Commonwealth v. Cartagena

DISSENTING OPINION BY

MUNDY, J.:

I respectfully dissent from the learned Majority’s decision to affirm the grant of suppression in this case. In my view, the uncontradicted evidence presented by the Commonwealth at the suppression hearing was sufficient to support a finding of reasonable suspicion on the part of Officer Johncola.

The Majority correctly utilizes the reasonable suspicion standard articulated in Michigan v. Long, 468 U.S. 1032,103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).1 See Majority Opinion at 298. The United States Supreme Court has consistently observed that routine traffic stops often “resemble, in duration and atmosphere, the kind of brief detention authorized in Terry2[.]" Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 n. 29 (1984). However, the Supreme Court has also warned that said traffic stops are “espe-dally fraught with danger to police officers[.]” Long, supra at 1047, 103 S.Ct. 3469. Police officers are permitted to “minimize the risk of harm by exercising ‘unquestioned command of the situation’[.]” Arizona v. Johnson, 555 U.S. 323, 330, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009), quoting Maryland v. Wilson, 519 U.S, 408, 414, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997); see also Terry, supra at 23, 88 S.Ct. 1868 (stating, “it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties[ ]”). In recognizing these considerations, the Supreme Court has permitted limited searches of an automobile’s interior where a suspect could have access to weapons.

Our past cases indicate then 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. [See Terry, supra at 21, 88 S.Ct. 1868.] “[T]he issue is whether a *308reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id. at 27[, 88 S.Ct. 1868], If a suspect is “dangerous,” he is no less dangerous simply because he is not arrested.

Long, supra at 1049-1050, 103 S.Ct. 3469 (footnote omitted); see also Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam) (stating that the interest in the safety of police officers during traffic stops is both “legitimate and weighty” for Fourth Amendment purposes).3 It is with this constitutional framework in mind that we should analyze the facts presented by the Commonwealth to the suppression court.

During the suppression hearing, Officer Johneola testified to several factors that were present on the night in question.

Q: I want to take you back to the 20th of September 2009. Were you on duty as a Philadelphia Police Officer that day?
A: I was.
Q: On that day, did your tour of duty take you in or around the 100 block of Lehigh Avenue at around 1:50 a.m.?
A: Yes.
Q: At that date, time and location, Officer, what, if anything, did you observe?
A: Your Honor, at that date, time and location, my partner and I, Officer Gle-bowski, badge No. 2844, were assigned to the 25th District. At that time we observed a black or blue — dark blue Suburban with the Pennsylvania tag GJF8933, with heavy tinted windows. We activated our lights and the male pulled over in the center breakdown lane of Lehigh Avenue.
We exited the vehicle and asked the male to lower the windows. He didn’t initially and second time he finally did. I approached on the passenger side and my partner approached on the driver’s side.
Q: If I can just cut you off right there for a second. Can you describe how dark the windows were tinted? Did it affect your ability to see inside the ear[?] A: Your Honor, the windows were so tinted that even our flashlight on the side of the car did not penetrate the glass.
Q: So once he finally put down the windows, tell me what did you observe? A: At that point, my partner asked for license, registration and insurance. He handed his license to my partner. He goes to reach into the center console and looks, hesitates, and closes the center console.
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He was looking inside the console which is an arm rest in between the two front seats of the car. Then at which time he goes to the glove box to retrieve the insurance and registration of the vehicle. The male was extremely nervous, Your Honor.
At that time my partner asked him to step out of the vehicle. I walked to the rear of the vehicle, to meet my partner and my partner did a pat down of [Ap-pellee].
At that time I went to the driver’s side and did a courtesy [sic] search of the seat and console area at which time from the console, I recovered a black *309and chrome brown .32 caliber loaded with six live rounds and an obliterated serial number and it was placed on a property receipt. He was issued a TBR for the tinted windows.
Q: Why did your partner take him out of the car?
A: Due to his nervousness.
Q: Could you describe what he was doing that made you think he was nervous?
A: Tripping over his words and shaking. He also didn’t immediately roll down his windows. The reason why we were there was due to the extremely dark window detail.
Q: Where was this particular area?
A: 100 block of West Lehigh [Avenue]. Q: Can you describe the manner in which he was looking toward the center console?
A: It was just that he looked into it like he was going to retrieve paperwork out of there and kind like [sic] looked stunned and then closed it.
Q: So what’s [sic] reason for you taking him from the car, just the fact that he’s overly nervous?
A: Yes.
Q: Officer, at any time did you fear for your safety at all during this car stop? A: When I first approached — when he first initially did not lower the windows, yes.

N.T., 8/18/10, at 3-6. Officer Johncola further described Appellee’s hesitation to lower his window during cross-examination.

Q: You went over to the passenger side and your partner goes to the driver’s side, right?
A: Yes.
Q: And you knocked on the window?
A: No. We’re at um — we approached and both of us ask[ed] him to lower the window. Initially, he did not lower it. It took two or three chances before he lowered the window.

Id. at 7.

The Commonwealth avers that an examination of the aforementioned testimony reveals that Officer Johncola possessed the requisite reasonable suspicion to conduct a limited search of the center console. Commonwealth’s Brief at 7.1 agree. I find two recent decisions of this Court, Commonwealth v. Murray, 936 A.2d 76 (Pa.Super.2007), and In re O.J., 958 A.2d 561 (Pa.Super.2008) (en banc), to be particularly instructive, as they each discuss factors enumerated by the Commonwealth establishing the required reasonable suspicion in the present case.

In Murray, police stopped a Range Rover for not signaling a turn in a high-narcotics area. Murray, supra at 77. The vehicle’s windows were also tinted so that it was difficult for the officers to see what was going on inside, but the officer could nevertheless discern “a lot of movement in the vehicle.” Id. After frisking Murray and finding no weapon, the officer conducted a Long search of the area near where Murray was sitting and found a .40 caliber handgun under the right armrest. Id. The Murray court concluded that the tinted windows combined with “the knowledge of the neighborhood being a well-known narcotics area, when coupled with the excessive movement inside the vehicle and hour of night, raised serious and obvious safety concerns that justified a search for weapons.” Id. at 80.

In O.J., the police observed a car speeding and failing to stop at a red light. O.J., supra at 563. The officers followed O.J. in their car and activated their lights and siren for O.J. to pull over. After initially ignoring the police car behind him, O.J. eventually pulled over. Id. Upon exiting their vehicle, the officers observed “a lot of *310movement of the arms and the hands in the center area of the vehicle which would have been the [center] console.” Id. (citation omitted). After removing O.J. and his passenger from the vehicle, the officer searched the center console and found cocaine inside. Id. Appellant moved to suppress the drugs found in the center console and the trial court granted his motion. This Court, relying in part on Murray, concluded that the officer’s limited search was reasonable under Long. Id. at 566.

In the present case, we conclude that Officer Tucker’s protective search was constitutionally valid as based upon ar-ticulable facts supporting a belief that Appellee may have secreted a weapon in the area searched. The vehicular stop occurred at night, which creates a heightened danger that an officer will not be able to view a suspect reaching for a weapon. Appellee had been driving dangerously and initially refused to heed police efforts to stop his car. This evasive behavior supported Officer Tucker’s fear that Appellee may have been engaged in criminal behavior and in possession of a weapon. Finally, Ap-pellee’s rapid and furtive hand movements over the console indicated that he may have been hiding a weapon in that location. This conclusion also was supported by the fact that the console had been left partially opened. Finally, the search in question was specifically confined to the area where the hand movements had occurred. Given the totality of the facts at Officer Tucker’s disposal, we conclude that he reasonably believed that a weapon may have been secreted in the console and that his search of that compartment was not unconstitutional.

Id.

In the case sub judice, Officer Johncola testified to four factors that led him to search the center console for weapons. First, the traffic stop occurred late at night. Commonwealth’s Brief at 14. Second, Appellant ignored Officers Johncola and Glebowski’s initial request to lower his heavily tinted windows. Id. at 11. Third, Appellant exhibited extreme nervousness, specifically when he opened and closed the center console.4 Id. Finally, the Commonwealth emphasizes that Appellant’s windows were so heavily tinted that the officers could not see anything Appellant was doing inside the vehicle, even with their flashlights. Id. at 14. In my view, these circumstances, when considered together, support the reasonable suspicion required for Officer Johncola to make a limited search of the center console for weapons.

The Majority dismisses Appellee’s hesitation to comply with the officers’ request to lower his window as immaterial to whether Officer Johncola possessed the required reasonable suspicion. Majority Opinion at 301. I disagree. Traffic stops are everyday occurrences in this Commonwealth. It is common sense to anticipate *311that whenever a driver is pulled over bylaw enforcement for a traffic stop, the investigating officer will approach the driver’s side window and request to speak to the driver, or at a minimum ask for the driver’s license and vehicle registration. A driver pulled over for a traffic stop routinely expects to lower his window to interact with the police officer. See 75 Pa. C.S.A. § 6308(a) (stating that when a driver is pulled over by law enforcement for a Motor Vehicle Code violation, he or she “shall, upon request, exhibit a registration card, driver’s license and information relating to financial responsibility, or other means of identification ... ”).

Furthermore, it is reasonable for a police officer approaching a vehicle with windows so heavily tinted that a flashlight does not penetrate the tint to allow visibility of the interior passenger compartment to infer for their safety that the occupant may have a weapon. When this factual situation arises and the driver refuses or delays in rolling down the window, these facts are equally concerning when the officer is able to observe suspicious behavior such as furtive hand movements. As this Court recently noted in O.J., “it appears that a significant number of murders of police officers occurs when the officers are making traffic stops.” O.J., supra at 565 (internal quotation marks and citations omitted).

Additionally, I point out the reason for the traffic stop in this case was Appellee’s tinted windows, which are illegal in this Commonwealth. See 75 Pa.C.S.A. § 4524(e)(1). I cannot agree that we should give Appellee credit on the constitutional level for successfully masking the interior of his car, in violation of the Motor Vehicle Code. I conclude the fact that Ap-pellee refused the officers’ initial request to lower his heavily tinted windows, which were so dark that the officers could not see anything going on inside the vehicle, supported Officer Johncola’s belief that his safety was in danger. Therefore, in my view, it is certainly a relevant factor when ascertaining whether Officer Johncola had the required reasonable suspicion for a search pursuant to Long. See Commonwealth v. Tuggles, 58 A.3d 840, 842-43 (Pa.Super.2012) (concluding a car passenger’s refusal to show a police officer his hands is a relevant factor in determining whether the officer had the required reasonable suspicion to conduct a Long protective search of the car’s center console); see also United States v. Whitfield, 634 F.3d 741, 744 (3d Cir.2010) (stating that in the Terry context “[i]t is not necessary that the suspect actually have done or is doing anything illegal; reasonable suspicion may be based on acts capable of innocent explanation[ ]”) (internal quotation marks and citation omitted; emphasis added); United States v. Moorefield, 111 F.3d 10, 14 (3d Cir.1997) (stating that Moorefield’s “refusal to obey the officers’ orders [when combined with other factors] constituted suspicious behavior[ ]”).

The Majority attempts to distinguish Murray on the grounds that “the only similarities between [Murray and the instant case] are that both vehicles had tinted windows and the stops occurred at night....” Majority Opinion at 303 n. 19. While the Majority concludes, “Murray does not provide a basis to overturn the suppression court’s suppression of the gun in question[ ]” because the case is not completely analogous, that is not the standard we must apply. Majority Opinion at 303 n. 19. As no case exists with this precise combination of factors, we must instead look to the totality of the circumstances of this case to decide whether Officer Johnco-la had the required reasonable suspicion to justify his search of the center console for weapons. See Long, supra at 1049-1050, 103 S.Ct. 3469. In my view, the factors of *312the heavily tinted windows at a 1:50 a.m. traffic stop, coupled with Appellee’s extremely nervous movements toward the center console, and his unexplained hesitation to lower his window, clearly support the required reasonable suspicion.

Moreover, the Commonwealth stresses that although the vehicle in Murray had tinted windows, the officer was still able to see into the vehicle enough to make out furtive movements on Murray’s part, whereas in this case, Officer Johncola and his partner were unable to see into the interior of the vehicle at all, even with the aid of their flashlights. Commonwealth’s Brief at 14; N.T., 8/18/10, at 4. The Majority dismisses this as immaterial. Majority Opinion at 302 n. 14. I disagree, as the context for a Long protective search is the safety of the officers during the traffic stop.5 Moreover, I believe the Majority undervalues the Murray court’s admonition regarding tinted windows in the context of traffic stops.

When, during already dangerous traffic stops, officers must approach vehicles whose occupants and interiors are blocked from view by tinted windows, the potential harm to which the officers are exposed increases exponentially, to the point, we believe, of unconscionability. Indeed, we can conceive of almost nothing more dangerous to a law enforcement officer in the context of a traffic stop than approaching an automobile whose passenger compartment is entirely hidden from the officer’s view by darkly tinted windows. As the officer exits his cruiser and proceeds toward the tinted-windowed vehicle, he has no way of knowing whether the vehicle’s driver is fumbling for his driver’s license or reaching for a gun; he does not know whether he is about to encounter a single law-abiding citizen or to be ambushed by a car-full of armed assailants. He literally does not even know whether a weapon has been trained on *313him from the moment the stop was initiated.

Murray, supra at 79-80, quoting United States v. Stanfield, 109 F.3d 976, 981 (4th Cir.1997), cert. denied, Stanfield v. United States, 522 U.S. 857, 118 S.Ct. 156, 139 L.Ed.2d 101 (1997) (emphasis in original).

Moreover, the Majority concludes that O.J. is distinguishable from the present case because “there is no indication that [Appellant] did not immediately stop for the police_” Majority Opinion at 303. While this is factually accurate, I conclude that this distinction is immaterial to the overall constitutional significance of this case. While Appellant did not ignore the officers’ request to stop his vehicle, he did ignore their initial request to lower his heavily tinted windows, which I believe to be of equal significance in a Long analysis.

In summary, I would hold that the un-contradicted facts and circumstances articulated by Officer Johncola were sufficient to form the required reasonable suspicion to “believ[e] that [Appellee was] dangerous and ... may gain immediate control of weapons.” Long, supra at 1050, 103 S.Ct. 3469. Based upon my review of the certified record, I conclude that Appellee’s Fourth Amendment rights were not violated. I would therefore reverse the order granting Appellee’s suppression motion and remand for further proceedings. I respectfully dissent.

. At the outset, I agree with the Majority's determination that the suppression court improperly applied a probable cause standard, and that the correct test is reasonable suspicion under Long. My disagreement stems from the Majority’s application of that standard to the facts of this case.

. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

. As the Majority correctly notes, our Supreme Court has noted that the United States Supreme Court's analysis in Long comports with Article I, Section 8 of the Pennsylvania Constitution. See Commonwealth v. Morris, 537 Pa. 417, 644 A.2d 721, 724 (1994), cert. denied, Morris v. Pennsylvania, 513 U.S. 1031, 115 S.Ct. 610, 130 L.Ed.2d 519 (1994).

. As the Majority points out, the Commonwealth highlights the Opinion in Support of Affirmance from Commonwealth v. Micking, 17 A.3d 924 (Pa.Super.2011) (en banc), appeal denied, 612 Pa. 708, 31 A.3d 291 (2011), for the proposition that "extreme nervousness can provide reasonable suspicion for a protective search during a traffic stop.” Commonwealth's Brief at 12 n. 5. The Majority correctly observes that in Micking, the en banc Court was evenly divided with one judge not participating, so the Opinion in Support of Affirmance has no precedential value. Majority Opinion at 306 n. 28. However, our Supreme Court has already decided that extreme nervousness displayed by a suspect during a traffic stop is a relevant factor in the Terry context. See Commonwealth v. Rogers, 578 Pa. 127, 849 A.2d 1185, 1189 (2004). By logical extension, I see no reason why it should not be a relevant factor in the context of a Long protective search, as Long is an extension of Terry.

. I emphasize that if this Court were analyzing the facts of this case under Terry, i.e. looking for reasonable suspicion that criminal activity is afoot, I would agree with the Majority that the fact that Appellee’s windows were so heavily tinted that the beam from the officers' flashlights could not penetrate them is irrelevant. The mere fact that police cannot see something does not generally give rise to any suspicion of criminal activity. However, while Long is an extension of Terry, it presents this Court with a different inquiry. The question in this instance was not whether criminal activity was afoot, but rather whether there was reasonable suspicion on the part of the officers to "believ[e] that the suspect is dangerous and the suspect may gain immediate control of weapons.” Long, supra at 1050, 103 S.Ct. 3469. In my view, the fact that the officers were approaching a vehicle at night with windows more heavily tinted to preclude any view of the interior, when they could deduce even less than the officer in Murray could, only heightens Officer Johnco-la’s belief that his safety was, in fact, in danger.

However, I agree with the Majority that we should not presume that "guns follow tinted windows” as our Supreme Court has disapproved of this Court malting similar presumptions in past cases. See Commonwealth v. Grahame, 607 Pa. 389, 7 A.3d 810, 811 (2010) (holding that this Court erred by "adopting a ‘guns follow drugs’ presumption in order to justify a protective search for weapons ..."). However, in this case, we have more than just tinted windows, as Appellee initially refused to comply with the officers' routine request to lower his window. As I stated above, when a driver hesitates to comply with an officer’s request to lower windows so dark that he or she cannot deduce what is going on inside the vehicle, I believe the officers were reasonable in inferring that Appellee might have been making furtive movements. In my view, the "officers were not required to hope [Appellee] was not arming himself behind the heavily-tinted windows while they asked him to roll down the window-” United States v. Newell, 596 F.3d 876, 880 (8th Cir.2010), cert. denied, Newell v. United States, - U.S. -, 131 S.Ct. 147, 178 L.Ed.2d 89 (2010).