J-A28012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

BRYNELL IVY

                        Appellee                  No. 2987 EDA 2013


            Appeal from the Order Entered September 30, 2013
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0001992-2012


BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.

MEMORANDUM BY GANTMAN, P.J.:                   FILED DECEMBER 14, 2015

     Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the Philadelphia County Court of Common Pleas, which granted

Appellee, Brynell Ivy’s, motion to suppress.   We reverse and remand for

further proceedings.

     The relevant facts and procedural history of this case are as follows.

On September 21, 2011, at 11:50 p.m., Philadelphia Police Officers Joseph

Weihe (“Officer Weihe”) and Cyrus Mann (“Officer Mann”) were on routine

patrol in a high crime area when they observed a white Buick disregard a

stop sign in Philadelphia.   The officers activated their lights and siren.

Appellee, who was operating the white Buick, pulled over the vehicle. The

officers approached the vehicle and observed Appellee reach with both hands

toward the center console and make “multiple movements” in that area.
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The windows were open, and Officer Weihe requested approximately three

or four times that Appellee place his hands on the steering wheel. Appellee

ignored these requests and continued moving his hands in the area of the

center console. Following Officer Weihe’s fourth request, Appellee stuck his

hands out the window.

        At the suppression hearing, Officer Weihe testified that he believed

Appellee was armed based on Officer Weihe’s observations and experience.

Officer Weihe removed Appellee from the vehicle for the officers’ safety and

conducted a pat down but found no weapons or contraband on Appellee’s

person.    Believing there could be a firearm present in the center console,

Officer Weihe directed Officer Mann to search the console. Underneath the

armrest, Officer Mann found a surgical glove stuffed with sixty-nine small,

green-tinted baggies, which all contained a white chunky substance.       The

baggies were later tested and found to contain cocaine. Officers Weihe and

Mann arrested Appellee and issued him a traffic ticket for disregarding a stop

sign.    Appellee was subsequently charged with possession with intent to

distribute and simple possession.

        On March 18, 2013, Appellee filed an omnibus pretrial motion to

suppress the narcotics found in his vehicle. Specifically, Appellee argued the

officers lacked reasonable suspicion or probable cause to believe Appellee

had violated the Motor Vehicle Code and to support a warrantless search of

his vehicle. The court held a suppression hearing on September 26, 2013.


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On September 30, 2013, the court dismissed Appellee’s claim regarding the

Motor Vehicle Code violation but granted suppression as to the search of

Appellee’s vehicle because the court determined the officers’ observations

did not reasonably indicate criminal activity was afoot.     On October 29,

2013, the Commonwealth timely filed a notice of appeal1 and a voluntary

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b).2

       The Commonwealth raises the following issue for our review:

          DID THE [TRIAL] COURT ERR IN SUPPRESSING EVIDENCE
          ON THE GROUND THAT AN EXPERIENCED POLICE OFFICER
          LACKED A REASONABLE BELIEF THAT HE WAS IN
          DANGER, WHERE THE OFFICER WAS ENGAGED IN A
          TRAFFIC STOP, LATE AT NIGHT, IN AN AREA HE KNEW
          HAD A HIGH INCIDENCE OF CRIME, [APPELLEE]
          DISREGARDED REPEATED INSTRUCTIONS TO PUT HIS
          HANDS ON THE STEERING WHEEL, AND HE INSTEAD
          REACHED TOWARD THE CENTER CONSOLE AND MOVED
          HIS HANDS IN THAT AREA FOR AT LEAST THIRTY
          SECONDS?

(Commonwealth’s Brief at 4).

____________________________________________


1
  The Commonwealth’s notice of appeal certifies that the court’s order
granting Appellee’s motion to suppress terminates or substantially handicaps
the prosecution. See Pa.R.A.P. 311(d); Commonwealth v. Huntington,
924 A.2d 1252, 1254 n.1 (Pa.Super 2007) (stating: “The Commonwealth
may take an appeal as of right from an order that does not end the entire
case if the Commonwealth certifies in the notice of appeal that the order will
terminate or substantially handicap the prosecution”).
2
  On May 8, 2014, the court ordered the Commonwealth to file a Rule
1925(b) statement, and the Commonwealth timely refiled its prior statement
on May 15, 2014.



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     The Commonwealth argues Appellee’s motion to suppress should have

been denied.    Specifically, the Commonwealth contends Officer Weihe

properly stopped Appellee for driving through a stop sign and properly

searched his vehicle. The Commonwealth states Officer Weihe, who had five

years’ experience conducting numerous traffic stops, had a reasonable basis

to be concerned for the officers’ safety. The Commonwealth asserts Officers

Weihe and Mann stopped Appellee late at night in an area Officer Weihe

knew had a high incidence of crime. The Commonwealth alleges that, during

the stop, Officer Weihe saw Appellee reach toward the center console of his

car for approximately thirty seconds, despite Officer Weihe’s repeated

requests for Appellee to place his hands on the wheel. The Commonwealth

claims that, under the totality of the circumstances, Officer Weihe

reasonably believed Appellee might be armed and properly directed Officer

Mann to undertake the protective sweep of Appellee’s vehicle.          The

Commonwealth     avers    the   suppression   court   improperly    applied

Commonwealth v. Cartagena, 63 A.3d 294 (Pa.Super. 2013), when the

court found the search was improper.     The Commonwealth contends the

factors typically involved in a permissible search existed in the search of

Appellee’s vehicle, unlike Cartagena.      The Commonwealth maintains

Officers Weihe and Mann possessed reasonable grounds to be concerned for

their safety.   The Commonwealth concludes we should reverse the

suppression court’s order and remand for further proceedings. We agree.


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     When the Commonwealth appeals from a suppression order, the

relevant scope and standard of review are:

        [We] 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.       As long as there is some
        evidence to support them, we are bound by the
        suppression court’s findings of fact. Most importantly, we
        are not at liberty to reject a finding of fact which is based
        on credibility.

        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. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011),

appeal denied, 616 Pa. 651, 49 A.3d 442 (2012) (internal citations and

quotation marks omitted).

     Section 6308 of the Motor Vehicle Code provides:

        § 6308. Investigation by police officers

        (b) Authority of police officer.—Whenever a police
        officer is engaged in a systematic program of checking
        vehicles or drivers or has reasonable suspicion that a
        violation of this title is occurring or has occurred, he may
        stop a vehicle, upon request or signal, for the purpose of
        checking the vehicle’s registration, proof of financial
        responsibility, vehicle identification number or engine
        number or the driver’s license, or to secure such other
        information as the officer may reasonably believe to be
        necessary to enforce the provisions of this title.

75 Pa.C.S.A. § 6308(b) (emphasis added). If an objective view of the facts

indicates an officer had specific, articulable facts that a traffic violation

occurred, the law deems the stop reasonable. Commonwealth v. Chase,

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599 Pa. 80, 92, 960 A.2d 108, 114 (2008).

      “[W]hen a police officer lawfully stops a motorist for a violation of the

Pennsylvania Motor Vehicle Code, the officer is permitted to ask the driver to

step out of the vehicle ‘as a matter of right.’” Commonwealth v. Boyd, 17

A.3d 1274, 1277 (Pa.Super. 2011) (citation and internal quotation marks

omitted). Due to the inherent risks where an officer confronts a suspect, an

officer may conduct a protective search of a lawfully stopped suspect if there

are reasonable grounds to believe the suspect may be armed and

dangerous. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d

889 (1968).    In light of these risks, a police officer may also conduct a

protective search of a lawfully stopped vehicle if he has an objectively

reasonable belief “the suspect is dangerous and the suspect may gain

immediate control of weapons.” Michigan v. Long, 463 U.S. 1032, 1033,

103 S.Ct. 3469, 3472, 77 L.Ed.2d 1201 (1983).

      In evaluating whether an officer was justified in conducting a

protective search of a vehicle, courts take into account several factors, which

include whether the officer had training or experience in conducting traffic

stops, whether the officer believed, based on his training and experience,

that the offender possessed or had access to a weapon in the car, whether

the neighborhood in which the stop occurred was a high-crime area, whether

there was some length of delay in responding to the officer’s repeated

requests, and whether the offender had made movements that caused the


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officer to believe the offender was in possession of a weapon or posed a

safety threat.    Cartagena, supra at 303, 306.          Pennsylvania courts have

found protective searches of a vehicle were proper, where officers conducted

a stop pursuant to a motor vehicle violation amid a combination of these

factors. See Commonwealth v. Simmons, 17 A.3d 399 (Pa.Super. 2011)

(holding protective search proper where officer stopped appellee for motor

vehicle violation, in high crime area, and observed appellee reach down

toward floor of vehicle in manner officer believed was consistent with hiding

weapon); In Interest of O.J., 958 A.2d 561, 566 (Pa.Super. 2008) (stating

movement over console supported protective search of vehicle because it

“indicated that [defendant] may have been hiding a weapon in that

location”); Commonwealth v. Murray, 936 A.2d 76 (Pa.Super. 2007)

(determining protective search of vehicle was proper where officers stopped

appellant for motor vehicle violation, in high crime area, and officers saw

“excessive movement” inside car).

      Instantly, Officer Weihe saw Appellee disregard a stop sign and

lawfully conducted a traffic stop for violation of the Motor Vehicle Code. See

75 Pa.C.S.A. § 6308(b).       After Appellee stopped his vehicle, the officers

approached;      Officer   Weihe   observed   Appellee    making   multiple   hand

movements toward the center console of the vehicle.                Officer Weihe

requested approximately three or four times that Appellee place his hands

on the steering wheel, but Appellee ignored the requests and continued to


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move his hands near the center console.               Following a fourth request,

Appellee placed his hands outside of the vehicle’s window.            Thereafter,

Officer Weihe instructed Officer Mann to conduct a protective search of the

center console of Appellee’s vehicle.          Based on the circumstances and his

experience, Officer Weihe reasonably believed Appellee was armed and the

officers were in danger.         See Terry, supra; Michigan, supra.        Officer

Weihe had five years’ experience in conducting traffic stops, knew the area

had a high crime rate.         Officer Weihe saw Appellee make multiple hand

movements towards the center console of the vehicle.                 Furthermore,

Appellee’s failure to comply with Officer Weihe’s multiple requests for

Appellee to place his hands on the steering wheel supports Officer Weihe’s

reasonable belief that Appellee might have been armed. See id.

       Based on the totality of these circumstances, the protective search of

Appellee’s vehicle was proper; and the court erred in granting Appellee’s

suppression motion.3       See Goldsborough, supra.         Thus, we now reverse

____________________________________________


3
  We reject Appellee’s argument that the drugs found in the surgical glove in
the center console of Appellee’s vehicle were not in plain view and,
therefore, Officer Mann lacked reasonable suspicion to search the glove. To
the contrary, Appellee failed to raise this argument in his motion to suppress
or expressly raise it during the suppression hearing. Rather, Appellee raised
this claim for the first time on appeal. Moreover, at the suppression hearing,
the Commonwealth argued the sixty-nine green-tinted baggies were visible
through the surgical glove; and their contraband nature was readily
apparent to Officer Mann. Officers Weihe and Mann had lawful access to
Appellee’s vehicle and to the center console. Officer Mann’s recovery of the
drugs visible through the surgical glove recovered from the console was also
(Footnote Continued Next Page)


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the court’s order granting Appellee’s suppression motion and remand for

further proceedings.

      Order reversed; case remanded for further proceedings. Jurisdiction is

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/2015




                       _______________________
(Footnote Continued)

lawful under the plain view doctrine. This evidence should not have been
suppressed. See, e.g., Commonwealth v. O.J., 958 A.2d 561 (Pa.Super.
2008) (en banc), appeal denied, 605 Pa. 688, 989 A.2d 918 (2010) (holding
warrantless protective search for concealed weapons in vehicle console,
conducted after lawful vehicle stop, was justified under totality of case
circumstances, and drugs recovered in area searched should not have been
suppressed); Commonwealth v. Tuggles, 58 A.3d 840 (Pa.Super. 2012),
appeal denied, 620 Pa. 722, 69 A.3d 602 (2013) (holding protective
weapons sweep of car interior was justified under totality of case
circumstances; center console is area where weapons are frequently hidden;
drugs and currency recovered from console should not have been
suppressed).



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