Commonwealth v. Anderson

889 A.2d 596, 2005 Pa. Super. 407, 2005 Pa. Super. LEXIS 4178

• Court: Superior Court of Pennsylvania
• Decided: December 8, 2005
• Status: Published

Opinions

OPINION BY

STEVENS, J.:

¶ 1 The Commonwealth appeals the order entered in the Court of Common Pleas of Berks County suppressing the evidence seized from the stop of a vehicle driven by Appellee Daniel Anderson. On appeal, the Commonwealth’s sole contention is that Police Officer Michael Quinn had probable cause to stop Appellee’s vehicle, and, therefore, the suppression court erred in granting Appellee’s pre-trial motion to suppress. We reverse and remand for further proceedings.

The standard employed by this Court when considering a Commonwealth appeal from an order granting suppression follows.

In reviewing the ruling of a suppression court, our task is to determine whether the factual findings are supported by the record. If so, we are bound by those findings. Where, as here, it is the Commonwealth who is appealing the decision of the suppression court, we must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncon-tradicted.

Commonwealth v. Klopp, 863 A.2d 1211, 1213 (Pa.Super.2004) (quotation and citations omitted).

¶2 The relevant facts and procedural history are as follows: Appellee was arrested for driving while under the influence of alcohol (DUI), driving on roadways laned for traffic, and careless driving,¹ and he filed a pre-trial motion seeking to suppress the evidence seized by the police, as well as a motion for writ of habeas corpus. On August 26, 2004, a pre-trial hearing was held, during which Police Officer Michael Quinn testified that he was on duty on May 17, 2003 at 2:30 a.m. when he observed Appellee’s vehicle traveling at approximately ten miles an hour on a two-lane street with a thirty-five mile an hour speed limit. N.T. 8/26/04 at 4-5. Officer Quinn testified that he initially saw Appel-lee’s vehicle straddling the double yellow lines, and as a result, he began following the vehicle. N.T. 8/26/04 at 6.

¶ 3 As Officer Quinn followed Appellee’s vehicle, he observed the vehicle cross over the double yellow lines with both driver’s side tires two or three times and then watched as the vehicle straddled the double yellow lines with half of the vehicle driving in the other lane for approximately two blocks. N.T. 8/26/04 at 7, 17. Officer Quinn specifically testified that Appellee’s vehicle was “dead center” on the two-lane street for approximately two blocks. N.T. 8/26/04 at 7. While Appellee was driving “dead center” of both lanes of travel, Officer Quinn observed at least one other vehicle on the street. N.T. 8/26/04 at 7-8. Officer Quinn testified that oncoming traffic would have needed to swerve to get out of Appellee’s path. N.T. 8/26/04 at 9. Officer Quinn observed Appellee’s vehicle “come to a dead stop in the middle of the road” at the intersection of Main Street and Beach Street; there was no stop 'sign or traffic signal at this intersection. N.T. 8/26/04 at 9,18-19.

¶4 Officer Quinn watched as Appellee sat a few seconds, turned on his turn signal, made a right turn onto Beach Street, and traveled one block to the intersection of Beach and Locust Streets, at which time Appellee stopped his vehicle at the stop sign for approximately thirty seconds to one minute. N.T. 8/26/04 at 9, 19. Officer Quinn saw Appellee drive to the next intersection, which was at Locust and Linden Streets, and stop his vehicle, even though there was no stop sign or traffic signal. N.T. 8/26/04 at 9, 21. Appellee turned left onto Linden Street and traveled one block to Oak Street, where Appellee sat for approximately thirty seconds to one minute. N.T. 8/26/04/ at 9-10. Officer Quinn specifically testified that at each intersection, with or without a stop sign, Appellee stopped his vehicle for approximately thirty seconds to one minute, even though there was no traffic impeding his travel. N.T. 8/26/04 at 9-10.

¶ 5 At this point, Officer Quinn believed Appellee was driving while under the influence of alcohol or a controlled substance, so he activated his cruiser’s emergency lights. N.T. 8/26/04 at 13. In response, Appellee stopped his vehicle in a “cockeyed-type position” next to the curb. N.T. 8/26/04 at 10. Officer Quinn approached Appellee, who told Officer Quinn he was attempting to return to his house after having a few beers with friends after work. N.T. 8/26/04 at 10,14. Officer Quinn testified that a strong odor of alcohol emanated from the vehicle, Appellee’s eyes were blood-shot, Appellee’s speech was slurred, and Appellee refused all requests for testing. N.T. 8/26/04 at 11-12.

¶ 6 At the conclusion of the suppression hearing, by order entered on November 19, 2004, the court granted Appellee’s motion to suppress but denied his motion for writ of habeas corpus. The Commonwealth filed a timely appeal alleging that the lower court’s ruling substantially handicaps the prosecution. The lower court ordered the Commonwealth to file a statement pursuant to Pa.R.A.P. 1925(b), the Commonwealth filed the requested statement, and the lower court filed a Pa.R.A.P. 1925(a) opinion concluding that the Commonwealth failed to demonstrate sufficient probable cause for Officer Quinn to stop Appellee’s vehicle. We conclude the lower court’s factual findings are supported by the record; however, we disagree with the lower court’s legal conclusions based thereon.

¶ 7 Section 6308(b) of the Vehicle Code allows police officers to stop a vehicle if they have “articulable and reasonable grounds to suspect a violation” of the Vehicle Code. 75 Pa.C.S.A. § 6308(b).²

If the alleged basis of a vehicle stop is to permit a determination whether there has been compliance with the Motor Vehicle Code of this Commonwealth, it is [ijncumbent 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. Slonaker, 795 A.2d 397, 400 (Pa.Super.2002) (quoting Commonwealth v. Whitmyer, 542 Pa. 545, 550, 668 A.2d 1113, 1116 (1995)). As the Supreme Court explained in Whitmyer, supra, the statutory standard of “articulable and reasonable grounds” is the same as “probable cause.”

¶ 8 “Probable cause does not require certainty, but rather exists when criminality is one reasonable inference, not necessarily even the most likely inference.” Commonwealth v. Lindblom, 854 A.2d 604, 607 (Pa.Super.2004) (citation omitted).

Our courts recognize that while the Commonwealth has an interest in enforcing rules designed to maintain safety on our roads, an individual does not lose all reasonable expectation of privacy when he takes to the highway in a vehicle. [As indicated,] [a] police officer must have specific facts justifying the intrusion.

Slonaker, 795 A.2d at 400 (citing Commonwealth v. Gleason, 567 Pa. 111, 785 A.2d 983 (2001)).

¶ 9 In Gleason, supra, the Supreme Court addressed the issue of assessing when an officer has sufficient indicia of erratic driving to give the officer probable cause to stop a vehicle. Specifically, the defendant in Gleason was followed by a police officer for one quarter of a mile and, over that distance, the officer observed the defendant’s vehicle cross the solid fog line two or three times. The Supreme Court concluded that “[g]iven the early morning hour, the fact that there was no other traffic on the roadway and the rather momentary nature of [the] defendant’s vehicle crossing the fog line..., the officer erred in believing he had justification to stop [the] defendant’s vehicle.” Gleason, 785 A.2d at 985-986.

¶ 10 Since Gleason’s publication, this Court has applied its holding to the myriad fact patterns that come before us in the context of traffic stops. Based on the specific facts presented, stops of defendants’ vehicles have been upheld on several occasions. For example, in Commonwealth v. Chernosky, 874 A.2d 123 (Pa.Super.2005), an en banc panel of this Court recently held that the stop of the defendant’s vehicle was supported by probable cause to suspect that the defendant was driving while under the influence of alcohol when the officer observed the defendant drive her vehicle from the roadway and nearly strike a telephone pole that was on the shoulder, travel across the double yellow lines, and swerve back over to the right side of the road on more than one occasion. The en banc panel specifically held that the defendant’s actions were not equivalent to fleeting transgressions and that she created a clear risk to oncoming traffic and herself. “Given the length of time and distance, public risk was created even though [the officer] could not recall specifically seeing other vehicles on the road.” Id. at 128.

¶ 11 In Commonwealth v. Cook, 865 A.2d 869 (Pa.Super.2004), a panel of this Court held that the police had probable cause to stop the defendant’s vehicle when an on-duty officer received information from an off-duty officer that the defendant was driving in an erratic manner. Specifically, the off-duty officer observed the defendant travel into the parking lane, nearly striking the curb, and cross the fog line two or three times. The on-duty officer then followed the defendant’s vehicle for approximately one mile and observed him drive over the fog line three times then rapidly jerk into his lane of travel. In upholding the stop, the panel noted that, unlike in Gleason, the defendant in Cook had crossed the fog line by several feet and not several inches, and the on-duty officer had followed the defendant for one mile knowing that the defendant had already been observed driving erratically by the off-duty officer. Furthermore, the panel concluded that the defendant’s unsafe action of jerking the vehicle back into his lane of travel indicated that the defendant had inadvertently crossed the fog line and anxiously sought to remedy the situation.

¶ 12 In Commonwealth v. Klopp, 863 A.2d 1211 (Pa.Super.2004), a panel of this Court held that sufficient probable cause existed where the police saw the defendant’s vehicle weave over the double yellow lines and fog line four times over a course of one and one-half miles. During the fourth time, a vehicle in the oncoming lane of travel moved to the right to avoid the defendant’s vehicle. The panel specifically concluded that the offense was more than “momentary and minor” in nature.

¶ 18 In Commonwealth v. Lindblom, 854 A.2d 604 (Pa.Super.2004), a panel of this Court concluded that the police had probable cause to stop the defendant’s vehicle where the defendant crossed the center double yellow lines four or five times, straddled the double yellow lines, and crossed the berm line four or five times. The panel made this conclusion even though opposing traffic was not present during the entire time the defendant was driving, noting that “a motorist may be stopped for reckless driving even if the only concern is for the motorist’s own safety.” Id. at 608 (citation omitted).

¶ 14 In Commonwealth v. Mickley, 846 A.2d 686 (Pa.Super.2004), a panel of this Court concluded that the stop of the defendant’s vehicle was proper where the police followed the defendant’s vehicle and observed, during the last three-quarters of a mile, that the defendant weaved within her lane of travel and crossed over onto the berm four times. While weaving, the defendant encountered several vehicles traveling in the opposite direction. The panel concluded that the defendant presented a clear hazard to herself and others.

¶ 15 In Commonwealth v. Slonaker, 795 A.2d 397 (Pa.Super.2002), a panel of this Court held that an officer had probable cause to suspect a driver was intoxicated, and thus, was justified in stopping the defendant’s vehicle, when the officer observed the defendant’s vehicle fully cross the white fog line three times during a five mile stretch, weave numerous times over the double yellow lines and the white fog line, weave side to side continuously in his lane of travel, and vary his speed between forty and sixty miles per hour. The panel specifically concluded that the defendant’s continuous weaving over a file mile stretch of road, coupled with his acceleration and deceleration, led to the conclusion that the defendant’s driving was significantly less benign than the driving in Gleason.3

¶ 16 Applying the precedent discussed supra, we conclude that the facts in the case sub judice are akin to those cases where probable cause existed to execute a traffic stop. Specifically, the transgressions observed by Officer Quinn were not “momentary or minor,” were significantly less benign than those in Gleason, and gave Officer Quinn sufficient probable cause to believe Appellee was driving while under the influence. As indicated, Officer Quinn followed Appellee on numerous two-lane streets for approximately five city blocks. During this time, Appellee straddled the double yellow lines for a full two blocks in such a manner that oncoming traffic would be required to swerve to avoid Appellee’s vehicle. Furthermore, Appellee repeatedly stopped his vehicle for an inordinate and inexplicable amount of time without the presence of traffic signals or stop signs. By coming to unexpected, complete stops in a lane of travel, particularly while shrouded in darkness, Appellee certainly created a clear hazard to himself and others. Therefore, based on Gleason and its progeny, we conclude the stop of Appellee’s vehicle was lawful and that suppression was unwarranted.

¶ 17 Reversed; Remanded; Jurisdiction Relinquished.

¶ 18 GANTMAN, J. files a concurring and dissenting opinion.

1 . 75 Pa.C.S.A. §§ 3731(a)(1), 3309, and 3714.

2 . This Subsection was amended on September 30, 2003, effective February 1, 2004, and now reads, in pertinent part: “(b) Authority of police officer. Whenever a police officer. . .has a reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle....” 75 Pa.C.S.A. § 6308(b) (emphasis in original). “As amended, the statute lowered the quantum of cause an officer must possess from 'articulable and reasonable grounds’ to 'reasonable suspicion.’ 75 Pa.C.S.A. § 6308(b).” Commonwealth v. Cook, 865 A.2d 869, 873 n. 1 (Pa.Super.2004) (emphasis omitted). Moreover, on November 2, 2005, a panel of this Court concluded that the amended statute is constitutional and reasonable suspicion is the standard to be used when an officer stops a vehicle to investigate whether a driver is operating under the influence of alcohol. Commonwealth v. Sands, 887 A.2d 261 (Pa.Super.2005). The amended version of Subsection 6308(b) is inapplicable to the case sub judice since the stop of Appel-lee’s vehicle occurred on May 17, 2003, prior to the effective date of the amendment.

3 . On some occasions, however, this Court has refused to find the police had sufficient probable cause to stop a defendant's vehicle. For instance, in Commonwealth v. Garcia, 859 A.2d 820 (Pa.Super.2004), a panel of this Court concluded that the police lacked probable cause to stop the defendant’s vehicle when the officer observed the defendant drive over the right berm line two times, each time maneuvering in response to other oncoming vehicles, and the conduct took place over a two block area. The panel specifically concluded that "where a vehicle is driven outside the lane of traffic for just a momentary period of time and in a minor manner, a traffic stop is unwarranted.” Id. at 823. Moreover, in Commonwealth v. Battaglia, 802 A.2d 652 (Pa.Super.2002), a panel of this Court concluded that an officer's perception that a defendant was driving erratically because he weaved within his lane, drove five to ten miles per hour under the speed limit, and crossed over the white fog line was not sufficient probable cause to stop the defendant’s vehicle.