Christopher v. Nestlerode

240 F. App'x 481
Court of Appeals for the Third Circuit·Decided June 28, 2007·No. 05-3516, 05-3837·Unpublished·Cited by 15 cases

Opinion

OPINION OF THE COURT

SCIRICA, Chief Judge.

This is a civil rights action under 42 U.S.C. § 1983 alleging racial profiling in a traffic stop. The plaintiff is an African American Pennsylvania State Trooper who was driving his personal automobile while off duty. The defendants are two Caucasian York County Deputy Sheriffs who made the traffic stop, the York County Sheriff, and York County. Plaintiff Ra *483 phael Christopher appeals the District Court’s grant of summary judgment in favor of Sheriff William Hose and the County, as well as a jury verdict in favor of Deputies Frederick Nestlerode and Matthew Kerr. Additionally, Hose, the County, Nestlerode, and Kerr (“the York Defendants”) cross-appeal from any and all orders denying their motions.

We will affirm the final judgment in favor of Hose and the County. We will affirm in part and vacate in part the final judgment in favor of Nestlerode and Kerr, and will remand for a new trial on Christopher’s Fourth Amendment claim on the basis of error in the District Court’s jury instruction. We do not reach the York Defendants’ cross-appeal and will dismiss it.

I.

A.

On August 5, 2003, Christopher was driving in the right-hand lane of a two-lane, one-way street in York, Pennsylvania, with a posted speed limit of twenty-five miles per hour. Nestlerode was driving a marked car in the left-hand lane and training Kerr in traffic enforcement. The road surface was wet from a light rain. Parked cars were present, but there were no pedestrians on the street. Upon spotting Christopher’s automobile, Nestlerode made an immediate estimate that it was traveling at between fifty and fifty-five miles per hour. Accordingly, Nestlerode pulled Christopher over to cite him for driving at an unsafe speed, a violation of § 3361 of the Pennsylvania Motor Vehicle Code. Kerr agreed with Nestlerode that Christopher was driving at an unsafe speed, and aided Nestlerode by notifying the Sheriffs Department and monitoring Christopher’s automobile while Nestlerode spoke with Christopher. During the course of the stop, Nestlerode noticed that the addresses on Christopher’s driver’s license and automobile registration did not match, a violation of § 1515 of the Pennsylvania Motor Vehicle Code, and also cited him for that offense.

At trial, Nestlerode testified he had decades of experience enforcing and training subordinates in enforcement of the Pennsylvania Motor Vehicle Code. He had worked in law enforcement in Pennsylvania since 1969. As a police corporal in Springettsbury Township, York County in the 1980s, Nestlerode had implemented a departmental training program in traffic enforcement. At the time he stopped Christopher, he was the York County Sheriff’s Department field training officer. Certified in the use of several speed timing devices, Nestlerode testified he was aware that a police officer’s testimony on a vehicle’s speed was inadmissible in Pennsylvania courts without the use of such a device. Nestlerode testified he had not had “probable cause” to stop Christopher for exceeding the posted speed limit (a different violation from driving at an unsafe speed), because he had not measured Christopher’s speed with a speed timing device. His testimony also displayed familiarity with state court decisions on deputy sheriffs’ authority to make traffic stops.

B.

The Pennsylvania Motor Vehicle Code contains separate prohibitions on driving in excess of a posted speed limit (§ 3362) and driving at an unsafe speed regardless of the posted limit (§ 3361). Christopher was cited for violating the latter, though the District Court instructed the jury on both offenses. The prohibition on unsafe speed is context-dependent: “No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual *484 and potential hazards then existing....” 75 Pa. Cons.Stat. Ann. § 8361 (West 2006). On the other hand, a citation for exceeding the speed limit must state precisely how fast the motorist was driving. Id. § 3366. Furthermore, that rate of speed must have been electronically or mechanically measured — it may be measured by an officer referring to the calibrated speedometer in a police car, but only if the motorist’s vehicle is observed for at least 3/10 of a mile. Id. § 3368. It is undisputed that Nestlerode’s marked car did not have a calibrated speedometer, and that Nestlerode and Kerr observed the speed of Christopher’s automobile for less than 3/10 of a mile.

While the Motor Vehicle Code details prohibited conduct by motorists, 1 the Pennsylvania Supreme Court has weighed in on when a law enforcement officer may have reason to believe the Motor Vehicle Code is being violated. In Commonwealth v. Whitmyer, the court found that, in order for an officer to have “probable cause” under the Fourth Amendment to stop a motorist for violating § 3361 (unsafe speed), the officer must observe either (1) a vehicle’s speed with a speed timing device (for 3/10 of a mile if the device is a calibrated speedometer) or (2) special hazards. 542 Pa. 545, 668 A.2d 1113, 1117-18 (1995). Whitmyer also appears to require use of a speed timing device in order for an officer to have Fourth Amendment “probable cause” to stop a motorist for violating § 3362 (exceeding the speed limit). 2 In fact, Nestlerode testified that a speed timing device was required for “probable cause” to stop a motorist for violating § 3362, and that he had not had “probable cause” to stop Christopher for that offense because he had used no such device.

C.

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Christopher v. Nestlerode, 240 F. App'x 481 (3d Cir. 2007).

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