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    NON-PRECEDENTIAL DECISION- SEE SUPERIOR COURT I.O.P.65.37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                         :     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, RANSOM, JJ., and STEVENS, P.J.E.*

DISSENTING MEMORANDUM BY STEVENS, P.J.E.: FILED: NOVEMBER 22, 2017

        This Court has recognized that “[w]e must be guided by common

sense concerns that give preference to the safety of the police officer during

an encounter with a suspect where circumstances indicate that the suspect

may have, or may be reaching for, a weapon.” Commonwealth v. Parker,

957     A.2d    311,   316   (Pa.Super.        2008)   (quoting   Commonwealth       v.

Stevenson, 894 A.2d 759, 772 (Pa.Super. 2006)).                   Here, the totality of

circumstances confronting Officer Lehman at the time of the traffic stop in

question created a reasonable suspicion that Appellee Mickel may have

posed a threat of violence warranting a weapons search of all areas inside




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*
    Former Justice specially assigned to the Superior Court.
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the cabin of his vehicle within his reach. The locked glove compartment was

among those areas. Accordingly, I dissent.

      In Michigan v. Long, 463 U.S. 1032 (1983), the United States

Supreme Court extended the Terry-stop doctrine—allowing protective

searches of a person's body—to searches of those portions of the passenger

compartment of a car where a weapon could be hidden:

      [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 [v. Ohio], 392 U.S. at 21 [88 S.Ct. at
      1879]. “[T]he 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 [88 S.Ct. at 1883].

Id., at 1049-1050.     In Commonwealth v. Morris, 644 A.2d 721 (Pa.

1994), our Supreme Court adopted the Long standard for assessing the

constitutionality of a protective search of the interior of a car for weapons.

      Here, the trial court opined that a search must be limited to those

areas where the defendant may have been trying to conceal a weapon. Trial

Court Opinion at 7. “Given that there were no movements toward the glove

compartment and it was locked, there is no articulable facts [sic] to warrant

a reasonably prudent man to conclude there was a gun in the glove

compartment.” Id. The trial court’s opinion finds support in neither Long

and its progeny nor in the evidentiary record below.



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        Long does not limit the scope of a protective search to the precise

location within the cabin where a suspect was seen reaching.      Instead, as

noted supra, a protective search may extend to all areas in the vehicle

where the suspect, whose conduct has raised a reasonable suspicion that he

poses a safety risk, may gain immediate control of a weapon.

        Moreover, the notes of testimony below establish that Officer Lehman

observed Mickel “reaching around within the vehicle,” N.T. at 5, including the

“center cons[ole]” and “the rear and passenger side of the vehicle,” N.T. at

14, before the officer approached the driver’s side window.      The officer’s

testimony, therefore, indicated that Mickel was reaching in numerous

locations within the cabin, including the passenger side of the vehicle where

the glove compartment was located.         A reasonable inference from this

evidence is that the passenger side location of the glove compartment was

within Mickel’s reach and immediate control during the course of the traffic

stop.

        A question remains as to whether a locked glove compartment, itself,

was under Mickel’s immediate control so as to justify a search thereof. In

Commonwealth v. Micking, an eight-member en banc panel of the

Superior Court split evenly on the question of whether a protective search of

a locked glove compartment during a routine traffic stop was justified under

Long and Morris. The search uncovered two loaded handguns that formed

the evidentiary basis for firearms convictions.




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      The plurality opinion in support of affirmance determined that the

officers reasonably believed that the driver posed a danger warranting a

protective search for weapons. The specific and articulable facts supporting

this decision included the officers’ observation of very nervous behavior on

the part of the driver–consisting of trembling voice and shaking hands—

considering the relatively minor reason for the stop (an expired registration).

      The plurality for affirmance determined, further, that the locked glove

box was part of the area subject to a protective search, as it was within the

driver’s “immediate control,” since the driver was only under police

supervision and was not in custody or detention at the time.       Id., at 928

(citing Long, 463 U.S. at 1051-52 (acknowledging that a Terry suspect not

placed under arrest may break from police control and retrieve a weapon

from his vehicle or, if permitted to reenter his vehicle, regain easy access to

any weapons inside)).

      The plurality opinion in support of reversal [“Micking dissent”] “fully

agree[d] with the discussion in the Opinion in support of affirmance

addressing the need for police officers to be protected in the line-of-duty,”

but it found that the officers’ failure to first conduct a pat-down of the

defendant’s person belied their assertion that they believed defendant to

pose a legitimate risk of danger warranting a protective search of the

vehicle.   Without first searching the defendant’s person, therefore, the

search of the vehicle was tantamount to an unlawful warrantless search for




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contraband, the dissent concluded.        Specifically, the Micking dissent

explained:

     However, our review of the record reflects that the facts
     presented at the suppression hearing do not support the trial
     court's conclusion. As the Opinion in support of affirmance
     indicates, “[t]he issue before us is properly defined as whether
     the protective search of the glove box was fueled by reasonable
     suspicion that Appellant may have been armed and dangerous.”
     Slip Op. at 14. Upon review of the transcripts, there is no doubt
     that Officer Tamulis failed to ask Appellant to exit the vehicle
     prior to the search of the passenger compartment and the glove
     box. Likewise, our review further indicates that, contrary to the
     statement of the trial court, Officer Tamulis failed to conduct a
     patdown search of Appellant for weapons.           Rather, Officer
     Tamulis stated simply that he conducted a “protective pat down
     of the area” for his and his partner's “safety.” N.T., 2/10/08, at
     7.1 Thus, the officer failed to establish that he had a reasonable
     belief based on specific articulable facts, which would have
     entitled him to conduct a search of the portions of the passenger
     compartment of the vehicle in which a weapon could be placed
     pursuant to Morris.

     It is our opinion that, if the officer was indeed concerned for his
     safety, he would have first directed Appellant to exit the vehicle
     and conducted a patdown of the Appellant before the officer
     searched the automobile and the locked glove box.
     Consequently, due to the state of the record before this Court,
     we are left to conclude that the trial court erred in its
     determination that Officer Tamulis possessed the necessary
     reasonable suspicion to justify a warrantless search of the locked
     glove box.

     …

     We question whether any officer, concerned for safety, would fail
     to search a vehicle's occupants prior to searching a locked glove
     box in a vehicle. For these reasons we register our dissent and
     would reverse on this issue




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Micking, 17 A.3d at 933–34 (Pa.Super. 2011) (en banc) (opinion in support

of reversal).

        The Micking dissent, therefore, condemned the glove compartment

search only to the extent that the officer’s prior actions, in the dissent’s

opinion, failed to reflect genuine safety concerns justifying a weapons

search.    Here, in contrast, Officer Lehman’s concern for his safety was

evident prior to his protective search of the vehicle.

        Upon witnessing Mickel dipping and reaching around the interior of his

car at the outset of the late night traffic stop, Officer Lehman called for

back-up and waited for its arrival. Only when back-up arrived did the officer

exit his patrol car and commence his personal interview with Mickel, where

he observed that Mickel was unable to remain still even after being

instructed to do so.

        Officer Lehman asked Mickel to exit the vehicle and patted him down

for weapons, which uncovered what the officer considered a potential make-

shift   weapon in      Mickel’s   pocket, namely, a six-inch   steel drill bit.

Accordingly, Officer Lehman asked Mickel to remain outside the vehicle with

the other officer while he searched the cabin.       During the course of the

weapons search, Mickel was neither under arrest nor handcuffed.




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       The cabin sweep disclosed both a block of copper wool1 stored in an

eyeglass case on the back seat along with fragments of copper on the front

passenger floor.       Officer Lehman knew the copper wool was commonly

associated with crack cocaine consumption, and it was reasonable for him to

suspect from the fragments that the copper had been put to that illicit use.

       At that point, the officer continued his search of the cabin by taking

the keys from the dashboard and opening the glove compartment.            Given

the totality of circumstances known to the officer at that time—the late night

setting of the stop, Appellee Mickel’s dipping and reaching around the cabin

before the officer encountered him, Mickel’s nervousness despite the

relatively minor reason for the stop and his inability to calm down when

instructed to do so, and the presence of copper fragments on the front

passenger side floor consistent with potential crack cocaine use—Officer

Lehman had reason to ensure that Appellant did not have access to a

firearm within his immediate reach in the vehicle’s cabin.

       Therefore, it is clear that the facts which caused the Micking dissent

to deny the reasonableness of the officers’ asserted safety concerns in that

case are simply not present in the case sub judice.          As such, I find the

rationale of the Micking opinion in support of affirmance to militate in favor



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1
  The copper wool goes by the commercial name “Chore Boy,” a product
intended for scrubbing metal pots.



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of finding Officer Lehman’s weapons search of the glove compartment

reasonable.

      I likewise distinguish the present matter from the holding reached in

Commonwealth v. Cartagena, 63 A.3d 294 (Pa.Super. 2013), also relied

upon by Appellee and the suppression court, where a six-member majority

of our Court, sitting en banc, affirmed an order granting a motion to

suppress evidence obtained during a purported protective weapons search.

Specifically, the majority held that officers lacked reasonable suspicion to

perform a protective weapons search of a vehicle stopped for illegally tinted

windows despite the driver’s alleged “extreme nervousness.” The search of

the center console uncovered a loaded handgun with an obliterated serial

number.

      At the suppression hearing, the officers testified that the defendant did

not roll down the excessively tinted windows when initially asked, forcing the

officers to ask a second time before he complied. But the en banc majority

disagreed that this testimony reasonably supported the officers’ purported

safety concerns where the driver’s delay was just as likely caused by his

confusion from receiving simultaneous orders from two officers standing on

opposite sides of his vehicle. This, too, could have caused the defendant’s

nervousness or apprehension he exhibited during his personal exchange with

the officer, the majority reasoned. In any event, the driver complied when

he opened both windows at the second command.




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      The majority also declined to discern “extreme nervousness” from the

way the driver opened and closed his center console when asked to produce

his driver’s license and registration.       Contrary to the Commonwealth’s

assertion that the defendant “quickly shut” the console lid after opening it,

the majority noted that the officers actually testified that the driver “looked

stunned” when he opened the console for the requested papers, hesitated,

and then closed the console and opened the glove box where he immediately

retrieved his paperwork. The majority continued:

      “[The defendant] looked into [the console] like he was going to
      retrieve paperwork,” [the officer] testified, which was precisely
      what he was asked to do. . . . [The officer] did not testify that
      there was anything remarkable about the way [the defendant]
      opened and/or closed the center console, only that he “looked
      stunned” before closing the compartment.          It appears [the
      officer] did not attach significance to the manner in which [the
      defendant] opened and closed the center console, as [the
      officer] testified that they decided to subject [the defendant] to
      a pat down and a protective vehicle search based upon [the
      defendant’s] “nervousness.”

Id., at 301 (citations to record omitted).

      According to the court, the sum of evidence bearing on the issue of

officer safety was that the setting was nighttime, the defendant’s windows

were tinted, and he looked nervous after the officers engaged him. Id., at

304. There was, however, no testimony that officers feared for their safety.

Moreover, the majority noted, the officers’ initial concern with the window

tint necessarily receded once the defendant rolled down the windows, which

allowed the officers to see clearly within the cabin well before they decided



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to commence a weapons pat-down. Id. In recognition of these facts, the

officers testified they based their decision to conduct a protective weapons

search solely on witnessing the defendant’s nervousness.

      Here, in contrast, Officer Lehman was concerned not only with Mickel’s

nervousness and refusal to obey his command to sit still during the personal

interaction, but also with Mickel’s prior conduct at the outset of the stop,

where he was seen reaching down and around the entire cabin and console

area of the car.    On similar facts, this Court has found that an officer

articulated sufficient facts to create reasonable suspicion justifying a

protective weapons search.      See Parker, supra, 957 A.2d at 315-16

(holding reasonable suspicion established to pat down driver pulled over for

malfunctioning brake light where officer observed driver reaching down and

dipping his shoulders right and left before officer approached). Furthermore,

as noted above, Officer Lehman testified that he was concerned for his

safety during the nighttime traffic stop and, for that reason, called for back-

up and waited for its arrival before he walked to Mickel’s car.

      Based upon the evidence of record and controlling precedent, I

conclude that the totality of circumstances created a reasonable suspicion to

conduct a protective weapons search of Mickel’s glove compartment, as

Officer Lehman was justified in confirming Mickel had no access to weapons

that could harm him in the line of duty. It follows, therefore, that Officer

Lehman appropriately opened the purse located inside the glove box, as a

weapon secreted inside would have been within the immediate control of

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Mickel. See Morris, 644 A.2d at 722 (upholding protective weapons search

of closed plastic bag in back seat of vehicle after weapons pat down of

suspect’s person, prompted by driver’s leanings and quick reaching toward

car floor, produced no weapon).

      For the foregoing reasons, I would reverse the order suppressing

evidence contained in the purse, and remand for further proceedings

consistent with this decision.




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