Com. v. Whitmyer

• Decision Date: 29 December 1995
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Jack A. WHITMYER, Appellee.
• Court: Pennsylvania Supreme Court

Page 1113

668 A.2d 1113

542 Pa. 545

COMMONWEALTH of Pennsylvania, Appellant, v. Jack A. WHITMYER, Appellee.

Supreme Court of Pennsylvania.

Argued April 7, 1994.

Decided Dec. 29, 1995.

[542 Pa. 546] J. Michael Eakin, Alison Taylor, for Commonwealth.

Peter B. Foster, for J.A. Whitmyer.

David M. McGlaughlin, amicus curiae Pennsylvania Ass'n. of Crim. Defense Lawyers on behalf of the appellee, Jack Whitmyer.

Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION

NIX, Chief Justice.

This is an appeal by the Commonwealth from an Order of the Superior Court which affirmed the suppression of all evidence obtained from the stop of a vehicle driven by Appellee, Jack A. Whitmyer. We granted allocatur to review the standard applied by the lower courts in addressing the legality of the automobile stop by police under the following facts.

On October 30, 1990, Trooper Thomas Kambic of the Pennsylvania State Police was traveling south on Interstate 81 in Dauphin County when he observed Appellee's vehicle proceeding in the same direction. Appellee was behind another vehicle as the two cars approached a point on the Susquehanna River Bridge where two lanes of traffic merged into a single lane. Trooper Kambic then saw Appellee drive over a solid white line and pass the vehicle in front of him before that vehicle merged into the same lane. There was no evidence, however, that Appellee operated his vehicle in a careless or reckless manner or that he interfered with any other vehicle on the road.

Trooper Kambic followed Appellee as he traveled across the bridge into Cumberland County. Utilizing his speedometer for two-tenths of a mile, Trooper Kambic estimated Appellee's speed at seventy miles per hour. Shortly thereafter, Appellee slowed down and proceeded onto an exit ramp at the southern end of the bridge.

Trooper Kambic stopped Appellee on the exit ramp intending to cite him for driving at an unsafe speed and to "tell him about his erratic lane change." (R.R. at 14a). The trooper approached Appellee's vehicle and directed him to roll down his window. As Appellee rolled down the driver's side window, Trooper Kambic detected a strong odor of burnt marijuana. Appellee was then ordered out of the vehicle at which time the trooper conducted a pat down search of Appellee's person. Trooper Kambic discovered a film canister in Appellee's right jacket pocket which contained marijuana. The trooper also found some rolling papers and a lighter in Appellee's pocket. Appellee was taken to a nearby hospital where he underwent a urine test to determine whether marijuana was present in his system.

Appellee was charged with driving under the influence of a controlled substance, ¹ unlawful possession of a small amount of marijuana, ^{2 2} unlawful possession of drug paraphernalia, ³ and failing to drive at a safe speed. ⁴ Appellee filed an omnibus pretrial motion which sought the suppression of all evidence obtained as a result of the stop. The trial court granted the motion and ordered all evidence suppressed. Commonwealth v. Whitmyer, 414 CR 1991 (C.P. Cumberland County June 17, 1991). In so holding, the court concluded that there was no probable cause to believe that Appellee was in violation of the Vehicle Code. This determination was based on the fact that Appellee did not fail to yield to any oncoming vehicle when he entered the highway nor did he pass the vehicle in front of him in a posted no passing zone. Id. at 4. The court additionally held that Trooper Kambic's estimate of Appellee's speed did not constitute probable cause because 75 Pa.C.S. § 3368(a) ⁵ requires that a vehicle's speed be timed for at least three-tenths of mile whereas the trooper had timed Appellee for only two-tenths of a mile. Id. at 4-5.

On appeal, the Superior Court affirmed the order suppressing all evidence derived from the stop of Appellee's vehicle. Commonwealth v. Whitmyer, 415 Pa.Super. 393, 609 A.2d 809 (1992). Relying upon this Court's decisions in Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973), and Commonwealth v. Murray, 460 Pa. 53, 331 A.2d 414 (1975), the Superior Court held that the trial court had correctly applied the law concerning when motor vehicles may be lawfully stopped. Id. at 397, 609 A.2d at 811. Because we likewise conclude that the stop of Appellee was unlawful, we now affirm.

In Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973), this Court addressed the issue of whether a police officer could stop the driver of an automobile without having observed that driver violate any of the provisions of the Vehicle Code. We first acknowledged that the stopping of a vehicle and the detainment of its passengers constitutes a seizure and therefore implicates the Fourth Amendment. Because the Fourth Amendment protects against unreasonable searches and seizures, we relied upon the standard articulated by the United States Supreme Court in assessing the reasonableness of the seizure:

"[I]t is necessary 'first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen,' for there is 'no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.' "

Id. at 111, 307 A.2d at 877 (quoting Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, 905 (1968)) (further citation omitted).

In regard to the governmental interest, the Commonwealth in Swanger argued that because the automobile was a dangerous instrumentality that was responsible for numerous deaths each year, the police should have been permitted to stop vehicles without cause in order to ensure that drivers were in full compliance with the Vehicle Code. The interest on the other side was the individual's personal liberty and the right to be free from governmental intrusions. This Court concluded that given these competing interests the interest of the individual outweighed that of the government. Commonwealth v. Swanger, 453 Pa. at 112, 307 A.2d at 878. Thus, it was held that "before the government may single out one automobile to stop, there must be specific facts justifying this intrusion. To hold otherwise would be to give the police absolute, unreviewable discretion and authority to intrude into an individual's life for no cause whatsoever." Id.

Two years later, we revisited the issue of vehicle stops under the Fourth Amendment in Commonwealth v. Murray, 460 Pa. 53, 331 A.2d 414 (1975). In Murray, the police responded to a burglar alarm that had been activated inside a clothing store. When they arrived, the police noticed an individual fleeing in the shadows of the building but were unable to apprehend or identify the suspect. Approximately one hour after the initial alarm, the police observed an automobile pull into the driveway of a house near the store, stop momentarily, and then depart. The police followed the car for approximately one-half mile, during which time no traffic laws were violated nor was anything unusual observed with regard to the vehicle or its occupants. The police signaled the vehicle to stop, and the driver complied. One of the officers approached the passenger side of the vehicle and saw a hammer and a railroad spike lying on the floor behind the driver's seat. Based on these observations, a search warrant was obtained for the automobile and a subsequent search uncovered the items that had been stolen from the clothing store earlier that evening.

This Court reversed the defendant's conviction on the basis that the evidence obtained from the search of the vehicle should have been suppressed because "the Commonwealth's power to regulate vehicular traffic within its borders did not supply an adequate justification for the intrusion upon privacy occasioned by the stop." Id. at 59, 331 A.2d at 417. In so holding, we reaffirmed the rule set forth in Swanger:

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 [sic] 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.

Id. at 58-59, 331 A.2d at 416-17 (citing Commonwealth v. Swanger, 453 Pa. 107, 115, 307 A.2d 875, 879 (1973)) (footnote omitted).

In this appeal, the Commonwealth submits that the rules set forth in Swanger and Murray were necessitated by the fact that police officers possessed virtually unlimited authority to stop motor vehicles under now-repealed 75 P.S. § 1221(b). ⁶ The 1983 enactment of 75 Pa.C.S. § 6308(b), the Commonwealth argues, provides the correct basis upon which a police officer's stop of a vehicle should be judged. Section 6308(b) provides:

Authority of police officer.--Whenever a police officer ... has articulable and reasonable grounds to suspect a violation of this title, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle's registration, proof of financial responsibility, vehicle identification number or engine number or 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.

According to the Commonwealth, both the trial court and the Superior Court have disregarded the above provision in favor of a heightened probable cause standard in assessing the legal justification of the stop of Appellee. We disagree and find that the law has been correctly applied in this case.

The crux of the Commonwealth's argument centers on the semantic difference between the standard articulated in Murray--probable cause to believe that there has been a violation of the Vehicle Code, and the language of the statute...