Com. v. Bailey

947 A.2d 808

2008 PA Super 81

COMMONWEALTH of Pennsylvania, Appellee v. Joel D. BAILEY, Appellant.

No. 1568 WDA 2007.

Superior Court of Pennsylvania.

Submitted January 28, 2008.

Filed April 25, 2008.

Maureen McQuillan, Johnstown, for appellant.

Jerry L. Spangler, Asst. Dist. Atty., for Com., appellee.

BEFORE: BENDER, GANTMAN and TAMILIA, JJ.

OPINION BY BENDER, J.:

¶ 1 Joel D. Bailey (Appellant) appeals from the August 7, 2007, judgment of sentence of 30 days to 6 months imprisonment, fines, and costs imposed after he was convicted of driving while imbibing¹ and driving under the influence of a high rate of alcohol.²

¶ 2 On June 13, 2006, at approximately 7 p.m., Officer Rice of the Windber Borough Police Department observed a black Pontiac TransAm being operated "at a high rate of speed." N.T., Suppression Hearing, 4/2/07, at 5, 7, 22. Officer Rice further testified that he noticed that the TransAm exhaust system was "very loud." Id. at 8. The vehicle looked similar to a vehicle Officer Rice knew as being owned by a party with a suspended driver's license. Id. Acting on this suspicion, Officer Rice radioed Officer Walls of the Paint Township Police Department.³ Id. at 9. Officer Rice testified that he asked Officer Walls to keep a lookout for a TransAm "with [an] extremely loud exhaust." Id. at 9-10. Officer Rice also informed Officer Walls that he suspected the TransAm was being operated by a driver with suspended operating privileges. Id.

¶ 3 Approximately seven hours after receiving this information, Officer Walls spotted a black TransAm. Officer Walls testified that he received a radio call from Officer Rice informing him to be on the lookout for a TransAm with "no exhaust" system. Id. at 39. Officer Walls also testified that when he spotted the TransAm, he noticed the exhaust system of the vehicle was louder than the exhaust systems of other TransAms he had been around. N.T. at 34. Officer Walls testified that he then pulled over the TransAm because he had a reasonable suspicion the vehicle was equipped with what he deemed to be a "faulty exhaust," based on the noise the system was making, and because he thought "the person operating the vehicle was under suspension." Id. at 35, 40.

¶ 4 Upon pulling over the TransAm, Officer Walls discovered Appellant driving the vehicle and the unlicensed party Officer Rice had suspected was driving the vehicle was sitting in the passenger seat. N.T., 6/12/07, at 7, 18. Officer Rice arrived at the scene of the stop within minutes. He confronted Appellant and immediately detected a strong odor of alcohol emanating from the vehicle. He ordered Appellant out of the vehicle and then administered a series of sobriety tests, which Appellant failed. Appellant also failed a breathalyzer test administered at the police station. On June 15, 2006, Appellant was charged accordingly.

¶ 5 On January 3, 2007, Appellant filed an omnibus pre-trial motion requesting, inter alia, that the trial court suppress the evidence seized after Officer Walls stopped Appellant because Officer Walls did not have reasonable suspicion to stop Appellant. The court denied the motion and the case proceeded to a non-jury trial, at the conclusion of which the trial court returned its guilty verdict. This appeal ultimately followed in which Appellant raises the following question for our review:

Whether the lower court erred in denying the appellant's motion to suppress blood alcohol result evidence seized by the police because the police lacked requisite suspicion to initiate the traffic stop.

Brief for Appellant at 3.

¶ 6 Our standard and scope of review over the denial of a motion to suppress is as follows:

When we review the ruling of a suppression court, we must ascertain whether its factual findings are supported by the record and whether the inferences and legal conclusions drawn from those facts are reasonable. Where the defendant challenges an adverse ruling of the suppression court, we will consider only the evidence for the prosecution and whatever evidence for the defense that remains uncontradicted in context of the whole record. If there is support on the record, we are bound by the facts as found by the suppression court, and we may reverse that court only if the legal conclusions drawn from these facts are in error.

Commonwealth v. Fulton, 921 A.2d 1239, 1242 (Pa.Super.2007), appeal denied, 594 Pa. 686, 934 A.2d 72 (Pa.2007), quoting Commonwealth v. Petroll, 558 Pa. 565, 738 A.2d 993, 998 (1999) (citations omitted).

¶ 7 Both Article I, Section 8 of the Pennsylvania Constitution, Security from searches and seizures,⁴ and the Fourth Amendment of the United States Constitution, Unreasonable searches and seizures,⁵ protect citizens of this Commonwealth from unwarranted seizures by law enforcement officials. Petroll, 738 A.2d at 998. As provided for by statute, anytime a police officer has "reasonable suspicion" to believe a violation of the Motor Vehicle Code is occurring or has occurred, the officer may initiate an investigatory vehicle stop. 75 Pa.C.S. § 6308; See also Fulton, 921 A.2d at 1240 n. 2. Reasonable suspicion exists when an officer is able to articulate specific observations which, when considered with reasonable inferences derived therefrom, lead to a reasonable conclusion, in light of the officer's experience, that criminal activity is afoot and the person seized was engaged in the criminal activity. Fulton, 921 A.2d at 1243. We consider the totality of the circumstances in determining whether reasonable suspicion existed to justify an investigatory traffic stop. See id. at 1243.

¶ 8 We begin our analysis by recognizing that the information accumulated by the police prior to stopping Appellant came from two sources, i.e., Officers Rice and Walls. Thus, although Officer Walls ultimately stopped Appellant, he did so, in part, based upon the information received from Officer Rice.

A police officer, however, need not personally observe the illegal or suspicious conduct, which forms the basis for the reasonable suspicion, but may rely, under certain circumstances, on information provided by third parties.

...

Pennsylvania law also permits a vehicle stop based upon a radio bulletin if evidence is offered at the suppression hearing to establish reasonable suspicion. The mere fact that the police receive their information over the police radio does not, of itself, establish or negate the existence of reasonable suspicion.

Commonwealth v. Korenkiewicz, 743 A.2d 958, 963-65 (Pa.Super.1999) (en banc) (citations omitted). While Korenkiewicz involved the police receiving information from a known citizen, in Commonwealth v. Fromal, 392 Pa.Super. 100, 572 A.2d 711, 717 (1990), we explained that one officer may also act upon information received from another officer, albeit in the context of an arrest rather than an investigative detention; a distinction without a difference as applied to the case before us.

An arresting officer is not required to have sufficient information to establish probable cause for the arrest so long as the officer ordering the arrest possessed sufficient information giving rise to probable cause. Further, an arresting officer in executing a valid arrest may rely on radio broadcasts emanating from police authorities in one of the following instances: 1) when he is ordered or directed to perform the arrest by an officer in possession of facts justifying the arrest, 2) when he receives information over the radio justifying the arrest, or 3) when a combination of facts heard over the radio and acquired otherwise provides requisite probable cause.

Fromal, 572 A.2d at 717 (citations omitted). Herein, Officer Walls' reasons for stopping Appellant were based upon his own observations and information received from Officer Rice, and there is no impropriety in so establishing his basis of knowledge.

¶ 9 Appellant initially contends that Officer Walls' belief that the TransAm was being operated by an unlicensed driver was insufficient to establish reasonable suspicion to justify the investigatory stop. See Brief for Appellant at 9, citing Commonwealth v. Andersen, 753 A.2d 1289 (Pa.Super.2000). In Andersen, a panel of this Court concluded that "the knowledge a vehicle is owned by an individual whose driving privileges are suspended coupled with the mere assumption that the owner is driving the vehicle, does not give rise to articulable and reasonable grounds to suspect that a violation of the Vehicle Code is occurring every time this vehicle is operated during the owner's suspension." Id. at 1294. The Commonwealth concedes that "under [Andersen] ... observation of the operation of a motor vehicle owned or registered by a person with a suspended license does not rise to the level of reasonable suspicion of a vehicle code violation." Brief for Appellee at 10-11, In the instant matter, Officer Rice's testimony establishes he merely assumed the unlicensed driver was operating the TransAm. N.T., 4/2/07, at 8, 24.

¶ 10 Andersen was decided under the precursor to current section 6308(b), which provided that an officer had to have probable cause that a provision of the Motor Vehicle Code was being violated before initiating a traffic stop. 2003 Pa. Laws 24, No. 8 (9/30/03, effective 2/01/04). The current version of section 6308(b), promulgated in 2003, requires only reasonable suspicion of a violation. The distinction is of no moment to our analysis, however, as it is well-settled that a mere assumption is not synonymous with reasonable suspicion. See Commonwealth v. Zook, 851 A.2d 178, 181 (Pa.Super.2004) (stating, "In determining whether an officer acted according to reasonable suspicion, due weight must be given, not to his inchoate and unparticularized suspicion or `hunch,' but to specific inferences he is entitled to draw from the facts in light of his experience.") (citation omitted). Accordingly, Officer Wall's hunch that the TransAm's driver may have...