Com. v. McElroy

• Citation: 630 A.2d 35,428 Pa.Super. 69
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Roy McELROY, Appellant.
• Decision Date: 18 August 1993
• Court: Superior Court of Pennsylvania

Page 35

630 A.2d 35

428 Pa.Super. 69

COMMONWEALTH of Pennsylvania, Appellee v. Roy McELROY, Appellant.

Superior Court of Pennsylvania.

Argued June 7, 1993.

Filed Aug. 18, 1993.

Peter T. Campana, Williamsport, for appellant.

Daniel E. Holmes, Asst. Dist. Atty., Williamsport, for Comm., appellee.

Before ROWLEY, President Judge and WIEAND, CIRILLO, DEL SOLE, TAMILIA, KELLY, POPOVICH, HUDOCK and FORD ELLIOTT, JJ.

POPOVICH, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Lycoming County, following appellant's conviction on the charge of driving under the influence of alcohol. 75 Pa.C.S.A. §§ 3731(a)(1) and (a)(4). Herein, appellant contends that the initial stop of his vehicle was illegal because the police officer lacked "probable cause to believe" or "articulable and reasonable grounds to suspect a violation of the [Vehicle Code]," pursuant to 75 Pa.C.S.A. § 6308(b). En banc consideration of this case was granted so that we may clarify the standard to be applied when determining whether a police officer may legally stop a motor vehicle, i.e., "probable cause to believe" the driver or the vehicle is in violation of the Vehicle Code or "articulable and reasonable grounds to suspect" a violation of the Code. In addition, we must determine whether the facts sub judice were sufficient to warrant a vehicular stop.

Upon review of the facts herein, we find that the traffic stop of appellant's vehicle was warranted and the lower court correctly denied appellant's motion to suppress. Accordingly, we affirm.

In reviewing the propriety of a suppression order, we are limited primarily to questions of law and are bound by the suppression court's findings of fact if those facts are supported by the record. In determining whether those findings are supported by the record, we consider only the evidence of appellee and so much of the evidence of appellant which remains uncontradicted. Commonwealth v. Hamlin, 503 Pa. 210, 212-16, 469 A.2d 137, 138-139 (1983); Commonwealth v. Lagamba, 418 Pa.Super. 1, 3-5, 613 A.2d 1, 2 (1992); Commonwealth v. Elliott, 376 Pa.Super. 536, 542, 546 A.2d 654, 657 (1988), allocatur denied, 521 Pa. 617, 557 A.2d 721 (1989).

In light of the aforementioned standard, the record reveals the following facts: On August 3, 1991 at about 2:40 a.m., Officer Arnold Duck and Officer Mark Sechrist of the Williamsport Bureau of Police were travelling west on Third Street in Williamsport. The officers observed appellant's Dodge pick-up truck travelling east on Third Street toward them over a large dip in the road. Officer Duck testified that he observed appellant's vehicle for approximately five seconds as it approached him. From his observation and experience, Officer Duck opined that the vehicle was travelling at "a high rate of speed" and estimated the truck's speed to be at least 80 miles per hour in a posted 35 mile per hour zone. ¹

Officer Duck turned immediately and pursued appellant for one-quarter to one-half mile within the city limits of Williamsport and then for an additional one-half mile in Loyalsock Township before he was able to stop appellant. Officer Duck testified that, at the time, he felt that he had probable cause to stop appellant for travelling in excess of the speed limit, a violation of 75 Pa.C.S.A. § 3362. He further testified that at the time of the traffic stop, he was not "subjectively thinking" that appellant was violating 75 Pa.C.S.A. § 3361, Driving vehicle at safe speed. See, Trial Court Opinion, pp. 1-2.

During the vehicle stop, Officer Duck and his partner detected the odor of alcohol on appellant's breath and asked appellant to submit to field sobriety tests. Appellant agreed to perform the field sobriety tests. However, he was unable to perform the field sobriety tests successfully. After concluding that appellant was intoxicated, Officer Duck arrested appellant and transported him to the DUI processing center at the Divine Providence Hospital, where a blood test revealed appellant's blood alcohol content to be .19%.

Appellant was charged with driving under the influence of alcohol, 75 Pa.C.S.A. §§ 3731(a)(1) and (a)(4), and driving vehicle at [un]safe speed, 75 Pa.C.S.A. § 3361. Prior to trial, appellant filed a motion to suppress evidence based on the following two arguments: 1) Appellant was stopped outside Officer Duck's jurisdiction; ² and 2) Officer Duck did not have "articulable and reasonable" grounds--much less probable cause--to stop appellant. The trial court rejected both of appellant's arguments. At the conclusion of a case stated, non-jury trial, appellant was found guilty of driving under the influence of alcohol and not guilty of the summary charge of driving vehicle at unsafe speed.

Turning now to the issues at hand, we must first determine what is the proper standard to be applied when reviewing the propriety of a traffic stop. In Commonwealth v. Swanger, 453 Pa. 107, 115, 307 A.2d 875, 879 (1973), our Supreme Court stated: "We, therefore, hold before a police officer may stop a single vehicle to determine whether or not the vehicle is being operated in compliance with The Vehicle Code, he must have probable cause based on specific facts which indicate to him either the vehicle or driver is in violation of the code." Two years later, in Commonwealth v. Murray, 460 Pa. 53, 58-59, 331 A.2d 414, 416-417 (1975), our Supreme Court rephrased the standard as follows:

If the alleged basis of a vehicular stop is to permit a determination whether there has been compliance with the Motor Vehicle Code of this Commonwealth, it is encumbent 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. Swanger, supra 453 Pa. at 115, 307 A.2d at 879; see also Commonwealth v. Boyer, 455 Pa. 283, 286, 314 A.2d 317, 318 (1974) (footnote omitted). (Emphasis added.)

Both Swanger, supra, and Murray, supra, were decided when the Motor Vehicle Code, 75 Pa.S.A. § 1221(b), permitted police officers to stop a motor vehicle, despite no outward indication that the vehicle or its driver was in violation of the Code. The purpose of those decisions was to require the government to have "specific facts justifying the intrusion", before the police may single out an automobile for a stop. Swanger, 307 A.2d at 878.

In response to those decisions, the Legislature enacted 75 Pa.C.S.A. § 6308, Investigation by police officers, which, in pertinent part, provides:

(b) Authority of police officers.--Whenever a police officer is engaged in a systematic program of checking motor vehicles or drivers or has articulable and reasonable grounds to suspect a violation of this title, he may stop a vehicle, upon request or signal, for the purposes 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. (Emphasis added.)

Since the enactment of 75 Pa.C.S.A. § 6308, this court has, in most instances, used the standard of "articulable and reasonable grounds to suspect a violation of [the Vehicle Code]", as set forth in the statute, to assess whether a traffic stop was legal. See, e.g., Commonwealth v. Parker, 422 Pa.Super. 393, 399-01, 619 A.2d 735, 738 (1993); Commonwealth v. Lopez, 415 Pa.Super. 252, 257-59, 609 A.2d 177, 180 (1992); Commonwealth v. Triplett, 387 Pa.Super. 378, 382-84, 564 A.2d 227, 230 (1989); Commonwealth v. Elliot, 376 Pa.Super. 536, 544-47, 546 A.2d 654, 658-659 (1988), appeal denied, 521 Pa. 617, 557 A.2d 721 (1989); Commonwealth v. Fisher, 294 Pa.Super. 486, 490-92, 440 A.2d 570, 572 (1982). However, in similar traffic stop cases, this court has also applied the standard of "probable cause to believe" that the Vehicle Code has been violated. See, e.g., Commonwealth v. Whitmyer, 415 Pa.Super. 393, 398-400, 609 A.2d 809, 812 (1992), petition for allocatur filed on August 17, 1992 at 326 M.A.L. 1992; Commonwealth v. Lagamba, 418 Pa.Super. 1, 9-11, 613 A.2d 1, 5 (1992).

Although the two standards appear to differ, due to the use of the term "probable cause" which usually denotes a higher level of knowledge by the police of an illegal act, e.g., "probable cause to arrest" or "probable cause to search", the difference is largely a matter of semantics. In practice, the standards have been used interchangeably. For example, in Lopez, 609 A.2d at 180, this court cited Murray, supra, and Swanger, supra, for the proposition that: "In order for a stop to be reasonable under the Fourth Amendment of the United States Constitution, the police must have articulable and reasonable grounds to suspect, or probable cause to believe, that criminal activity may be afoot." (Emphasis added.) Similarly, in Whitmyer, supra, this court, in rejecting the Commonwealth's assertion that the standard was "reasonable suspicion to believe", clearly indicated that "probable cause to believe" and "articulable and reasonable grounds to suspect" are the proper standards and application of either standard would end in the same result. Whitmyer, 609 A.2d at 812-813. Therein, ruling upon similar facts, we stated:

If we apply the standard as articulated by the United States Supreme Court [in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ], as restated by our state Supreme Court [in Murray, supra, and Swanger, supra ], or as set forth in the statute [75 Pa.C.S.A. § 6308(b) ], the analysis and result by the distinguished trial court remains unassailable. The critical issue is whether the trooper had articulable and reasonable grounds to suspect, or probable cause to believe, that Jack A. Whitmyer was not driving his vehicle at a safe speed,...