J-S35040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

TYSHAUN DEVOE MICKEL

                            Appellee                   No. 47 WDA 2017


               Appeal from the Order Entered December 8, 2016
                In the Court of Common Pleas of Mercer County
              Criminal Division at No(s): CP-43-CR-0001438-2016


BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                       FILED NOVEMBER 22, 2017

        The Commonwealth of Pennsylvania appeals from the order, entered in

the Court of Common Pleas of Mercer County, granting the pretrial motion to

suppress filed by Appellee Tyshaun Devoe Mickel (“Mickel”).        After our

review, we conclude that Officer Matthew Lehman did not possess an

“articulable and objectively reasonable belief that [Mickel was] potentially

dangerous,” and, thus the search of the locked glove compartment in his

vehicle exceeded the scope of Michigan v. Long, 463 U.S. 1032, 1049-51

(1983). We, therefore, affirm the suppression court’s order.

        Mickel was arrested on July 30, 2016, and charged with the crimes of

possession with the intent to deliver a controlled substance, possession of a

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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controlled    substance,     possession        of   drug   paraphernalia   and   various

summary traffic offenses.            These charges arose from the stop and

subsequent search of the motor vehicle Mickel was operating on June 30,

2016, in the city of Sharon.

       Following a preliminary hearing on August 26, 2016 before Magisterial

District Judge Dennis Songer, the charge of possession with the intent to

deliver was withdrawn and Mickel was held for trial on the remaining

charges. Mickel was arraigned on October 25, 2016. On December 7, 2016,

a hearing was held on Mickel’s omnibus pretrial motion.               On December 8,

2016, the suppression court granted Mickel’s motion to suppress.                    The

suppression court found that there were “no articulable facts to warrant a

reasonably prudent [officer] to conclude there was a gun in the glove

compartment.”        Trial Court Opinion, 1/27/17, at 7.               The court also

determined that “finding shreds of Chore Boy1 in the vehicle does not

establish probable cause to justify the search.” Id. at 8.

       The Commonwealth appealed2 and presents two issues for our review:



____________________________________________


1
  Chore Boy is a brand name for a cleaning pad made of copper or stainless
steel.
2
   Pennsylvania Rule of Appellate Procedure 311(d) permits the
Commonwealth in a criminal case to 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. Commonwealth v. Whitlock, 69 A.3d 635, 636 n.2 (Pa.
(Footnote Continued Next Page)


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      1. Whether the suppression court erred in concluding the search
         of defendant’s glove compartment for officer safety exceeded
         the scope of a lawful search for such purpose, where the
         officer, who had demonstrated his legitimate and sincere
         concern for his safety, was entitled to search the vehicle for
         weapons in locations likely to contain those weapons, and
         which are readily accessible by the defendant, who was
         neither handcuffed nor under arrest and who would have had
         easy access to that location after returning to his vehicle?

      2. Whether the suppression court erred in concluding that the
         search of the vehicle was not supported by probable cause to
         search for drugs and/or drug paraphernalia where evidence
         established the officer lawfully observed, among other things,
         the defendant’s furtive movements, his nervousness, and
         Chore Boy scattered about the back seat of the vehicle and
         coming out of an eyeglasses case, and the totality of the
         circumstances supported a finding of probable cause to
         search the vehicle for drugs and/or drug paraphernalia?

Commonwealth’s Brief, at 4-5

          When reviewing an [o]rder granting a motion to suppress
          we are required to determine whether the record supports
          the suppression court’s factual findings and whether the
          legal conclusions drawn by the suppression court from
          those findings are accurate. In conducting our review, we
          may only examine the evidence introduced by appellee
          along with any evidence introduced by the Commonwealth
          which remains uncontradicted. Our scope of review over
          the suppression court’s factual findings is limited in that if
          these findings are supported by the record we are bound
          by them. Our scope of review over the suppression court’s
          legal conclusions, however, is plenary.




                       _______________________
(Footnote Continued)

Super. 2013). Here, the Commonwealth’s notice of appeal includes the
required certification. See Notice of Appeal, 1/5/17.



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Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012)

(quoting Commonwealth v. Henry, 943 A.2d 967, 969 (Pa. Super. 2008)).

See Commonwealth v. Boyd, 17 A.3d 1274, 1276 (Pa. Super. 2011).

        Officer Lehman, a patrolman with the Sharon Police Department, was

on duty in the early morning hours of June 30, 2016. At approximately 2:00

a.m. on July 30, 2016, he was patrolling the area near the Shenango

Campus of the Pennsylvania State University.              After observing a dark-

colored sedan with an expired registration, Officer Lehman proceeded to

stop the vehicle and saw “the driver making movements into the center

console area, and also reaching around within the                 vehicle.”   N.T.

Suppression Hearing, 12/7/16, at 4-5.            Officer Lehman called for backup.

After backup arrived, Officer Lehman and his backup officer approached the

vehicle, asked Mickel to step out, and conducted a Terry3 stop and frisk.

Id. at 6. Officer Lehman testified:

        A: For officer safety reasons we were concerned that he possibly
        had a weapon on his person at that time. We conducted a Terry
        frisk.

        Q: Did you find anything on the Terry frisk?

        A: The only thing we found was approximately a six-inch long
        drill bit in his right pocket.

        Q: Then what did you do?



____________________________________________


3
    Terry v. Ohio, 392 U.S. 1 (1968).



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      A: At that time, I conducted a quick Terry search of the vehicle,
      attempting to locate a weapon within arm’s reach of the driver’s
      seat.

Id.   Officer Lehman did not observe any weapon in the vehicle; however, he

did observe a soft eyeglasses case, with copper filaments sticking out of it.

      Q: These copper filaments that you say you saw, do they have
      like a common name?

      A: For drug purposes, Chore Boy. Also, they are used for
      scrubbing pots and pans and things of that nature.

                              ****

      Q: Now where, this glasses case was, was that where the
      gentleman inside the car was reaching when you observed him,
      walking up to the vehicle?

      A: Yes. It was slightly back behind the passenger seat, front
      passenger seat, easily within arm’s reach of where the driver
      was sitting. [Officer Lehman then explained that copper filament
      is sometimes used in the smoking of crack cocaine].

Id. at 6-7.

      Officer Lehman testified that he had observed Chore Boy in other drug

cases. He continued:

      A: I continued searching the vehicle, including the glove
      compartment, which I did find to be locked, retrieved the keys
      from the dashboard of the vehicle, and unlocked the glove box.

      Q: Had you asked the defendant if you could open the glove
      compartment?

      A: No.

      Q: So you just used the keys that were there?

      A: Yes.

      Q: What did you find inside the glove box?



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     A: . . . It was a pink coin purse.

Id. at 9.     Inside the pink opaque coin purse, Officer Lehman recovered a

spoon with burn marks and residue. He also recovered from the glove box a

small gold opaque container, in which he found a small baggie of pills and a

bag of what he believed was crack cocaine. Id. at 10-11, 21.

     The Commonwealth argues that the suppression court erred in

concluding that the search of Mickel’s locked glove box exceeded the scope

of Long.    We disagree.

     First,    we   note   that     we   agree   with   the   suppression   court’s

determination that the stop of the vehicle was lawful, as Mickel’s vehicle

registration was expired.         We also conclude that the initial “protective

search” of the vehicle was lawful. It was only when that limited weapons

search turned into a search for drugs in the locked glove compartment, that

the suppression court determined the search exceeded the scope of Long.

     In Long, the United States Supreme Court extended the Terry-stop

doctrine to allow for a search of those portions of the passenger

compartment of a car where a weapon could be hidden.             The Long Court

stated:

     [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 is dangerous and the suspect may gain
     immediate control of weapons. See Terry, 392 U.S. at 21
     [88 S.Ct. at 1879]. “[T]he issue is whether a reasonably prudent

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     man would be warranted in the belief that his safety or that of
     others was in danger.” Id. at 27, [88 S. Ct. at 1883].

Michigan v. Long, 463 U.S. at 1049-1050 (emphasis added).

     In Commonwealth v. Morris, 644 A.2d 721 (Pa. 1994), the

Pennsylvania Supreme Court adopted the Long standard for assessing the

constitutionality of a protective search of the interior of a vehicle for

weapons.      In Morris, the officer testified that, after he stopped the

defendant’s vehicle, defendant was leaning to his right and towards the floor

near the center of the car. Additionally, when ordered to put his hands on

the steering wheel, defendant quickly reached between his legs. The Court

found these acts were consistent with an attempt to either conceal or reach

for a weapon.    In addition, the officer discovered a metal pipe wedged

between the driver’s seat and the door, which would tend to indicate that

defendant   might   have   access   to   other   weapons   in   the   passenger

compartment. Morris, 664 A.2d at 723. The Morris Court stated:

     A review of the record reveals that under the circumstances
     encountered by Officer Benincasa on May 8, 1990, a reasonably
     prudent man would have believed his safety was compromised.
     . . . Under Long, such a reasonable belief based on specific
     articulable actions taken by appellant (i.e. specific articulable
     facts) entitles an officer to conduct a search of those portions of
     the passenger compartment of a suspect’s vehicle in which a
     weapon could be placed. Thus, the bag in question was properly
     searched since it was large enough to hold a weapon. Indeed,
     had Officer Benincasa allowed appellant to return to his vehicle
     without searching the bag in question, he would have been
     taking a grave risk that appellant would remove a weapon from
     the bag and use it. Our constitutional safeguards do not require
     an officer to gamble with his life. Thus, the search in question
     did not violate appellant’s right against unreasonable searches


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      under the Fourth Amendment of the U.S. Constitution or Article
      I, § 8 of the Pennsylvania Constitution.

Id. at 723-24.

      The issue before us is properly framed as whether the search of the

locked glove box was supported by reasonable suspicion that Mickel may

have been armed and dangerous. On cross-examination, Officer Lehman

acknowledged that he initiated the traffic stop because of an expired

registration, that he had no information prior to approaching the vehicle that

Mickel might be armed and dangerous, and that he did not have any

information that Mickel was involved in any kind of criminal activity.   N.T.

Suppression Hearing, supra at 12. Officer Lehman used a flashlight to look

inside Mickel’s vehicle, and he stated that he saw no weapons. Id. at 13.

He also acknowledged that his “search of the vehicle [was] to see if there

were any weapons within reach[.]”       Id. at 15.     Additionally, unlike in

Morris, on cross-examination, Officer Lehman stated that he looked under

the front seat and between the front seat and the console, and he found no

weapons:

      Q:    Now, you looked under the front seat and didn’t find
      anything, correct?

      A:    Correct.

      Q:    Did you look in between the front seat – between the front
      seat and the cons[ole]? Did you check that area?

      A:    Yes, sir.

      Q:    Okay. Did you find anything?

      A:    No, sir.


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      Q:   Did you check the center cons[ole] where you thought that
      he had been reaching?

      A:    If I remember correctly, sir, I did not actually open the
      center cons[ole], no

      Q:    Okay. And you found no weapons [i]n the interior of this
      vehicle?

      A:     No, sir.

Id. at 16.

      Officer Lehman did all he could to assure that there were no weapons

on Mickel’s person or in the driver, passenger and back seat compartments

of the vehicle.   There was no testimony that this stop occurred in a high

crime area or that Mickel did not immediately stop his vehicle. There was no

testimony of “extreme nervousness” or unusual behavior. Although Officer

Lehman testified that he observed Mickel “making movements into the

center cons[ole] area” as he approached Mickel’s vehicle after the stop, id.

at 5, the subsequent protective search obviously dispelled any concerns

regarding that movement since Officer Lehmann chose not to open the

center console.    As the Long Court stated: “The sole justification of the

search is the protection of police officers and others nearby.”   Long, 463

U.S. at 1050 n.14 (citation and quotation omitted).   Here, Officer Lehman

did not possess a reasonable belief based on “specific and articulable facts

which, taken together with the rational inferences from those facts,” would

reasonably warrant him in believing that Mickel was dangerous and might

gain immediate control of a weapon in a locked glove box. Id. at 1049-50.



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      Notably, Officer Lehman testified that once he found the Chore Boy, he

decided he was going to open the glove box, and that at this point the

search turned into a search for narcotics, “[b]ased on the discovery of the

Chore Boy.” Id. at 18. Finding a scrubbing pad inside an eyeglasses case,

without more, does not create probable cause to unlock a glove box and

rummage through containers found inside that glove box. Commonwealth

v. Runyan, 160 A.3d 831, 837 (Pa. Super. 2017) quoting Commonwealth

v. Lechner, 685 A.2d 1014, 1016 (Pa. 1996) (warrantless search requires

more than mere suspicion or good faith belief on part of police officer).

      Under the circumstances here, a reasonably prudent man would not

have believed his safety was compromised.       This was a warrantless search

of the car for contraband, not a protective weapons search.          Thus, the

search of the locked glove compartment exceeded the permissible scope of

Long.

      Order affirmed.



      RANSOM, J., joins the memorandum.

      STEVENS, P.J.E., files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




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Date: 11/22/2017




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