J-S59040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellant

                    v.

LAMAR BATCHLER,

                         Appellee                    No. 2200 EDA 2015


                   Appeal from the Order of June 25, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0002120-2015


BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.

DISSENTING MEMORANDUM BY OLSON, J.:               FILED DECEMBER 06, 2016

      As I believe that the totality of the facts and circumstances supports

the conclusion that the Commonwealth met its burden of establishing that

Officer Daniel Sweeney had reasonable suspicion to conduct a protective

frisk of Appellee, I must respectfully dissent.

      The learned Majority relies on the trial court’s opinion in affirming the

order granting Appellee’s motion to suppress the firearm that was

discovered during a protective search of Appellee following a valid traffic

stop. In my view, however, the factual findings made by the trial court do

not support suppression.       Instead, the evidence adduced during the




* Former Justice specially assigned to the Superior Court.
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suppression hearing supports the conclusion that the Terry1 frisk was

appropriate and, therefore, the firearm seized from Appellee’s waistband

should not be suppressed.

       It is important to note that “in making a reasonable suspicion

determination, the United States Supreme Court has rejected courts’

isolated evaluation and rejection of individual factors.” Commonwealth v.

Walls, 53 A.3d 889, 894-895 (Pa. Super. 2012), citing U.S. v. Arvizu, 534

U.S. 266, 274 (2002).             Rather than pursuing a “divide-and-conquer

analysis”, the trial court must employ a totality of the circumstances test.

Walls, 53 A.3d at 895. Here, I believe that the trial court looked at facts in

isolation and, based upon its stand-alone findings, determined that

reasonable suspicion was not established.        The trial court erred in doing so.

Instead, applying the totality of circumstances test, the Terry frisk was

proper.

       The uncontradicted evidence adduced at the suppression hearing

established that Appellee was a passenger in the front seat of a vehicle

stopped by the police for a Motor Vehicle Code violation. The vehicle was

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1
  Terry v. Ohio, 392 U.S. 1 (1968). It is now well settled that Terry allows
a protective search for weapons when “specific and articulable facts which,
taken together with the rational inferences from those facts, reasonably
warrant” the officer’s belief that the suspect is dangerous and may require
immediate control of a weapon. Id. at 21 (emphasis added). “The issue is
whether a reasonably prudent man would be warranted in the belief that his
safety or that of others was in danger.” Id. at 27.



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stopped at approximately 9:35 p.m. on February 10, 2015.                 Officer

Sweeney, one of the officers who stopped the vehicle, testified that the area

in which the vehicle was stopped is a high crime area. Officer Sweeney, a

17-year veteran police officer, personally made numerous arrests for

narcotic violations and illegal firearms within a three block radius of the

location at which the vehicle was stopped.              When Officer Sweeney

approached the passenger side of the vehicle, he saw Appellee with his arms

extended in a Superman pose.              Appellee “appeared very nervous, very

scared” and Officer Sweeney asked him if he had anything on him because

the position in which Appellee was sitting made the veteran officer “a little

suspicious”.     N.T., Suppression Hearing, 6/25/15, at 9.        After the two

officers obtained documentation from both the driver of the vehicle and

Appellee, they returned to the police vehicle. Within a minute or two, the

officers returned to the stopped vehicle and again, Officer Sweeney

approached the passenger side. At this time, Officer Sweeney saw Appellee

“sitting awkwardly like as if he was concealing something from either

[Officer Sweeney’s] vantage point or [his] partner’s vantage point.” Id. at

11.2 At this time, Officer Sweeney was concerned that Appellee may have a

weapon on him, so the officer ordered Appellee out of the vehicle and frisked
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2
  Specifically, Officer Sweeney demonstrated that Appellee sat back in the
seat and leaned over to the left side console with both hands crossed over
the console. N.T., Suppression Hearing, 6/25/15, at 11-12.




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him at which time a firearm was found concealed in the left side of

Appellee’s waistband.3          In reviewing the totality of these facts and

circumstances, Officer Sweeney possessed a reasonable and articulable

suspicion    to   conduct     a    Terry       protective   weapons   search.    See

Commonwealth v. Buchert, 68 A.3d 911, 916-917 (Pa. Super. 2013)

(“The combination of Appellee’s furtive movement of leaning forward and

appearing to conceal something under his seat, along with his extreme

nervousness and the night time stop, was sufficient to warrant a reasonable

police officer to believe that his safety was in danger and that Appellee may

gain immediate control of a weapon.”), appeal denied, 623 Pa. 759 (2014).

       In granting suppression, the trial court found that Officer Sweeney

never saw a firearm on Appellee or even a bulge.                 Trial Court Opinion,

12/2/15, at 4. However, nothing in the law requires the officer to actually

see a firearm or a suspicious bulge to conduct a Terry frisk.              In fact, a

Terry frisk is performed precisely because a police officer is not certain

____________________________________________


3
  When asked why he believed that Appellee may have had a weapon,
Officer Sweeney testified as follows:

       Just in my mind two things with his hands being like extremely
       like his arms were rock solid. The best way to explain it
       probably would be like a [S]uperman type motion. And then -- .
       . . Then the second time was the way he was sitting the second
       time as if he was shielding or guarding something. I’ve been a
       police officer for 17 years and I knew something wasn’t right.

N.T., Suppression Hearing, 6/25/15, at 12-13.



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whether the person possesses a firearm.      The trial court also found that

Appellee was cooperative, there were no “suspicious” movements observed

within the car, and Appellee’s “Superman pose” cannot be described as

“furtive”.   Id. at 5.   Yet, the trial court acknowledged that Appellee was

observed in “two, perhaps unnatural, seating positions: the Superman pose

and then leaning up against the armrest”, and that he was nervous. Id. In

my view, Appellee’s nervousness and assumption of such awkward positions

would create reasonable suspicion in a veteran police officer, especially

considering all of the other facts surrounding the stop.    Finally, the trial

court concluded that, although the vehicle was stopped in a high crime area,

the vehicle was stopped for a Motor Vehicle Code violation unrelated to the

use or possession of a firearm. Id. Again, nothing in the law holds that a

Terry frisk may only be conducted if the person is stopped for a suspected

firearms violation. To the contrary, traffic stops pose significant danger to

police officers and may give rise to the need for a protective frisk. As the

United States Supreme Court noted in Pennsylvania. v. Mimms, 434 U.S.

106 (1977):

      [W]e have specifically recognized the inordinate risk confronting
      an officer as he approaches a person seated in an automobile.
      According to one study, approximately 30% of police shootings
      occurred when a police officer approached a suspect seated in an
      automobile. We are aware that not all these assaults occur when
      issuing traffic summons, but we have before expressly
      declined to accept the argument that traffic violations
      necessarily involve less danger to officers than other
      types of confrontations. Indeed, it appears that a significant


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      percentage of murders of police officers occurs when the officers
      are making traffic stops.

Id. at 110 (emphasis added) (internal quotations and citations omitted).

Hence, “the heightened risk of danger to police officers during roadside

encounters should be contrasted with the lessened expectation of privacy

that a citizen possesses with respect to his vehicle”.      In the Interest of

O.J., 958 A.2d 561, 565 (Pa. Super. 2008) (en banc), appeal denied, 605

Pa. 688 (2010).

      For the foregoing reasons, I believe there was reasonable suspicion to

conduct a protective search of Appellee and, therefore, the trial court erred

in suppressing the firearm. Thus, I respectfully dissent.




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