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Commonwealth v. Thorne

Superior Court of Pennsylvania

June 22, 2018


          Appeal from the Order August 9, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004855-2017

          BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.


          LAZARUS, J.

         The Commonwealth of Pennsylvania (Commonwealth) appeals from the order, [1] entered in the Court of Common Pleas of Philadelphia County, granting Tayyib Thorne's pre-trial motion to suppress money and a gun recovered from an allegedly unlawful search of the center console of the car in which Thorne was a front-seat passenger. After careful review, we reverse and remand.

         On the evening of April 29, 2017, Officer Johnathan Sweeney, a two-year veteran of the 17th District of the Philadelphia Police Department, was on routine patrol in his marked vehicle in the area of 26th and Tasker Streets. He was patrolling the area due to high crime, drug activity and recent gun violence. Sweeney had made 8-10 arrests in that area in the past two years; the arrests involved narcotics, aggravated assaults by handguns, probation violations and thefts.[2] At approximately 9:15 p.m., Officer Sweeney observed a vehicle disregard a stop sign, then turn left onto 27th Street. Officer Sweeney activated his lights and sirens and initiated a vehicle stop. Thorne was located in the front-passenger seat of the vehicle. After Officer Sweeney's partner had a conversation with the driver of the car, both officers returned to the patrol vehicle and ran the occupants' identification through the mobile data system. In the midst of running the occupants' identification, Officer Sweeney testified that "[he] observed the defendant in the passenger seat dip down like [sic] towards the floor as well as leaning towards the console."[3] N.T. Suppression Hearing, 8/9/17, at 9. The database searches did not uncover any outstanding warrants or other legal issues; however, they did identify the driver of the vehicle as a known gang member. Id. at 21, 23.

         At that point, the officers returned to the car and asked the driver and Thorne to exit the vehicle so they could frisk them for weapons. Id. at 10, 25. When Officer Sweeney asked Thorne to exit the vehicle, he refused. Id. at 12. Officer Sweeney noticed that the occupants seemed nervous and that their voices were quivering. Id. at 25. At that point, Officer Sweeney opened the passenger-side door of the vehicle and tried to use control holds to pull Thorne out of the car. Id. At that point the officer saw Thorne "lunge toward the center console." Id. Back-up officers arrived and helped Officer Sweeney remove Thorne from the vehicle. Id. at 13. Once Thorne was removed from the car, Office Sweeney conducted a sweep of the car's passenger area, including the center console. Id. A black, loaded Smith and Wesson handgun and cash were recovered from the console. Id. at 14-15.

         Thorne was charged with one count each of firearms not to be carried without a license, [4] carrying firearms in public in Philadelphia, [5] and resisting arrest.[6] On June 22, 2017, Thorne filed a pre-trial motion to suppress the evidence (gun and money) uncovered from the stop and search. After a hearing, the trial court granted the motion. The Commonwealth filed a timely notice of appeal and Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The Commonwealth presents the following issue for our consideration:

Did the suppression court err in ruling that experienced officers lacked reasonable suspicion to conduct a protective search of the center console of a car driven by a known gang member and in which defendant was the front-seat passenger where, upon stopping the car for a vehicle code violation at night in a high crime area in which gang shootings had recently taken place, defendant refused to exit the car and instead lunged toward the center console?

          When the Commonwealth appeals from a suppression order, this Court follows a clearly defined scope and standard of review: we consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. See Commonwealth v. Henry, 943 A.2d 967, 969 (Pa. Super. 2008).

         Instantly, the trial judge stated his reasons for granting suppression on the record:

I think the pivotal moment in this case is the discovery back in the radio patrol car that the driver of the car was listed as a known gang member from that area. The officer, although he didn't initially recognize him, is aware of the person. I think that changed everything in the officer's mind as to how they would proceed. In my mind it does not convert what they already knew into the type of probable cause that allowed this subsequent police activity. Personally, I think it was prudent police activity, but I think it's suppressible activity. I grant the motion.

N.T. Suppression Hearing, 8/9/17, at 27-28. Moreover, in his Rule 1925(a) opinion, the trial court finds that Commonwealth v. Reppert, 814 A.2d 1196 (Pa. Super. 2002), is directly on point if we were to "[p]ut Reppert in the front passenger seat [like the defendant in this case]." Trial Court Opinion, 12/5/17, at 14. In Reppert, as the officers were following the subject vehicle and in the process of executing a traffic stop, one officer observed the defendant move his head and shoulders as if he were stuffing something into his pockets or between the seat cushions. The officer also testified that the defendant appeared "antsy and very, very nervous" as he sat in the back seat after the car was stopped and the other officer was questioning the driver about his expired inspection and registration stickers. Id. at 1199. The officer ordered the defendant to get out of the car, saw bulges in his front pants' pockets and ordered him to empty his pockets. Although Reppert did not comply the first time he was asked, he ultimately emptied his pockets, which contained cash, marijuana and drug paraphernalia. Reppert filed an unsuccessful suppression motion in the trial court and he was convicted and sentenced. Id. at 1200. On appeal, our Court reversed the denial of suppression, finding that "the prior traffic stop . . . gave way to a new interaction when [the officer] directed Reppert to exit [the] car." Id. at 1202. Our Court concluded that once the driver was questioned and the officer accepted his explanation for the expired stickers, the traffic stop had concluded and there was no further reason to detain the driver or its occupants. Id. at 1203. Moreover, the Court reasoned that the officer's direction to Reppert to exit the vehicle was "unrelated to any traffic infraction and was not a necessary element of the prior traffic stop." Id. We find the facts and circumstances surrounding the vehicle stop in the instant case distinguishable from those in Reppert.[7]

          First, we note that here the officers had probable cause to stop Thorne's vehicle when they saw the driver disregard a stop sign. Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (officer has authority to stop vehicle for violation of Motor Vehicle Code where alleged violation did not require further investigation; traffic stop must be supported by probable cause). When the officers were running the registration information in the police database, Officer Sweeney testified that he saw Thorne's body dip down in the passenger seat toward the floor and lean toward the console. In his experience as a police officer, Officer Sweeney testified that guns are often stored in the center console of cars. N.T. Suppression Hearing, 8/9/17, at 20. He also testified that several incidents of gun violence recently had occurred in that area. Id. at 10-11. Based upon these facts, Officer Sweeney suspected that there was a weapon inside the vehicle, id. at 10, and, as a result, he and his partner asked the occupants to exit the vehicle. Id. This, too, is legally permissible.[8] See Pennsylvania v. Mimms, 434 U.S. 106 (1977) (police officer can, to protect own safety, order occupants to alight from vehicle that has been stopped for routine traffic offense). When Thorne failed to comply with the officer's request to exit the vehicle, the officer forcibly tried to remove Thorne from the car. At that point, Thorne "lunged toward the center console." Id. at 12. When Thorne was finally removed from the vehicle, Office Sweeney conducted a search of the passenger compartment of the car, including the center console, where the suppressed evidence was found.

         In Michigan v. Long, 463 U.S. 1032 (1983), the United States Supreme Court set forth the principles applicable to a search of a ...

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