Com. v. Whitmyer

• Decision Date: 17 July 1992
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Jack A. WHITMYER.
• Court: Pennsylvania Superior Court

Page 809

609 A.2d 809

415 Pa.Super. 393

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

Superior Court of Pennsylvania.

Argued Jan. 15, 1992.

Filed May 19, 1992.

Reargument Denied July 17, 1992.

Jeffrey Baxter, Asst. Dist. Atty., Carlisle, for the Com., appellant.

Peter B. Foster, Harrisburg, for appellee.

Before McEWEN, POPOVICH and JOHNSON, JJ.

JOHNSON, Judge.

The Commonwealth appeals from an order suppressing all evidence gained as a result of a single vehicle stop. The stop occurred on an exit ramp of a six-lane divided highway. The arresting officer intended to warn the vehicle operator about his "erratic driving" and cite him for traveling at an unsafe speed, a summary offense. We are asked to review the standard applicable in assessing the legality of a traffic stop under these circumstances. We conclude that the suppression hearing court correctly applied the law with respect to the circumstances under which motor vehicles may be lawfully stopped for a summary offense. We accordingly affirm the order which suppressed the evidence.

In reviewing the grant of a motion to suppress, our responsibility is (1) to determine whether the record supports the factual findings of the court below and (2) to evaluate the legitimacy of the inferences and legal conclusions drawn from those findings. Commonwealth v. Bull, 382 Pa.Super. 559, 555 A.2d 1341 (1989). In making these determinations, the reviewing court must consider only the evidence of defendant's witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted. Commonwealth v. Robinson, 518 Pa. 156, 159, 541 A.2d 1387, 1389 (1988). While we are bound by the suppression court's findings of fact if supported by the record, we are not bound by the court's legal conclusions which are drawn from the facts of the case. Commonwealth v. Lagana, 517 Pa. 371, 375-76, 537 A.2d 1351, 1353 (1988). When the factual findings of the suppression court are supported by the evidence, the appellate court may reverse only if there is an error in the legal conclusions drawn from those factual findings. Commonwealth v. Cortez, 507 Pa. 529, 532, 491 A.2d 111, 112 (1985).

The distinguished trial judge, the Honorable Edgar B. Bayley, has set forth the facts as follows:

On October 30, at approximately 10:20 p.m., Trooper Kambic was in uniform and operating a marked Pennsylvania State Police vehicle traveling south on Interstate 81, approaching the Susquehanna River bridge. Ahead of him was a two-lane ramp for southbound traffic entering the highway on the bridge from Front Street in Dauphin County. The two lanes of the ramp merge into a single lane that then merges into the western most lane of three southbound lanes on the bridge. At a point where the two lanes of the entrance ramp merge into one narrowing lane, there is a solid white line between that merging lane and the western most travel lane on the bridge. After a short distance the white line becomes a broken white line as the entrance ramp further narrows into the through lane on the bridge.

Trooper Kambic observed defendant's vehicle traveling behind another vehicle as the two cars made their way from the entrance ramp onto the single merging lane on the bridge. He then saw defendant drive over the solid white line into the western most southbound lane of the bridge and pass the vehicle in front of him before that vehicle merged into the same lane. There was no evidence, however, that defendant's movement into the southbound lane was careless or reckless, or that he interfered with the trooper's vehicle or any other vehicles proceeding south on the bridge, or with the vehicle that 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 Kambic got behind him. Utilizing his vehicle speedometer for two tenths of a mile, he attempted to ascertain his speed; however, 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 the bridge," and cite him for traveling at an unsafe speed at the south end of the bridge. Defendant got out of his car but the trooper, for safety reasons, asked him to get back inside. When defendant got back into the car he rolled down the driver's side window at which time the trooper smelled a strong odor of burnt marijuana. The trooper then ordered defendant out of the car. He told him he smelled marijuana and was going to pat him down and search the vehicle. He discovered a film canister in defendant's right jacket pocket that contained marijuana. The pocket also contained rolling paper (paraphernalia). Defendant was transported to a hospital where he underwent a urine test for the detection of controlled substances in his system.

Opinion, Bayley, J., June 17, 1991, pages 1-3.

Judge Bayley, after a full hearing, ordered the evidence suppressed. He ruled:

In order to legally stop a single vehicle for a summary violation of the Vehicle Code, 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 code." Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973).

Opinion, Bayley, J., at pages 3-4. The suppression hearing court went on to conclude:

... [T]here is no evidence to conclude that Trooper Kambic had probable cause to believe that defendant was driving at an unsafe speed. Accordingly, since there was no legal justification to stop defendant, all evidence gained as a result of the stop must be suppressed.

Id. at page 7.

In the Summary of Argument portion of its Brief for Appellant, at page 6, the Commonwealth urges us to reverse the suppression order because:

The lower court erroneously applied a probable cause standard in determining whether Trooper Kambic's stop of the defendant was justified. The proper standard in assessing the legality of a traffic stop in this case is whether the officer had reasonable suspicion to believe that the defendant was violating the Vehicle Code, based on articulable facts.

We are satisfied that Judge Bayley correctly applied the law with respect to when motor vehicles may be lawfully stopped. Both Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973) and Commonwealth v. Murray, 460 Pa. 53, 331 A.2d 414 (1975), as announced by our Supreme Court, remain the law of this state in motor vehicle cases. The Commonwealth has differed more with the conclusions drawn by Judge Bayley from his application of the law rather than with the trial court's pronouncement of the law itself. Since we believe that the trial court's conclusions are amply supported by the evidence and the law, we will affirm.

In Commonwealth v. Swanger, supra, our Supreme Court was considering whether the stop or seizure of a motor vehicle was unreasonable and, therefore, constitutionally impermissible. Speaking through Justice Eagen, the Court declared:

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 the driver is in violation of the code.

453 Pa. at 115, 307 A.2d at 879.

In deciding Swanger, our Supreme Court was well aware of the decision of the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and in fact cited to, and quoted from, the Terry opinion at length. Swanger, supra, 453 Pa.at 112-113, 307 A.2d at 878-79.

That this was not careless language by Justice Eagen is borne out by its citation, without dissent, in Commonwealth v. Murray, supra. There, the Court had to consider the legality of the stop of an automobile in which the appellant was a passenger. In reversing the previous order of this Court which had affirmed the judgment of sentence, our Supreme Court stated, speaking through then-Justice [now Chief Justice] Nix:

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).

460 Pa. at 58-59, 331 A.2d at 416-17.

In contending that the trial court "erroneously applied a probable cause standard", the Commonwealth fails to distinguish between the concepts "probable cause to arrest" and "probable cause to believe." The Commonwealth asserts that the legality of a single vehicle traffic stop is measured by whether the officer had "reasonable suspicion to believe" that the driver was violating the Vehicle Code. That articulation of the rule differs somewhat from that of our Supreme Court: probable cause to believe that the driver was in violation of some provision of the Vehicle Code. Murray, supra, 460 Pa.at 58-59, 331 A.2d at 416-17.

Once it is understood that our Supreme Court uses the term "probable cause" in this context to mean "probable cause to believe the Vehicle Code has been violated," the compatibility of the terms is immediately apparent.

It must be borne in mind that the United States Supreme Court limited its use of the term "probable cause" to situations warranting arrest in its analysis in Terry v. Ohio. In Terry, the petitioner sought to argue that no search of the person should be permitted until the situation evolves to a point...