                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       No. 11-1853

                           UNITED STATES OF AMERICA

                                            v.

                                   RONALD COLEN,
                                            Appellant

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                              (Crim. No. 2-10-cr-00474-001)
                        District Judge: Honorable John P. Fullam

                       Submitted under Third Circuit LAR 34.1(a)
                                    April 19, 2012

                Before: McKEE, Chief Judge, SLOVITER, Circuit Judge,
                       and O‟CONNOR, Associate Justice (Ret.)*

                              (Opinion filed: May 18, 2012)

                                        OPINION

McKEE, Chief Judge.

       Ronald Colen was indicted by a grand jury on July 27, 2010, and charged with one

count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §

922(g)(1). Prior to trial, Colen filed a motion to suppress physical evidence and an

inculpatory statement that police obtained after he was searched during the course of a

traffic stop. The district court denied the motion and Colen thereafter entered a

       *
       Hon. Sandra Day O‟Connor, Associate Justice (Ret.) of the Supreme Court of the
United States, sitting by designation.
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conditional guilty plea to possession of a firearm by a convicted felon, thereby reserving

the right to appeal the suppression ruling. For the reasons that follow, we will affirm the

district court.1

                                              I.

       Since we write primarily for the parties who are familiar with this case, we need

not set forth the underlying facts or procedural history except to the extent that they assist

our brief discussion.

       The Fourth Amendment prohibits “unreasonable searches and seizures,” and

searches without a warrant are presumptively unreasonable. U.S. Const. amend. IV;

Horton v. California, 496 U.S. 128, 133 (1990). However, in Terry v. Ohio, 392 U.S. 1

(1968), the Supreme Court held that “police can stop and briefly detain a person for

investigative purposes if the officer has a reasonable suspicion supported by articulable

facts that criminal activity „may be afoot,‟ even if the officer lacks probable cause.”

United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry, 392 U.S. at 30). Thus,

where – as here – police conduct a valid traffic stop they may conduct a limited search

for weapons by patting-down the driver and/or occupants of the stopped vehicle for their

own protection. If the police have reasonable suspicion to believe that the person stopped

may be armed and dangerous, such a suspicion is supported by articulable facts. Terry,

392 U.S. at 21; Arizona v. Johnson, 555 U.S. 323, 327 (2009).


1
 We review the district court‟s denial of a motion to suppress for clear error as to the
underlying factual findings and exercise plenary review of the district court‟s application
of the law to those facts. United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002).

                                              2
       However, because of the danger police face when they engage in traffic stops, the

Supreme Court has held that the Fourth Amendment allows them to extend the scope of

the Terry search to areas of the stopped vehicle where a weapon may be hidden.

Michigan v. Long, 463 U.S. 1032, 1050 (1983).

       In Maryland v. Buie, 494 U.S. 325, 332 (1990), the Supreme Court explained:

              In Michigan v. Long, 463 U.S. 1032 (1983), the principles of
              Terry were applied in the context of a roadside encounter:
              “[T]he 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 officer in believing that the
              suspect in dangerous and the suspect may gain immediate
              control of weapons.” Id. at 1049-1050 (quoting Terry, supra,
              392 U.S., at 21). The Long Court expressly rejected the
              contention that Terry restricted preventative searches to the
              person of the detained suspect. 463 U.S. at 1047. In a sense,
              Long authorized a “frisk” of an automobile for weapons.

       Reasonable suspicion is a less demanding standard than probable cause and

requires a showing considerably less than preponderance of the evidence. United States

v. Arvizu, 534 U.S. 266, 273-74 (2002) (quoting Sokolow, 490 U.S. at 7). Although

reasonable suspicion requires more than an “unparticularized suspicion or „hunch,‟” the

police officer “need not be absolutely certain that the individual is armed; the issue is

whether a reasonably prudent man in the circumstances would be warranted in his belief

that his safety or that of others was in danger.” Terry, 392 U.S. at 27. “To determine

whether reasonable suspicion exists, we must consider the “ „totality of the circumstances

– the whole picture.‟” United States v. Robertson, 305 F.3d 164, 167 (3d Cir. 2002)


                                              3
(quoting Sokolow, 490 U.S. at 8). This includes the officer‟s “knowledge, experience,

and common sense judgment about human behavior.” Robertson, 305 F.3d at 167.

“This . . . allows officers to draw on their own experience and specialized training to

make inferences from and deductions about the cumulative information available to them

that might well elude an untrained person.” Arvizu, 534 U.S. at 273 (citation and internal

quotation marks omitted).

                                             II.

       Colen argues that the circumstances here did not support a reasonable suspicion

that he was armed and dangerous. He submits that after being stopped for a traffic

violation, he remained calm and cooperated with the police. Colen relies on United States

v. McKoy, 428 F.3d 38 (1st Cir. 2005), in arguing that reaching for a center console

during a traffic stop in a high crime neighborhood does not warrant this kind of search

and that a contrary ruling would diminish the privacy rights of all who reside in such

neighborhoods as they would be subject to a search whenever they gesture toward their

consoles or glove compartments during a traffic stop.

       In McKoy, the court granted a suppression motion and explained that: “[i]t is

simply not reasonable to infer that a driver is armed and dangerous because the officers

believe that he appears nervous and reaches toward the car‟s console when approached

by police, even in a high-crime area.” Id. at 41. The court noted that reaching toward the

center console “is also consistent with reaching for a driver‟s license or registration, a

perfectly lawful action that is to be expected when one is pulled over by the police. The



                                              4
government‟s proposed standard comes too close to allowing an automatic frisk of

anyone who commits a traffic violation in a high-crime area.” Id. at 40.

       McKoy doesn‟t help Colen because the police had already seen him retrieve his

license and registration from his pocket. They therefore knew he was not reaching for

either of those items when they saw him gesture toward the center console. They

therefore had reason to both suspect his intentions and reason to be concerned for their

own safety.

       The police officers had a valid basis to stop Colen for investigation of a motor

vehicle code violation because he was driving an automobile with excessively tinted

windows. Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977). In the course of such a

stop, police may exercise reasonable control over the car and its passengers. United

States v. Bonner, 363 F.3d 213, 216 (3d Cir. 2004). The Supreme Court has explained

that this goes as far as allowing police to order the occupants out of a car and searching

them even in the absence of particularized suspicion. Mimms, 434 U.S. at 110-11. Here,

once police made the valid traffic stop of the car Colen was driving, they quite properly

asked him for his license and registration. United States v. Johnson, 63 F.3d 242, 245 (3d

Cir. 1995).

       Here, the police acted reasonably. Their suspicion was aroused when they saw

Colen quickly shut the center console as they first approached the car. They did not

conduct a search at that point although they clearly could have under Mimms. Thereafter,

Colen removed his license and registration from his rear pants pocket, thus negating a

possible explanation for his gestures toward the center console. When the officers

                                             5
returned to their car, they both saw Colen again reaching for the center console. Only

then did the officers remove him from the car, frisk him, and search the portion of the

interior of the car that would have been within his immediate control when they allowed

him to get back in. It was during that protective search that Officer Mason found the

loaded handgun.

       When deciding to conduct the kind of limited search that occurred here, “„an

officer need not be absolutely certain that the individual is armed‟ so long as the officer‟s

concern was objectively reasonable.” United States v. Kithcart, 218 F.3d 213, 219 (3d

Cir. 2000) (quoting Moorefield, 111 F.3d at 13-14). The officers‟ decision to check the

center console for weapons was completely justified by the circumstances here.

                                             III.

       For all of the above reasons, we will affirm the district court.




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