Commonwealth v. Bozeman

205 A.3d 1264

COMMONWEALTH of Pennsylvania, Appellant

v.Quadir BOZEMAN

No. 1439 EDA 2017

Superior Court of Pennsylvania.

Argued December 4, 2018

Filed March 8, 2019

Brad M. Paraszczak, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

George H. Newman, Philadelphia, for appellee.

BEFORE: OTT, J., DUBOW, J., and STEVENS,^* P.J.E.

OPINION BY OTT, J.:

The Commonwealth appeals from the order entered April 12, 2017, in the Philadelphia County Court of Common Pleas, granting a pretrial motion to suppress evidence filed by appellee, Quadir Bozeman.¹ On appeal, the Commonwealth contends the trial court erred in determining: (1) the officers had no basis to conduct a traffic stop of Bozeman's vehicle; (2) the officers had no reasonable suspicion to frisk Bozeman for weapons; and (3) the officers had no probable cause to conduct a warrantless search of Bozeman's vehicle. For the reasons below, we reverse the order of the trial court, and remand for further proceedings.

The trial court provided the following detailed account of the officers' brief encounter with Bozeman:

Officer Jeffrey Opalski testified that he and Officer George D'Alesio of the Philadelphia Police were on routine patrol in full uniform in a marked vehicle on the evening of October 11, 2016. At approximately 6:10 p.m. the officers were travelling westbound on Master Street before turning left onto Conestoga Street. The officers observed a black Buick Lucerne blocking the driving lane on the one-way residential street. Approaching a couple of car lengths behind the car, the officers also observed that all of its windows were tinted and the passenger-side mirror had no glass. The officers stopped for about 10 seconds and Officer Opalski ran the tags through the Mobile Data Terminal (MDT), which came back negative. The officers then activated their lights and sirens and [Bozeman] responded by backing his car into a parking spot on the side of the street.

After [Bozeman's] car was parked, the officers observed [Bozeman's] head move to the left and out of sight for a few seconds before the driver's side door opened and [he] exited the car. Officer D'Alesio immediately got out and approached [Bozeman] on the driver's side of the car. Officer Opalski followed and approached the rear of the car as Officer D'Alesio asked [Bozeman] for his license and registration. Officer Opalski testified that [Bozeman] was facing towards the rear driver's side of his car and not towards Officer D'Alesio while they were talking. [Bozeman] went through his pockets in an anxious manner as Officer D'Alesio continued speaking to him. When [Bozeman] was not able to produce his license and registration, Officer Opalski asked [Bozeman] for his name and age. [Bozeman] claimed he was 26 years old but then changed his answer to that he was 23 years old. [Bozeman] continued to stand with his body facing the car but had his head turned towards Officer Opalski. Officer Opalski became concerned that he was concealing a weapon based on his prior experience with firearm arrests. Officer Opalski asked [Bozeman] to move to the rear of the car so that a protective frisk could be performed.

Office Opalski testified that during the frisk of [Bozeman's] groin area he was able to identify a large chunk of crack cocaine based upon his prior experience due to feeling a large knot in the bag and uneven cuts in the chunk. Officer Opalski arrested [Bozeman], retrieved the crack cocaine from his waistband, and placed him in the back of the police vehicle. At this time, Officer D'Alesio searched [Bozeman's] car. One minute later, he signaled to Officer Opalski via hand motion that there was a firearm in the car.

On cross examination, Officer Opalski testified that he did not receive a radio call on [Bozeman's] car and confirmed that the MDT search on the car tags came back negative. After the officer activated the lights and sirens, [Bozeman] immediately parallel parked the car in a legal spot. Officer Opalski admitted that he did not see any bulges prior to the frisk and did not recover the crack cocaine until after [Bozeman] was handcuffed. [Bozeman] eventually did produce a "pink slip," which is a temporary registration, and the officers discovered that the car belonged to a woman whom [Bozeman] claimed was his wife. Additionally, the officers did not issue any Traffic Violation Reports (TVRs) during this incident. Officer Opalski also confirmed that the tinted windows were not completely dark because the officers were able to observe [Bozeman's] silhouette through the rear window. Officer Opalski also confirmed that the Motor Vehicle Code requires a rearview mirror only and that he was and still is unsure if side mirrors are required. When the officers pulled up behind the stopped vehicle, they did not know whether the engine was running, but could see that a driver was in the car[.] Officer Opalski confirmed the car was not parked it was standing initially. On redirect and re-cross examination, the officer testified that it is typical for him to search the groin area when he believes someone might be armed and that he has recovered firearms and narcotics from that area previously.

Officer D'Alesio was called as a witness by the Commonwealth and testified that after noticing [Bozeman's] car blocking the traffic lane on Conestoga Street, he pulled up behind the car for a few seconds, ran the tags, activated the lights and sirens, blew the horn, and signaled for the car to pull over. [Bozeman] pulled over and Officer D'Alesio observed what appeared to be [Bozeman] in a position down to the left towards the driver's side door. The officer and [Bozeman] both exited their vehicles, Officer D'Alesio told [Bozeman] to stay where he was; and [Bozeman] complied. The officer then asked [Bozeman] for his paperwork. [Bozeman] fumbled and dropped things as he looked through his pockets; he was not quite touching the car but was almost pressing himself up against it. Officer D'Alesio stated that [once he] observed United States currency (USC) in the car and in the center console[,] Officer Opalski moved [Bozeman] to the rear of the car to frisk him due to his demeanor. Officer D'Alesio explained the decision to frisk was based on [Bozeman's] motion to the left while he was in the car [and] because [ ] he was blading his body away from the officers outside the car. Officer Opalski frisked [Bozeman] and found narcotics [in] the groin area, handcuffed [Bozeman], recovered the narcotics, and took [Bozeman] to the police vehicle.

Officer D'Alesio asserted that he then searched the car because he saw USC in the center console and a screwdriver in the driver's side door pocket. While he was looking for paperwork and for any other indication of contraband, the officer observed what he believed to be pry marks around the driver's side air vent. Officer D'Alesio noted that he has undergone extensive training on the recovery and searching of cars and had previously recovered contraband from behind air vents in that type of car. Officer D'Alesio searched the center console due to observing USC in different denominations, which he claimed is indicative of narcotics activity. Officer D'Alesio testified that observing the USC and [Bozeman's] behavior indicated narcotics activity. He also made the decision to search the vehicle following [Bozeman's] arrest in order to look for additional narcotics, vehicle paperwork, and additional contraband such as weapons following [Bozeman's] arrest. [The officer recovered a firearm that was hidden behind the air vent.]

On cross examination, Officer D'Alesio testified that there were no traffic tickets issued in this case and that a "pink slip," which [Bozeman] possessed, is a temporary registration for a vehicle. He also testified that the firearm was not in plain view, and that he had to remove the air vent to uncover it. He confirmed he did not have a search warrant.

Trial Court Opinion, 1/18/2018, at 2-5 (record citations omitted).

Bozeman was charged with carrying a firearm without a license, carrying a firearm on a public street in Philadelphia, receiving stolen property, and possession of a controlled substance.² On December 14, 2016, he filed a pretrial motion seeking to suppress the evidence recovered during the vehicle stop and search. The court conducted a suppression hearing on April 7, 2017. On April 12, 2017, the trial court entered an order granting Bozeman's motion to suppress. This timely Commonwealth appeal followed.³

Our standard of review of an order granting a motion to suppress evidence is well-settled:

When the Commonwealth appeals from a suppression order, we follow a clearly defined standard of review and consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. The suppression court's findings of fact bind an appellate court if the record supports those findings. The suppression court's conclusions of law, however, are not binding on an appellate court, whose duty is to determine if the suppression court properly applied the law to the facts. Commonwealth v. Miller , 2012 PA Super 251, 56 A.3d 1276, 1278–79 (Pa. Super. 2012) (citations omitted). "Our standard of review is restricted to establishing whether the record supports the suppression court's factual findings; however, we maintain de novo review over the suppression court's legal conclusions." Commonwealth v. Brown , 606 Pa. 198, 996 A.2d 473, 476 (2010) (citation omitted).

Commonwealth v. Korn , 139 A.3d 249, 252–253 (Pa. Super. 2016), appeal denied , 639 Pa. 157, 159 A.3d 933 (2016). "It is within the suppression court's sole province as factfinder to pass on the credibility of witnesses and the weight to be given to their testimony. The suppression court is free to believe all, some or none of the evidence presented at the suppression hearing." Commonwealth v. Elmobdy , 823 A.2d

...