Appeal from the Order January 17, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008519-2011
The opinion of the court was delivered by: Bowes, J.:
BEFORE: STEVENS, P.J., BOWES, and PLATT,*fn1 JJ.
The Commonwealth appeals from the January 17, 2012 order suppressing drugs and money located in the console of a car being driven by Appellee Kristoffer Tuggles as well as money discovered on Appellee's person. After careful review, we hereby reverse and remand.
The suppression court rendered the following factual findings in connection with its decision to suppress, and we adopt them for purposes of our analysis on appeal:
On February 3, 2011, at approximately eight o'clock p.m., while on routine patrol, Officer David Marcellino and his partner, Officer Rosado, were in the seventeen-hundred block of S. 19th Street. At that time, [Officer] Marcellino observed a 2011 Chevrolet Impala, operated by the defendant, disregard a stop sign on 19th Street. He signaled for the Impala to pull over and the defendant complied.
Officers Marcellino and Rosado approached the vehicle, which was occupied by the defendant and a front-seat passenger. As the officers were approaching, [Officer] Marcellino saw the defendant make an arm motion that he described, both with his verbal testimony and by simulating the motion during that testimony, as one of an arm going from an upright position to a horizontal one, consistent with closing a hinged center panel. Officer Marcellino approached the driver's side of the vehicle and Officer Rosado approached the passenger side. The passenger, who appeared to [Officer] Marcellino to be intoxicated, did not remove his hands from his pockets when requested by [Officer] Rosado. The defendant obeyed [Officer] Marcellino's commands and was very cooperative. Both individuals were given a pat-down which revealed no weapons and were placed in the back of the police vehicle.
At that time, Officer Marcellino again approached the now- vacant Impala and opened the center console panel, where he found fourteen packets of what appeared to be crack cocaine, as well as two thousand, two hundred and twenty dollars ($2,220) in United States currency. Subsequent to that discovery, the defendant was formally placed under arrest and searched more thoroughly, at which point he was found to be carrying on his person one thousand seven hundred and four dollars ($1,704) in United States currency. Officer Marcellino issued a traffic citation to the defendant. The passenger was released and left the scene on foot; [Officer] Marcellino testified that he may have lived nearby.
Officer testified that the area in which the traffic stop occurred was one with high crime, drugs and guns. After being asked whether he had any reason to believe that his safety was jeopardized, he cited the arm motion over the center console and the front passenger's initial refusal to remove his hands from his pockets.
Trial Court Opinion, 3/14/12, at 1-2 (citations to record and quotation marks omitted).
Based on these facts, the suppression court concluded that Officer Marcellino was permitted to pat down Appellee and his passenger for weapons but was not justified in conducting a weapons search of the center console of Appellee's car. The court ultimately suppressed the drugs and money located therein, as well as the money found on Appellee's person. In this ensuing appeal, the Commonwealth raises this position:
Where the lower court held that police had reasonable suspicion to frisk defendant for weapons after they initiated a nighttime car stop of two unknown men in a high-crime area and defendant closed the car's center console as they approached and his passenger refused to take his hands from his pockets, did the court err in finding that it was unconstitutional for the officers to frisk the console?
Commonwealth's brief at 2.
We review the propriety of a court's decision to suppress evidence pursuant to ...