Judges Opinions, — September 14, 2015 10:22 — 0 Comments

Commonwealth of Pennsylvania vs. Jesus L. Quiernan-Hernandez No. CP-38-CR-1840-2014

Criminal Law-Omnibus Pretrial Motion-Suppression of Evidence-Perspective of the Police Officer-Reasonable Suspicion-Driving Under the Influence of Alcohol-Probable Cause-Totality of the Circumstances-Driving on Roadways Laned for Traffic

1. Defendant, who was charged with Driving Under the Influence of Alcohol pursuant to 75 Pa.C.S. § 3802(b) and (a)(1) and summary offenses including Driving on Roadways Laned for Traffic pursuant to 75 Pa.C.S. § 3309(1) and Restraint Systems relating to an incident that occurred on August 24, 2014, filed an Omnibus Pretrial Motion seeking suppression of evidence.

2. At a pretrial hearing on the Omnibus Pretrial Motion, the police officer who stopped the claimant’s vehicle testified that he observed the Defendant’s vehicle parked in a shopping center parking lot at 10:30 p.m., a time when no businesses in the shopping center were open. The police officer testified that he observed the vehicle move forward and back up before the vehicle exited the parking lot despite the fact that nothing appeared to be in the way of the vehicle. The police officer testified that he followed the vehicle, which drove ten (10) miles below the speed limit and crossed the double yellow line at least three (3) times while continually braking over a total distance of 3/10 to 4/10 of a mile. The police officer testified that he activated the emergency lights of his patrol vehicle and stopped Defendant’s vehicle after the vehicle had progressed into Lebanon City, as he felt that there was no safe location to stop Defendant’s vehicle in North Cornwall Township.

3. While Defendant’s wife who was a passenger in Defendant’s vehicle during the incident testified that Defendant’s vehicle never crossed over the double yellow line, the Court recognized that the suppression inquiry must be analyzed from the perspective of the officer, not from the perspective of the defendant, and only that which was observable by the officer is relevant in a suppression inquiry.

4. Where a motion for suppression of evidence has been filed, the burden is upon the Commonwealth to establish that the challenged evidence is admissible by a preponderance of the evidence.

5. Defendant asserted that the police officer lacked probable cause to stop his vehicle, as the mere location of the vehicle in a shopping center parking lot without any signs of criminal mischief fails to establish the requisite probable cause or reasonable suspicion to justify the vehicle stop.

6. Title 75 Pa.C.S. § 6308(b) requires that an officer possess reasonable suspicion that a violation of the Vehicle Code is occurring or has occurred in order for the officer to stop a vehicle. However, the Pennsylvania Superior Court has held that a police officer must have probable cause to support a vehicle stop where the officer’s investigation after the stop serves no investigatory purpose relevant to the suspected Vehicle Code violation. The Pennsylvania Superior Court explained that where the record contains no indication that an officer stopped a defendant in order to conduct additional investigation into driving under the influence charges or other impairment of the defendant’s ability to drive safely, a showing of probable cause was necessary to justify a stop of a vehicle for a violation of failure to maintain a single lane pursuant to 75 Pa.C.S. § 3309.

7. The Court found that in this case, the police officer did not testify that the stop of Defendant’s vehicle was based upon suspicion that the claimant was driving under the influence. In addition, the Court indicated that the Commonwealth failed to develop the basis of the vehicle stop on the record, as the police officer merely explained his reasoning for failing to stop the vehicle in North Cornwall Township without articulating his actual reasoning for stopping the vehicle.

8. The Court found that since there was no express indication by the officer that he stopped Defendant’s vehicle in order to conduct additional investigation into Driving Under the Influence charges or other impairments of Defendant’s ability to drive safely, a showing of probable cause was necessary to justify the vehicle stop for a violation of 75 Pa.C.S. § 3309(1), which provides that whenever any roadway has been divided into two (2) or more clearly marked lanes, a vehicle shall be driven as nearly as practicably entirely within a single lane and shall not be moved from the lane until the driver first has ascertained that the movement can be safely made.

9. Probable cause is established where the facts and circumstances within an officer’s knowledge are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed. Probable cause must be evaluated by considering all of the relevant facts under the totality of the circumstances.

10. The Court held that while the facts adduced at the hearing very well may have constituted probable cause to justify a stop of Defendant’s vehicle for other violations of the Vehicle Code, Defendant was charged pursuant to § 3309(1). The Court explained that in this case, where the weather was not inclement and no other vehicles appeared on the roadway, the police officer did not possess the requisite probable cause for a violation of § 3309(a), as the record failed to establish that Defendant’s deviations from his lane of travel created a safety hazard while driving on the roadway.

11. Accordingly, the Court granted Defendant’s Omnibus Pretrial Motion, directed the suppression of all evidence adduced subsequent to the stop and quashed the Criminal Information.

L.C.C.C.P. No CP-38-CR-0001840-2014, Samuel A. Kline, Judge, July 20, 2015.

Jonathan C. Faust, Esq., for the Commonwealth

Robert J. Brown, Esq., for Defendant

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

CRIMINAL DIVISION No: CP-38-CR-1840-2014

COMMONWEALTH OF PENNSYLVANIA

v.

JESUS L. QUIERNAN-HERNANDEZ

AMENDED ORDER

And now, to wit, this 20th day of July, 2015, upon consideration of the Defendant’s Pre-Trial Motion and the record of the case, the Pre-Trial Motion is GRANTED. Based on the record established at the pretrial hearing, the Commonwealth of Pennsylvania has failed to sustain its burden with regard to the legality of the stop. All evidence subsequent to the stop must be suppressed.

BY THE COURT:

SAMUEL A. KLINE, J.

APPEARANCES:

Jonathan C. Faust, Esq. for the Commonwealth

Robert J. Brown, Esq. for the Defendant

OPINION, KLINE, J., JULY 20, 2015

Before the Court is the Defendant’s Pretrial Motion. For the reasons set forth herein, we are constrained to grant the Motion to Dismiss, as specified below.

FACTS AND PROCEDURAL HISTORY

The Defendant was charged with two counts of Driving Under the Influence of Alcohol and three summary offenses: Driving on Roadways Laned for Traffic and Restraint Systems (two charges). On January 16, 2015, the Defendant filed an Omnibus Pretrial Motion. The Defendant contends that he was subjected to an illegal traffic stop, and therefore all evidence that resulted therefrom must be suppressed.

A pretrial hearing was held on April 22, 2015. The record of the pretrial hearing reflects the following relevant facts. Sergeant Bradley L. Hain (hereinafter “Sergeant Hain”) testified on behalf of the Commonwealth.

Around 10:30 on the evening of August 24, 2014, Sergeant Hain was traveling along Route 72 and observed a vehicle in the parking lot at the Quentin Circle Shopping Center. (N.T. 6-8). The vehicle caught Sergeant Hain’s attention because it was the only vehicle in the parking lot, and no businesses were open. (N.T. 8). He saw the head lights were on, and he could tell that the vehicle was not parked in a parking space. (N.T. 8). When he saw the vehicle, he became suspicious. (N.T. 8). Sergeant Hain then went into a parking lot across from the shopping complex, and he sat there for approximately 10-15 minutes. (N.T. 8). He saw one person outside of the vehicle that appeared to be a male, and he also saw a person inside the vehicle that appeared to be a female. (N.T. 9). When the man was outside of the vehicle, he did not notice anything to indicate any kind of problem of a physical nature, such as him falling down. (N.T. 17). At some point, the person walking around the car got into the driver’s seat of the vehicle and pulled away. (N.T. 9). The vehicle initially backed up, and then pulled forward. (N.T. 9). Nothing was in front of the vehicle blocking its way. (N.T. 9). This raised his suspicion. (N.T. 9).

The vehicle went out onto Quentin Road (Route 72), and Sergeant Hain followed the vehicle along Route 72. (N.T. 9). Sergeant Hain testified, “Well, I’m going to follow to get a tag number in case something prior happened before I was observing it. So I wanted to get behind them to get a tag number and vehicle description.” (N.T. 17). When the vehicle was going out on to Route 72, the driving was “slow and jerky.” (N.T. 10). The speed limit is 35 mph, and the vehicle traveled approximately 10 miles under the speed limit. (N.T. 11). The vehicle was continually braking, and he observed it cross the double yellow line at least three times. (N.T. 11). There was no inclement weather or anything on the roadway. (N.T. 11). There were no other cars on the roadway, and there were no pedestrians. (N.T. 19-20).

The aforementioned occurred in North Cornwall Township, and Sergeant Hain believed he had probable cause to pull the vehicle over. (N.T. 11-12). However when asked what would have been his reason for pulling the vehicle over, he testified that he did not pull the vehicle over because he believed that there were no safe areas to pull over the vehicle. (N.T. 12). “So I did not do so for both of our safety.” (N.T. 12). They eventually crossed the Lebanon City line, and the vehicle continued to travel around 25 mph, and continually braked. The vehicle continued to cross over the double yellow line in Lebanon City. (N.T. 12). When the roadway opened where he crossed over Colebrook Road, he activated his emergency lights, and the vehicle turned into a Subway parking lot. (N.T. 12). Sergeant Hain identified the Defendant as the driver of the vehicle. (N.T. 13). The parties stipulated that the entire distance was 3/10ths to 4/10ths of a mile. (See stipulation filed on June 15, 2015).

The Defendant’s wife testified at the pretrial hearing. The Defendant’s wife, a passenger in the vehicle, presented testimony which contracted the testimony of Sergeant Hain. She claimed, inter alia, the Defendant did not cross over the line. The Defendant fails to recognize that the wife’s testimony is not relevant to the instant suppression inquiry. In Com. v. Brown, 64 A.3d 1101 (Pa. Super. 2013), a corporal testified that he stopped a driver for failing to signal when he turned left. A passenger testified that the driver activated his signal. However, she was unable to see whether the lamps actually flashed outside the vehicle. The Superior Court stated, “[T]he suppression inquiry is analyzed from the perspective of the officer and not from the perspective of the defendant. Therefore, only what was observable by the officer is relevant.” Brown, 64 A.3d at 1106, footnote 4.

At the conclusion of the hearing, the Court took the matter under advisement and allowed the parties to submit briefs in support of their respective positions. Both parties filed their briefs on June 15, 2015. The case is thus before us and ripe for disposition.

DISCUSSION

Pa.R.Crim.P. 581 permits a defendant to “make a motion to the court to suppress any evidence alleged to have been obtained in violation of the defendant’s rights.” A motion for suppression of evidence is an appropriate type of relief to include in an omnibus pretrial motion. Comment to Pa.R.Crim.P. 578. Where a motion to suppress has been filed, the burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible. Com. v. Hamilton, 673 A.2d 915, 916

(Pa. 1996).

Defendant argues that Sergeant Hain did not have the requisite probable cause to legally stop the vehicle. Specifically, the Defendant contends that parking in an empty parking lot with no signs of criminal mischief is not sufficient to raise probable cause or reasonable suspicion. Further, driving away from the parking lot lessens suspicion. In addition, driving under the speed limit without other vehicles, pedestrians, or property on the roadway is not sufficient under the totality of the circumstances to allow Sergeant Hain to stop the Defendant for Driving on Roadways Laned for Traffic. The Defendant further argues that this event should be considered de minimis in nature and lacking probable cause to necessitate a stop. Defendant cites numerous Chester County cases where he contends that the courts have suppressed police stops based on de minimis events.

The Commonwealth contends that Sergeant Hain had the requisite reasonable suspicion that the driver of the vehicle was possibly intoxicated. Therefore, he had a right to further investigate the situation and determine if he was driving under the influence. In the alternative, the Commonwealth argues that Sergeant Hain had probable cause to believe the Defendant was in violation of Section 3309(1).

The Superior Court of Pennsylvania’s analysis in Com. v. Landis, 89 A.3d 694 (Pa. Super. 2014), which incorporates its analysis from Com. v. Feckzo, 10 A.3d 1285 (Pa. Super. 2010), is directly on point and controlling in this case. We set forth the entire analysis in full:

This Court has synthesized the governing law regarding the applicable burden of proof necessary to justify a traffic stop.

The Pennsylvania Motor Vehicle Code provides as follows:

Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has reasonable suspicion that a violation of this title is occurring or has occurred, 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 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.

75 Pa.C.S.[ ] § 6308(b).

Thus, § 6308(b) requires only reasonable suspicion in support of a stop for the purpose of gathering information necessary to enforce the Vehicle Code violation. However, in [ Feczko, 10 A.3d at 1291] this Court held that a police officer must have probable cause to support a vehicle stop where the officer’s investigation subsequent to the stop serves no “investigatory purpose relevant to the suspected [Vehicle Code] violation.” In Feczko, the police officer observed the defendant’s vehicle cross over the double yellow median line and the fog line. Id. at 1286. During the ensuing vehicle stop, the officer noticed the scent of alcohol on the defendant’s breath. Id. Importantly, the officer did not testify that the stop was based on suspicion of DUI. Id. The defendant was convicted of DUI and a motor vehicle code violation, and argued on appeal that the vehicle stop was illegal. Id. at 1287.

This Court noted the distinction between “the investigative potential of a vehicle stop based on a reasonable suspicion of DUI as compared to other suspected violations of the Motor Vehicle Code.” Id. at 1289 (citing Commonwealth v. Sands, 887 A.2d 261, 270 (Pa.Super.2005)). Whereas a vehicle stop for suspected DUI may lead to further incriminating evidence such as an odor of alcohol or slurred speech, a stop for suspected speeding is unlikely to lead to further evidence relevant to that offense. Id. Therefore:

[A] vehicle stop based solely on offenses not ‘investigatable’ cannot be justified by a mere reasonable suspicion, because the purposes of a Terry stop do not exist—maintaining the status quo while investigating is inapplicable where there is nothing further to investigate. An officer must have probable cause to make a constitutional vehicle stop for such offenses.

Id. at 1290(quoting Commonwealth v. Chase, 599 Pa. 80, 94, 960 A.2d 108, 116 (2008))

In Feczko, the police officer stopped the defendant’s vehicle solely based on the defendant’s failure to maintain a single lane in accordance with 75 Pa.C.S.[ ] § 3309. This Court held, therefore, that the vehicle stop could be constitutionally valid only if the officer could “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 [Vehicle] Code.” Id. at 1291. We also held that the police officer’s observation of the defendant swerving over the double yellow median line and the fog line created probable cause to suspect a violation of § 3309. Id.

Commonwealth v. Busser, 56 A.3d 419, 423 (Pa.Super.2012) (emphasis added), appeal denied, ––– Pa. ––––, 74 A.3d 125 (2013).

Instantly, Trooper Shaffer testified “[he] pulled [Appellant] over that evening due to observation made of him operating a motor vehicle travelling north on State Route 35, the violation being Driving Roadways Laned for Traffic [, 75 Pa.C.S. § 3309].” There was no express indication that the trooper stopped Appellant in order to conduct additional investigations into a DUI or other impairments of his ability to drive safely. Consequently, a showing of probable cause was necessary to justify the trooper’s stop of Appellant for a violation of section 3309. See Feczko, 10 A.3d at 1291; see also Busser, 56 A.3d at 423.

Landis, 89 A.3d 702-703 (emphasis added, footnotes omitted).

Upon review of the record of the pretrial hearing, Sergeant Hain did not expressly testify the vehicle stop was based on suspicion of DUI. The record reveals the following:

Question: Before [the vehicle] went into Lebanon City, did you feel you had probable cause of suspicion [sic] to pull the car over?

Answer: I did.

Question: What would have been your reasoning for pulling the car over?

Answer: I did not perform a traffic stop at that time because there’s no room—or no safe area to pull a vehicle over. So I did not do so for both of our safety.

Question: When you crossed into the Lebanon City line, did the driving get better?

Answer: No. It was the same. It was like I said, going like 25, continually braking. They were still crossing over the double yellow line in Lebanon City.

Question: Where did you finally have room to get the vehicle over?

Answer: Where he crossed over Colebrook Road, or 241, at the traffic light is when I activated my emergency equipment. The roadway widens. That is where my traffic stop. The vehicle turned into the Subway parking lot.

(N.T. 11-12).

Just like in Feczko, Sergeant Hain never expressly testified that the vehicle stop was based on suspicion of DUI. Had Sergeant Hain pulled the Defendant over for suspicion of DUI and the Commonwealth developed this on the record, then there certainly would have been reasonable suspicion to investigate further for DUI as the record indicates the Defendant was driving erratically. However, this is not the case as the Commonwealth failed to develop the basis of the stop on the record. Rather, when asked what his reason was for pulling the vehicle over, Sergeant Hain explained his reason for not pulling the vehicle over prior to entering the Lebanon City Line. He then subsequently explained where he pulled the vehicle over. These answers do not answer the questions as to what was the basis of the stop. The Commonwealth did not ask any follow-up questions to get Sergeant Hain to expressly testify to the basis of the stop. Nowhere in the record does he expressly state the basis of the stop. Keeping the aforementioned Superior Court precedent in mind, we are constrained to rule that since there was no express indication that Sergeant Hain stopped the Defendant in order to conduct additional investigations into a DUI or other impairments of his ability to drive safely, a showing of probable cause was necessary to justify the vehicle stop for a violation of section 3309. This finding is consistent with Landis and Feczko.

“The police have probable cause where the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed. We evaluate probable cause by considering all relevant facts under a totality of circumstances analysis.” Brown, 64 A.3d at 1105. Driving on Roadways Laned for Traffic is defined as follows:

Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others not inconsistent therewith shall apply:

(1) Driving within single lane.–A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that the movement can be made with safety.

75 Pa.C.S.A. §3309(1).

In Landis, the Superior Court found that the suppression court did not enter a statement of its findings of fact or conclusions of law when denying the motion to suppress. Therefore, the Superior Court vacated the order denying the motion to suppress for reconsideration of the evidence in light of the probable cause standard and the filing of a statement of its findings of fact and conclusions of law. It is clear that Landis does not help us resolve the issue as to what is required for a showing of probable cause for section 3309(1).

However, Feckzo does provide some guidance.

In the case sub judice, our analysis is limited to the legality of the traffic stop of Appellant’s vehicle. Trooper Miller testified that the basis for the traffic stop was because Appellant was “weaving within his lane and also crossed out of his lane of travel on numerous occasions.” Trooper Miller observed Appellant’s vehicle cross the double yellow center line of SR 174 on two separate occasions as well as drift over the white fog line on the opposite side of the traffic lane. While no vehicles were required to take evasive action, Trooper Miller did observe traffic in the on-coming lane while following Appellant’s vehicle. These observations gave rise to a suspected violation of the Motor Vehicle Code provision requiring that vehicles drive within a single lane. See 75 Pa.C.S. § 3309(1).

Based on the record of the suppression hearing, we conclude Trooper Miller was able to articulate specific facts possessed by her, at the time of the questioned stop, which provided probable cause to believe that Appellant was in violation of Section 3309(1). We specifically note that the suppression court viewed a video recording from Trooper Miller’s patrol car and observed “numerous touchings of the white fog line by the defendant’s vehicle and clearly saw the vehicle cross over the center yellow line while negotiating a curve.” Given the presence of oncoming traffic, Appellant’s deviations from his lane of travel created a significant safety hazard on the roadway.

Feckzo, 10 A.3d at 1291-1292 (emphasis added).

In Com. v. Enick, 70 A.3d 843 (Pa. Super. 2013), a police officer stopped the driver for driving over the center line, in violation of §3301, failure to drive on the right side of the roadway. He did not stop the driver for suspected DUI. The Superior Court stated the stop was valid only if the officer had probable cause. The driver argued that the officer did not have probable cause. The driver made several arguments in support of his position, but of particular importance to the instant matter, the driver cited Com v. Gleason, 785 A.2d 983 (Pa. 2001), superseded by statute on other grounds.

In Gleason, a police officer observed the defendant’s vehicle cross six to eight inches over the fog line two times over the span of a quarter mile. The police officer observed no other vehicles on the road. The officer stopped the defendant’s vehicle for failing to drive within a single lane, in accordance with § 3309(1) of the Vehicle Code. That section provides: “A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that the movement can be made safely.” Subsequently, the police officer observed that the defendant was intoxicated, and that he was in possession of drugs and drug paraphernalia. The defendant argued that the stop was unlawful and that the trial court erred in refusing to suppress the evidence the police officer gathered. The Gleason Court concluded that the vehicle stop was not supported by probable cause because no evidence established that the defendant’s driving created a safety hazard.

Enick, 70 A.3d at 846-847 (emphasis added, citations omitted). The Superior Court’s analysis also included the following statements, which are of importance:

“First, as set forth above, § 3309(1) of the Vehicle Code requires motorists to maintain a single lane ‘as nearly as practicable.’ 75 Pa.C.S.A. § 3309(1). Thus, the statutory language does not foreclose minor deviations.”

Gleason is further distinguishable because, according to the Gleason Court, the defendant’s actions posed no safety hazard.”

Enick, 70 A.3d at 847-848.

Additionally, in Com. v. Cook, 865 A.2d 869 (Pa. Super. 2004), the Superior Court stated, in relevant part:

In the instant case, the trial court found that the police possessed probable cause to believe that Appellant had violated 75 Pa.C.S. § 3309(1)…

Whether an officer possesses probable cause to stop a vehicle for a violation of this section depends largely upon on whether a driver’s movement from his lane is done safely.

Initially, we note that Trooper Kraynick received a call from the radio dispatch stating the Trooper Woods had observed a red Cavalier being driven in an erratic manner. Thus, before even observing Appellant in his car, Trooper Kraynick had cause to believe that Appellant was driving erratically. And upon locating Appellant in his red Cavalier, Trooper Kraynick observed Appellant “drive over the right fog line to the extent of half the vehicle width, three times, and then rapidly jerk back into his lane of travel.”…Appellant crossed the line by several feet…Trooper Kraynick observed Appellant over a distance of one mile and knew that Appellant had already been observed driving erratically by Trooper Woods. Most importantly, after crossing the fog line by half of a car length, Appellant rapidly jerked his car back into his lane of travel. He did so on three different occasions. Appellant’s actions exhibit that when he realized that he had inadvertently crossed the fog line, he sought to remedy his mistake in an overly anxious and unsafe manner by jerking his car back to his lane.

We conclude that the foregoing observations were sufficient to give Trooper Kraynick probable cause to believe that Appellant moved his car from his lane of travel in an unsafe manner, and therefore, violated Section 3309(1). In so concluding, we are mindful that “[p]robable cause does not require certainty, but rather exists when criminality is one reasonable inference, not necessarily even the most likely inference.” Accordingly, the trial court did not err in denying Appellant’s motion to suppress.

Cook, 865 A.2d at 874-875 (emphasis added).

Turning to the instant case, the record developed at the pretrial reveals that Sergeant Hain initially observed a vehicle in a parking lot at night after normal business hours. This first aroused Sergeant Hain’s suspicion. The vehicle was not correctly parked in a space. A man was outside the vehicle, and a female was inside the vehicle. The male went into the driver’s seat. The vehicle initially backed up, then proceeded forward. This again aroused Sergeant Hain’s suspicion. The vehicle left the parking complex and was jerky and braking when going out onto Route 72. All the aforementioned occurred in the parking lot and upon leaving the parking lot area. Upon entering Route 72, the vehicle drove approximately 10 miles below the speed limit and crossed the yellow line numerous times (at least 3). This style of driving continued into the Lebanon City line. The entire distance was stipulated to 3/10ths to 4/10ths of a mile.

This pattern of facts may very well have constituted probable cause for a violation of a different provision of the Motor Vehicle Code. However, only section 3309(1) is at issue. Sergeant Hain testified that there was no inclement weather. (N.T. 11). There was nothing on the roadway. (N.T. 11). There were no other cars. (N.T. 19). There were no pedestrians. (N.T. 20). By applying the interpretations of section 3309 of the Supreme Court of Pennsylvania and Superior Court of Pennsylvania, we have no other option but to conclude that Sergeant Hain did not possess the requisite probable cause for a violation of Section 3309(1) as there was no indication this his deviations from his lane of travel created a safety hazard while driving on Route 72.

Accordingly, we are constrained to grant the Motion to Dismiss. We will enter an Order consistent with the foregoing.

(1) 75 Pa.C.S.A. §3802(b) and (a)(1), 75 Pa.C.S.A. §3309(1), and 75 Pa.C.S.A. §4581(1) and (1.1), respectively.

(2) Rulings in Chester County are not controlling on this Court.

(3) In an analogous case, the Superior Court stated, “Corporal Dowlin testified that he stopped Appellant for failing to signal when he turned left from Richhill Street to Greene Street. As further investigation would not help to establish whether Appellant turned without using the required signal, Corporal Dowlin was required to have probable cause to initiate the stop.” Brown, 64 A.3d at 1105. The Superior Court noted that the suppression court erroneously applied the reasonable suspicion standard rather than determine whether there was probable cause. (See footnote 3).

(4) The Court of Common Pleas of Juniata County ultimately wound up granting the motion for suppression. (CP-34-CR-167-2010, dated 7/24/2014).

(5) The Court notes that although there was testimony that the vehicle was jerky as in Cook, Sergeant Hain’s testimony did not reveal that the Defendant jerked the vehicle back into his lane of travel after crossing the line, as in Cook (N.T. 11-12). Rather, the testimony only revealed that he was jerky while going out onto Route 72. (N.T. 10).

 

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