*1 A.2d 809 Pеnnsylvania, Appellant, COMMONWEALTH A. Jack WHITMYER.
Superior Pennsylvania. Court of
Argued 1992. Jan. May
Filed 1992. Reargument July Denied *2 Baxter, Carlisle, Com., Asst. Dist. Jeffrey Atty., for the appellant. Foster,
Peter B. Harrisburg, appellee. for McEWEN, JOHNSON, Before POPOVICH JJ. JOHNSON, Judge.
The
from
appeals
suppressing
an order
gained
all evidence
as a result of a single
stop.
The
stop
ramp
occurred on an exit
of a six-lane
highway.
divided
The
officer
arresting
intended to warn the vehicle operator
his “erratic
him
driving”
about
and cite
at an
unsafe
offense.
speed,
summary
We are asked to review
the standard
applicable
assessing the
of a traffic
lеgality
under these
circumstances. We conclude that
the
suppression hearing
correctly applied
court
the law with
to the
respect
circumstances under which motor vehicles
stopped for a
may
lawfully
summary
offense. We
affirm the order which
the
accordingly
suppressed
evidence.
In reviewing
grant
suppress,
the
of a motion to
our
(1)
responsibility to determine whether the record sup-
ports
findings
(2)
the factual
of the court
below
legitimacy
legal
evaluate the
of the inferences and
conclu-
Bull,
sions
from those findings.
drawn
Commonwealth v.
(1989).
Bayley, set forth the facts as follows: *3 p.m., Trooper On October 10:20 approximately in Kambic was uniform and a operating Pennsyl- marked vania State Police vehicle south on Interstate 81, approaching Susquehanna the River Ahead of bridge. him was a ramp entering two-lane southbound traffic the on the from Front bridge Dauphin Street The County. ramp merge single two lanes into a mеrges lane that then into the western most lane of three on bridge. point southbound lanes At a where the two lanes of the entrance into ramp merge narrowing one lane, there is solid white line that merging between lane and the most bridge. western travel lane on the After a short distance the white line becomes a white line broken as the entrance ramp further narrows into the through bridge. lane on the
Trooper Kambic observed defendant’s vehicle traveling behind another vehicle as the two cars made their way from the ramp single merging entrance onto the lane on He then bridge. saw defendant drive over the solid into the white line western most southbound lane of the him bridge pass the vehicle front of that before merged into the same lane. There was no evi- dence, however, that defendant’s movement into the southbound lane was or reckless, careless or that he interfered with the trooper’s vehicle or other any vehicles proceeding south on bridge, or with the vehicle was ahead of him at the point when he passed that vehicle.
As defendant proceeded across the bridge that is seven tenths of a mile in length, Trooper got Kambic behind him. Utilizing his vehicle speedometer for two tenths of mile, he attempted to ascertain however, his speed; defendant slowed and proceeded onto the Marysville exit ramp at the southern end of the bridge in Cumberland County.
Trooper Kambic testified that he stopped defendant on the exit ramp, intending to warn him about his “erratic driving with respect to his entrance onto bridge,” cite him for traveling at an unsafe speed at the south end bridge. Defendant got out оf his car but the trooper, reasons, for safety asked him to get back inside. When defendant got back into the car he rolled down driver’s side window at which time the trooper smelled a strong odor of burnt marijuana. The trooper then or- dered defendant out of the car. He told him he smelled marijuana and going pat him down and search the vehicle. He discovered a film canister defendant’s right jacket pocket that contained marijuana. pocket also rolling contained paper (paraphernalia). Defendant was transported to a hospital where he underwent a urine *4 test for the detection of controlled substances in his system. J.,
Opinion, 17, 1991, Bayley, June pages 1-3. Judge after Bayley, a full hearing, ordered the evi dence suppressed. He ruled:
In order to legally stop a single vehicle for a summary Code, violation of the Vehicle a police officer “must have probable cause based on specific facts which indicate to him either the vehicle or the driver is in violation of the Pa. Swanger, v. code.” Commonwealth (1973). A.2d 875 hearing J., The suppressiоn at 3-4.
Opinion, Bayley, pages to conclude: court went on Kam- Trooper conclude is no that evidence
... [T]here defendant was to believe that probable had cause bic since there was Accordingly, unsafe speed. at an defendant, all evidence stop legal justification no suppressed. must stop result of the be gained as a page Id. at Brief for portion of its Summary Argument
In the to re- urges us the Commonwealth page Appellant, order because: suppression verse the cause erroneously applied court The lower stop determining Trooper whether Kambic’s standard standard proper was justified. of the defendant in this case of a traffic assessing legality to believe suspicion the officer had reasonable whether Code, violating the Vehicle based the defendant that on articulable facts. Bayley applied Judge correctly are satisfied that
We
may
lawfully
motor vehicles
respect
law
when
with
v.
453 Pa.
Swanger,
Both Commonwealth
stopped.
460 Pa.
(1973)
Murray,
Court was whether and, therefore, constitu- was unreasonable motor vehicle Eagen, Speaking through Justice impermissible. tionally the Court declared:
398
We, thеrefore, hold before a officer police stop a may vehicle single to determine or not whether the vehicle is being operated in compliance Code, with The Vehicle he probable must have cause specific based on facts which indicate him either the or vehicle the is in driver of violation the code. 115,
453
at
Pa.
That was not careless language by Eagen Justice citation, out by dissent, borne its without Common- There, wealth v. Murray, supra. the Court had to consider legality the of of stop the an automobile in which the appellant was a passenger. reversing previous the order judgment sentence, this Court which had affirmed the Supreme stated, our through Court speaking then-Justice Nix: Chief [now Justice] alleged
If the of a stop basis vehicular is to permit determination there compliance whether has been Commonwealth, Motor Vehicle Code of this it is upon encumbent оfficer specific to articulate facts him, possessed at the time of the by questioned stop, provide probable which would cause believe that the the driver was violation of some provision Swanger, the Code. Commonwealth v. Pa. at supra, 453 879; 307 A.2d at see also Boyer, Commonwealth v. 283, 286, Pa. (1974) (footnote A.2d omitted). 58-59, A.2d at Pa. 416-17. contending trial court “erroneously applied standard”, cause Commonwealth fails to distin-
guish
concepts “probable
cause
between
to arrest” and
“probable cause to
believe.”
Commonwealth asserts
single
legality
that the
of a
vehicle traffic
is measured
had
suspicion
whether
officer
“reasonable
be-
violating
lieve” that the
the Vehicle
That
driver was
Code.
*6
articulation of the rule differs somewhat from that of our
Supreme
probable
Court:
cause to believe that the driver
in violation of
provision
some
of the Vehicle Code.
Murray,
supra,
58-59,
Once is understood that Supreme our Court uses the term “probable in cause” this context to “probable mean cause to believe the Vehicle violated,” Code has bеen the of the compatibility terms is immediately apparent. It must in be borne mind that the United Supreme States Court limited its use of the “probable term cause” to situations warranting arrest in its analysis in Terry v. Ohio. the Terry, petitioner sought to argue that no search of person the permitted should be until the situation evolves to a point where there is probable cause to make an arrest. responding to that reasoning, Court, line of the speaking through Warren, Chief Justice said:
There are two weaknesses in this line of reasoning First, however. it fails to take оf account traditional limitations upon searches, the of scope and thus recog- nizes no distinction in purpose, character, and extent between a search incident to an arrest and a limited former, search for weapons. The although justified part the acknowledged necessity protect the arrest- ing officer from assault with a concealed weapon is also justified on grounds, and can other therefore involve a relatively extensive exploration person. A search for weapons in the absеnce probable arrest, cause to of however, must, search, like any other be strictly circum- initiation____ scribed by exigencies the which its justify Petitioner’s reliance on cases which have worked out standards of regard reasonableness with to “seizures” constituting arrests and searches incident thereto is thus misplaced____
Our evaluation of proper the balance that has to be struck this type case leads us to conclude that there must be a narrowly drawn authority permit a reason- able search for weapons protectiоn police officer, where he has reason to believe that he is dealing individual, dangerous
with an armed and regardless of whether he cause to has arrest individual crime____ determining for a And in whether officer circumstances, acted in such due reasonably weight must not to his inchoate and given, unparticularized “hunch,” suspicion or but to the specific which he is entitled to draw inferences from facts his light experience. Ohio, 25-27, 1882-83,
Terry v.
392 U.S.
S.Ct. at
omitted,
(citations
added).
L.Ed.2d
emphasis
at 908-909
no
inconsistency
There is
between
standard set
arrest,
forth in
an intrusion short of an
justify
Terry
*7
is to
and the standard enunciated
say,
“Terry stop,”
by
Supreme
single
stop:
our state
Court for a
believe,
on specific
pos
cause to
based
articulable facts
sessed
officer at the time of
by
stopping
questioned
or
stop, that the vehicle
the driver was
violation of some
of the
460
at
provision
Murray, supra,
Vehicle Code.
Pa.
58-59,
The Commonwealth’s contention that the
standard
to
depends upon
suspicion
appears
“reasonable
believe"
to
unintentional, of
con-
blending,
disparate
be a
albeit
twо
is
cepts.
express holding
The claimed standard
not an
in any
set forth above and
not found
Terry
pronouncements
Supreme
of our state
Court. The Terry
clear in
quite
holding:
court was
And in
whether the officer acted
determining
reasonably
in such
the officer’s
or that
safety
circumstances [where
danger],
weight
given,
others
due
must
not
of
“hunch,”
unparticularized suspicion
to his inchoate and
or
specific
to the
reasonable inferences which he is
but
in light
experience.
entitled to draw from the facts
of his
27,
1883,
at
We have nothing unearthed in the motor vehicle cases by decided either the United Supreme States Court or the Pennsylvania Supreme Court which would support the use phrase “reasonable suspicion to suggest- believe” as ed the Commonwealth on this appeal.
Finally, our Vehicle Code sets forth a standard defining authority an investigating police officer as follows: Investigation by police officers § (b) Authority police police officer.—Whenever a officer ... has articulable and suspect title, a violation of this vehicle, he may stop a upon request or signal, for the purpose of checking the registration, vehicle’s proof of financial responsibility, vehicle identification or engine number number *8 license, driver’s or to secure such other information as the officer may reasonably believe to be to necessary enforce provisions the of this title. 6308(b).
75 Pa.C.S. § If we apply the standard as articulated by the Unit Court, Supreme ed States as restated by our state Supreme Court, statute, or as set forth in the the analysis and result distinguished trial court remains unassailable. The critical issue is whether the trooper had articulable and grounds reasonable suspect, to or probable believe, cause to that Jack A. was Whitmyer not his vehicle at a safe speed, thereby violating 75 Pa.C.S. 3361. When we re § Judge view Bayley’s analysis, upon based the undisputed facts, we find no fault with his conclusions. that Kambic Trooper found as fact
The trial court to him ramp, intending on exit warn stopped Whitmyer “erratic driv- Whitmyer’s was about what Kambic believed bridge,” and to cite his entrance onto ing respect with to speed. unsafе traveling him for at an record led it to the facts from the which explain does not conclusion that Whit- subjective accept Trooper Kambic’s The trial court in “erratic” manner. an was myer find reasoning, persua- which we us its provide does with driving: sive, alleged “erratic” on the issue committed a sum- that defendant There is no evidence bridge onto the Interstate when he drove mary offense defendant entered ramp. entrance When from the oncoming to vehicle yield any he did not fail to him in posted front of a pass he not the vehiclе and did into the the white line Driving zone. over passing no summary a offense. See lane not through traffic was 1977). probable cause (Purdon Absent Pa.C.S.A. § or the violation driver that vehicle believe stop Code, legal justification is no there the Vehicle driving. his operator an about and warn vehicle J., original). page (emphasis Opinion, Bayley, cause to there was turn, then to whether We and had articulable believe, Trooper Kambic or whether not Whitmyer suspect, violating speed, thereby a safe driving his vehicle at provides: Code That seсtion Vehicle 3361. Pa.C.S. § speed Driving at safe § than speed greater at a shall drive a vehicle person No and hav- under the conditions prudent is reasonable exist- hazards then potential actual and regard to the ing the driver to permit than will speed greater ing, nor at clear the assured to a within bring his vehicle foregoing, every ahead. Consistent distance speed when appropriate a safe and drive at shall person railroad intersection or crossing an approaching *9 going around crossing, approaching when grade [a] crest, traveling upon a hill when curve, approaching when any winding narrow or roadway special and when hazards exist respect pedestrians or other traffic or reason of weather or highway conditions.
To reach its conclusion that Trooper Kambic had reason- grounds able “suspect” that Whitmyer was traveling at an unsafe speed, the Commonwealth must rely only upon (1) two factors: Trooper Kambic’s testimony that Whitmyer entered the manner, an “erratic” highway (2) trooper’s testimony that he followed Whitmyer two- tenths оf a mile at an speed estimated of seventy per miles hour a fifty-five per zone, miles hour before Whitmyer slowed and exited the six-lane divided highway.
The Commonwealth has not specified, Brief, in its what portion of vehicle at safe speed, Whitmyer § court, has violated. The trial hand, on the other has set forth its analysis supporting its conclusion any belief in alleged violation of the section would be unreasonable. Whether the issue is framed in terms cause to believe a violation has occurred or reasonable and articula- ble to susрect Code, a violation the Vehicle or standard, any other the result must same. In granting the motion to suppress, Judge Bayley ruled: Trooper Other than estimating Kambic speed defendant’s seventy per miles hour on a three-lane interstate highway period for a (there two tenths of a mile was no testimony that defendant changing lanes or trav- eling too vehicle), close another only other evidence bearing upon possible violation, Section 3361 was the trooper’s testimony that the traffic at the time was medi- um to heavy. That conсlusion is of no legal significance where speed defendant’s was only estimated at fifteen miles per hour over the speed limit on a three-lane inter- state at a time when his vehicle chang- was not ing lanes, vehicle, too close to another pres- or enting potential to any hazard other vehicle person.
A violation of Section 3361 of the Vehicle requires Code more than just traveling speed at a posted speed over the limit. a similar Interpreting section that preceded Section *10 404 Court, Hoke, Commonwealth v. Superior 223
Pa.Superior (1972), Ct. 319 A.2d observed that [298 913] one is too driving fast for conditions is a “[w]hether matter, dependent relative not on any specific speed but circumstances____” on existing all the See also Com- Way, monwealth v. Pa.Superior Ct. 109 A.2d [84 225] (1951). The same has analysis applied been to the current Vehicle Code Section 3361 Commonwealth v. Vishne- ski, Pa.Superior (1989). Ct. A.2d [552 297] Vishneski, the Superior Court stated: , arresting officer described Route 202 North as a
limited access highway having posted speed limit of fifty-five per miles hour. He explained further that the section of Route 202 North between the Paoli Pike on- ramp comprises and Route 322 exit of three lanes and approximately one-tenth of a mile in distance.
The trial record further indicates that there awas truck on Route traveling 202 North at the same time on appellant traveling Appellant was the route. en- highway tered the from the Paoli Pike on-ramp and exited at Route 322 exit. It is from apparent appellant’s record that speed given was unreasonable of the highway. Appellant the conditions was per at 84.5 miles hour in a 55 miles hour zoned per area must mеrge competing where traffic and exit while addition, with the flow of traffic. northbound we note that appellant entering exiting was the north- high bound at a rate of speed within a dis- mile. The approximately potential tance one-tenth rendering traveling for hazards and conditions at a speed per of 84.5 miles hour is clearly unreasonable supported by evidence. driving
Interstate 81 where defendant was was a six- lane There no intersect- highway. divided interstate was Vishneski, ing merging traffic. Unlike there is no Trooper evidence to conclude thаt Kambic had at an unsafe cause to believe that defendant was legal no since there was speed. Accordingly, justification defendant, as a result of the gained all evidence stop Scherzer, suppressed. must (1990), Pa.Superior Ct. affd, 40 Cumberland L.J. A.2d 377]. [590 J., omitted). (footnotes 5-7 pages Opinion, Bayley, legal there no correctly found that was Judge Bayley he on a belief that stop Whitmyer justification his speed. accept We must driving at an unsafe conclusion *11 a result of that must be gained as that all evidence sup- order affirm the which Accordingly, wе suppressed. the evidence. pressed relinquished. affirmed. Jurisdiction
Order POPOVICH, J., dissenting opinion. files a POPOVICH, Judge, dissenting: us, I am convinced review of evidence before Upon had “articulable and reason- Thomas Kambic Trooper that believe,” cause to probably to grounds suspect, able his vehicle at a A. was not Whitmyer Jack appellee 3361. violating 75 Pa.C.S.A. speed, thereby, safe § order, are suppression of a we reviewing propriety and are bound questions to law primarily limited sup- if those facts are findings of fact suppression сourt’s Elliott, 376 record. Commonwealth v. by the ported (1988), allocatur 542, 654, 536, 546 A.2d 657 Pa.Super. (1989); denied, 617, A.2d 721 Pa. 557 521 (1986). 123, 1211, 1212 White, 516 A.2d Pa.Super. 358 supported by those are determining findings whether so record, appellee and only consider evidence we remains uncontra- appellant which much of the evidence 657; Elliott, 546 A.2d at Pa.Superior Ct. at dicted. White, A.2d at Pa.Superior Ct. mind, must determine whether those rules we
With
grounds
reasonable
had articulable and
Trooper Kambic
3361 of the Motor Vehicle
violating
suspect appellant was
§
9;
see also
Majority, p.
of the
Opiniоn
Code. See
(“Whenever
officer ... has
6308(b)
police
a
Pa.C.S.A. §
articulable and
grounds
suspect
a violation of
vehicle____”);
Motor
he
Code],
may stop
Vehicle
[the
Elliott,
Pa.Superior
(“a
Ct. at
Instantly Trooper Kambic testified that he stopped appel- lee to him cite for a violation of 75 §.3361, Pa.C.S.A. Driving vehicle at safe speed, provides: which
No person speed greater shall drive a vehicle at a than prudent reasonable and under the conditions and hav- ing regard to the potential actual and hazards then exist- ing, nor at a speed greater permit than will a driver to bring his to a stop within the assured clear distance ahead. the foregoing, Consistent with every shall drive at a safе person appropriate speed and when an approaching crossing intersection or railroad grade crossing, approaching going when around a curve, crest, hill approaching when when upon *12 winding any roadway narrow and traffic or reason or highway weather conditions. Trooper Kambic stated that he for appellant followed (70) of a mile at miles hour in seventy per fifty- two-tenths (55) zone, per appellant five miles hour before exited the Further, highway. appellant the officer testified that en- tered the in an “erratic” manner. He highway also testified the traffic on the highway that was medium to at the heavy I clearly time. believe such evidence raises articulable and suspect appellant violating 75 was 3361. Pa.C.S.A. § reaching
In decision I my considered 75 Pa.C.S.A. 3362(a) provides: which §
(a) Rule.—Except special General when a hazard exists requires speed compliance that lower for section with 3361 vehicle at safe the limits (relating speed),
407 under this or established in this subsection specified speeds per- lawful no be maximum shall subchapter speed in excess a vehicle at a son drive shall maximum limits: following district.
(1) any hour in urban per miles 35 (2) hour in other locations. per 55 miles limit established under (3) speed maximum other Any subchapter. this traveling was at appellee testified that
Trooper Kambic if the per Logically, miles hour. seventy approximately hour as the fifty-five per miles has established legislature traveling seventy speed, appellee’s maximum lawful Cf., Marks v. cannot considered safe. per miles hour (D.C.1983), affirmed 727 F.Supp. Corp., Mobil Oil law, traveling excess of (Under Pennsylvania F.2d 1100 se). per is negligence hour limit per speed 55 mile this Court in addition, the decision of I considered 495, 552 A.2d Vishneski, 380 Pa.Super. (1989), A.2d 382 (1989), denied 524 Pa. appeal wherein, violating the conviction a driver affirmed we case, the testified that officer 75 Pa.C.S.A. § He per miles hour. described driver 84.5 a speed access 202 North as limited Route explained He further that the per limit of miles hour. Pike on-ramp the Paoli section of Route North between and is approxi- exit is three lanes wide and the Route 322 Upon reviewing of a mile in distance. mately one-tenth facts, we stated: appellant’s speed from record that It apparent
... highway. given the conditions was unreasonable hour in per 84.5 miles a 55 traveling at Appellant was merge traffic must per mile hour zoned area where of traffic. the northbound flow competing *13 while exit addition, appellant entering note we of speed rate high exiting northbound potential of one-tenth mile. a distance within speed at a rendering traveling conditions hazards and 84.5 per miles hour unreasonable is clearly supported the evidence.
Vishneski, 380 Pa.Superior
503,
Ct. at
The similarity between the Vishneski, facts of supra, and the case sub judice are remarkable. I cannot envision that case, in one the evidence is sufficient to sustain a convic- tion, while in the other substantially similar evidence is not even sufficient to raise “articulable and to suspect” a violation of the same statute. Certainly, the evidence before us is sufficient to meet the lesser standard. Whether the evidence once fully developed at trial would be sufficient to sustain a conviction for the offense is irrele- present vant to our Accord, inquiry. Commonwealth v. Fishеr, 486, 294 Pa.Super. 490, 570, 440 A.2d (1982). sum, I conclude that Trooper Kambic reasonably be appellant lieved inwas violation of the Motor Vehicle Code and had probable cause to stop appellee for the violation. Therefore, I find that the lower court erred in suppressing all evidence gathered as a result of the stop and I would trial, reverse and remand for Cf., Commonwealth v. Tri plett, 378, 387 Pa.Super. 564 A.2d (1989); Elliott, supra.
Argued March 1992.
Filed June 1. I note that there was no evidence of hazardous weather conditions before the Vishneski Court.