from the Order August 9, 2017 In the Court of Common Pleas of
Philadelphia County Criminal Division at No(s):
BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.
Commonwealth of Pennsylvania (Commonwealth) appeals from the
order,  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.
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. 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." 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.
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.
was charged with one count each of firearms not to be carried
without a license,  carrying firearms in public in
Philadelphia,  and resisting arrest. 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?
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.
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
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. 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.
Michigan v. Long, 463 U.S. 1032 (1983), the United
States Supreme Court set forth the principles applicable to a
search of a ...