Commonwealth v. Buchert

68 A.3d 911

2013 PA Super 81

COMMONWEALTH of Pennsylvania, Appellant

v.Matthew BUCHERT, Appellee.

Superior Court of Pennsylvania.

Submitted Feb. 19, 2013.

Filed April 12, 2013.

Reargument Denied June 24, 2013.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for appellant.

Karl Baker, Public Defender, Philadelphia, for appellee.

BEFORE: BOWES, GANTMAN, and MUSMANNO, JJ.

OPINION BY BOWES, J.:

The Commonwealth appeals from the trial court order suppressing the seizure of a firearm during a traffic interdiction.¹ We reverse.

The suppression court delineated the salient facts as follows.

At approximately 12:15 a.m. on July 15, 2011, Officer [Edward] McConnell and his partner, Officer Shevlin, were on duty in the area of 3000 North 5th Street in Philadelphia. Around that time, Officer McConnell spotted a 1996 black Nissan Maxima traveling north on the 3000 block of North 5th Street with a broken tail light. Officer McConnell activated his overhead lights and pulled the Maxima over for the sole reason of having a broken tail light.

Officer McConnell, along with his partner, exited the police cruiser and began to approach the Maxima. Officer McConnell testified that as he approached the vehicle, he could see the defendant, Matthew Buchert, who was in the front passenger seat, bending forward and appearing to reach under the seat. However, Officer McConnell never saw the defendant's hands, and only witnessed “the defendant's shoulders bending forward.” The defendant was seated in the front passenger seat and Officer McConnell approached from the driver's side. At the time it was dark outside and Officer McConnell was using a flashlight.

As the officers approached, they commanded the defendant and the driver, Kelly Collins, to keep still and make their hands visible. Both occupants were compliant and cooperative with the officers' instructions. Officer McConnell testified that the defendant appeared nervous as they were talking to him, and that he could see the defendant's heavy breathing and rapid heartbeat. At that point, Officer McConnell was still standing on the driver's side of the car and facing the defendant from a few feet away. One of the officers then instructed the defendant and the driver to exit the vehicle. Officer Shevlin performed a frisk on the defendant through which no contraband was recovered.

After the occupants were frisked, they remained with Officer Shevlin at the rear of the vehicle while Officer McConnell performed a search of the defendant's “immediate area of control.” Officer McConnell began searching the vehicle, and stated that he could see the handle of a gun as he bent forward to look under the passenger seat. A black .22 caliber Colt revolver was recovered from underneath the passenger seat.

Officer McConnell described the area as a “high narcotics area.” The Commonwealth offered no further evidence supporting the notion that this area was generally associated with a high degree of crime.[ ²] Officer McConnell testified that when he saw the defendant “reaching,” he believed the defendant was “placing something under the seat, possibly a weapon.”

Trial Court Opinion, 7/17/12, at 2–4 (internal citations omitted).

Immediately following the suppression hearing, the court ruled that the search was unlawful because the police did not possess probable cause to search the passenger area. The court relied principally on our decision in Commonwealth v. Reppert, 814 A.2d 1196 (Pa.Super.2002) ( en banc ). The Commonwealth appealed, and the court directed it to comply with Pa.R.A.P. 1925(b). The Commonwealth complied and the court authored its Pa.R.A.P. 1925(a) opinion. The matter is now ripe for our review. The Commonwealth presents one question for our consideration.

Where police officers conducted a valid traffic stop of a car in which defendant was a passenger and, as the officers approached the car, defendant bent forward and reached under the seat, then appeared very nervous, did the lower court err in suppressing the gun found under defendant's seat during a protective search of the area within his immediate control?

Commonwealth's brief at 3.

The Commonwealth relies principally on Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) and Commonwealth v. Morris, 537 Pa. 417, 644 A.2d 721 (1994). In Morris, our Supreme Court adopted the standard for assessing the constitutionality of a protective search of the interior of a car for weapons set forth in Long. In Long, the Supreme Court extended the Terry-stop doctrine, allowing protective searches of a person's body based on reasonable suspicion that the person may be armed, to searches of the passenger compartment of a car. The Long Court specifically rejected the contention that a protective search of the interior of a car is unreasonable where the person is under police supervision outside the vehicle. It noted that a suspect who is not placed under arrest will be free to leave and “reenter his automobile, and he will then have access to any weapons inside.” Long, supra at 1051, 103 S.Ct. 3469.

In a series of more recent cases, this Court has applied the Long/Morris standard. See Commonwealth v. Cartagena, 2013 PA Super 12, 63 A.3d 294 ( en banc ); Commonwealth v. Boyd, 17 A.3d 1274 (Pa.Super.2011), Commonwealth v. Simmons, 17 A.3d 399 (Pa.Super.2011), In re O.J., 958 A.2d 561 (Pa.Super.2008) ( en banc ), and Commonwealth v. Murray, 936 A.2d 76 (Pa.Super.2007).

This Court in Cartagena, supra, affirmed a decision to suppress a firearm seized from a center console after a stop based on illegal window tinting, despite concluding that the suppression court's probable cause analysis was incorrect. There, police conducted a traffic stop of a Chevrolet Suburban at 1:50 a.m. on Lehigh Avenue, Philadelphia. The officer therein testified that the windows were so dark that he could not see inside the vehicle, even with the aid of a flashlight. He and his partner requested that the driver lower his window. The driver did not comply immediately and police asked again. After being asked the second time, the driver lowered his window. When police requested his license, registration, and insurance information, he opened his center console and became extremely nervous before closingit. He then retrieved the registration and insurance documents from his glove box. Due to the extreme nervousness of the driver, police asked that he alight from his vehicle. A pat-down search ensued, which revealed nothing. However, police recovered a loaded .32 caliber handgun from the center console.

The suppression court in Cartagena concluded the search was unlawful, though, as noted earlier, it did so based on legally erroneous grounds. Specifically, it believed police needed probable cause to conduct a protective weapons search and that exigent circumstances beyond the mobility of the car was necessary to support the search. This Court affirmed, noting that the suppression court's legal conclusions were not binding and that we could affirm on any grounds.

The Cartagena Court set forth that there was no testimony that the stop occurred in a high crime area. The Court opined that extreme nervousness combined with tinted windows and a night time stop were insufficient to justify the search of the console. We highlighted that there was no evidence that the defendant did not immediately stop, that officers saw weapons before searching the car, or that the occupant made any movements inside the vehicle.

In contrast, in Boyd, shortly after midnight, two Philadelphia police officers conducted a traffic stop in a high crime area after observing a vehicle stopped at an intersection sit through two green lights and flash its high beams at traffic. After being pulled over, one officer witnessed the driver lean over and reach into the center console. The officers then asked both the driver and his passenger to exit the vehicle. A pat-down search by police did not reveal any weapons. The officer directed the driver to stand behind the car and proceeded to open the center console. Inside the console was crack cocaine. The suppression court suppressed the seizure of the drugs from the console and the Commonwealth appealed. The Boyd Court surveyed Murray and In re O.J., and reversed. The Court determined that the high crime area, the movement in the car, and the car remaining stopped through multiple green lights and flashing its high beams justified the protective weapons search.

In Simmons, Philadelphia police pulled over a vehicle in a high crime area for inoperable brake lights. Simmons was the passenger. The officer, a twelve-year veteran, saw Simmons make a movement toward the floor and across his chest. Accordingly, he conducted a pat-down search while the defendant was seated in the car and recovered several vials of cocaine. The panel opined,

Under such circumstances, we hold that [the officer's] observation of furtive movements, within the scope of a lawful stop, led him to reasonably be concerned for his safety and therefore justified the Terry protective frisk. Indeed, on multiple occasions we have held that similar furtive movements, when witnessed within the scope of a lawful traffic stop, provided a reasonable basis for a protective frisk.

Simmons, supra at 404. We continued, distinguishing our en banc decision in Reppert, supra, reasoning:

When properly understood, Reppert stands for the proposition that pre-stop furtive movements, by themselves, may not be used to justify an investigative detention and search commenced after the conclusion of a valid traffic stop where the totality of circumstances has established that the furtive movements did not raise immediate concern for the safety of the officer who undertook the initial vehicle detention.

Id. at 405.

In Murray, police stopped a Range Rover in a high crime area in Philadelphia for failing to use a turn signal. The stop occurred at approximately 9:15 p.m. When one of...