J. A21010/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
BRIAN WASHINGTON, :
:
Appellee : No. 2933 EDA 2013
Appeal from the Order September 19, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0001569-2013
BEFORE: ALLEN, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 21, 2015
Appellant, the Commonwealth of Pennsylvania (“the Commonwealth”),
appeals from the September 19, 2013 order of the Philadelphia County Court
of Common Pleas, granting the motion to suppress filed by Appellee, Brian
Washington.1 The Commonwealth contends the trial court erred in
suppressing the gun found in Appellee’s car after a valid investigatory stop.
We affirm.
*
Former Justice specially assigned to the Superior Court.
1
Pennsylvania Rule of Appellant Procedure 311(d) states, “In a criminal
case, under the circumstances provided by law, the Commonwealth may
take an appeal as of right from an order that does not end the entire case
where the Commonwealth certifies in the notice of appeal that the order will
terminate or substantially handicap the prosecution.” Pa.R.A.P. 311(d). The
Commonwealth certified in its notice of appeal that the order below
terminates or substantially handicaps the prosecution.
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We glean the facts from the suppression hearing. Police Officer Alexis
Luna testified at the hearing.
We were on patrol. We received a radio call for a [sic]
gunshots, 2000 and Denny. We were on our way to 2000
Denny and that we were driving down the 4200 block of
Wayne Avenue going towards Denny. There was a unit
that was already on location with the founded [sic]
shooting and someone was shot at the location. And as
we were driving down Wayne Avenue . . . northbound, we
observed a tan Chrysler driving southbound, which is away
from Denny on Wayne Avenue with no lights, no lights on
and he was traveling at a low rate of speed.
[The Commonwealth:] Now, Officer, how far from the
location of the gunshots did you see this Chrysler?
A: It was about maybe no more than three blocks away.
Q: . . . And how soon after the gunshots, the radio call for
gunshots, did you see the vehicle?
A: It was─I’m say [sic] within minutes, because we were
on our way over there, and then it was closer to when the
unit was on location at 2000 Denny the founded [sic]
shooting, that we saw the vehicle actually leaving that
location. Within the time of the unit saying that they had
a founded [sic] shooting until when we saw the tan car
leaving the location was, I would say, like a minute.
* * *
As soon as we saw him, we did [sic] U-turn and activated
our lights and pulled him over.
* * *
So we pulled the vehicle over. Myself and my partner got
out. I was on the driver’s side. My partner was on the
passenger side. We investigated the car stop on him and
we basically─when I approached him, I saw that the
vehicle was still in drive, and the car was on. I told him to
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turn the vehicle off and put it in park─put it in park and
turn the vehicle off. . . .
* * *
Q: . . . And after you asked him twice, did [Appellant] put
the car in park?
A: Yes, he did.
Q: And what was the next question that you asked him?
A: Well, he turned the vehicle off, as well, and then I
asked him for license and registration and proof of
insurance.
Q: And did he comply?
A: Well, basically that’s when he, with his right hand, he
was ‘bout to go into his jacket, like his inside jacket.
That’s when I told him to stop, step out of the vehicle, that
there was just a founded [sic] shooting and there was─he
was the only──he was coming from that area with his
lights off and all that, so I believed that just for officer
safety, that if I can have him come out of the car and frisk
him, looking for weapons . . . .
* * *
Q: . . . And when you say for officer safety, what exactly
do you mean?
A: I believed that he may have had a weapon.
* * *
Q: And did he ever pull anything out of his jacket?
A: No, I told him to stop, and to exit the vehicle.
* * *
Q: And can you describe his demeanor?
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A: He was nervous, but I understood why he was
nervous because there were police around.
* * *
Q: . . . So after you took him out of the car, what
happened?
A: I took him out of the car. I patted him down to make
sure there was no weapons. And, basically, my partner
asked if he could look inside the center console of the
vehicle. And [Appellant] stated that he can search
whatever, so then my partner searched the center console.
There was nothing in there. I told [Appellant] he
can have a seat back inside. I knew that he was on-
person secure. And as he had a seat in the car, my
partner went in the glove compartment and found
the gun and my partner says get him back out, so I got
him back out. So I put him in custody.
N.T., 9/19/13,2 at 7-8, 9, 10, 13, 14, 15, 16, 17 (emphases added).3
Defense counsel cross-examined Officer Luna, inter alia, as follows:
Q: [W]hen he’s outside the car, though, and have nothing
on him and he’s cooperating with you and tells you he has
no weapons. At that point you had not─other than not
having the lights on, you didn’t see him committing any
crime, fair enough?
A: Fair enough.
Q: You saw like no drugs in the car, no gun, no nothing,
fair enough?
A: Yes.
2
We note a typographical error in the trial court opinion. The trial court
refers to the September 16, 2013, notes of testimony from the suppression
hearing.
3
Appellee had a valid license and registration for the car. Id. at 38.
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Q: He’s so cooperative with you, that for some reason your
partner asks him can I search the center console, right?
A: That is correct.
Q: And when he asked him about the center console, my
client’s already out of the car. . . .
A: Yes, outside of the vehicle.
* * *
Q: . . . So the goal was, all right, at this point we’re going
to give him a ticket, but we’re going to search the center
console to make sure when we let him go he doesn’t have
any reach of any weapons, correct?
A: That’s correct.
* * *
Q: . . . So he says go ahead or whatever, you said search
whatever you want, . . . and he searches the center
console and finds nothing, right?
A: That’s correct.
* * *
We didn’t search the car. My partner just searched the
center console.
Q: Why would you put him back in the car if your intention
was to search the glove compartment, under the seat, in
the back, other area? Why would you put him back in the
car?
A: Our intent wasn’t to search the vehicle at that point.
Q: . . . Your intent was not to search the vehicle. You put
him back in the car. You were done with him. He’d
been cooperative. He did everything you want, fair
enough?
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A: Well, he was cooperative, but then my partner went in
the glove box and─
* * *
The Court: . . . Was he in the car when you searched the
glove compartment?
The Witness: Yeah, he was in the vehicle. He wasn’t in the
vehicle when my partner searched the center console.
* * *
Q: But you put him back in the car, and when you put him
back in the car, that’s when your fellow officer decided to
search the closed glove compartment, fair enough, it was
closed?
A: Yes, it was closed.
* * *
Q: . . . You search the center console. That’s done.
[Appellee’s] put back in the car . . . . Everything’s
done at that point, but then Monte then decides to
search the closed glove compartment, right?
A: Yes, he went into the glove compartment.
Q: . . . While you’re there, do you hear Monte ask
permission to search the closed glove compartment?
A: No. . . .
* * *
The Court: . . . You indicated that you only heard your
partner ask about searching the center console?
The Witness: That is correct.
* * *
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The Court: Did you hear your partner make a specific
inquiry about searching the glove box?
The Witness: No, I did not.
Id. at 42-43, 44, 47-48, 49-50, 52, 53 (emphases added).
Police Officer Monte testified, inter alia, as follows:
Q: . . . Upon taking [Appellee] out of the vehicle, what did
you do?
A: I asked [him] if he had any weapons on him or in the
car, and he said, no. I asked him repeatedly, and he said,
no.
Q: When you say repeatedly, how many times did you ask
him?
A: At least three times.
* * *
Q: . . . And after the third time of asking him, what did
you do?
A: . . . I asked him if I could check the center console
area, the immediate area of the car for weapons, and he
said, quote, you can search whatever you want.
Q: . . . And did you check the center console?
A: Yes.
Q: And did you discover anything in the console?
A: Not in that area, no.
* * *
Q: . . . He was put back in [sic] driver’s seat of the
car before you searched the closed glove
compartment; is that correct?
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A:Briefly. . . .
Q: No─but he was put back in the car. He was sitting
back in [sic] driver’s seat before you searched the─
A: Yes.
* * *
Q: . . . You never specifically asked for permission to
search the closed glove compartment of that car, did you.
A: By saying glove compartment, no. I did not say the
word glove─
Q: . . . Originally you asked for center console, correct?
A: And the immediate area, but fair enough, yes. Correct.
Id. at 62, 63, 69-70 (emphases added). At the conclusion of the hearing,
the court granted the motion to suppress. Id. at 92. This timely appeal
followed. The Commonwealth filed a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal contemporaneously with the notice of appeal. The
trial court filed a responsive opinion.
The Commonwealth raises the following issue for our review:
Where officers responding to a report of shots fired
nearby stopped [Appellant], who was driving slowly with
his lights off at night, and [Appellant] hesitated to pull
over, shift into park and turn off the ignition, began
reaching for his pocket, appeared nervous, and said to the
officers “you can search whatever you want,” did the lower
court err in suppressing the gun found in [Appellant’s]
glove compartment?
Commonwealth’s Brief at 4.
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The Commonwealth argues Appellee consented to the search of his
car. Id. at 9. The Commonwealth contends that when Appellee stated “you
can search whatever you want,” that was tantamount to his consent to a
search of the entire car, including the glove compartment, not just the
console. Id. at 11-12. Furthermore, even if Appellee did not consent to the
search of the glove compartment, there was reasonable suspicion to search
it. Id. at 12.
Our review of the suppression court’s grant of a motion to suppress is
governed by the following principles:
When reviewing the propriety of a suppression order, an
appellate court is required to determine whether the record
supports the suppression court’s factual findings and
whether the inferences and legal conclusions drawn by the
suppression court from those findings are appropriate.
[Where the defendant] prevailed in the suppression court,
we may consider only the evidence of the defense and so
much of the evidence for the Commonwealth as remains
uncontradicted when read in the context of the record as a
whole. Where the record supports the factual findings of
the suppression court, we are bound by those facts and
may reverse only if the legal conclusions drawn therefrom
are in error. However, where the appeal of the
determination of the suppression court turns on allegations
of legal error, the suppression court’s conclusions of law
are not binding on an appellate court, whose duty it is to
determine if the suppression court properly applied the law
to the facts.
Commonwealth v. Cartagena, 63 A.3d 294, 298 (Pa. Super. 2013) (en
banc) (citation omitted).
Further, Pennsylvania Rule of Criminal Procedure 581, which addresses
the suppression of evidence provides, in relevant part, as follows: “The
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Commonwealth shall have the burden of going forward with the evidence
and of establishing that the challenged evidence was not obtained in
violation of the defendant’s rights.” Pa.R.Crim.P. 581(H).
The standard upon which we determine whether the search of the
glove compartment was consensual4 is as follows:
To establish a valid consensual search, the prosecution
must first prove that the consent was given during a legal
police interaction, or if the consent was given during an
illegal seizure, that it was not a result of the illegal seizure;
and second, that the consent was given voluntarily.
Commonwealth v. Reid, 811 A.2d 530, 544 (Pa. 2002) (citations omitted
and emphasis added).
In Commonwealth v. Tam Thanh Nguyen, 116 A.3d 657 (Pa.
Super. 2015), this court explained the nature of the interaction between
citizens and police officers.
Interaction between citizens and police officers, under
search and seizure law, is varied and requires different
levels of justification depending upon the nature of the
interaction and whether or not the citizen is detained. The
three levels of interaction are: mere encounter,
investigative detention, and custodial detention.
A mere encounter can be any formal or informal
interaction between an officer and a citizen, but will
normally be an inquiry by the officer of a citizen.
The hallmark of this interaction is that it carries no
official compulsion to stop or respond.
4
Given our standard of review, we first address the issue of whether there
was reasonable suspicion to search the glove compartment.
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In contrast, an investigative detention, by
implication, carries an official compulsion to stop and
respond, but the detention is temporary, unless it
results in the formation of probable cause for arrest,
and does not possess the coercive conditions
consistent with a formal arrest. Since this
interaction has elements of official compulsion it
requires reasonable suspicion of unlawful activity. In
further contrast, a custodial detention occurs when
the nature, duration and conditions of an
investigative detention become so coercive as to be,
practically speaking, the functional equivalent of an
arrest.
Reasonable suspicion exists only where the
officer is able to articulate specific observations
which, in conjunction with reasonable inferences
derived from those observations, led him reasonably
to conclude, in light of his experience, that criminal
activity was afoot and that the person he stopped
was involved in that activity. . . .
To determine whether a mere encounter rises to the
level of an investigatory detention, we must discern
whether, as a matter of law, the police conducted a seizure
of the person involved.
To decide whether a seizure has occurred, a court
must consider all the circumstances surrounding the
encounter to determine whether the demeanor and
conduct of the police would have communicated to a
reasonable person that he or she was not free to
decline the officer’s request or otherwise terminate
the encounter. Thus, the focal point of our inquiry
must be whether, considering the circumstances
surrounding the incident, a reasonable [person]
innocent of any crime, would have thought he was
being restrained had he been in the defendant’s
shoes.
Id. at 664-65 (quotation marks and citations omitted).
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In Cartagena, this Court held that the police officers lacked
reasonable suspicion to search the center console of the defendant’s vehicle,
following a traffic stop for driving with tinted windows. Id. at 296. This
Court opined:
This case is controlled by the United States Supreme
Court’s decision in Michigan v. Long, 463 U.S. 1032 [ ]
(1983). In Long, the Supreme Court applied the
principles announced in Terry v. Ohio, 392 U.S. 1 [ ]
(1968), to a search of the passenger compartment of a
vehicle for weapons:
Our past cases indicate [ . . . ] that protection of police
and others can justify protective searches when police
have a reasonable belief that the suspect poses a danger,
that roadside encounters between police and suspects are
especially hazardous, and that danger may arise from the
possible presence of weapons in the area surrounding a
suspect. These principles compel our conclusion that the
search of the passenger compartment of an automobile,
limited to those areas in which a weapon may be placed or
hidden, is permissible if the police officer possesses a
reasonable belief based on ‘specific and articulable facts
which, taken together with the rational inferences from
those facts, reasonably warrant’ the officers in believing
that the suspect is dangerous and the suspect may gain
immediate control of weapons. ‘[T]he issue is whether a
reasonably prudent man in the circumstances would be
warranted in the belief that his safety or that of others was
in danger.’ If a suspect is ‘dangerous,’ he is no less
dangerous simply because he is not arrested.
The Court emphasized that this holding does not permit
police to conduct a search of a vehicle during every
investigative stop. “A Terry search, unlike a search
without a warrant incident to a lawful arrest, is not
justified by any need to prevent the disappearance or
destruction of evidence of crime. The sole justification of
the search is the protection of police officers and others
nearby.” The Court stated that an officer must therefore
have reasonable suspicion that the person subject to the
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stop has a weapon in order to conduct a lawful search of
the passenger compartment of a vehicle at the time of the
stop.
Id. at 298-99 (footnotes and some citations omitted).
In the case sub judice, the trial court opined:
Though there was reasonable suspicion and probable
cause to stop [Appellee’s] vehicle for a traffic violation[,]
the search of [Appellee’s] glove compartment exceeded
the purpose and scope of the stop. It is clear from the
totality of circumstances in the current case that
[Appellee] was not free to leave the vehicle after the
officers investigated the traffic violation, and thus was
seized requiring reasonable suspicion for further
investigation. . . . The police directed [Appellee’s]
movement when they made him stop what he was doing,
removed him from the vehicle, and later let him back into
the vehicle. . . .
There was no justified belief that [Appellee] was armed
and dangerous, to warrant a Terry search of [Appellee’s]
glove compartment. Though [Appellee] acted nervously
he did not make any furtive movements or refuse to
cooperate. Officer Luna specifically noted that she
understood why a person would be nervous in the
situation. There is no justifiable belief that [Appellee] was
armed as the officers had already searched [Appellee],
searched the area surrounding him, searched and [sic] the
center console, and returned him to the driver’s seat.
Trial Ct. Op., 1/21/15, at 5, 6 (citation to record omitted). Furthermore, the
trial court found that Appellee did not give permission for the search of the
glove compartment, reasoning as follows:
As police’s continued investigation rose from a mere
encounter to an investigative detention, [Appellee’s]
permission to consent must be deemed involuntary.
Beyond this, Officer Monte’s search of [Appellee’s] glove
compartment exceeded the scope of [Appellee’s]
authorization to search.
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When an official search is properly authorized, the
scope of the search is limited by the terms of its
authorization. . . .
Officer Monte asked [Appellee] to search a specific, and
self contained, area of the car, to which [Appellee] replied,
“you can search whatever.” This court finds, based on the
totality of the circumstances that [Appellee’s] reply that
the officer could search whatever was in reply to searching
the center console, not a carte blanche authorization to
search anything owned or possessed by [Appellee].
Id. at 6-7. We agree no relief is due.
We discern no abuse of discretion or error of law by the trial court.
See Cartagena, 63 A.3d at 298. The officer lacked reasonable suspicion to
justify the Terry search of Appellee’s glove compartment. See id. at 298-
99; Tam Thanh Nguye, 116 A.3d at 666-67. Appellee did not voluntarily
consent to the search of the glove compartment. See Reid, 811 A.2d at
544. Accordingly, we affirm the order granting Appellee’s motion to
suppress.
Order affirmed.
Judge Allen joins the memorandum.
Judge Mundy concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2015
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