J-S63042-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

DARREN WILLIAM MARINO

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 730 WDA 2018

Appeal from the Order Entered May 4, 2018

In the Court of Common Pleas of Mercer County 

Criminal Division at No(s): CP-43-CR-0001792-2017

BEFORE: OTT, J., MURRAY, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.: FILED DECEMBER 18, 2018

The Commonwealth appeals from the order entered May 4, 2018, in the 

Mercer County Court of Common Pleas, granting a pretrial motion to suppress 

evidence filed by Appellee, Darren William Marino.

1

 On appeal, the 

Commonwealth contends the trial court erred in concluding Marino’s traffic 

stop for a violation of the Motor Vehicle Code was not supported by reasonable 

suspicion. For the reasons below, we affirm.

The trial court issued the following findings of fact after Marino’s 

suppression hearing:

____________________________________________

 Former Justice specially assigned to the Superior Court.

1 Pursuant to Pa.R.Crim.P. 311(d), the Commonwealth properly certified in its 

notice of appeal that “the pre-trial Order from which this appeal is taken

terminates or substantially handicaps its prosecution.” Notice of Appeal, 

5/16/2018.
J-S63042-18

- 2 -

1. Trooper Snyder is a Pennsylvania State Police trooper and has 

been for four years. He is stationed at the Mercer barracks.

2. On September 5, 2017, Trooper Snyder was on duty at 

approximately 4:00 p.m. in the Borough of Grove City, 

Pennsylvania.

3. At that time, Trooper Snyder observed a vehicle with an object 

hanging from the rear view mirror that was purple in color.

4. The object was estimated to be a baseball-sized object. The 

object was swinging back and forth from the rear view mirror and 

was approximately two to three inches.

5. On first observation, Trooper Snyder was approximately a car 

length or less from [Marino’s] car.

6. In the opinion of the trooper, the object obstructed the view 

through the windshield.

7. At the time of day, it was light out and nothing was blocking 

the view of [Marino’s] vehicle.

8. Trooper Snyder then activated his lights and conducted the 

traffic stop.

9. Trooper Snyder was initially going to issue a warning for the 

obstruction; however, after running the information, which 

determined that the driver’s license and registration were valid, 

he returned to the vehicle and detected an odor of marijuana.

10. Trooper Snyder is familiar with the odor of marijuana.

* * * *

12. Trooper Snyder then asked [Marino] whether there was any 

marijuana in the car. [Marino] answered, “No.” Trooper Snyder 

then asked when the last time [Marino] had smoked marijuana, 

and [Marino] answered, “Approximately one hour ago.” At that 

point in time, the trooper asked [Marino] to exit the vehicle to 

perform field sobriety tests.

13. A video of the field sobriety test was watched as part of the 

suppression hearing. ... [Marino] failed all tests. At that point in 

time, the trooper arrested [Marino] and advised him that he was 

going to take him for a blood test. 
J-S63042-18

- 3 -

14. The trooper then conducted a search of the vehicle and found 

marijuana in a baggie in the glove box. The trooper also found a 

pipe used for smoking marijuana.

15. On cross[-]examination, the trooper indicated that the object, 

again, was approximately baseball size. He further indicated that 

the video camera of the MVR was above eye level because he was 

driving in an SUV on that date. ...

Findings of Fact, 4/2/2018, at ¶¶ 1-15.

Marino was subsequently charged with driving under the influence of 

controlled substances (three counts), possession of a small amount of 

marijuana, possession of drug paraphernalia, and windshield obstructions.2 

On March 1, 2018, he filed a pre-trial motion seeking suppression of the 

evidence recovered following an unlawful stop, because, in his view, Trooper 

Snyder had no reasonable suspicion to stop the vehicle for a violation of the 

Motor Vehicle Code. See Omnibus Pre-Trial Motion, 3/1/2018, at 1-2. The 

trial court conducted a suppression hearing on April 4, 2018. Both the mobile 

video recording of the vehicle stop, and the actual object hanging from 

[Marino’s] rear view mirror were introduced into evidence.3 See N.T., 

4/4/2018, at 12-13, 22. At the conclusion of the hearing, the trial court issued 

its findings of fact. Thereafter, on May 4, 2018, the court entered an order 

granting Marino’s suppression motion. The Commonwealth filed a timely 

____________________________________________

2 See 75 Pa.C.S. §§ 3802(d)(1)(i), (d)(1)(iii), and (d)(2); 35 P.S. §§ 780-

113(a)(31) and (a)(32); and 75 Pa.C.S. § 4524(c), respectively.

3 However, neither the video recording nor the purple object were submitted 

to this Court as part of the certified record.
J-S63042-18

- 4 -

motion for reconsideration, which the court promptly denied. This appeal 

followed.4

The Commonwealth lists two issues on appeal, which we will address 

together. It contends the trial court erred in granting Marino’s suppression 

motion because Trooper Snyder’s testimony was sufficient to articulate 

reasonable suspicion for the vehicle stop. Furthermore, the Commonwealth 

maintains that, in rejecting the trooper’s testimony, the trial court improperly 

gave more weight to the degree of obstruction of the ball hanging from the 

mirror than the trooper’s own observations. See Commonwealth’s Brief at 4. 

Our standard of review is well-settled:

When the Commonwealth appeals from a suppression 

order, we follow a clearly defined standard of review and 

consider only the evidence from the defendant’s witnesses 

together with the evidence of the prosecution that, when 

read in the context of the entire record, remains 

uncontradicted. The suppression court’s findings of fact 

bind an appellate court if the record supports those findings. 

The suppression court’s conclusions of law, however, are not 

binding on an appellate court, whose duty is to determine if 

the suppression court properly applied the law to the facts. 

Commonwealth v. Miller, 2012 PA Super 251, 56 A.3d 

1276, 1278–79 (Pa. Super. 2012) (citations omitted). “Our 

standard of review is restricted to establishing whether the 

record supports the suppression court’s factual findings; 

however, we maintain de novo review over the suppression 

court’s legal conclusions.” Commonwealth v. Brown, 606 

Pa. 198, 996 A.2d 473, 476 (2010) (citation omitted).

____________________________________________

4 On May 18, 2018, the trial court ordered the Commonwealth to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

The Commonwealth complied with the court’s directive, and filed a timely 

concise statement on May 31, 2018.
J-S63042-18

- 5 -

Commonwealth v. Korn, 139 A.3d 249, 252–253 (Pa. Super. 

2016), appeal denied, 639 Pa. 157, 159 A.3d 933 (2016). “It is 

within the suppression court’s sole province as factfinder to pass 

on the credibility of witnesses and the weight to be given to their 

testimony. The suppression court is free to believe all, some or 

none of the evidence presented at the suppression hearing.” 

Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa. Super. 

2003) (citations omitted), appeal denied, 577 Pa. 701, 847 A.2d 

58 (2004). Nevertheless, the suppression court’s conclusions of 

law are not binding on an appellate court, and are subject to 

plenary review. Commonwealth v. Johnson, 969 A.2d 565, 567 

(Pa. Super. 2009) (citations omitted).

Commonwealth v. Byrd, 185 A.3d 1015, 1019 (Pa. Super. 2018). When a 

defendant files a motion to suppress evidence, “it is the Commonwealth’s 

burden to present evidence that the defendant’s constitutional rights were not 

infringed.” Commonwealth v. Enimpah, 106 A.3d 695, 701 (Pa. 2014).

A police officer’s statutory authority to stop a motor vehicle is codified 

in Section 6308(b) of the Motor Vehicle Code, which provides:

Whenever a police officer ... 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).

In interpreting this subsection, the courts of this Commonwealth have 

concluded that a vehicle stop based solely on reasonable suspicion of a motor 

vehicle violation “must serve a stated investigatory purpose. In effect, the 

language of Section 6308(b)—‘to secure such other information as the officer 

may reasonably believe to be necessary to enforce the provisions of this title’—
J-S63042-18

- 6 -

is conceptually equivalent with the underlying purpose of a Terry stop.” 

Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en banc)

(internal citations omitted), appeal denied, 611 Pa. 650, 25 A.3d 327 (2011). 

When no further investigation is necessary to determinate if a driver 

committed a traffic violation or crime, the officer must possess “probable 

cause to believe that the vehicle or the driver was in violation of some 

provision of the Code.” Id. (quotation and emphasis omitted).

In the present case, Trooper Snyder stopped Marino for a violation of 

Section 4524 of the Motor Vehicle Code, which provides, in pertinent part:

(c) Other obstruction.--No person shall drive any motor vehicle 

with any object or material hung from the inside rearview mirror 

or otherwise hung, placed or attached in such a position as to 

materially obstruct, obscure or impair the driver’s vision through 

the front windshield or any manner as to constitute a safety 

hazard.

75 Pa.C.S. § 4524(c). The courts of this Commonwealth have held that a stop 

based upon a suspected violation of Section 4524(c) requires only reasonable 

suspicion. See Commonwealth v. Holmes, 14 A.3d 89 (Pa. 2011); 

Commonwealth v. Shabazz, 18 A.3d 1217 (Pa. Super. 2011).

In Holmes, supra, the Pennsylvania Supreme Court explained:

Reasonable suspicion is a less stringent standard than 

probable cause necessary to effectuate a warrantless arrest, 

and depends on the information possessed by police and its 

degree of reliability in the totality of the circumstances. In 

order to justify the seizure, a police officer must be able to 

point to “specific and articulable facts” leading him to 

suspect criminal activity is afoot. In assessing the totality 

of the circumstances, courts must also afford due weight to 

the specific, reasonable inferences drawn from the facts in 
J-S63042-18

- 7 -

light of the officer’s experience and acknowledge that 

innocent facts, when considered collectively, may permit the 

investigative detention. 

Thus, under the present version of Section 6308(b), in order to 

establish reasonable suspicion, an officer must be able to point to 

specific and articulable facts which led him to reasonably suspect 

a violation of the Motor Vehicle Code, in this case, Section 

4524(c).

Holmes, supra, 14 A.3d at 95-95 (internal citations omitted). Furthermore, 

“[i]t is the duty of the suppression court to independently evaluate

whether, under the particular facts of a case, an objectively reasonable police 

officer would have reasonably suspected criminal activity was afoot.” Id.

at 96 (emphasis supplied). The Holmes Court emphasized the need for 

“specific facts justifying” the officer’s decision to conduct a vehicle stop: “To 

hold otherwise would be to give the police absolute, unreviewable discretion 

and authority to intrude into an individual’s life for no cause whatsoever.” Id.

(citation omitted).

In Holmes, the Supreme Court found the testimony provided at the 

suppression hearing was insufficient to support the trial court’s determination 

that the officer had reasonable suspicion to stop the defendant’s vehicle. See 

id. at 97-98. In that case, the officer testified simply that he observed, 

“objects hanging from the rearview mirror [of the defendant’s vehicle] which 

were obstructing the driver’s view.” Id. at 97 (citation omitted). The Court 

emphasized there was no description of the size of the objects or “how the 

objects impaired” the driver’s field of vision. Id. at 98. Based on the officer’s 

“bare testimony,” the Holmes Court concluded the suppression court would 
J-S63042-18

- 8 -

not have been able to determine if the officer had an “objectively reasonable 

basis for the vehicle stop.” Id. at 99. 

A panel of this Court came to a different conclusion in Commonwealth 

v. Shabazz, 18 A.3d 1217 (Pa. Super. 2011). Like Holmes, in Shabazz, a 

police officer initiated a traffic stop based on a suspected violation of Section 

4524. Id. at 1218. During the suppression hearing, the officer described the 

objects hanging from the defendant’s rearview mirror as “[r]ather large” dice 

and at least four pine tree air fresheners. Id. at 1222 (citation omitted). He 

estimated the dice were three inches by three inches, and hung “three or four” 

inches below the mirror, “low enough to interfere with the driver if he had to 

turn or if he had to go straight.” Id. (citation omitted). Based on this 

testimony, the trial court found, and the panel agreed, “[t]he combination of 

multiple air fresheners, three by three inch foam dice, and [the officer’s] 

explanation of how these items might impair a driver’s view made it 

reasonable for him to suspect the [defendant] was in violation of [Section 

4524(c)], and justified the traffic stop.” Id. (citation omitted). 

Turning to the present matter, the trial court distinguished the facts 

presented in Shabazz, supra, and determined Trooper Snyder’s stop of 

Marino’s vehicle was unlawful:

[Trooper] Snyder initiated the traffic stop in broad daylight and 

was able to clearly see the object hanging from [Marino’s] 

rearview mirror. ... [Trooper] Snyder was able to accurately 

describe the object and state that he believed the object created 

an obstruction to [Marino’s] view. However, the purple object 

hanging from [Marino’s] rearview mirror presents far less of an 

obstruction than was present in Shabazz. More importantly, it 
J-S63042-18

- 9 -

hung by itself. In Shabazz, the obstruction was created by a pair

of fuzzy dice, each similar in size to [Marino’s] single purple 

sphere, and several additional air fresheners.

Having seen the object and the video from [Trooper]

Snyder’s police vehicle, this Court finds that [Trooper] Snyder did 

not have reasonable suspicion to believe that the object created a 

material obstruction of [Marino’s] view. The object hung by itself, 

and it was too small to materially impair [Marino’s] ability to drive 

the vehicle safely. Accordingly, the traffic stop initiated by 

[Trooper] Snyder was unlawful, and any evidence obtained 

following the stop must be suppressed.

Trial Court Opinion, 5/4/2018, at 4-5 (footnote omitted). 

The Commonwealth maintains Trooper Snyder’s testimony alone 

provided the requisite reasonable suspicion for his stop of Marino’s vehicle, 

See Commonwealth’s Brief at 17-19. It insists the trooper’s detailed 

description of the hanging object, his testimony that it “swung back and forth,” 

and his belief that the object “materially obstructed the driver’s view through 

the front windshield,” was sufficient to demonstrate reasonable suspicion for 

the stop. Commonwealth’s Brief at 19. However, the trial court did not find 

Trooper Snyder’s belief - that the object “materially obstruct[ed]” Marino’s 

vision - was reasonable. 75 Pa.C.S. § 4524(c). Here, the court had the 

opportunity to see the actual size and shape of the purple object, and, more 

importantly, view the mobile video recording of the stop. See N.T.,4/4/2018, 

at 13, 22; Trial Court Opinion, 5/4/2018, at 5. In a subsequent opinion 

accompanying its order denying the Commonwealth’s motion for 

reconsideration, the court elaborated:

[T]his Court was able to make its own determination as to the 

reasonableness of [Trooper] Snyder’s belief. In making that 

determination, the degree of the obstruction caused by the object 
J-S63042-18

- 10 -

was relevant to this Court’s determination. Due to the size of the 

object, [Trooper] Snyder could have observed, at most, a minor 

obstruction. Therefore, [Trooper] Snyder’s subjective belief that 

the object created a material obstruction was unreasonable. 

Trial Court Opinion, 5/14/2018, at 3. 

Pursuant to Holmes, the trial court was required “to independently 

evaluate whether, under the particular facts of [the] case, an objectively 

reasonable police officer would have reasonably suspected” Marino was 

committing a traffic violation. Holmes, supra, 14 A.3d at 96. Otherwise, as 

the Holmes Court points out, police officers would be given “absolute, 

unreviewable discretion and authority to intrude into an individual’s life for no 

cause whatsoever.” Id. (citation omitted). Furthermore, the Holmes Court 

emphasized Section 4524(c) does not prohibit a driver from hanging an object 

from his rearview mirror; “rather, an essential element is that the object or 

material hanging from the mirror materially obstructs, obscures, or impairs 

the driver’s vision.” Id. at 97. In this case, the trial court concluded no 

reasonable person could conclude that Marino’s view was materially 

obstructed under the circumstances present. 

The Commonwealth also insists, however, the trial court’s independent 

consideration of the “degree of obstruction” was improper at this stage in the 

proceedings. Commonwealth’s Brief at 21. It maintains the degree to which 

the object obstructed Marino’s view was relevant only in determining whether 

Marino was guilty beyond a reasonable doubt of a violation of Section 4524(c), 

that is, a sufficiency challenge. See id. The Commonwealth argues such a 

consideration is not relevant in determining whether a police officer lawfully 
J-S63042-18

- 11 -

effectuated a traffic stop, when all that is required is reasonable suspicion of 

a potential violation. See id. Relying on Justice Eakin’s Dissenting Opinion in 

Holmes, supra, the Commonwealth contends, “[i]t is not the degree of 

obstruction that provides reasonable suspicion, ... but Trooper Snyder’s own 

observations regarding a possible material obstruction.” Id. at 24. See 

Holmes, supra, 14 A.3d at 100 (Eakin, J. Dissenting) (“The issue is whether 

what the officer saw gave him reason to suspect there was such a violation. 

What the officer finds after the stop does not matter—it is whether he 

reasonably believes a criminal violation may be afoot that counts.”).

In responding to Judge Eakins’ Dissent, the Holmes Majority stated:

The dissent, it seems, would write the materiality element out of 

Section 4524(c) for purposes of a vehicle stop. Although the 

dissent recognizes that the critical issue in evaluating the legality 

of a traffic stop is whether the police officer reasonably believes a 

criminal violation may be afoot, the dissent opines that an officer 

need not observe a material obstruction; rather, he may observe 

any obstruction and then “investigate whether vision is blocked to 

the point of comprising a violation.” Such an approach is contrary 

to the principles underlying Terry. Further, it would give police 

officers carte blanche to stop any vehicle with an object hanging 

from the rearview mirror, as any hanging object would arguably 

obstruct the driver’s view to some degree. Yet, as discussed 

supra, Section 4524(c) does not prohibit a driver from hanging 

any object from the vehicle’s rearview mirror; it prohibits only 

material obstructions. Thus, unless [the police officer] reasonably 

believed that the object hanging from [the defendant’s] rearview 

mirror materially obstructed his view—which [the officer] did not 

claim at the suppression hearing—he had no legal basis upon 

which to stop [the defendant’s] vehicle.

Holmes, supra, 14 A.3d at 98 n.14 (citation omitted and emphasis in 

original). Although, in the present case, Trooper Snyder did testify that he 
J-S63042-18

- 12 -

believed the purple object hanging from Marino’s rearview mirror “materially 

obstructed the driver’s ... view[,]” the trial court was not compelled to accept 

the trooper’s testimony. Rather, the court considered the testimony in light 

of the other evidence - particularly the object itself and the mobile video 

recording – and concluded Trooper Snyder’s characterization of the 

obstruction as material was unreasonable. The role of the suppression court 

is to ensure “there is an objectively reasonable basis for the vehicle stop[.]” 

Holmes, supra, 14 A.2d at 99. Here, the trial court found there was no 

reasonable basis for the stop, and we find no reason to disagree. Accordingly, 

the Commonwealth is not entitled to relief.

Order affirmed. 

Judge Murray joins this memorandum.

President Judge Emeritus Stevens files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/18/2018