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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAFAEL VAZQUEZ :
:
Appellant : No. 2803 EDA 2016
Appeal from the Judgment of Sentence November 8, 2013
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003302-2012
BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*
MEMORANDUM BY NICHOLS, J.: FILED APRIL 24, 2018
Appellant Rafael Vazquez appeals nunc pro tunc from the judgment of
sentence following his conviction for three violations of the Uniform Firearms
Act (VUFA).1 Appellant claims that the trial court erred in denying his pre-trial
motion to suppress. We affirm.
We state the relevant facts and procedural history from the suppression
hearing as follows. On February 27, 2012, at approximately 5:45 p.m.,
Philadelphia Police Officers Jason Czarnecki and Gerry Rahill were on routine
patrol in a high-crime area of Philadelphia. After they observed a vehicle
disregard a stop sign, the officers initiated a traffic stop for violations of the
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 6105, 6106, and 6108.
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Motor Vehicle Code.2 As the officers approached, they observed that the
windows of the vehicle were heavily tinted. N.T., 4/11/13, at 6. As a result,
they were unable to ascertain how many people were inside of the vehicle or
where they were seated. Id. at 8.
Officer Rahill proceeded to the driver’s side of the vehicle, and Officer
Czarnecki approached the passenger side of the vehicle. Officer Rahill
observed that the driver’s window was “cracked a couple of inches.” Id. at
29. Because the windows were so heavily tinted, he asked the driver to fully
lower the windows in order to ensure officer safety. Id. The driver replied
that he could not roll down the windows because they were broken. Id.
Through the only opening at the top of the front window, Officer Rahill
observed the driver making some type of movement toward his feet and could
not see the driver’s hands. Id. at 31. Additionally, he noted that the driver
appeared to be shaky and nervous. Id. At that time, Officer Rahill signaled
to his partner, and informed the driver that they were going to open the
vehicle doors, which they then proceeded to do. Id. at 29.
Officer Czarnecki made similar observations about his inability to see
through the heavily tinted windows:
[Officer Czarnecki]: I couldn’t see into the car, and I couldn’t hear
anything. And there were motions around, and I just don’t like
when I can’t see in the car. I think it’s a safety issue for me.
2 The driver of the vehicle was issued traffic citations for disregarding a stop
sign, 75 Pa.C.S. § 3323(b); and window obstruction, 75 Pa.C.S. § 4524(e).
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The court: And what’s the reason?
[Officer Czarnecki]: In case there’s a gun in the car. There could
have been a gun pointed right at me, and I would have no idea.
The court: It was that opaque that you couldn’t see anything at
all?
[Officer Czarnecki]: Yes.
N.T., 4/11/13, at 16-17.
After the doors were opened, Officer Czarnecki began speaking with
Appellant, who was seated on the rear passenger side of the vehicle. 3 Id. at
10. During the exchange, Officer Czarnecki observed a bulge in Appellant’s
waistband near his right hip. Id. When Officer Czarnecki asked Appellant
about the bulge, Appellant replied “it’s nothing.” Id. Appellant then
attempted to cover the bulge with his hands and a soda bottle. Officer
Czarnecki testified that he became increasingly concerned for his safety, as
Appellant appeared nervous in his efforts to cover his waistband area. Id. at
12. He further testified that firearms are routinely concealed on a person’s
waistband and that he had personally recovered firearms from that area
“between five and ten [times] over the course of a couple of years.” Id. at
12.
At that point, Officer Czarnecki asked Appellant to step out of the
vehicle, place his hands on the hood, and spread his feet so that the officer
could frisk him. Id. at 14. Appellant initially complied, but then pressed his
3 The record does not detail the verbal exchange.
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right hip against the vehicle. Id. Officer Czarnecki pulled Appellant away
from the vehicle, but Appellant pressed his body against the vehicle again.
Id. Officer Czarnecki unsuccessfully ordered Appellant to step away from the
vehicle. Id. The officer eventually recovered a firearm from Appellant’s
waistband. Id. As a result, Appellant was arrested and charged with three
counts of VUFA.
On May 10, 2012, Appellant filed an omnibus pre-trial motion seeking
to suppress the firearm. On April 11, 2013, the court held a suppression
hearing, at which Appellant argued the unconstitutionality of the stop.
Alternatively, he contended that even if the stop were valid, the officers did
not have reasonable suspicion to order Appellant from the car or probable
cause to effectuate a search. Id. at 59. The trial court denied the motion.
Following a bench trial on July 2, 2013, the court found Appellant guilty
of all three counts of VUFA. On November 8, 2013, he was sentenced to five
to ten years’ incarceration, followed by five years’ probation. No direct appeal
was filed at that time.
On August 25, 2016, Appellant’s direct appeal rights were reinstated
nunc pro tunc following his successful petition under the Post Conviction Relief
Act (PCRA).4 On August 31, 2016, Appellant timely appealed and, on
September 28, 2016, filed a court-ordered Pa.R.A.P. 1925(b) statement.
Therein, Appellant alleged that (1) “[t]he trial court erred in failing to suppress
4 42 Pa.C.S. §§ 9541-9546.
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the physical evidence, an alleged firearm, seized after an unlawful and
unconstitutional car stop without reasonable suspicion and probable cause”;
and (2) there was no reason to pull out all of the passengers and search them
without any reasonable suspicion or probable cause. Appellant’s 1925(b)
Stmt., 9/28/16.
Appellant raises one issue on appeal:
Did the trial court err in denying the suppression motion of
[A]ppellant when the police officer had no reasonable suspicion or
probable cause to open the front and back passenger side doors
of the vehicle?
Appellant’s Brief at 2.5
Appellant does not dispute the validity of the traffic stop in this appeal.
Instead, he focuses solely on the officers’ opening of the vehicle doors, which
he describes as “totally illegal and unconstitutional.” Appellant’s Brief at 7.
He reasons that opening the vehicle doors was unnecessary to effectuate the
stop and issue the traffic citation. Id. Appellant asserts that neither he nor
the other passenger did anything suspicious. Id. at 6. Thus, he argues the
police lacked reasonable suspicion and probable cause to open the vehicle
5 Appellant raised four issues in his 1925(b) statement, which the trial court
addressed in its 1925(a) opinion. However, Appellant did not pursue the
remaining issues in this appeal, so we need not address them.
Commonwealth v. Dunphy, 20 A.3d 1215, 1218 (Pa. Super. 2011) (noting
appellant abandoned issues raised in Rule 1925 statement that were not
identified in the statement of questions presented section of his brief or
developed in the argument section of his brief).
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doors, and it was only because of that illegal action that the officer saw the
alleged bulge. Id. at 7-8.6
In addressing a challenge to the denial of a suppression motion, our
standard of review is
limited to determining whether the suppression court’s factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. Because the
Commonwealth prevailed before the suppression court, we may
consider only the evidence of the Commonwealth and so much of
the evidence for the defense as remains uncontradicted when read
in the context of the record as a whole. Where the suppression
court’s factual findings are supported by the record, we are bound
by these findings and may reverse only if the court’s legal
conclusions are erroneous. The suppression court’s legal
conclusions are not binding on an appellate court, whose duty it
is to determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the courts below are
subject to our plenary review.
6 We acknowledge that the Commonwealth contends that Appellant waived
this argument by failing to raise it in his Rule 1925(b) statement or in his pre-
trial motion to suppress. See Commonwealth’s Brief at 8. It is well-settled
that “appellate review of an order denying suppression is limited to
examination of the precise basis under which suppression initially was sought;
no new theories of relief may be considered on appeal.” Commonwealth v.
Little, 903 A.2d 1269, 1272–73 (Pa. Super 2006). Thus, “the failure to raise
a suppression issue prior to trial precludes its litigation . . . on appeal.”
Commonwealth v. Douglass, 701 A.2d 1376, 1378 (Pa. Super. 1997).
Here, the Commonwealth asserted that the police were more than justified in
ordering the passengers out on the grounds of officer safety. N.T., 4/11/13,
at 53-54. Appellant, however, countered that the police had no basis to search
the vehicle based on the doors’ tinted windows, see, e.g., id. at 61, and thus,
had no reason to open the doors. We are satisfied that Appellant raised
substantially the same argument at the suppression hearing and in his
1925(b) statement. See Little, 903 A.2d at 1272-73. Accordingly, we decline
to find waiver and will address the issue on its merits.
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Moreover, appellate courts are limited to reviewing only the
evidence presented at the suppression hearing when examining a
ruling on a pre-trial motion to suppress.
Commonwealth v. Ranson, 103 A.3d 73, 76 (Pa. Super. 2014) (citations
and quotations omitted).
In United States v. Stanfield, 109 F.3d 976 (4th Cir. 1997), three
police officers were on patrol in an unmarked patrol car in a high crime area
of Baltimore when they observed a vehicle with heavily tinted windows illegally
stopped in the middle of the street. Id. at 978.7 After parking their car in
front of the vehicle, the police observed the driver talking to a man leaning
from a building’s second-story window, who they recognized as a known drug
dealer. Id. The driver’s side window was rolled down, but the window on the
passenger side remained closed. Id. However, because the tinting on the
windows was so dark, the officers were unable to see inside the vehicle as
they approached. Id. As a result, the officer on the passenger side of the
vehicle opened the front passenger door in order to determine whether the
7 “While we recognize that federal court decisions are not binding on this
[C]ourt, we are able to adopt their analysis as it appeals to our reason.
Further, [w]hile it is a truism that decisions of sister states are not binding
precedent on this Court, they may be persuasive authority[.]”
Commonwealth v. Arthur, 62 A.3d 424, 429, n.9 (Pa. Super. 2013)
(citations and internal quotations omitted). “Pennsylvania has consistently
followed Fourth Amendment jurisprudence in stop and frisk cases.”
Commonwealth v. Wimbush, 750 A.2d 807, 810 n.2 (Pa. 2000) (citing
Commonwealth v. Jackson, 698 A.2d 571, 574 (Pa. 1997);
Commonwealth v. Melendez, 676 A.2d 226, 230 (Pa. 1996)).
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driver was armed, had access to weapons, and there were any passengers
inside of the vehicle. Id.
After the officer opened the door, from his vantage point entirely outside
of the SUV, he saw cocaine in plain view on the back seat. Id. at 979. The
defendant moved to suppress, contending that the search as a result of the
officer’s “opening of the front passenger door was unconstitutional under the
Fourth Amendment and, therefore, that the cocaine discovered as a
consequence of that search must be suppressed.” Id. The district court
denied the motion, and the defendant appealed. Id.
The Fourth Circuit resolved the constitutionality of the intrusion:
In [Pennsylvania v. Mimms, 434 U.S. 106 (1977),] and
Maryland v. Wilson, 519 U.S. 408, 117 S. Ct. 882, 137 L.Ed.2d
41 (1997), the [United States Supreme] Court . . . adopted bright-
line rules that officers may, as a matter of course, order both
drivers and passengers from vehicles during routine traffic stops
in order to ensure that such stops are completed without incident.
***
[W]e believe that the Court’s decisions in Mimms and Wilson in
particular would support a holding that whenever, during a lawful
traffic stop, officers are required to approach a vehicle with
windows so heavily tinted that they are unable to view the interior
of the stopped vehicle, they may, when it appears in their
experienced judgment prudent to do so, open at least one of the
vehicle’s doors and, without crossing the plane of the vehicle,
visually inspect its interior in order to ascertain whether the driver
is armed, whether he has access to weapons, or whether there
are other occupants of the vehicle who might pose a danger to the
officers.
***
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But, apart from the fact that there is a considerably reduced
privacy interest in a vehicle’s interior passenger compartment as
a matter of law, the driver and other occupants of a lawfully
stopped vehicle have already had their liberty curtailed. Moreover,
because the driver must comply with routine requests for
identification and registration, he will be required at some point
during the brief detention to expose the interior compartment of
his vehicle to view through at least one window, if for no other
reason than to interact with the officer. Of course, when the driver
lowers the window, then much if not all of the car’s interior will be
visible to the officer. The additional interference with the
occupants’ privacy interests affected by the opening of one of the
vehicle’s doors would seem minimal when measured against the
enormous danger law enforcement officers face when they
approach a vehicle with heavily tinted windows. Such an intrusion
would seem considerably less than the intrusions affected by
ordering the driver and passengers to exit the vehicle and to
proceed to the shoulder of the road, which were held in Mimms
and Wilson, respectively, to be “de minimis” in comparison to the
states’ interests in protecting their law enforcement personnel
under circumstances far less inherently dangerous than those
existing when the stopped vehicle has heavily tinted windows. Not
only does the person subjected to the limited search entailed in
the opening of the vehicle door not have his entire body exposed
to the view of the officers and public, he also retains his liberty
interest in remaining seated in his automobile during the duration
of the detention. Indeed, the actual invasion of privacy entailed in
an officer’s opening of the vehicle door is indistinguishable from,
if not precisely the same as, that which occurs when an occupant
is required to open a door to exit a vehicle pursuant to an order
given under the authority of Mimms or Wilson.
Stanfield, 109 F.3d at 980-83; see also United States v. Holmes, 376 F.3d
270, 281 (4th Cir. 2004) (citing to Stanfield in holding that in light of officers’
reasonable fears during roadside encounters with dangerous suspects, “we do
not require[] that officers adopt alternate means to ensure their safety in
order to avoid the intrusion involved in a Terry[8] encounter, and, where
8 Terry v. Ohio, 392 U.S. 1 (1968).
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certain law enforcement tactics are themselves legitimate under the
circumstances, we hesitate to impose [reasonable alternatives] on the law
enforcement community as a matter of constitutional law” (internal citations
and quotations omitted)); cf. Commonwealth v. Cartagena, 63 A.3d 294
(Pa. Super. 2013) (discussing Stanfield, noting that reasonable suspicion
requires a totality of the circumstances analysis, in which tinted windows are
merely a factor).
We find Stanfield controls the instant case. Both matters arose when
officers conducted a lawful traffic stop. Stanfield, 109 F.3d at 984. Both
stops also occurred in high crime areas and involved vehicles with heavily
tinted windows. Id. at 978; N.T., 4/11/13, at 8, 15. Here, after the vehicle
was stopped, Officer Rahill observed the driver making movements toward his
feet and further noted that he was unable to see the driver’s hands. N.T.,
4/11/13, at 31. Officer Rahill initially instructed the driver to lower the
windows, but was told that they were broken. Id. at 29. As in Stanfield, at
least one of the windows was partially open. Stanfield, 109 F.3d at 978;
N.T., 4/11/13, at 29. Despite these efforts, the officers were still unable to
ascertain who or what was inside of the car. Stanfield, 109 F.3d at 978;
N.T., 4/11/13 at 8. The officers, like the police in Stanfield, testified to
specific and articulable facts leading them to believe they were concerned for
their safety. Stanfield, 109 F.3d at 979; N.T., 4/11/13 at 9. In response,
the police—identical to Stanfield—opened the passenger side doors to ensure
at least some degree of safety. N.T., 4/11/13 at 9. Because the
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uncontradicted record supports the factual determinations of the trial court
and we discern no error of law, we affirm the denial of the motion to suppress.
Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/18
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