J-A04005-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MYRON BOOKER                               :
                                               :
                       Appellant               :   No. 1127 EDA 2019

         Appeal from the Judgment of Sentence Entered March 19, 2019
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0002775-2018,
                            MC-51-CR-0008062-2018


BEFORE:      PANELLA, P.J., STRASSBURGER, J.*, and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.:                            FILED MARCH 13, 2020

        Myron Booker challenges the judgment of sentence entered in the

Philadelphia County Court of Common Pleas, following his convictions for

possession of cocaine and possession with intent to deliver.1 On appeal,

Booker claims the trial court erred in concluding police had reasonable

suspicion to conduct a protective search of his vehicle for weapons. After

careful review, we affirm.

        Philadelphia Police Officers Robert Filler and Oswaldo Toribio were on

routine patrol, around dusk, on the 3100 block of North 2nd Street when they

spotted a white SUV with a defective passenger brake light. Due to the motor

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   See 35 P.S. § 780-113 (a)(16); 35 P.S. § 780-113 (a)(30).
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vehicle infraction, they activated their emergency lights and pulled the SUV

over.

        Booker initially stopped his vehicle in the travel lane and made a

movement toward the center console. The police officers then directed Booker

to pull his car to the side of the road, which he did. There, Booker motioned

once again toward the center console.

        Officer Filler, who was in the front passenger seat of the police cruiser,

observed Booker’s furtive movements. Concerned for his safety, Officer Filler

approached the passenger side of Booker’s car and immediately opened the

front passenger door. There, he observed in plain view a clear plastic bag on

the floorboard containing what appeared to be narcotics.

        Officer Toribio, who had approached the SUV on the driver’s side,

removed Booker from his vehicle and placed him inside the patrol car.

Thereafter, a subsequent search of the SUV was conducted during which

Officer Filler found packets of cocaine from under the cup holder in the center

console.

        Booker moved to suppress the cocaine, claiming the police did not

possess reasonable suspicion to search his vehicle for weapons. After a

suppression hearing, the court denied the motion to suppress, and Booker

proceeded to a bench trial. The trial court found Booker guilty of both charges

and sentenced him to 4-10 years’ imprisonment.

        Booker filed a timely post-sentence motion, which was denied without a

hearing. This timely appeal followed.

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      In his only issue, Booker contends the trial court erred in denying his

motion to suppress the cocaine found during Officer Filler’s search of the

vehicle. See Appellant’s Brief, at 9.

      In reviewing the denial of a suppression motion, we must determine

whether the record supports the lower court’s factual findings and whether

the   legal   conclusions   drawn   from      those   facts   are   correct.   See

Commonwealth v. Raglin, 178 A.3d 868, 871 (Pa. Super. 2018). While our

standard of review is highly deferential to the suppression court’s factual

findings and credibility determinations, we afford no deference to the court’s

legal conclusions, and review such conclusions de novo. See Commonwealth

v. Hughes, 836 A.2d 893, 898 (Pa. 2003).

      Here, Booker does not challenge the legality of the underlying traffic

stop. Instead, he argues the police did not have reasonable suspicion to

conclude either he was in possession of a weapon or that he might gain control

of one. See Appellant’s Brief, at 9. Booker maintains slight body movements

and the location of where the traffic stop occurred are not enough to establish

reasonable suspicion and relies on this Court’s decision in Commonwealth v.

Cartagena, 63 A.3d 294 (Pa. Super. 2013) (en banc) to support his claim.

See Appellant’s Brief, at 9, 14.

      In evaluating whether Officer Filler was justified in conducting a

protective search for weapons, we employ the standard the Supreme Court of

Pennsylvania adopted in Commonwealth v. Morris, 644 A.2d 721 (Pa.

1994).

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      Our Supreme Court in Morris applied the test set forth in Michigan v.

Long, 463 U.S. 1032 (1983), and held that the search of the passenger

compartment of an automobile is permissible if a police officer possesses

reasonable suspicion that the suspect may gain immediate control of a

weapon. See Morris, 644 A.2d at 723. In reaching this decision, the Court

explained that, since roadside encounters are inherently dangerous, “[o]ur

constitutional safeguards do not require an officer to gamble with his life.” Id.,

at 724.

      Indeed, due to the heightened risk of danger, we have held that furtive

movements, when witnessed in the scope of a lawful traffic stop, provide a

reasonable basis     for   the police to     conduct a protective frisk.      See

Commonwealth v. Simmons, 17 A.3d 399, 404 (Pa. Super. 2011); see also

In re O.J., 958 A.2d 561, 566 (Pa. Super. 2008) (en banc) (stating

defendant’s “rapid and furtive hand movements over the console indicated

that he may have been hiding a weapon in that location” and “the police officer

was permitted to engage in a search of that compartment for his own

protection”).

      However, we have clarified that “pre-stop furtive movements, by

themselves, [do not] . . . justify . . . [a] search . . . where the totality of the

circumstances . . . established that the furtive movement did not raise

immediate concern for the safety of the officer who undertook the initial

vehicle detention.” Simmons, 17 A.3d at 405; see also Commonwealth v.


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Moyer, 954 A.2d 659, 670 (Pa. Super. 2008) (en banc) (finding “[f]urtive

movements and nervousness, standing alone, do not support the existence of

reasonable suspicion”).

      Therefore, the Commonwealth must both show the police saw furtive

movements during the stop and that there were additional reasons for them

to be concerned about the presence of weapons in order to demonstrate

reasonable suspicion. See Commonwealth v. Buchert, 68 A.3d 911, 916-

917 (Pa. Super. 2013).

      Here,   as   discussed   above,    Booker   made   two   separate   furtive

movements during the traffic stop. He was observed motioning toward the

center console while stopped in the traffic lane. See N.T., Suppression

Hearing, 11/29/18, at 9. He was also seen motioning toward the center

console after parking his car on the side of the road. See id. As a result, these

furtive movements prompted Officer Filler to believe Booker had access to a

firearm. See id., at 12.

      In addition, the stop occurred at dusk on North 2nd Street. See id., at

11-12. Officer Filler - a 12-year veteran of the Philadelphia Police Department

- described this area as a high crime, high narcotics area in light of his

experience. See id.

      Based on the foregoing, we conclude this combination of factors

provided a reasonable basis for Officer Filler to suspect that there might be a

weapon in the vehicle. See Commonwealth v. Tuggles, 58 A.3d 840, 845


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(Pa. Super. 2012) (holding sufficient reasonable suspicion to justify protective

weapons sweep where traffic stop took place at night, in a high crime area,

and police observed defendant make a furtive movement).

      Moreover, we find Booker’s reliance on our decision in Cartagena

misplaced. There, two police officers pulled the defendant’s car over at night

due to a violation of the Motor Vehicle Code. See Cartagena, 63 A.3d at 296.

After one of the officers asked the defendant for his license and registration,

the defendant “opened his center console, looked inside like he was going to

retrieve paperwork [. . .] [and] then closed it.” See id. (internal quotations

omitted). Because of his nervousness, police asked the defendant to step out

of the vehicle. See id., at 297. They then conducted a search of the driver’s

center console and recovered a firearm. See id.

      Importantly, the suppression court in Cartagena suppressed the

evidence. See id., at 297. In affirming the suppression court’s ruling, the

Cartagena panel concluded, under the particular circumstances in the case,

the police did not possess a sufficient basis to conduct a search where the only

evidence was that the stop occurred at night and the defendant was extremely

nervous. See id., at 304.

      However, the circumstances here are entirely different from Cartagena.

First, the suppression court here denied suppression. We are therefore

required to give deference to the suppression court’s finding that the officers

reasonably believed that Booker might have a weapon unless there is no


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support in the record. Further, the present case involves a situation where

Booker made two separate furtive movements, thus raising concerns for

officer safety during a traffic stop in a high-crime area. Therefore, we find our

decision in Cartagena is inapplicable in the current matter.

      For the reasons discussed above, we find the record supports both the

trial court’s factual findings and its legal conclusions. Booker’s only issue on

appeal does not merit relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/20




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