In the Interest of O.J.

DISSENTING OPINION BY

MUSMANNO, J.:

¶ 1 While the majority sets forth a persuasive argument for reversing the Order of the suppression court, I am constrained to disagree with its conclusion that the officers demonstrated exigent circumstances justifying the warrantless search of the vehicle. The facts underlying this appeal are not in issue. Rather, the parties dispute the suppression court’s legal conclusion. Specifically, the parties dispute whether police officers were authorized to conduct a warrantless search of O.J.’s vehicle based upon Officer Tucker’s articulated reasons for believing that O.J. posed a potential danger to police.

¶ 2 In Commonwealth v. Hernandez, 594 Pa. 319, 935 A.2d 1275 (2007), the Pennsylvania Supreme Court set forth the law regarding warrantless automobile searches as follows:

Under the federal Constitution, law enforcement personnel may conduct a war-rantless search of an automobile as long as probable cause exists. Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 147-56, 45 S.Ct. 280, 69 L.Ed. 543, T.D. 3686 (1925). This rule, known as the automobile exception to the warrant requirement, is based on the inherent nature of vehicles — their mobility — and applies even if a vehicle is “seized and immobilized.” Commonwealth v. McCree, 592 Pa. 238, 924 A.2d 621, 629 (Pa.2007) (plurality) (citing Chambers). In Pennsylvania, however, “we have not adopted the full federal automobile exception under Article I, Section 8.” Id. Warrantless vehicle searches in this Commonwealth must be accompanied not only by probable cause, but also by exigent circumstances beyond mere mobility; “one without the other is insufficient.” Commonwealth v. Luv, 557 Pa. 570, 735 A.2d 87, 93 (Pa. 1999). This dual requirement of probable cause plus exigency is an established part of our state constitutional jurisprudence. McCree, 924 A.2d at 629-30. See also Commonwealth v. Casanova, 2000 PA Super 34, 748 A.2d 207, 211 (Pa.Super.2000), appeal denied, 570 Pa. 682, 808 A.2d 569 (Pa.2002); Commonwealth v. Gelineau, 696 A.2d 188, 192 n. 2 (Pa.Super.1997), appeal denied, 550 Pa. 699, 705 A.2d 1305 (1998); Commonwealth v. Rosenfelt, 443 Pa.Super. 616, 662 A.2d 1131, 1146 (Pa.Super.1995), appeal denied, 544 Pa. 605, 674 A.2d 1070 (1996).

Id. at 1280.

¶ 3 In Commonwealth v. Morris, 537 Pa. 417, 644 A.2d 721 (1994), the Pennsylvania Supreme Court adopted the reasoning set forth by the United States Supreme Court in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), in explaining the circumstances under which a warrantless automobile search may be justified under the federal constitution:

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 officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. See Terry [v. Ohio], 392 U.S. at 21, 88 S.Ct. 1868, 20 L.Ed.2d 889, 44 Ohio Ops 2d 383....

*568644 A.2d at 723 (quoting Michigan v. Long, 463 U.S. at 1049-50, 103 S.Ct. 3469).

¶ 4 Similarly, the Hernandez Court held that potential danger to police or the public satisfies the exigency requirement for warrantless vehicle searches. Id. at 1281. In Hernandez, however, the Supreme Court concluded that the warrantless automobile search in that case was not justified. Id. In so holding, the Supreme Court cautioned that “[t]he fact that potential for danger to police or the public is enough to constitute exigent circumstances does not mean that a mere assertion of danger is sufficient. Rather, police must be able to articulate the danger posed under the specific circumstances of the case.” Id. at 1282 (emphasis added). The Hernandez Court held that the Commonwealth had failed to articulate the danger posed under the specific circumstances of that case:

The transcript from the suppression hearing reveals that the Commonwealth did not offer any evidence in support of its assertion that there was potential for harm. Officer Palmer explained his decision to search the truck with a single sentence: “I wanted to open the gate to see for officers’ safety reasons if there was someone else in the truck.” N.T., 3/8/05, at 9. He did not attempt to explain why he was concerned for his safety-

Id. at 1282 (emphasis added).

¶ 5 In this case, the suppression court did not have the benefit of the Supreme Court’s decision in Hernandez. However, the suppression court’s conclusions appear to comport with the Supreme Court’s reasoning in Hernandez. The suppression court concluded that “[wjithout any other objective facts or articulated suspicion, mere ‘hand movements’ are insufficient to form a reasonable belief that the defendant committed a felony or concealed any drugs or weapons in the counsel.” Trial Court Opinion, 1/17/07, at 4.

¶ 6 At the time of Officer Tucker’s search of the console inside of the vehicle, O.J. and his passenger were secured, in handcuffs, in the back seat of the police cruiser. Opinion at 563-64; Suppression Court Opinion, 1/17/07, at 2. As the Majority noted, Officer Tucker’s articulated reasons for searching the vehicle, while O.J. and his passenger were in handcuffs, were that police officers “normally” conduct a search when the observe the type of hand movement engaged in by O.J. because that behavior creates a fear that a weapon may be located where the movements occur; and that a search was necessary because O.J. and his passenger were going to be released to their vehicle. Opinion at 563-64. I cannot conclude that such reasons meet the requirements set forth by our Supreme Court in Hernandez.

¶ 7 Officer Tucker failed to articulate specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted him in believing that O.J. was dangerous and that he might gain immediate control of weapons. Certainly, it would be unreasonable to conclude that the handcuffed and secured O.J. could gain immediate control of a weapon. In addition, it is equally unreasonable to conclude, based upon the Commonwealth’s articulated reasons, that O.J. would pose a danger to Officer Tucker if he was not arrested, but released.

¶ 8 Certainly, “[ojur constitutional safeguards do not require an officer to gamble with his life,” see Morris, 644 A.2d at 724, nor would I ever impose such a risk on a police officer performing his duties. However, this Court must apply the requirements of Hernandez in determining whether a warrantless search of an automobile violates our constitutional protections. Because the suppression court’s de*569termination comports with Hernandez, I would affirm the Order of the suppression court.