J. A21010/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellant         :
                                            :
                    v.                      :
                                            :
BRIAN WASHINGTON,                           :
                                            :
                          Appellee          :     No. 2933 EDA 2013

                   Appeal from the Order September 19, 2013
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0001569-2013

BEFORE: ALLEN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED AUGUST 21, 2015

        Appellant, the Commonwealth of Pennsylvania (“the Commonwealth”),

appeals from the September 19, 2013 order of the Philadelphia County Court

of Common Pleas, granting the motion to suppress filed by Appellee, Brian

Washington.1       The Commonwealth contends the trial court erred in

suppressing the gun found in Appellee’s car after a valid investigatory stop.

We affirm.

*
    Former Justice specially assigned to the Superior Court.
1
  Pennsylvania Rule of Appellant Procedure 311(d) states, “In a criminal
case, under the circumstances provided by law, the Commonwealth may
take an appeal as of right from an order that does not end the entire case
where the Commonwealth certifies in the notice of appeal that the order will
terminate or substantially handicap the prosecution.” Pa.R.A.P. 311(d). The
Commonwealth certified in its notice of appeal that the order below
terminates or substantially handicaps the prosecution.
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      We glean the facts from the suppression hearing. Police Officer Alexis

Luna testified at the hearing.

         We were on patrol. We received a radio call for a [sic]
         gunshots, 2000 and Denny. We were on our way to 2000
         Denny and that we were driving down the 4200 block of
         Wayne Avenue going towards Denny. There was a unit
         that was already on location with the founded [sic]
         shooting and someone was shot at the location. And as
         we were driving down Wayne Avenue . . . northbound, we
         observed a tan Chrysler driving southbound, which is away
         from Denny on Wayne Avenue with no lights, no lights on
         and he was traveling at a low rate of speed.

         [The Commonwealth:] Now, Officer, how far from the
         location of the gunshots did you see this Chrysler?

         A: It was about maybe no more than three blocks away.

         Q: . . . And how soon after the gunshots, the radio call for
         gunshots, did you see the vehicle?

         A: It was─I’m say [sic] within minutes, because we were
         on our way over there, and then it was closer to when the
         unit was on location at 2000 Denny the founded [sic]
         shooting, that we saw the vehicle actually leaving that
         location. Within the time of the unit saying that they had
         a founded [sic] shooting until when we saw the tan car
         leaving the location was, I would say, like a minute.

                                 *    *    *

         As soon as we saw him, we did [sic] U-turn and activated
         our lights and pulled him over.

                                 *    *    *

         So we pulled the vehicle over. Myself and my partner got
         out. I was on the driver’s side. My partner was on the
         passenger side. We investigated the car stop on him and
         we basically─when I approached him, I saw that the
         vehicle was still in drive, and the car was on. I told him to



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       turn the vehicle off and put it in park─put it in park and
       turn the vehicle off. . . .

                                *    *    *

       Q: . . . And after you asked him twice, did [Appellant] put
       the car in park?

       A: Yes, he did.

       Q: And what was the next question that you asked him?

       A: Well, he turned the vehicle off, as well, and then I
       asked him for license and registration and proof of
       insurance.

       Q: And did he comply?

       A: Well, basically that’s when he, with his right hand, he
       was ‘bout to go into his jacket, like his inside jacket.
       That’s when I told him to stop, step out of the vehicle, that
       there was just a founded [sic] shooting and there was─he
       was the only──he was coming from that area with his
       lights off and all that, so I believed that just for officer
       safety, that if I can have him come out of the car and frisk
       him, looking for weapons . . . .

                                *    *    *

       Q: . . . And when you say for officer safety, what exactly
       do you mean?

       A: I believed that he may have had a weapon.

                                *    *    *

       Q: And did he ever pull anything out of his jacket?

       A: No, I told him to stop, and to exit the vehicle.

                                *    *    *

       Q: And can you describe his demeanor?



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           A: He was nervous, but I understood why he was
           nervous because there were police around.

                                    *    *    *

           Q: . . . So after you took him out of the car, what
           happened?

           A: I took him out of the car. I patted him down to make
           sure there was no weapons. And, basically, my partner
           asked if he could look inside the center console of the
           vehicle.    And [Appellant] stated that he can search
           whatever, so then my partner searched the center console.
           There was nothing in there. I told [Appellant] he
           can have a seat back inside. I knew that he was on-
           person secure. And as he had a seat in the car, my
           partner went in the glove compartment and found
           the gun and my partner says get him back out, so I got
           him back out. So I put him in custody.

N.T., 9/19/13,2 at 7-8, 9, 10, 13, 14, 15, 16, 17 (emphases added).3

        Defense counsel cross-examined Officer Luna, inter alia, as follows:

           Q: [W]hen he’s outside the car, though, and have nothing
           on him and he’s cooperating with you and tells you he has
           no weapons. At that point you had not─other than not
           having the lights on, you didn’t see him committing any
           crime, fair enough?

           A: Fair enough.

           Q: You saw like no drugs in the car, no gun, no nothing,
           fair enough?

           A: Yes.


2
  We note a typographical error in the trial court opinion. The trial court
refers to the September 16, 2013, notes of testimony from the suppression
hearing.
3
    Appellee had a valid license and registration for the car. Id. at 38.



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       Q: He’s so cooperative with you, that for some reason your
       partner asks him can I search the center console, right?

       A: That is correct.

       Q: And when he asked him about the center console, my
       client’s already out of the car. . . .

       A: Yes, outside of the vehicle.

                                *    *    *

       Q: . . . So the goal was, all right, at this point we’re going
       to give him a ticket, but we’re going to search the center
       console to make sure when we let him go he doesn’t have
       any reach of any weapons, correct?

       A: That’s correct.

                                *    *    *

       Q: . . . So he says go ahead or whatever, you said search
       whatever you want, . . . and he searches the center
       console and finds nothing, right?

       A: That’s correct.

                                *    *    *

       We didn’t search the car.     My partner just searched the
       center console.

       Q: Why would you put him back in the car if your intention
       was to search the glove compartment, under the seat, in
       the back, other area? Why would you put him back in the
       car?

       A: Our intent wasn’t to search the vehicle at that point.

       Q: . . . Your intent was not to search the vehicle. You put
       him back in the car. You were done with him. He’d
       been cooperative.      He did everything you want, fair
       enough?



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       A: Well, he was cooperative, but then my partner went in
       the glove box and─

                                *      *   *

       The Court: . . . Was he in the car when you searched the
       glove compartment?

       The Witness: Yeah, he was in the vehicle. He wasn’t in the
       vehicle when my partner searched the center console.

                                *      *   *

       Q: But you put him back in the car, and when you put him
       back in the car, that’s when your fellow officer decided to
       search the closed glove compartment, fair enough, it was
       closed?

       A: Yes, it was closed.

                                *      *   *

       Q: . . . You search the center console. That’s done.
       [Appellee’s] put back in the car . . . . Everything’s
       done at that point, but then Monte then decides to
       search the closed glove compartment, right?

       A: Yes, he went into the glove compartment.

       Q: . . . While you’re there, do you hear Monte ask
       permission to search the closed glove compartment?

       A: No. . . .

                                *      *   *

       The Court: . . . You indicated that you only heard your
       partner ask about searching the center console?

       The Witness: That is correct.

                                *      *   *




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        The Court: Did you hear your partner make a specific
        inquiry about searching the glove box?

        The Witness: No, I did not.

Id. at 42-43, 44, 47-48, 49-50, 52, 53 (emphases added).

     Police Officer Monte testified, inter alia, as follows:

        Q: . . . Upon taking [Appellee] out of the vehicle, what did
        you do?

        A: I asked [him] if he had any weapons on him or in the
        car, and he said, no. I asked him repeatedly, and he said,
        no.

        Q: When you say repeatedly, how many times did you ask
        him?

        A: At least three times.

                                   *    *    *

        Q: . . . And after the third time of asking him, what did
        you do?

        A: . . . I asked him if I could check the center console
        area, the immediate area of the car for weapons, and he
        said, quote, you can search whatever you want.

        Q: . . . And did you check the center console?

        A: Yes.

        Q: And did you discover anything in the console?

        A: Not in that area, no.

                                   *    *    *

        Q: . . . He was put back in [sic] driver’s seat of the
        car    before  you   searched    the   closed    glove
        compartment; is that correct?



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         A:Briefly. . . .

         Q: No─but he was put back in the car.   He was sitting
         back in [sic] driver’s seat before you searched the─

         A: Yes.

                                   *      *   *

         Q: . . . You never specifically asked for permission to
         search the closed glove compartment of that car, did you.

         A: By saying glove compartment, no.          I did not say the
         word glove─

         Q: . . . Originally you asked for center console, correct?

         A: And the immediate area, but fair enough, yes. Correct.

Id. at 62, 63, 69-70 (emphases added). At the conclusion of the hearing,

the court granted the motion to suppress.         Id. at 92.   This timely appeal

followed. The Commonwealth filed a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal contemporaneously with the notice of appeal. The

trial court filed a responsive opinion.

      The Commonwealth raises the following issue for our review:

             Where officers responding to a report of shots fired
         nearby stopped [Appellant], who was driving slowly with
         his lights off at night, and [Appellant] hesitated to pull
         over, shift into park and turn off the ignition, began
         reaching for his pocket, appeared nervous, and said to the
         officers “you can search whatever you want,” did the lower
         court err in suppressing the gun found in [Appellant’s]
         glove compartment?

Commonwealth’s Brief at 4.




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      The Commonwealth argues Appellee consented to the search of his

car. Id. at 9. The Commonwealth contends that when Appellee stated “you

can search whatever you want,” that was tantamount to his consent to a

search of the entire car, including the glove compartment, not just the

console. Id. at 11-12. Furthermore, even if Appellee did not consent to the

search of the glove compartment, there was reasonable suspicion to search

it. Id. at 12.

      Our review of the suppression court’s grant of a motion to suppress is

governed by the following principles:

            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.

Commonwealth v. Cartagena, 63 A.3d 294, 298 (Pa. Super. 2013) (en

banc) (citation omitted).

      Further, Pennsylvania Rule of Criminal Procedure 581, which addresses

the suppression of evidence provides, in relevant part, as follows: “The


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Commonwealth shall have the burden of going forward with the evidence

and of establishing that the challenged evidence was not obtained in

violation of the defendant’s rights.” Pa.R.Crim.P. 581(H).

      The standard upon which we determine whether the search of the

glove compartment was consensual4 is as follows:

             To establish a valid consensual search, the prosecution
         must first prove that the consent was given during a legal
         police interaction, or if the consent was given during an
         illegal seizure, that it was not a result of the illegal seizure;
         and second, that the consent was given voluntarily.

Commonwealth v. Reid, 811 A.2d 530, 544 (Pa. 2002) (citations omitted

and emphasis added).

      In Commonwealth v. Tam Thanh Nguyen, 116 A.3d 657 (Pa.

Super. 2015), this court explained the nature of the interaction between

citizens and police officers.

            Interaction between citizens and police officers, under
         search and seizure law, is varied and requires different
         levels of justification depending upon the nature of the
         interaction and whether or not the citizen is detained. The
         three levels of interaction are: mere encounter,
         investigative detention, and custodial detention.

                A mere encounter can be any formal or informal
            interaction between an officer and a citizen, but will
            normally be an inquiry by the officer of a citizen.
            The hallmark of this interaction is that it carries no
            official compulsion to stop or respond.



4
 Given our standard of review, we first address the issue of whether there
was reasonable suspicion to search the glove compartment.



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               In contrast, an investigative detention, by
           implication, carries an official compulsion to stop and
           respond, but the detention is temporary, unless it
           results in the formation of probable cause for arrest,
           and does not possess the coercive conditions
           consistent with a formal arrest.            Since this
           interaction has elements of official compulsion it
           requires reasonable suspicion of unlawful activity. In
           further contrast, a custodial detention occurs when
           the nature, duration and conditions of an
           investigative detention become so coercive as to be,
           practically speaking, the functional equivalent of an
           arrest.

               Reasonable suspicion exists only where the
           officer is able to articulate specific observations
           which, in conjunction with reasonable inferences
           derived from those observations, led him reasonably
           to conclude, in light of his experience, that criminal
           activity was afoot and that the person he stopped
           was involved in that activity. . . .

           To determine whether a mere encounter rises to the
        level of an investigatory detention, we must discern
        whether, as a matter of law, the police conducted a seizure
        of the person involved.

           To decide whether a seizure has occurred, a court
           must consider all the circumstances surrounding the
           encounter to determine whether the demeanor and
           conduct of the police would have communicated to a
           reasonable person that he or she was not free to
           decline the officer’s request or otherwise terminate
           the encounter. Thus, the focal point of our inquiry
           must be whether, considering the circumstances
           surrounding the incident, a reasonable [person]
           innocent of any crime, would have thought he was
           being restrained had he been in the defendant’s
           shoes.

Id. at 664-65 (quotation marks and citations omitted).




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     In Cartagena, this Court held that the police officers lacked

reasonable suspicion to search the center console of the defendant’s vehicle,

following a traffic stop for driving with tinted windows.   Id. at 296.   This

Court opined:

           This case is controlled by the United States Supreme
        Court’s decision in Michigan v. Long, 463 U.S. 1032 [ ]
        (1983).     In Long, the Supreme Court applied the
        principles announced in Terry v. Ohio, 392 U.S. 1 [ ]
        (1968), 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. ‘[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.’ If a suspect is ‘dangerous,’ he is no less
        dangerous simply because he is not arrested.

           The Court emphasized that this holding does not permit
        police to conduct a search of a vehicle during every
        investigative stop.   “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.” The Court stated that an officer must therefore
        have reasonable suspicion that the person subject to the


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         stop has a weapon in order to conduct a lawful search of
         the passenger compartment of a vehicle at the time of the
         stop.

Id. at 298-99 (footnotes and some citations omitted).

      In the case sub judice, the trial court opined:

             Though there was reasonable suspicion and probable
         cause to stop [Appellee’s] vehicle for a traffic violation[,]
         the search of [Appellee’s] glove compartment exceeded
         the purpose and scope of the stop. It is clear from the
         totality of circumstances in the current case that
         [Appellee] was not free to leave the vehicle after the
         officers investigated the traffic violation, and thus was
         seized requiring reasonable suspicion for further
         investigation. . . .    The police directed [Appellee’s]
         movement when they made him stop what he was doing,
         removed him from the vehicle, and later let him back into
         the vehicle. . . .

             There was no justified belief that [Appellee] was armed
         and dangerous, to warrant a Terry search of [Appellee’s]
         glove compartment. Though [Appellee] acted nervously
         he did not make any furtive movements or refuse to
         cooperate.    Officer Luna specifically noted that she
         understood why a person would be nervous in the
         situation. There is no justifiable belief that [Appellee] was
         armed as the officers had already searched [Appellee],
         searched the area surrounding him, searched and [sic] the
         center console, and returned him to the driver’s seat.

Trial Ct. Op., 1/21/15, at 5, 6 (citation to record omitted). Furthermore, the

trial court found that Appellee did not give permission for the search of the

glove compartment, reasoning as follows:

            As police’s continued investigation rose from a mere
         encounter to an investigative detention, [Appellee’s]
         permission to consent must be deemed involuntary.
         Beyond this, Officer Monte’s search of [Appellee’s] glove
         compartment exceeded the scope of [Appellee’s]
         authorization to search.


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            When an official search is properly authorized, the
         scope of the search is limited by the terms of its
         authorization. . . .

            Officer Monte asked [Appellee] to search a specific, and
         self contained, area of the car, to which [Appellee] replied,
         “you can search whatever.” This court finds, based on the
         totality of the circumstances that [Appellee’s] reply that
         the officer could search whatever was in reply to searching
         the center console, not a carte blanche authorization to
         search anything owned or possessed by [Appellee].

Id. at 6-7. We agree no relief is due.

       We discern no abuse of discretion or error of law by the trial court.

See Cartagena, 63 A.3d at 298. The officer lacked reasonable suspicion to

justify the Terry search of Appellee’s glove compartment. See id. at 298-

99; Tam Thanh Nguye, 116 A.3d at 666-67. Appellee did not voluntarily

consent to the search of the glove compartment.       See Reid, 811 A.2d at

544.    Accordingly, we affirm the order granting Appellee’s motion to

suppress.

       Order affirmed.

       Judge Allen joins the memorandum.

       Judge Mundy concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/2015


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