
    COMMONWEALTH of Pennsylvania, Appellant v. Travelle JOHNSON, Appellee
    No. 907 MDA 2016
    Superior Court of Pennsylvania.
    Argued April 24, 2018 Filed: January 3, 2019
    Stephanie E. Lombardo, Assistant District Attorney, York, for Commonwealth, appellant.
    Joseph N. Gothie, York, for appellee.
    BEFORE: BENDER, P.J.E., PANELLA, SHOGAN, LAZARUS, OLSON, STABILE, DUBOW, KUNSELMAN, and MURRAY, JJ.
   OPINION BY STABILE, J.:

The Commonwealth appeals from the May 6, 2016 order granting the motion of Appellee, Travelle Johnson, to suppress evidence. We reverse and remand.

On November 5, 2015, Pennsylvania State Police Trooper Jason Kaczor followed Appellee's vehicle for a span of five miles on Interstate 83 in York County. Trooper Kaczor stopped Appellee because he believed he observed Appellee's vehicle cross the fog line multiple times. Dash cam video from Trooper Kaczor's police cruiser failed to confirm that Appellee crossed the fog line. Additionally, Trooper Kaczor used his vehicle's speedometer to clock Appellee at 70 miles per hour in a 55-mile-per-hour zone over a span of four miles, in violation of 75 Pa.C.S.A. § 3362(a)(2).

Appellee's vehicle contained a quantity marijuana, including a partially burned cigar and several unburned cigars. The Commonwealth charged Appellee with, among other things, possession of a small amount of marijuana for personal use, possession of drug paraphernalia, and driving under the influence of a controlled substance. After the trial court granted Appellee's motion to suppress the drugs and paraphernalia because of an unlawful vehicle stop, the Commonwealth filed a timely appeal. A three-judge panel of this court affirmed the order on August 2, 2017. Subsequently, we granted reargument en banc and withdrew the prior memorandum. The Commonwealth presents the following questions:

1. Did the lower court err in granting [Appellee's] motion to suppress when the trooper had probable cause to effectuate a traffic stop where uncontradicted evidence showed that the trooper clocked [Appellee] driving at a rate of speed of 70 miles per hour in a 55 mile per hour zone and the trial court credited this evidence?
2. Did sufficient probable cause exist to arrest [Appellee] for DUI where the trooper smelled burnt marijuana emanating from [Appellee's] car, [Appellee] was the sole occupant of the vehicle, and [Appellee] displayed other classic indicia of impairment?

Commonwealth's Brief at 4.

On review from an order suppressing evidence, 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." Commonwealth v. Miller , 56 A.3d 1276, 1278-79 (Pa. Super 2012), appeal denied , 620 Pa. 730, 70 A.3d 810 (2013). As we already noted uncontradicted evidence indicates that Trooper Kaczor observed Appellee's vehicle travelling 70 miles per hour in a 55 mile-per-hour zone. Trooper Kaczor therefore had probable cause to stop Appellee for speeding.

Trooper Kaczor testified that he stopped Appellee for crossing the fog line, not for speeding. The trial court found the stop to be unlawful because: (1) Trooper Kaczor testified that he stopped Appellee for swerving, (2) the officer's account of the swerving was not credible, and (3) the fact the officer did not activate his lights to initiate the stop led the trial court to conclude that speeding was not the legal basis for the stop. Trial Court Opinion, 5/6/16, at 4-5. For the reasons that follow, we conclude the trial court erred in deciding the suppression motion based on what it perceived to be Trooper Kaczor's subjective reason for effecting the vehicle stop.

The proper analysis, when considering whether a police officer's actions violated the Fourth Amendment to the United States Constitution, is an objective one. In Brigham City , Utah v. Stuart , 547 U.S. 398, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006), the United States Supreme Court held that the Utah Supreme Court erred when it "considered the officers' subjective motivations relevant" in an exigent circumstances case. Id. at 404, 126 S.Ct. 1943. "Our cases have repeatedly rejected this approach. An action is 'reasonable' under the Fourth Amendment, regardless of the individual officer's state of mind, 'as long as the circumstances, viewed objectively , justify the action." Id. (quoting Scott v. United States , 436 U.S. 128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978) ) (emphasis added in Stuart ). In Maryland v. Macon , 472 U.S. 463, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985), a case assessing the validity of a seizure of obscene magazines, the Supreme Court wrote: "Whether a Fourth Amendment violation has occurred 'turns on objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time' [...] and not on the officer's actual state of mind at the time the challenged action was taken ." Id. at 470-71, 105 S.Ct. 2778 (quoting Scott , 436 U.S. at 136, 98 S.Ct. 1717 )(emphasis added).

The courts of this Commonwealth have employed the same approach. In Commonwealth v. Martin , 627 Pa. 623, 101 A.3d 706 (2014), a warrantless arrest case, our Supreme Court wrote that "[i]n the Fourth Amendment context, 'the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.' " Id. at 721 (quoting Whren v. United States , 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) ), cert. denied , --- U.S. ----, 136 S. Ct. 201, 193 L.Ed.2d 155 (2015). Further:

Fourth Amendment reasonableness is predominantly an objective inquiry. We ask whether the circumstances, viewed objectively, justify the challenged action. If so, that action was reasonable whatever the subjective intent motivating the relevant officials. This approach recognizes that the Fourth Amendment regulates conduct rather than thoughts ....

Id. (quoting Ashcroft v. al-Kidd , 563 U.S. 731, 736, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ) (emphasis added).

Despite the foregoing, the trial court's approach was subjective rather than objective;

it focused on thoughts (or perceived thoughts) rather than conduct:

Lastly, this Court acknowledges that [Appellee] was clocked by Trooper Kaczor traveling 70 miles per hour in a 55 mile per hour zone. In reviewing the video recording of the vehicle stop from Trooper Kaczor's patrol car, this Court did not find evidence that Trooper Kaczor initially communicated to [Appellee] that he was being pulled over for exceeding the speed limit. The Court observed, in review of the video recording of the vehicle stop, that Trooper Kaczor followed [Appellee] for roughly five (5) miles as he travelled northbound on Interstate 83. The trooper testified that he utilized the speedometer to clock [Appellee's] vehicle at 70 miles per hour. However, the fact that Trooper Kaczor did not activate his lights to initiate a stop shortly after observing [Appellee] exceed the speed limit, leads this Court to conclude that [Appellee] driving his vehicle in excess of the maximum lawful speed limit on Interstate 83 was not the legal basis for stopping [Appellee's] vehicle.

Trial Court Opinion, 5/6/16, at 5 (emphasis added). Appellee's speeding violation was a valid basis for Trooper Kaczor's vehicle stop. In analyzing what it believed to be Trooper Kaczor's subjective motivation for the stop, the trial court committed a clear error of law.

Furthermore, we note the following exchange from the suppression hearing:

THE COURT: Tell me why the trooper did not have probable cause to stop [Appellee] for speeding?
[DEFENSE COUNSEL]: Well, he has to offer some kind of testimony to indicate that there was speed, and we've got no certification in court today to show that he certified it. He doesn't exactly say where three-tenths of a mile started.
[...]
Basically, if he's going to prove that there is a speeding basis here, he at least has to have some kind of certificate saying his vehicle was qualified at the time, and he didn't have any of that, and he asked him specific questions about it, he couldn't offer anything.

N.T. Suppression Hearing, 5/4/16, at 67. The prosecutor responded that certification of the speedometer's accuracy is necessary for a conviction under § 3362(a)(2), but not for probable cause to support a vehicle stop. Id. at 68. The trial court then took the matter under advisement. Id.

We observe that the Vehicle Code provides that "[t]he rate of speed of any vehicle may be timed on any highway by a police officer using a motor vehicle equipped with a speedometer. In ascertaining the speed of a vehicle by the use of a speedometer, the speed shall be timed for a distance of not less than three-tenths of a mile." 75 Pa.C.S.A. § 3368(a). Speedometers must be periodically calibrated for accuracy. 75 Pa.C.S.A. § 3368(d) ; Commonwealth v. Kaufman , 849 A.2d 1258, 1259 (Pa. Super. 2004). Proof of calibration is necessary to obtain a conviction for speeding. Kaufman , 849 A.2d at 1259. The law does not require calibration to rely on a speedometer for a vehicle stop. "[C]riterion of admissibility in evidence, to prove the accused's guilt, should not be applied to the facts relied upon to show probable cause." Commonwealth v. Weaver , 76 A.3d 562, 567 (Pa. Super. 2013) (citing Brinegar v. United States , 338 U.S. 160, 172, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) ), affirmed , 629 Pa. 313, 105 A.3d 656 (2014). Thus, the prosecutor was correct in stating that certification of Trooper Kaczor's speedometer was unnecessary to support a stop for speeding.

In any event, the suppression hearing transcript does not reflect a finding that Trooper Kaczor's testimony as to Appellee's speeding was not credible. In its opinion, quoted above, the trial court acknowledged the fact of Appellee's speeding. Nonetheless, the trial court concluded that Trooper Kaczor stopped Appellee for swerving, not speeding. In so doing, the court erroneously disregarded objective evidence of a vehicle code violation.

Given the uncontradicted evidence that Appellee was traveling 70 miles per hour in a 55 mile-per-hour zone for roughly four miles (N.T. Suppression Hearing, 5/4/16, at 6, 12-13), and the trial court's acknowledgement of that evidence, we conclude that Trooper Kaczor had probable cause to stop Appellee's vehicle for speeding. The trial court erred in finding that the vehicle stop was unlawful.

Next, the Commonwealth argues that Trooper Kaczor had sufficient probable cause to arrest Appellee for DUI and possession of marijuana. Given its conclusion that the vehicle stop was unlawful, the trial court had no reason to issue findings of fact or conclusions of law regarding the legality of the arrest. See Pa.R.Crim.P. 580(I). We decline to address this issue in the first instance.

In summary, we reverse the order granting suppression of evidence and remand for further proceedings consistent with this opinion.

Order reversed. Case remanded. Jurisdiction relinquished.

President Judge Emeritus Bender, Judge Shogan, Judge Olson, and Judge Murray join the opinion.

Judge Lazarus files a dissenting opinion in which Judge Panella, Judge Dubow, and Judge Kunselman join.

DISSENTING OPINION BY LAZARUS, J.:

I respectfully dissent. In my opinion, the trial court did not commit an error of law in concluding that Trooper Kaczor did not have probable cause to stop Johnson. I would affirm the court's order granting Johnson's motion to suppress.

The Majority finds the trial court erred because it focused on Trooper Kaczor's subjective motivation for the stop when the proper Fourth Amendment analysis is an objective one. The Majority states the suppression transcript does not reflect a finding that Trooper Kaczor's testimony was not credible. As such, the Majority assumes Trooper Kaczor's credibility without a determination by the trial court. In my view, that assumption is mistaken. The trial court did not credit Trooper Kaczor's testimony that his speedometer showed Johnson was driving 70 miles per hour in a 55 mile per hour zone.

In Commonwealth v. Salter , 121 A.3d 987 (Pa. Super. 2015), we stated:

[W]hen 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 travelling upon a highway.

Id. at 993 (emphasis added).

My independent review of the record, which includes the transcript from the suppression hearing and the DVD of the trooper's dash cam video, reveals that Trooper Kaczor testified that he stopped Johnson's vehicle due to an alleged violation of driving on a roadway laned for traffic and for exceeding the posted speed limit. Neither of these violations of the Vehicle Code required further investigation. Accordingly, in order to effectuate a legal stop of Johnson's vehicle, Trooper Kaczor required probable cause. See Commonwealth v. Busser , 56 A.3d 419 (Pa. Super. 2012). Thus, the vehicle stop could be constitutionally valid only if Trooper Kaczor could "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 [Vehicle] Code." Commonwealth v. Feczko , 10 A.3d 1285, 1291 (Pa. Super. 2010). Accordingly, here, the focus is on whether, as a matter of law, the suppression court erred in finding that Trooper Kaczor did not have probable cause to stop Johnson and in granting Johnson's motion to suppress.

In determining whether Trooper Kaczor had probable cause, courts look to the totality of the circumstances as viewed through the eyes of a reasonable police officer guided by experience and training. Commonwealth v. Wells , 916 A.2d 1192 (Pa. Super. 2007). Pennsylvania law makes clear, however, that a police officer has probable cause to stop a motor vehicle if the officer observed a violation of the Motor Vehicle Code. Feczko , supra.

Here, at the suppression hearing, Trooper Kaczor testified that he observed a gray Acura "cross over the lines, the roadway lines, multiple times[.]" N.T. Suppression Hearing, 5/4/16, at 6. He further testified that while following Johnson's car for about four miles, he "clocked it with [his] patrol unit, which is certified, going 70 in a 55 mile[ ] per hour zone." Id. At that point, he and Trooper Kabacinski, who was riding with him, decided to initiate a traffic stop. Id.

When questioned on cross-examination, however, Trooper Kaczor acknowledged that he had nothing to prove that his speedometer was actually certified. Id. at 11. Further, Trooper Kaczor could not recall how far Johnson's wheels went over the fog line. Id. at 14. He could not recall whether Johnson's wheels were straddling the line. Id. at 14. When asked whether Johnson's wheels were over the center dotted line or just touching it, Trooper Kaczor stated he "believe[d] they were slightly over[,]" but could not recall if that was the case both times. Id. Trooper Kaczor testified that he followed Johnson for about four miles, and that he recalled Johnson's wheels were slightly over the lane line on one or two occasions, id. at 14, and agreed at several points that Johnson's wheels were in fact on, and not over, the lane lines. Id. at 29-30, 41.

Trooper Kaczor also acknowledged on cross-examination that there is a point in the highway where the fog line disappears for a distance and later reappears, and that at this point Johnson had driven "a steady straight course within his lane of travel[.]" Id. at 33. He stated Johnson's vehicle was "on the dotted line," but that there were no vehicles next to him and that his vehicle did not jerk or swerve. Id. at 34, 38. Moreover, Trooper Kaczor agreed that at points where the highway curves, his view was somewhat obscured. Id. at 37. Contrary to the Majority's statement that because Johnson was speeding, there was probable cause, regardless of the Trooper Kaczor's state of mind, Johnson's speed was not the legal basis for Trooper Kaczor's stop. He did not initially communicate to his partner that he was pulling Johnson over for speeding and he did not activate his lights when he observed Johnson exceed the speed limit.

The trial court viewed the dash cam video and determined that it did not bear out any of the trooper's testimony. Trial Court Opinion, 5/6/16, at 5. The court observed that Trooper Kaczor "did not activate his lights to initiate a stop shortly after observing [Johnson] exceed the speed limit[.]" Id. at 4. The court further stated that "the fact that Trooper Kaczor did not activate his lights to initiate a stop shortly after observing [Johnson] exceed the speed limit, leads this [c]ourt to conclude that [Johnson] driving his vehicle in excess of the maximum lawful speed on Interstate 83 was not the legal basis for stopping [Johnson's] vehicle ." Id. at 5 (emphasis added). The court also considered that Trooper Kaczor had recently graduated from the State Police Academy, that he had been patrolling for only three months prior to stopping Johnson's vehicle, and that this was his first DUI arrest. Id . at 13. See Wells , supra ; see also Commonwealth v. Thompson , 604 Pa. 198, 985 A.2d 928 (2009) (holding police officer's experience is relevant factor in determining probable cause).

The trial judge found that the dash cam video was more reliable than the officer's testimony; the judge based her decision to suppress the evidence on her view of the video. I note that the Commonwealth argues that the trial court "credited" the "evidence" that "the trooper clocked [Johnson] driving at a rate of speed of 70 miles per hour in a 55 mile per house zone[.]" Commonwealth's Brief, at 4, 10, 14-17. The Commonwealth avers, therefore, that it logically follows that the trooper had probable cause to stop Johnson's vehicle for speeding. I disagree, not with the proposed legal conclusion, but with the Commonwealth's assertion that the court credited the trooper's statement as true. The court acknowledged that the trooper testified to this, but the court repeatedly did not find that this was the basis of the stop. The court stated:

In reviewing the video recording of the vehicle stop from Trooper Kaczor's patrol car, this Court did not find evidence that Trooper Kaczor initially communicated to [Johnson] that he was being pulled over for exceeding the speed limit . The [c]ourt observed, in review of the video recording of the vehicle stop, that Trooper Kaczor followed [Johnson] for roughly five (5) miles as he travelled northbound on Interstate 83. The trooper testified he utilized his speedometer to ... clock [Johnson's] vehicle at 70 miles per hour. However, the fact that Trooper Kaczor did not activate his light to initiate a stop shortly after observing [Johnson] exceed the speed limit, leads this [c]ourt to conclude that [Johnson] driving his vehicle in excess of the maximum lawful speed on Interstate 83 was not the legal basis for stopping the [Johnson's] vehicle.

Trial Court Opinion, supra at 5 (emphasis added). Though not plainly iterated, I conclude that the court did not "credit" Trooper Kaczor's testimony as true, but only as stated.

This Court's standard of review when the Commonwealth appeals a suppression order is limited. "The suppression court's findings of fact bind an appellate court if the record supports those findings." Commonwealth v. Korn , 139 A.3d 249, 252-253 (Pa. Super. 2016). Although the suppression court's conclusions of law are not binding on this Court, our duty is to determine if the suppression court properly applied the law to the facts. Id.

My review leads me to conclude that the record, including the suppression hearing testimony, the trooper's equivocal testimony, and the dash cam video, supports the suppression court's findings of fact. Further, I find the suppression court properly applied the law to the facts to conclude that Trooper Kaczor failed to articulate specific facts to establish probable cause to stop Johnson's vehicle for a speeding violation under 75 Pa.C.S.A. § 3362(a)(2), or a violation of driving on roadways laned for traffic under 75 Pa.C.S.A. § 3362(a)(2). In my opinion, the circumstances, viewed objectively, did not justify the stop. The trial court, therefore, properly granted Johnson's motion to suppress.

For these reasons, I dissent. I would affirm the trial court's grant of Johnson's motion to suppress.

Judge Panella, Judge Dubow and Judge Kunselman join this Dissenting Opinion. 
      
      35 P.S. § 780-113(a)(31)(i) and (32), 75 Pa.C.S.A. § 3802(d)(1)(i).
     
      
      The Rules of Appellate Procedure permit the Commonwealth to take an interlocutory appeal as of right when the Commonwealth certifies that the order will "terminate or substantially handicap the prosecution." Pa.R.A.P. 311(d)
     
      
      An officer needs probable cause in order to stop a vehicle for speeding. See Commonwealth v. Salter , 121 A.3d 987, 993 (Pa. Super. 2015) ("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[.]"). Probable cause exists "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." Id. at 996-97.
     
      
      The requirements for establishing probable cause to stop a vehicle and what evidence is required to prove a violation of the Motor Vehicle Code, i.e., a certified speedometer or speed-timing device, are not lost on this author. See 75 Pa.C.S.A. §§ 3368, 6308.
     
      
      It is occasionally the case that a judge just does not believe a police officer; here, a clear credibility determination might have foreclosed a Commonwealth appeal and en banc review. In the future, I would caution the trial court not to leave it to the appellate court to interpret the court's meaning.
     
      
      To be clear, the trial court has confused some of the language pertaining to the two different levels of "cause" required for a vehicle stop. Only reasonable suspicion is required for a stop that requires further investigation, whereas probable cause is required if it is not necessary to stop the vehicle to establish that a violation of the Motor Vehicle Code has occurred, e.g., speeding. See Feczko , supra ; see also Salter , supra at 993. Here, the Commonwealth is relying on the trooper's "clocking" testimony to support probable cause to stop Johnson for speeding, an offense that requires no further investigation. Notably, the trial court states: "Considering the facts within the totality of the circumstances, this [c]ourt concludes that there are no articulable and reasonable grounds present that provided Trooper Kaczor with reasonable suspicion to believe that [Johnson] was in violation of the Motor Vehicle Code." Trial Court Opinion, supra at 5-6. The "articulable and reasonable grounds" language pertains to probable cause, not reasonable suspicion, and it is clear the trial court meant to state that the trooper did not have probable cause to believe that Johnson had violated the Motor Vehicle Code.
     