J-S31039-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                 Appellant               :
                                         :
                    v.                   :
                                         :
ANTHONY L. KIDD, JR.,                    :
                                         :
                 Appellee                :     No. 2025 MDA 2015

             Appeal from the Order Entered October 20, 2015
             in the Court of Common Pleas of Montour County
            Criminal Division at No(s): CP-47-CR-0000078-2015

BEFORE:    SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED MAY 26, 2016

      The Commonwealth of Pennsylvania (Commonwealth) appeals from

the October 20, 2015 order which granted the motion to suppress filed by

Anthony L. Kidd, Jr. (Kidd). We reverse the order of the suppression court

and remand for proceedings consistent with this memorandum.

      The suppression court summarized the underlying facts of this case as

follows.

             On April 15, 2015, [Kidd] was traveling west on Interstate
      80 near mile marker 223.5 where Trooper Jeremy Hoy was
      located in a stationary position. As [Kidd] passed, Trooper Hoy
      testified that he noticed that [Kidd’s] registration lamp was not
      illuminated…. Trooper Hoy began to follow [Kidd] and caught up
      to [Kidd] at approximately mile marker 220.           Trooper Hoy
      observed [Kidd’s] vehicle hit the fog line twice and proceeded
      over the fog line onto the rumble strips once in the course of
      1/10 to 2/10 of a mile, a purported violation of [75 Pa.C.S.]
      § 3309, “Driving on roadways laned for traffic.” Shortly after
      that [Kidd] pulled into a rest area, and at that point, Trooper


*Retired Senior Judge assigned to the Superior Court.
J-S31039-16


      Hoy activated his lights to pull [Kidd] over. [Kidd] pulled over
      within the rest area.

            Trooper Hoy approached [Kidd’s] vehicle from the
      passenger side. [Kidd] was the driver and was the only person
      in the vehicle. [Kidd] already had the passenger window down,
      and Trooper Hoy requested [Kidd’s] driver’s license and other
      materials.    Trooper Hoy asked [Kidd] from where he was
      coming, and [Kidd] paused before responding “Bloomsburg,”
      which is 10-15 miles east of the location of the stop. Shortly
      after approaching the passenger window, Trooper Hoy detected
      the odor of marijuana.[1]

                                       ***

             Trooper Hoy issued a warning card for “Roadways laned for
      Traffic” under § 3309 and asked [Kidd] if he would consent to a
      search of his vehicle.

Suppression Court Opinion, 10/20/2015, at 1-3 (footnote added).

      Kidd refused consent. Trooper Hoy then advised Kidd that, pursuant

to Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), he intended to search

the vehicle.2   At that point, Kidd informed Trooper Hoy that “there was a

marijuana joint in the vehicle and there was also a loaded weapon in the


1
  “Trooper Hoy had been introduced to the smell of marijuana in the course
of his training. [The suppression court] found as a fact that Trooper Hoy
recognized the smell of marijuana, and had sufficient prior experience to
recognize that smell.” Suppression Court Opinion, 10/20/2015, at 2.
2
  In Gary, our Supreme Court held that police may conduct a warrantless
search of a vehicle so long as there is probable cause. 91 A.3d at 138 (“The
prerequisite for a warrantless search of a motor vehicle is probable cause to
search; no exigency beyond the inherent mobility of a motor vehicle is
required. The consistent and firm requirement for probable cause is a strong
and sufficient safeguard against illegal searches of motor vehicles, whose
inherent mobility and the endless factual circumstances that such mobility
engenders constitute a per se exigency allowing police officers to make the
determination of probable cause in the first instance in the field.”).

                                    -2-
J-S31039-16


center console.” N.T., 10/5/2015, at 13.     Trooper Hoy then searched the

vehicle, and found, in addition to the joint and gun, a backpack that

contained marijuana.       Subsequently, when Trooper Hoy searched Kidd’s

person, he found $1,001. Id. at 14.     Based on these circumstances, Kidd

was arrested and charged with a number of offenses including possession

with intent to deliver.3

      On August 5, 2015, Kidd filed a pre-trial motion to suppress the

marijuana found during this search.     Following a hearing, the suppression

court granted the motion on authority that Trooper Hoy lacked authority to

make the initial stop.4 The Commonwealth timely filed a notice of appeal.5

Both the suppression court and the Commonwealth have complied with

Pa.R.A.P. 1925.6




3
  Kidd has a license to carry the weapon; thus, he was not charged with any
offenses related to the weapon.

4
  “At the hearing, counsel for [Kidd] acknowledged that, if [the suppression
court] finds as a fact that Trooper Hoy was competent and credible in his
recognition of the smell of marijuana in [Kidd’s] vehicle, her latter argument,
that there was no probable cause to search the vehicle under [Gary] must
fail.” Suppression Court Opinion, 10/15/2015, at 2.
5
 The Commonwealth has certified that the suppression order substantially
handicaps the prosecution, making this an interlocutory appeal as of right
under Pa.R.A.P. 311(d).
6
  The suppression court filed its Rule 1925(a) opinion on December 29,
2015, incorporating its analysis of the issues set forth in its October 20,
2015 opinion filed with its order granting Kidd’s motion to suppress.

                                     -3-
J-S31039-16


      The Commonwealth presents one issue for this Court’s review:

“Whether the Trooper’s observations of a non-illuminated registration plate,

and [Kidd’s] crossing of the fog line on several occasions, were sufficient to

justify a stop of [Kidd’s] vehicle?” Commonwealth’s Brief at 4.

      We consider the Commonwealth’s issue mindful of the following.

      When the Commonwealth appeals from a suppression order, this
      Court follows a clearly defined scope and standard of review. We
      consider only the evidence from the defendant’s witnesses
      together with the evidence of the prosecution that, when read in
      the context of the entire record, remains uncontradicted. This
      Court must first determine whether the record supports the
      factual findings of the suppression court and then determine the
      reasonableness of the inferences and legal conclusions drawn
      from those findings.

Commonwealth v. Gorbea-Lespier, 66 A.3d 382, 385-86 (Pa. Super.

2013) (quotation marks and citations omitted).

      Here, the Commonwealth argues that Trooper Hoy “had reasonable

suspicion   to   stop   [Kidd’s]   vehicle   based   upon   the   non-illuminated

registration plate, probable cause to stop the vehicle upon observation of the

“Roadways Laned for Traffic” violation and probable cause to conduct a

warrantless search upon smelling marijuana emanating from the vehicle.”

Commonwealth’s Brief at 18.        Thus, the Commonwealth contends that we

should reverse the order of the suppression court.

      We begin by setting forth the relevant principles of law regarding

traffic stops. The authority of a police officer to stop a vehicle is governed

by 75 Pa.C.S. § 6308(b), and provides the following:


                                       -4-
J-S31039-16


     Whenever a police officer is engaged in a systematic program of
     checking vehicles or drivers or 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
     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).

             In Commonwealth v. Feczko, 10 A.3d 1285 (Pa. Super.
     2010) (en banc), this Court, consistent with our Supreme Court’s
     clarification of constitutional principles under the Fourth
     Amendment and Article I, Section 8 of the Pennsylvania
     Constitution, stated with respect to § 6308(b):

           In light of our Supreme Court’s interpretation of the
           current language of Section 6308(b), we are
           compelled to conclude that the standards concerning
           the quantum of cause necessary for an officer to
           stop a vehicle in this Commonwealth are settled;
           notwithstanding any prior diversity on the issue
           among panels of this Court. Traffic stops based on a
           reasonable suspicion: either of criminal activity or a
           violation of the Motor Vehicle Code under the
           authority of Section 6308(b) must serve a stated
           investigatory purpose. (footnote and citation
           omitted).

                                    ***

           Mere 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 Code.” [Commonwealth
           v.] Gleason [567 Pa. 111], 785 A.2d [983,] 989
           [(Pa2001)] (citation omitted)[, superseded by


                                    -5-
J-S31039-16


            statute, Act of Sept. 30, 2003, P.L. 120, No. 24, § 17
            (amending 75 Pa.C.S.A. § 6308(b))].

      Id. at 1290–1291 (emphasis added in Gleason). Accordingly,
      when considering whether reasonable suspicion or probable
      cause is required constitutionally to make a vehicle stop, the
      nature of the violation has to be considered.        If it is not
      necessary to stop the vehicle to establish that a violation of the
      Vehicle Code has occurred, an officer must possess probable
      cause to stop the vehicle. Where a violation is suspected, but a
      stop is necessary to further investigate whether a violation has
      occurred, an officer need only possess reasonable suspicion to
      make the stop. Illustrative of these two standards are stops for
      speeding and DUI. If a vehicle is stopped for speeding, the
      officer must possess probable cause to stop the vehicle. This is
      so because when a vehicle is stopped, nothing more can be
      determined as to the speed of the vehicle when it was observed
      while traveling upon a highway. On the other hand, if an officer
      possesses sufficient knowledge based upon behavior suggestive
      of DUI, the officer may stop the vehicle upon reasonable
      suspicion of a Vehicle Code violation, since a stop would provide
      the officer the needed opportunity to investigate further if the
      driver was operating under the influence of alcohol or a
      controlled substance.

Commonwealth v. Salter, 121 A.3d 987, 992-93 (Pa. Super. 2015).

      Stops for a non-illuminated license plate7 and violation of roadways

laned for traffic8 both require probable cause. See id. at 995 (holding that a



7
   That section governing this violation provides the following: “Every vehicle
operated on a highway shall be equipped with a rear lighting system
including, but not limited to, rear lamps, rear reflectors, stop lamps and
license plate light, in conformance with regulations of the department. If a
vehicle is equipped with a centrally mounted rear stop light, a decal or
overlay may be affixed to the centrally mounted rear stop light if the decal
or overlay meets all applicable State and Federal regulations.” 75 Pa.C.S.
§ 4303(b).
8
   The section governing this violation provides, in relevant part, the
following: “A vehicle shall be driven as nearly as practicable entirely within a

                                     -6-
J-S31039-16


vehicle stopped on the basis of a non-illuminated registration plate required

probable cause); Commonwealth v. Landis, 89 A.3d 694, 703 (Pa. Super.

2014) (holding that a stop for a violation of section 3309 of the Motor

Vehicle Code when there was “no express indication that the trooper stopped

[Landis] in order to conduct additional investigations into a DUI or other

impairments of his ability to drive safely,” required a suppression court to

analyze the stop under the probable cause standard). Thus, the issue before

this Court is whether Trooper Hoy had probable cause to stop Kidd’s vehicle.

      The suppression court concluded that Trooper Hoy did not possess

probable cause.   In doing so, the suppression court relied upon only the

violation of roadways laned for traffic, because that was the reason Trooper

Hoy provided both to Kidd at the scene and in the initial report as to why

Kidd was stopped.9

      At both the preliminary hearing and the suppression hearing, Trooper

Hoy testified that he observed Kidd was driving with a non-illuminated

registration plate. See N.T. 5/21/2015, at 6 (stating that he “noticed that

the registration plate light was not lit”); N.T., 10/5/2015, at 5 (stating that


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).
9
  The “incident report states, at item 11, under the heading of ‘Reason for
stop,’ that Trooper Hoy stopped [Kidd] on account of failing to comply with
the requirement that a driver stay within ‘roadways laned for traffic.’”
Suppression Court Opinion, 10/20/2015, at 3.


                                     -7-
J-S31039-16


he “noticed that the registration light was not illuminated on [Kidd’s]

vehicle”).

         It is well-settled that “[t]he police have probable cause where the facts

and circumstances within the officer’s knowledge are sufficient to warrant a

person of reasonable caution in the belief that an offense has been or is

being committed.” Commonwealth v. Hernandez, 935 A.2d 1275, 1284

(Pa. 2007) (quotation and citations omitted). “We evaluate probable cause

by considering all relevant facts under a totality of circumstances analysis.”

Id.

         Instantly, Trooper Hoy offered two bases upon which he stopped

Kidd’s vehicle; however, the suppression court limited its analysis to just

one. We hold that the suppression court erred in doing so. The suppression

court was required to assess the “totality of the circumstances” to determine

whether probable cause existed to stop Kidd’s vehicle. Hernandez, supra.

         Applying the appropriate probable cause standard to the facts at issue

in this case, we hold the suppression court erred in granting Kidd’s motion to

suppress. First, we have held that observing a non-illuminated registration

plate in and of itself is sufficient to establish probable cause to stop a

vehicle. Salter, 121 A.3d at 993 (holding an officer’s observing a non-

illuminated registration plate provided probable cause to initiate a vehicle

stop).     Second, even if we did not take into account the non-illuminated




                                        -8-
J-S31039-16


registration plate, Trooper Hoy still had probable cause to stop Kidd’s vehicle

for a section 3309 violation.

      There is no factual dispute that Trooper Hoy saw Kidd’s vehicle touch

the fog line two times and go over the fog line one time far enough to reach

the rumble strips. As soon as Trooper Hoy observed these occurrences, he

had probable cause to stop Kidd’s vehicle. See Commonwealth v.

Ibrahim, 127 A.3d 819, 824 (Pa. Super. 2015) (“To determine whether

probable   cause   exists,   we   must   consider   whether   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 man of reasonable caution in the belief that the

suspect has committed or is committing a crime. From a clear vantage point,

Officer Marrero observed Ibrahim driving his bicycle westbound on a road

that requires all traffic to proceed in the eastbound direction. No further

investigation was required. The moment that Officer Marrero observed the

violation, he had probable cause to stop Ibrahim.”).

      We are mindful that section 3309 litigation has presented a conundrum

for our courts, and our case law is replete with analyzing various fact

patterns and circumstances necessary to establish probable cause for a

violation of this section. See Commonwealth v. Anderson, 889 A.2d 596

(Pa. Super. 2005) (setting forth the fact patterns of various section 3309

traffic stop cases); see also Anderson, 889 A.2d at 604 (Gantman, P.J.


                                     -9-
J-S31039-16


dissenting) (noting that “this Court continues to review the numerous fact

patterns in traffic stop cases largely by comparing the fact pattern of one

case to the fact pattern of another case, which frequently leads to blurry

analysis and inconsistent decisions” and suggesting that we should “review

the activity alleged in light of the statutes involved, so we can reach more

reliable results”) (emphasis in original).

      Instantly, 75 Pa.C.S. § 3309 provides that “[a] vehicle shall be driven

as nearly as practicable entirely within a single lane[.]”        Trooper Hoy

observed Kidd deviate from this standard on three occasions. Accordingly,

we hold the suppression court erred in concluding that Trooper Hoy did not

have probable cause to stop Kidd’s vehicle for a violation of this section.

      Order reversed. Case remanded. Jurisdiction relinquished.

      Judge Ott joins.

      Judge Shogan concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/26/2016




                                     - 10 -
