Com. v. Pratt

930 A.2d 561

COMMONWEALTH of Pennsylvania, Appellee v. Duran PRATT, Appellant.

No. 3348 EDA 2005.

Superior Court of Pennsylvania.

Argued May 1, 2007.

Filed July 20, 2007.

Andrew G. Gay, Jr., Philadelphia, for appellant.

Peter Carr, Asst. Dist. Atty., Philadelphia, for Com., appellee.

BEFORE: TODD, J., McEWEN, P.J.E., and JOHNSON, J.

OPINION BY TODD, J.:

¶ 1 Duran Pratt appeals the judgment of sentence¹ imposed by the Philadelphia County Court of Common Pleas after he was convicted of two counts of violating the Pennsylvania Uniform Firearms Act, 18 Pa.C.S.A. §§ 6101-6125. We affirm.

¶ 2 On August 5, 2005, at approximately 10:00 p.m., Philadelphia Police Officer Vincent Visco was on highway patrol in the area of 1800 West Susquehanna Avenue in Philadelphia, an area known for a high presence of drugs and guns, with his partner, Officer James Moore. The officers were in full uniform in a marked police vehicle. Officer Visco observed a white Mazda Millennium with a broken right brake light headed westbound on Susquehanna Avenue. The officers activated their lights and siren and initiated a traffic stop of the Mazda.

¶ 3 According to Officer Visco's testimony at trial, as soon as the Mazda came to a stop, Appellant, who was in the front passenger seat, exited the vehicle and began to walk away. Officer Visco stated that he twice ordered Appellant back into the vehicle before Appellant complied. Officer Visco testified that as he approached the passenger side of the vehicle, he observed Appellant reach into the front of his waistband and adjust something with his right hand. Officer Visco testified that, based on his 7½ years of experience as a police officer, he believed Appellant had a weapon and, for his and his partner's safety, that he ordered Appellant to exit the vehicle for a safety frisk.

¶ 4 Appellant exited the vehicle and placed his hands on the vehicle as directed, but then began to run. As he ran, Appellant removed and discarded from his waistband a black Kel-Tech 9-millimeter handgun, which was loaded with 11 live rounds. After he discarded the gun, Appellant continued to run. Officer Visco recovered the gun from where it had been dropped. The driver of the vehicle was Durel Pratt, Appellant's brother. Appellant eventually was arrested and charged with carrying a firearm without a license,² and carrying a firearm on public streets or public property.³

¶ 5 Prior to trial, Appellant filed a motion to suppress, which was denied by the trial court on September 15, 2005. Appellant proceeded to a bench trial on that same day, following which he was convicted of the aforementioned offenses. Appellant was sentenced to two concurrent terms of three years reporting probation; he also was ordered to pay court costs and to obtain and maintain employment. On appeal, Appellant contends that the trial court erred in denying his pretrial motion to suppress evidence of the firearm on the basis that, under the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution, the police did not have probable cause to detain Appellant by ordering him back into the vehicle which Appellant had exited once the vehicle had stopped.

¶ 6 It is well settled that

[w]hen we review the ruling of a suppression court, we must determine whether its factual findings are supported by the record. Where the defendant challenges an adverse ruling of the suppression court, we will consider only the evidence for the prosecution and whatever evidence for the defense which is uncontradicted on the record as a whole; if there is support on the record, we are bound by the suppression court, and we may reverse that court only if the legal conclusions drawn from these facts are erroneous.

Commonwealth v. Slonaker, 795 A.2d 397, 400 (Pa.Super.2002) (citation omitted).

¶ 7 As we explained in Commonwealth v. Campbell, 862 A.2d 659 (Pa.Super.2004),

The Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protects individuals from unreasonable searches and seizures, thereby insuring the "right of each individual to be let alone." Evidence obtained from an unreasonable search or seizure is inadmissible at trial. To secure the right of citizens to be free from such intrusions, courts in Pennsylvania require law enforcement officers to demonstrate ascending levels of suspicion to justify their interactions with citizens as those interactions become more intrusive.

The first of these [interactions] is a `mere encounter' (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or respond. The second, an `investigative detention' must be supported by reasonable suspicion; it subjects a suspect to a stop and period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of arrest. Finally, an arrest or `custodial detention' must be supported by probable cause.

A forcible stop of a motor vehicle by a police officer constitutes a seizure of a driver and the occupants; this seizure triggers the protections of the Fourth Amendment. An officer is permitted to stop a motor vehicle to investigate a vehicle code violation which he or she observed.

Id. at 663 (citations omitted and alterations original).

¶ 8 Appellant does not dispute that the initial police stop of the vehicle in which he was a passenger was supported by probable cause based on Officer Visco's observation of a Motor Vehicle Code violation. Rather, Appellant contends that Officer Visco's act of ordering him to get back into the vehicle after Appellant exited the car and began to walk away constituted an independent seizure of his person requiring probable cause, which Officer Visco did not possess. Appellant further argues that even if the act of ordering him to get back into the car constituted merely an investigative detention, Officer Visco did not have the reasonable suspicion necessary to support the detention. As a result, Appellant contends evidence seized as a result of Officer's Visco's observation of Appellant adjusting something in his waistband, which occurred after Appellant re-entered the vehicle at the officer's direction, should have been suppressed as fruit of the poisonous tree.

¶ 9 In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), the United States Supreme Court held that police may require the driver of a lawfully stopped vehicle to exit the vehicle without any additional probable cause or reasonable suspicion without violating an individual's Fourth Amendment rights. In so holding, the Court balanced the need to protect police officers from the serious and substantial dangers inherent in traffic stops, and the relatively minor intrusion upon the privacy rights of the driver in situations where the vehicle has been lawfully stopped.

¶ 10 Subsequently, this Court applied the rationale of Mimms to allow a police officer to order passengers in a lawfully stopped vehicle to exit that vehicle where the officer has an articulable and reasonable suspicion that criminal activity may be afoot. See Commonwealth v. Baer, 439 Pa.Super. 437, 654 A.2d 1058 (1994); Commonwealth v. Elliott, 376 Pa.Super. 536, 546 A.2d 654 (1988).

¶ 11 Several years later, in Commonwealth v. Brown, 439 Pa.Super. 516, 654 A.2d 1096 (1995), this Court, again relying on Mimms, retreated from this reasonable suspicion standard and held that "police may request both drivers and their passengers to alight from a lawfully stopped car without reasonable suspicion that criminal activity is afoot." Id. at 528, 654 A.2d 1096, 654 A.2d at 1102. In so holding, we opined that "in all cases involving lawful traffic stops, it is not unreasonable for an officer to request that the passengers in a lawfully stopped car exit the vehicle so that the safety of the officer is, if not insured, at least better protected." Id. at 527 n. 5, 654 A.2d at 1102 n. 5.

¶ 12 In Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), the United States Supreme Court explicitly extended the rule of Mimms, as this Court had in Brown, stating:

In summary, danger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car. While there is not the same basis for ordering the passengers out of the car as there is for ordering the driver out, the additional intrusion on the passenger is minimal. We therefore hold that an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.

Id. 117 S.Ct. at 886. Thus, following a lawful traffic stop, an officer may order both the driver and passengers of a vehicle to exit the vehicle until the traffic stop is completed, even absent a reasonable suspicion that criminal activity is afoot. Appellant does not dispute this.

¶ 13 In the instant case, however, we are asked to consider as a matter of first impression in this Commonwealth whether an officer may similarly order a passenger of a lawfully stopped vehicle to remain inside or get back into the vehicle. We join the numerous other state and federal courts which have held that an officer may, in fact, do so without violating an individual's Fourth Amendment rights.

¶ 14 In United States v. Moorefield, 111 F.3d 10 (3d Cir.1997), the Third Circuit Court of Appeals considered whether the district court properly suppressed evidence of a firearm seized from a passenger in a vehicle that was stopped for a routine traffic stop. In his motion to suppress, Moorefield argued, inter alia, that police officers unlawfully ordered him and the driver to remain in the car with their hands in the air. Moorefield failed to comply, and officers observed movements which they believed were attempts to conceal a weapon or narcotics. After additional officers arrived at the scene,...