenged the vehicle stop and not the cause for arrest

after the vehicle was pulled over, the lower court only needed to use a

reasonable    suspicion   framework.”       Id.     We    disagree      with   the

Commonwealth’s claim.

      “The issue of what quantum of cause a police officer must possess in

order to conduct a vehicle stop based on a possible violation of the Motor

Vehicle Code [(“MVC”)] is a question of law, over which our scope of review

is plenary and our standard of review is de novo.”         Commonwealth v.

Holmes, 14 A.3d 89, 94 (Pa. 2011).           The MVC provides the following

statutory authorization for a police officer to stop a motor vehicle:

      Whenever a police officer . . . has reasonable suspicion that a
      violation of this title is occurring or has occurred, he may stop a
      vehicle, upon request or signal, for the purpose of checking the
      vehicle’s registration, proof of financial responsibility, vehicle
      identification number or engine number or the driver’s license, or


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     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. § 6308(b). However, this Court has explained the following:

     [Section 6308(b)] requires only reasonable suspicion in support
     of a stop for the purpose of gathering information necessary to
     enforce the [MVC] violation. However, in Commonwealth v.
     Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en banc),
     appeal denied, 611 Pa. 650, 25 A.3d 327 (Pa. 2011), this Court
     held that a police officer must have probable cause to support a
     vehicle stop where the officer’s investigation subsequent to the
     stop serves no “investigatory purpose relevant to the suspected
     [MVC] violation.” In Feczko, the police officer observed the
     defendant’s vehicle cross over the double yellow median line and
     the fog line. Id. at 1286. During the ensuing vehicle stop, the
     officer noticed the scent of alcohol on the defendant’s breath.
     Id. Importantly, the officer did not testify that the stop was
     based on suspicion of DUI. Id. The defendant was convicted of
     DUI and a [MVC] violation, and argued on appeal that the
     vehicle stop was illegal. Id. at 1287.

           This Court noted the distinction between “the investigative
     potential of a vehicle stop based on a reasonable suspicion of
     DUI as compared to other suspected violations of the [MVC].”
     Id. at 1289 (citing Commonwealth v. Sands, 887 A.2d 261,
     270 (Pa. Super. 2005)). Whereas a vehicle stop for suspected
     DUI may lead to further incriminating evidence such as an odor
     of alcohol or slurred speech, a stop for suspected speeding is
     unlikely to lead to further evidence relevant to that offense. Id.
     Therefore:

           a vehicle stop based solely on offenses not
           “investigable” cannot be justified by a mere
           reasonable suspicion, because the purposes of a
           Terry1 stop do not exist - maintaining the status quo
           while investigating is inapplicable where there is
           nothing further to investigate. An officer must have
           probable cause to make a constitutional vehicle stop
           for such offenses.
           1
             Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20
           L.Ed.2d 889 (1968).


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      [Feczko, 10 A.3d] at 1290 (quoting Commonwealth v. Chase,
      960 A.2d 108, 116 (Pa. 2008)).

Commonwealth v. Busser, 56 A.3d 419, 423 (Pa. Super. 2012) (footnote

in original).

      Our review of the record reflects that on June 8, 2014, Officer Paul

Kuss, of the Butler Township police department, stopped Appellee’s vehicle

due to an alleged violation of driving on a roadway laned for traffic and of

exceeding the posted speed limit. Neither of these MVC violations allegedly

witnessed by Officer Kuss required further investigation.        Accordingly, in

order to effectuate a legal stop of Appellee’s vehicle, Officer Kuss would have

needed to possess probable cause.       Busser, 56 A.3d at 423.         Thus, we

conclude that the trial court utilized the appropriate standard in conducting

its analysis, and the Commonwealth’s contrary claim lacks merit.

      The Commonwealth next argues that the trial court erred in granting

Appellee’s motion to suppress.        Commonwealth’s Brief at 5-7.           The

Commonwealth      contends   that   Officer   Kuss   possessed    the   requisite

reasonable suspicion to stop Appellee for violations of speeding under 75

Pa.C.S. § 3362 and driving within a single lane under 75 Pa.C.S. § 3309(1).

      We have stated the following with regard to reviewing an order

granting a defendant’s motion to suppress evidence:

      we are bound by that court’s factual findings to the extent that
      they are supported by the record, and we consider only the
      evidence offered by the defendant, as well as any portion of the
      Commonwealth’s evidence which remains uncontradicted, when
      read in the context of the entire record. Our review of the legal

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     conclusions which have been drawn from such evidence,
     however, is de novo, and, consequently, we are not bound by
     the legal conclusions of the lower courts.

Busser, 56 A.3d at 421 (quoting Commonwealth v. Wallace, 42 A.3d

1040, 1048 (Pa. 2012)).

     We begin our assessment of the trial court’s decision to grant the

motion to suppress by again noting that the trial court properly concluded

that Officer Kuss was required to possess probable cause to justify the stop

of Appellee’s vehicle for violations of 75 Pa.C.S. §§ 3362 and 3309(1), as

the stop did not “serve a stated investigatory purpose.” Feczko, 10 A.3d at

1291. In Feczko, this Court held the following:

     “[m]ere reasonable suspicion will not justify a vehicle stop when
     the driver’s detention cannot serve an investigatory purpose
     relevant to the suspected violation. In such an instance, it is
     encumbent [sic] upon the officer to articulate specific facts
     possessed by him, at the time of the questioned stop, which
     would provide probable cause to believe that the vehicle or the
     driver was in violation of some provision of the [MVC].”

Id. at 1291 (citations, internal quotation marks, and emphasis omitted).

Thus, because these two alleged violations do not require additional

investigation, Officer Kuss was required to possess probable cause to make

the stop, not merely reasonable suspicion. Therefore, we will conduct our

review using the appropriate probable cause requirement.

     “Probable cause is made out when the facts and circumstances which

are within the knowledge of the officer at the time of the arrest, and of

which he has reasonably trustworthy information, are sufficient to warrant a


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[person] of reasonable caution in the belief that the suspect has committed

or is committing a crime.” Commonwealth v. Thompson, 985 A.2d 928,

931 (Pa. 2009) (quotation marks omitted).

      The question we ask is not whether the officer’s belief was
      correct or more likely true than false. Rather, we require only a
      probability, and not a prima facie showing, of criminal activity.
      In determining whether probable cause exists, we apply a
      totality of the circumstances test.

Id. (emphasis    in   original)   (citations and   quotation   marks omitted).

Pennsylvania law makes clear, however, that a police officer has probable

cause to stop a motor vehicle if the officer observed a traffic code violation,

even if it is a minor offense. Commonwealth v. Chase, 960 A.2d 108, 113

(Pa. 2008).

      The trial court concluded that Officer Kuss failed to prove that he had

probable cause to believe that Appellee’s vehicle had committed a violation

of the MVC.    As the Commonwealth correctly states, section 3362 of the

MVC addresses maximum speed limits and provides, in relevant part, as

follows:

      § 3362. Maximum speed limits.

      (a) General rule. -- Except when a special hazard exists that
      requires lower speed for compliance with section 3361 (relating
      to driving vehicle at safe speed), the limits specified in this
      section or established under this subchapter shall be maximum
      lawful speeds and no person shall drive a vehicle at a speed in
      excess of the following maximum limits[.]

75 Pa.C.S. § 3362(a).




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      In addition, the MVC defines the offense of roadways laned for traffic

as follows:

      § 3309. Driving on roadways laned for traffic

             Whenever any roadway has been divided into two or more
      clearly marked lanes for traffic the following rules in addition to
      all others not inconsistent therewith shall apply:

              (1) Driving within single lane. --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. § 3309(1).

      Our review of the record reflects that at the time Officer Kuss stopped

Appellee’s vehicle, he was not certain of the speed Appellee was actually

driving or even the speed that Officer Kuss was driving himself.        As the

officer’s testimony explains, he first encountered Appellee’s vehicle when she

was driving behind him and she turned onto a different road.                N.T.,

11/10/14, at 6. The officer stated that he was looking for vehicles to follow

to see any violations.       Id. at 15.   Officer Kuss then decided to follow

Appellee’s vehicle, performed a U-turn, and attempted to catch up to

Appellee.     Id. at 6.   In fact, Officer Kuss admitted that he was not using

VASCAR at the time, and he did not clock Appellee’s vehicle for three/tenths

of a mile.      Id. at 10, 16.     Rather, Officer Kuss stated, “To me, my

experience, this vehicle was going over the speed limit.”       Id. at 6.     In

addition, the officer testified that Appellee’s vehicle “seemed to be exceeding


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the speed limit.”      Id. at 10.    Interestingly, when asked how fast he was

traveling in relation to the speed limits, Officer Kuss admitted that he was

not watching his speedometer. Id. at 8. Moreover, Officer Kuss explained

that he calculated his own speed during the incident by use of his car video

only “[w]hen [he] received notice of the [suppression] hearing.” Id. at 12.

Again, after the fact, the officer calculated only his own speed and did not

calculate Appellee’s speed.         Id. at 13.   In light of these facts, we are

constrained to conclude that the officer did not possess the requisite

probable cause to stop Appellee’s vehicle for a speeding violation.

         We next address whether Officer Kuss had probable cause to stop

Appellee’s vehicle for failure to properly remain in her lane of traffic. Our

review of the record reflects that Officer Kuss testified that from a distance

of about thirty feet, he saw Appellee’s vehicle “go onto the fog line” one

time, and “go onto the double yellow line” one time. N.T., 11/10/14, at 9,

14. The officer indicated that he did not know “the distance between when

Appellee’s vehicle hit the fog line and then later when it hit the double yellow

line.”    Id. at 19.   Furthermore, the officer could not state whether there

were other vehicles traveling in the opposite direction when Appellee’s

vehicle drove onto the double yellow line.         Id. at 18.   Hence, we must

conclude that the trial court did not err in determining that Officer Kuss

lacked probable cause to stop Appellee’s vehicle for a violation of driving on




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roadways laned for traffic under 75 Pa.C.S. § 3309(1). Therefore, the trial

court properly granted Appellee’s motion to suppress.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/2016




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