Commonwealth v. Cartagena

63 A.3d 294

2013 PA Super 12

COMMONWEALTH of Pennsylvania, Appellant

v.Jamie CARTAGENA, Appellee.

Superior Court of Pennsylvania.

Argued Sept. 20, 2012.

Filed Jan. 23, 2013.

Regina M. Oberholzer, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Joseph K. Kelly, Philadelphia, for appellee.

BEFORE: FORD ELLIOTT, P.J.E., MUSMANNO, BENDER, DONOHUE, SHOGAN, LAZARUS, MUNDY, OLSON and WECHT, JJ.

OPINION BY DONOHUE, J.:

The Commonwealth of Pennsylvania (“the Commonwealth”) appeals from the August 18, 2010 order of the Court of Common Pleas, Philadelphia County, granting the motion to suppress filed by Jamie Cartagena (“Cartagena”). The issue presented is whether the Commonwealth met its burden of establishing the legality of the warrantless protective sweep of Cartagena's vehicle. Upon careful scrutiny of the record and a survey of the applicable law, we conclude that the Commonwealth failed to present sufficient evidence before the suppression court to save the firearm discovered in the center console of Cartagena's vehicle from suppression. We therefore affirm the order of the suppression court, albeit on grounds different from those supporting its order.

On September 20, 2009, at 1:50 a.m., Officer Michael Johncola and his partner, Officer Glebowski ¹ stopped Cartagena, who was driving a dark blue Chevrolet Suburban with tinted windows in violation of 75 Pa.C.S.A. § 4524(e)(1).² The police activated their lights, and Cartagena pulled over in the center breakdown lane of Lehigh Avenue. N.T., 8/18/10, at 4. According to Officer Johncola, who was the only witness called by the Commonwealth to testify, the windows were so heavily tinted that he could not see inside of the vehicle, even with the use of his flashlight. Id.

The officers approached Cartagena's vehicle, with Officer Glebowski on the driver's side and Officer Johncola on the passenger's side. Id. Both of the officers asked Cartagena to lower his window. Id. at 4, 7. Cartagena did not immediately respond. When asked a second time, Cartagena lowered his window.³Id. at 4. Officer Glebowski asked for his license, registration, and proof of insurance. Cartagena handed Officer Glebowski his license. Cartagena opened his center console, looked inside “like he was going to retrieve paperwork out of there[,] [ ... ] looked stunned and then closed it.” Id. at 6. He then opened his glove box and retrieved his registration and proof of insurance. Officer Johncola described Cartagena as “extremely nervous, [ ... ] [t]ripping over his words and shaking.” Id. at 5–6.

After Cartagena provided Officer Glebowski with the requested paperwork, becauseof his “nervousness,” Officer Glebowski asked Cartagena to step out of the vehicle, and Cartagena complied. Id. at 5. Officer Glebowski conducted a pat down search of Cartagena, and Officer Johncola conducted “a courtesy search” ⁴ of the driver's seat and the center console of Cartagena's vehicle. Id. The pat down search revealed no weapons or contraband; Officer Johncola recovered a loaded .32 caliber gun with an obliterated serial number from the center console of the vehicle. Id.

The police issued Cartagena a citation for the tinted windows and charged him with several violations of the Uniform Firearms Act.⁵ On January 8, 2010, Cartagena filed a motion to suppress the gun, arguing that the police conducted the warrantless search of his vehicle without reasonable suspicion or probable cause.⁶ The suppression court held a hearing on the motion on August 18, 2010. Officer Johncola was the only witness to testify at that hearing. In response to a question on direct examination by the Commonwealth, Office Johncola stated that he feared for his safety “when [Cartagena] first initially did not lower the window[.]” Id. at 6. At the conclusion of the hearing, the suppression court granted Cartagena's motion to suppress, as it found that the search of the center console was unlawful and done in violation of Cartagena's rights.⁷

On September 17, 2010, the Commonwealth filed a notice of appeal as well as an unsolicited concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). In its notice of appeal, the Commonwealth certified that the suppression court's order terminated or substantially handicapped the prosecution pursuant to Pa.R.A.P. 311(d). The suppression court authored a responsive opinion pursuant to Pa.R.A.P. 1925(a). On March 6, 2012, in a two-to-one non-precedential decision, a panel of this Court affirmed the decision of the suppression court. On March 14, 2012, the Commonwealth filed a motion for reargument en banc. On May 11, 2012, this Court granted the Commonwealth's request for reargument and withdrew its March 6 memorandum decision.

The case is now before the Court en banc for disposition. The Commonwealth raises the following issue for our review:

Where police lawfully stopped a car late at night and [Cartagena], the driver, initially refused to lower his heavily-tinted windows, then became visibly nervous after looking in the center console of the car, did the lower court err in suppressing the gun found in the center console during a protective search of the car?

Commonwealth's Brief at 3.⁸

We review the suppression court's grant of a motion to suppress according to the following standard:

When reviewing the propriety of a suppression order, an appellate court is required to determine whether the record supports the suppression court's factual findings and whether the inferences and legal conclusions drawn by the suppression court from those findings are appropriate. [Where the defendant] prevailed in the suppression court, we may consider only the evidence of the defense and so much of the evidence for the Commonwealth as remains uncontradicted when read in the context of the record as a whole. Where the record supports the factual findings of the suppression court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. However, where the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's conclusions of law are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts.

In re O.J., 958 A.2d 561, 564 (Pa.Super.2008) ( en banc ) (quoting Commonwealth v. Mistler, 590 Pa. 390, 396–97, 912 A.2d 1265, 1268–69 (2006)) (internal citations and quotations omitted).

This case is controlled by the United States Supreme Court's decision in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). In Long, the Supreme Court applied the principles announced in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968),⁹ to a search of the passenger compartment of a vehicle for weapons:

Our past cases indicate [ ... ] 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, 392 U.S.[ ] at 21. ‘[T]he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.’ Id. at 27. If a suspect is ‘dangerous,’ he is no less dangeroussimply because he is not arrested.

Long, 463 U.S. at 1049–50, 103 S.Ct. 3469 (footnote omitted).

The Court emphasized that this holding does not permit police to conduct a search of a vehicle during every investigative stop. Id. at 1050 n. 14, 103 S.Ct. 3469. “A Terry search, unlike a search without a warrant incident to a lawful arrest, is not justified by any need to prevent the disappearance or destruction of evidence of crime. The sole justification of the search is the protection of police officers and others nearby.” Id. (citation and quotation omitted). The Court stated that an officer must therefore have reasonable suspicion that the person subject to the stop has a weapon in order to conduct a lawful search of the passenger compartment of a vehicle at the time of the stop.¹⁰Id.

In Commonwealth v. Morris, 537 Pa. 417, 644 A.2d 721 (1994), our Supreme Court applied the standard announced in Long to validate a vehicle search conducted during a traffic stop, finding the reasoning set forth in Long to be applicable to Article I, Section 8 of the Pennsylvania Constitution. ¹¹Id. at 422 n. 3, 644 A.2d at 724 n. 3. In that case, police stopped the defendant when he made a turn without signaling. Id. at 419, 644 A.2d at 722. As the officer approached the defendant's vehicle, he observed the defendant lean to his right toward the floor of the center of the car. Id. The officer told the defendant to put his hands on the steering wheel, but the defendant did not comply, and instead he reached quickly between his legs toward the floor on the driver's side. Id. The officer ordered the defendant out of the car and upon opening the door, the officer observed a 24–inch metal pipe wedged between the driver's seat and the door. Id. A pat down search of the defendant revealed no weapons. Id. The officer then searched the passenger compartment of the car and found a bag on the seat large enough to hold a weapon which, when opened, revealed cocaine, marijuana, and drug paraphernalia. Id.

The trial court denied Morris' motion to suppress, and on...