Swerving Between Lanes and Evading Accountability

A look at the historical context for justifying traffic stops is in order. In the oft-cited Terry v. Ohio, 392 U.S. 1 (1968), the U.S. Supreme Court recognized that Fourth Amendment rights could be reasonably protected in some limited investigatory situations by applying a less stringent standard than traditional probable cause.

In 1975, the Pennsylvania Supreme Court applied Terry to traffic stops. “Thus, it is also clear that an investigative stop of a moving vehicle to be valid must be based upon objective facts creating a reasonable suspicion that the detained motorist is presently involved in criminal activity.” Com. v. Murray, 331 A.2d 414, 417 (Pa. 1975) [emphasis added].

In 1979, the U.S. Supreme Court also applied Terry to traffic stops. Constitutional considerations are protected when the police have “at least articulable and reasonable suspicion that a motorist” has violated the law. Delaware v. Prouse, 440 U.S. 648, 663 (1979) [emphasis added].

Subsequent to Murray and Prouse, the State Legislature codified the reasonable suspicion standard into the Vehicle Code: “Whenever a police officer . . . has articulable and reasonable grounds to suspect a violation of [the Vehicle Code], he may stop a vehicle[.]” 75 Pa. C.S. §6308(b) [emphasis added].

Until recently, Pennsylvania state courts had consistently applied the reasonable suspicion standard to all Terry stops, including traffic stops. Commonwealth v. Cook, 735 A.2d 673, 675 (Pa. 1999); see also Commonwealth v. Jackson, 698 A.2d 571, 573 (Pa. 1997). “In essence, we are faced with a Terry stop analysis when assessing the legality of a traffic stop for a violation of the Vehicle Code.” Commonwealth v. McElroy, 630 A.2d 35, 41 (Pa. Super. 1993) (en banc).

Probable Cause Standard

In 2001, however, the Pennsylvania Supreme Court abruptly adopted the view that the Vehicle Code required that traffic stops be justified under a stricter probable cause standard. Commonwealth v. Gleason, 785 A.2d 983 (Pa. 2001).

The Gleason court ruled that the reasonable suspicion standard was inappropriate for traffic stops pursuant to §6308(b). The Court announced that proper evaluation of these stops required “the reasonable and articulable grounds standard, i.e., the probable cause standard.” Gleason, 785 A.2d at 986.

The Superior Court followed suit with Commonwealth v. Battaglia, 802 A.2d 652 (Pa. Super. 2002). Both cases cite Commonwealth v. Whitmyer, 668 A.2d 113 (Pa. 1995), for the proposition that §6308(b) contains a probable cause requirement for traffic stops under the Vehicle Code. However, a close reading of Whitmyer calls for a different conclusion.

The suppression court in Whitmyer ruled that the officer lacked “probable cause to believe” that the defendant had violated the Vehicle Code. In fact, the Murray court had used that same term as well as “reasonable suspicion” to address the constitutionally required level of justification for traffic stops. Ibid, 331 A.3d at 416. Prior to Whitmyer, the Superior Court panel resolved this semantic conflict by ruling that the terms “probable cause to believe” in Murray and “articulable and reasonable grounds to suspect” in §6308(b) both describe the reasonable suspicion standard set forth in Terry. Commonwealth v. Lopez, 609 A.2d 177, 180 (Pa. Super. 1992).

The Superior Court sitting en banc endorsed this view in a unanimous opinion:

“Although the two standards appear to differ, due to the use of the term ‘probable cause’ which usually denotes a higher level of knowledge by the police of an illegal act, e.g., ‘probable cause to arrest’ or ‘probable cause to search’, the difference is largely a matter of semantics —. However interchangeable the two standards for assessing police conduct in traffic stops may be, we herein adopt ‘articulable and reasonable grounds to suspect’ as the preferred standard. 75 Pa. C.S. §6308. In doing so, we seek to avoid any confusion which may be caused by the use of the term ‘probable cause’ to describe and assess those police encounters with citizens which do not rise to the level of an arrest or search.” McElroy, 630 A.2d at 38-9 [emphasis in original].

The commonwealth had appealed in Whitmyer claiming that the suppression court had applied a standard higher than the reasonable suspicion requirement set forth by §6308(b). The Whitmyer court affirmed suppression, agreeing with the trial judge that the officer had no justifiable basis at all to stop the defendant.

Echoing McElroy, the Whitmyer court addressed the semantic conflict between the constitutional standard set forth by Murray and the statutory standard set forth by §6308(b):

“The crux of the commonwealth’s argument centers on the semantic difference between the standard articulated in [Commonwealth v. Murray] — probable cause to believe that there has been a violation of the Vehicle Code, and the language of the statute — articulable and reasonable grounds to suspect a violation of the Vehicle Code. However, when we balance the underlying interests of the individual and the government, the two standards amount to nothing more than a distinction without a difference.” Whitmyer, 668 A.2d at 1117 [emphasis added].

Without any legal justification at all for the stop, the difference in labeling the required level of justification became semantic. More importantly, the Whitmyer court cited such Terry progeny as Murray and Prouse as guidance in applying the statutory standard under §6308(b). Therefore, the Whitmyer case actually affirmed the constitutional standard of reasonable suspicion for traffic stops under §6308(b).

Untenable Double Standard