Commonwealth of Pennsylvania, v. Amy Felty

 

Criminal Action-Constitutional Law-Search and Seizure-Omnibus Pretrial Motion-Vehicle Stop-License Plate Query-Reasonable Suspicion

 

Amy Felty (“Defendant”) filed an Omnibus Pretrial Motion seeking to suppress evidence resulting from a situation in which a law enforcement officer queried the license plate number of the vehicle she was operating without observing any Vehicle Code violations.  The query revealed that the vehicle was registered to Defendant who had red hair and Defendant’s operator’s privilege was designated as suspended.  Defendant was charged with Driving While Operating Privileges are Suspended or Revoked.

 

1. In Pennsylvania, there is no need for a law enforcement officer to possess a level of suspicion to query the number of a license plate that is in plain view.

 

2. After querying a license plate number when no criminal activity is observed, the law enforcement officer must possess information to verify that the driver is or could be the same individual to whom the vehicle is registered per the query in order to establish reasonable suspicion of wrongdoing needed to effectuate a traffic stop.

 

3. Since the law enforcement officer was able to identify the driver of the vehicle as a female with red hair and determined that the registrant of the vehicle who did not have a valid driver’s license was a female with red hair before stopping the vehicle, the law enforcement officer had reasonable and articulable suspicion of criminality to effectuate a lawful traffic stop.

 

L.C.C.C.P. No. CP-38-CR-0000748-2022, Opinion by Bradford H. Charles, Judge, September 27, 2022.

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

CRIMINAL DIVISION

 

COMMONWEALTH OF                             : 

PENNSYLVANIA                                       :                                                                                                                            :        NO. CP-38-CR-748-2022

1. :       

                                                                   :

AMY FELTY                                               :

:

ORDER OF COURT

 

 

AND NOW, this 27^th day of September, 2022, after hearing and in accordance with the attached Opinion, the Order of this Court is as follows:

1. The Defendant’s Pre-Trial Motion to Suppress is DENIED.
2. The Defendant is directed to appear for the Criminal Call of the List scheduled for October 4, 2022 at 8:30am in the designated Courtroom. She is also directed to appear for the first day of Criminal Trials scheduled to commence on October 24, 2022.
3. All further proceedings in the above-referenced matter are to be conducted before this jurist.

BY THE COURT:

 

__________________________J.

BRADFORD H. CHARLES

BHC/pmd

Cc:    Court Administration (order only)

Mimi Miller, Esq.//District Attorney’s Office

Jay M. Nigrini, Esq.// 606 Court Street, Suite 200, Reading PA 19601

 

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

CRIMINAL DIVISION

 

 

COMMONWEALTH OF                             : 

PENNSYLVANIA                                       :                                                                                                                            :        NO. CP-38-CR-748-2022

1. :       

                                                                   :

AMY FELTY                                               :

:

APPEARANCES

 

Mimi Miller, Esquire                                          For Commonwealth of

Assistant District Attorney                              Pennsylvania

 

Jay M. Nigrini, Esquire                                     For Amy Felty

        

OPINION BY CHARLES, J., September 27, 2022

 

Once again, we are confronted with the issue of whether and how police can query license plates of motorists who have done nothing wrong.  Always, these cases are presented within the context of arguments by the Commonwealth that police should have unfettered discretion to query license plates of vehicles being operated on a public roadway.  More often than not, the cases seem to involve queries regarding young female drivers.[1]  Always, the cases find their way into Court because the driver had not committed any discernable violation of Pennsylvania’s Motor Vehicle Code.  Thus far, the response of this Court to this scenario has been dependent upon whether police had at least some degree of reasonable suspicion about the vehicle’s operator.  For reasons we will articulate in more detail, we conclude in this case that police did possess reasonable suspicion that the operator of a brown hatchback vehicle at 12:51am on April 17, 2022, did have a suspended license.  Therefore, we will affirm the traffic stop conducted by police.

 

1. FACTS

On April 17, 2022, Officer Philip St. Clair of the Lebanon City Police Department encountered a brown hatchback vehicle at 9^th and Cumberland Streets in the City of Lebanon.  The operator of the vehicle was a female who had red hair.  However, no vehicle code violations were observed by Officer St. Clair.

Officer St. Clair decided to conduct a query of the hatchback vehicle’s license.  He learned through his patrol car computer that the vehicle was registered to Amy Felty.  He also learned that Ms. Felty had red hair.  Ms. Felty’s license was designated as “Suspended”.

After Officer St. Clair observed that the driver was a female with red hair and after he confirmed that the vehicle was registered to a female with red hair whose license was suspended, Officer St. Clair conducted a traffic stop.  He learned that the operator of the vehicle was indeed Amy Felty.  He confirmed that Ms. Felty had no driver’s license.  He therefore charged the Defendant with Driving While Operating Privileges are Suspended or Revoked.  Because of Ms. Felty’s driving record, the charge was filed as a Misdemeanor of the Third Degree and carried with it a maximum potential period of incarceration of one (1) year.

On July 22, 2022, the Defendant filed a Motion to Suppress Evidence.  The Defendant argued that the initial query of Ms. Felty’s vehicle was unlawful because it was based merely upon a “hunch” and not upon any reasonable or articulable suspicion of unlawful conduct on the part of the driver.  We conducted a hearing regarding the Defendant’s Motion on August 17, 2022.

At the time of the hearing in August, another decision that had been rendered by this Court on this identical issue was pending before Pennsylvania’s Superior Court.  Because we wanted to afford the Appellate Courts with time to render a binding decision regarding this matter, we advised both parties not to expect an Opinion in the above-referenced case until at least November.  However, for some reason unknown to this Court, the Commonwealth withdrew its Appeal in the case of Commonwealth v. Kennedy, C.P. Leb. Co., No. 38-CR-1105-2021 (Charles, J. June 9, 2022).  When we received notice from the Superior Court that the Appeal in the Kennedy case had been withdrawn, we proceed to analyze this case.  we issue an Opinion today to deny the Defendant’s Pre-Trial Motion.

 

1. DISCUSSION

This is the fourth time in 2022 that we have been required to address the topic of whether and when police can conduct a computer query of a motorist’s license plate.  The last time we undertook an analysis of this issue was in the case of Commonwealth v. Kennedy, supra.  In Kennedy, we confessed that we were “conflicted” by the issue presented.  We expressed concern that “targeting” a driver based upon factors such as gender, skin color or attractiveness could “have the effect of treating one class of motorists different than another.”

Because the legal analysis we employed in Kennedy is the law of this jurisdiction, and because that analysis is directly relevant to the issue now before this Court, we will liberally quote our analysis in Kennedy:

“For the third time in one year, we are confronted with the issue of whether or how police should support a decision to insert a license number in a computer system.  As we articulated in the case of Commonwealth v. Lisa Ann Kanzler, Leb.Co. CP-38-CR-242-2020 (August 13, 2020), we are conflicted by this issue.  At the risk of thinking out loud, we will articulate some of the concerns that we have on both sides of this issue.

The key consideration favoring the Commonwealth is the fact that license plates are conspicuously located on every vehicle in plain view of every other motorist and pedestrian in the vicinity.  Moreover, when a vehicle is in motion, it is almost always located on a public highway or publically-accessed parking lot over which the driver has no expectation of privacy.  Moreover, the intrusion created by a computer search of a license plate number is minimal.  In fact, on most occasions when a license is run on a random basis, the driver will likely not even know that the computer query had occurred.

On the other hand, affording unfettered discretion to police with respect to computer searches of license plate information could incentivize investigations predicated upon grounds having nothing to do with suspicious or aberrant behavior.  For example, in the case of Commonwealth v. Kanzler, an attractive young woman claimed that police targeted her with a license plate computer search because she was “driving while blonde.”  Although we ultimately determined that the woman’s less than stellar driving justified a police stop, we were troubled by the notion that police could target licenses on vehicles based entirely upon the gender, skin color or attractiveness of the driver.  Sanctioning such “targeting” would ultimately have the effect of treating one class of motorists different than another.  Such a result is viscerally repugnant to the notion that everyone must be treated equally under the law.

How do we reconcile the considerations outlined above?  The preference of this Court would be to impose some sort of objective requirement upon police to explain how or why a license plate was targeted for further investigation.  However, this Court does not make the law, nor do we have the authority or desire to usurp our Appellate Courts’ authority to create common law principles that apply statewide.

In this case, precedent exists that is almost directly on point with the factual scenario now before this Court.  In Commonwealth v. Bolton, 831 A.2d 737 (Pa. Super. 2003), Appellant was stopped after a police officer ran the registration of the vehicle through the mobile NCIC device in his police vehicle.  Upon determining that the vehicle, though registered, lacked the proper financial responsibility required by the Motor Vehicle Code, the officer stopped Appellant and further discovered that Appellant was operating the vehicle on a suspended license.  Appellant argued “that the stop was unconstitutional because the charging officer was not engaged in a systematic program of checking vehicles or drivers.”  Appellant cited no authority to support his contention that a charging officer must have some level of suspicion to run a license plate through the NCIC computer.  In reviewing case law, Pennsylvania’s Superior Court found no support for Appellants contention and determined there was no need for an officer to possess a level of suspicion to check a license plate which was clearly in plain view.  The Court stated: “…we fail to see the need for some level of suspicion to check a license plate which is clearly in plain view.” Id at pg. 737.   As such, the vehicle stop leading to Appellant’s citations was appropriate.[2]

We are constrained by Bolton to hold that Officer Rusz could query the license plate of the vehicle he observed that was operated by the Defendant.  So that we are clear, there was absolutely no probable cause or reasonable suspicion of wrong-doing that supported Officer Rusz’ decision to query the license plate.  However, as outlined above, Officer Rusz did not need such suspicion under the current state of Pennsylvania law.

Our analysis does not end with a recognition that Officer Rusz could query a license plate with relative impunity.  In this case, Officer Rusz effectuated a traffic stop without being able to see who was driving the vehicle.  In other words, Officer Rusz determined that the vehicle in question was registered to a female who had a suspended license, but he did not verify that a female was actually driving the vehicle before he effectuated the stop.  In the opinion of this Court, that omission was fatal to the legality of Officer Rusz’ traffic stop.

The case of Kansas v. Glover, 140 S.Ct. 1183, 200 L.Ed. 2d 412 (U.S. 2020) is instructive.  In Glover, a deputy sheriff in Kansas conducted random license plate computer checks.  One of the vehicles he queried was registered to Charles Glover, whose driver’s license had been suspended.  Because of the suspended license, the deputy effectuated a traffic stop.  Mr. Glover challenged the stop.  In a rare 8-1 opinion, the United States Supreme Court upheld the validity of the stop.  However, in doing so, the Supreme Court emphasized that the deputy had personally observed the driver and had determined that the driver’s description matched the computer information about the individual whose license had been suspended.  Reading the Supreme Court’s decision leaves no doubt about the importance of the deputy’s personal observation of the driver.

In this case, Officer Rusz never observed the driver of the vehicle he stopped.  He had no idea if the driver was male or female.  He had no idea if the driver was African-American or Caucasian.  He had no idea if the driver was young or old.  In short, he did not have any information to verify that the driver was or could have been the same individual who had a suspended license.

Clearly, Officer Rusz failed to determine that the operator of the vehicle in question had characteristics consistent with the computer-generated information about the license-suspended person to whom the vehicle was registered.  Because of this, Officer Rusz lacked reasonable suspicion of wrong-doing needed to effectuate a traffic stop.  To the extent that the Commonwealth argues that Officer Rusz was merely initiating a mere encounter, we reject such an argument.  Officer Rusz conducted a traffic stop.  Under Pennsylvania law, that is by definition an investigative detention.  See, e.g. Commonwealth v. Douglass, 539 A.2d 412, 420 (Pa. Super. 1998).  Because that detention was unsupported by any reasonable suspicion, it is fatally flawed.”

(Slip Opinion at pages 3-7)

 

Kennedy was appealed by the Commonwealth.  However, the appeal was withdrawn.  Therefore, Kennedy is controlling precedent in this jurisdiction.

This case is different than Kennedy. Although Officer St. Clair queried the Defendant’s vehicle without any discernable evidence of improper driving on the part of the Defendant, he did not undertake a traffic stop until he was able to identify the driver of the vehicle as a female with red hair and until after he determined that the unlicensed individual to whom the vehicle was registered was likewise a female with red hair.  Although Officer St. Clair’s query of the Defendant’s vehicle was unsupported by any reasonable or articulable suspicion of unlawful behavior, his decision to stop the vehicle was in a far different category.  When Officer St. Clair initiated a traffic stop, he was aware that the vehicle in question was operated by a female who had red hair, he was aware that the vehicle was registered to a female with red hair, and he was aware that the red-headed female did not have a driver’s license.  Those facts combined to afford Officer St. Clair with reasonable and articulable suspicion of criminality so as to support a traffic stop.

We remain uncomfortable with the precept that police can indiscriminately target operators based upon suspect reasons such as race, gender, age, hair color or attractiveness.  However, we must follow the Pennsylvania Superior Court precedent in Commonwealth v. Bolton, 831 A.2d 737 (Pa. Super. 2003) that compels us to conclude that no level of suspicion is needed for a police officer to query a license plate.  Based upon Bolton, and based upon our analysis in Kennedy, we will deny the Defendant’s Pre-Trial Motion for Relief.  An Order consistent with this decision will be entered today’s date.

 

 

[1] This is the anecdotal experience of this jurist.  We have no statistical evidence to say one way or another whether police target young females for queries.

[2] The principle articulated in Bolton was re-affirmed more recently in Commonwealth v. Stephens, 2019 W.L.6188552 (Pa. Super. 2019) (Officer not required to possess any level of suspicion before running a vehicle’s information through his in-car computer.) and Commonwealth v. Batch, 2020 W.L. 9170506 (Pa. Super. 2020) (No suspicion needed for an officer to follow a vehicle close enough to read its license plate number.)  While both Stephens and Batch were non-precedential Opinions, we note them as reflecting the discernment of two separate Superior Court panels.