Appeal from the Order Dated December 14, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008730-2011
The opinion of the court was delivered by: Bowes, J.:
BEFORE: BOWES, GANTMAN, and MUSMANNO, JJ.
The Commonwealth appeals from the trial court order suppressing the seizure of a firearm during a traffic interdiction.*fn1 We reverse. The suppression court delineated the salient facts as follows.
At approximately 12:15 a.m. on July 15, 2011, Officer [Edward] McConnell and his partner, Officer Shevlin, were on duty in the area of 3000 North 5th Street in Philadelphia. Around that time, Officer McConnell spotted a 1996 black Nissan Maxima traveling north on the 3000 block of North 5th Street with a broken tail light. Officer McConnell activated his overhead lights and pulled the Maxima over for the sole reason of having a broken tail light.
Officer McConnell, along with his partner, exited the police cruiser and began to approach the Maxima. Officer McConnell testified that as he approached the vehicle, he could see the defendant, Matthew Buchert, who was in the front passenger seat, bending forward and appearing to reach under the seat. However, Officer McConnell never saw the defendant's hands, and only witnessed "the defendant's shoulders bending forward." The defendant was seated in the front passenger seat and Officer McConnell approached from the driver's side. At the time it was dark outside and Officer McConnell was using a flashlight.
As the officers approached, they commanded the defendant and the driver, Kelly Collins, to keep still and make their hands visible. Both occupants were compliant and cooperative with the officers' instructions. Officer McConnell testified that the defendant appeared nervous as they were talking to him, and that he could see the defendant's heavy breathing and rapid heartbeat. At that point, Officer McConnell was still standing on the driver's side of the car and facing the defendant from a few feet away. One of the officers then instructed the defendant and the driver to exit the vehicle. Officer Shevlin performed a frisk on the defendant through which no contraband was recovered.
After the occupants were frisked, they remained with Officer Shevlin at the rear of the vehicle while Officer McConnell performed a search of the defendant's "immediate area of control." Officer McConnell began searching the vehicle, and stated that he could see the handle of a gun as he bent forward to look under the passenger seat. A black .22 caliber Colt revolver was recovered from underneath the passenger seat.
Officer McConnell described the area as a "high narcotics area." The Commonwealth offered no further evidence supporting the notion that this area was generally associated with a high degree of crime.[*fn2 ] Officer McConnell testified that when he saw the defendant "reaching," he believed the defendant was "placing something under the seat, possibly a weapon."
Trial Court Opinion, 7/17/12, at 2-4 (internal citations omitted).
Immediately following the suppression hearing, the court ruled that the search was unlawful because the police did not possess probable cause to search the passenger area. The court relied principally on our decision in Commonwealth v. Reppert, 814 A.2d 1196 (Pa.Super. 2002) (en banc). The Commonwealth appealed, and the court directed it to comply with Pa.R.A.P. 1925(b). The Commonwealth complied and the court authored its Pa.R.A.P. 1925(a) opinion. The matter is now ripe for our review. The Commonwealth presents one question for our consideration.
Where police officers conducted a valid traffic stop of a car in which defendant was a passenger and, as the officers approached the car, defendant bent forward and reached under the seat, then appeared very nervous, did the lower court err in suppressing the gun found under defendant's ...