Com. v. Thorne, T. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
TAYYIB THORNE : No. 2877 EDA 2017
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.
MEMORANDUM BY LAZARUS, J.: FILED MAY 29, 2018
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;
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1 The Commonwealth has certified that the order will terminate or
substantially handicap the prosecution. See Commonwealth’s Brief, at v; see
also Pa.R.A.P. 311(d).
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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 27 th 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
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2 Officer Sweeney testified that he believed a shooting had occurred in that
area three days prior to the instant incident. N.T. Suppression Hearing,
8/9/17, at 12.
3Officer Sweeney did not see Thorne’s hands at any point during the time he
saw him dipping to his left toward the floor and console. N.T. Suppression
Hearing, 8/9/17, at 25.
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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?
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4 18 Pa.C.S. § 6106(a)(1).
5 18 Pa.C.S. § 6108.
6 18 Pa.C.S. § 5104.
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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
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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
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7 We also note that in Commonwealth v. Buchert, 68 A.3d 911, 915 (Pa.
Super. 2013), our Court acknowledged that “the issue in Reppert was
whether a second interaction with the motorist occurred after the initial traffic
stop, not whether furtive movements and nervousness led to reasonable
suspicion in the first instance.” See also Commonwealth v. Simmons, 17
A.3d 399, 405 (Pa. Super. 2011) (noting that in Reppert, court’s holding
stood for proposition that pre-stop furtive movements by themselves may
not justify investigative detention after conclusion of valid traffic stop).
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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
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8This is to be distinguished from a case where furtive movements or excessive
nervousness is the sole basis for conducting an investigatory detention or
where those movements are observed pre-stop. Commonwealth v.
DeWitt, 608 A.2d 1030 (Pa. 1992); Reppert, supra; Cartagena, infra
(where officer testified he only conducted protective vehicle search based
upon defendant’s nervousness).
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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 passenger
compartment of a vehicle for weapons:
Our past cases indicate . . . that protection of police and others
can justify protective searches when police have a reasonable
belief that the suspect poses a danger, that roadside encounters
between police and suspects are especially hazardous, and that
danger may arise from the possible presence of weapons in the
area surrounding a suspect. These principles compel our
conclusion that the search of the passenger compartment of
an automobile, limited to those areas in which a weapon
may be placed or hidden,[9] 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
officers in believing that the suspect is dangerous and the
suspect may gain immediate control of weapons. See
Terry[ v. Ohio], 392 U.S.[1,] 21 [1968.] “[T]he issue is whether
a reasonably prudent man in the circumstances would be
warranted in the belief that his safety or that of others was in
danger.” Id. at 27[.] If a suspect is “dangerous,” he is no less
dangerous simply because he is not arrested.
Long, 463 U.S. at 1049-50 (footnote omitted) (emphasis added).
Here, the factors entering into Officer Sweeney’s search of the car’s
center console were: (1) the legality of the initial stop of the car for a motor
vehicle infraction; (2) the stop occurred late at night in a high-crime, drug
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9 Those areas include a center console, as in the instant case.
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area; (3) recent gun violence in that area; (4) Thorne’s furtive movements
toward the floor and center console; (5) Thorne’s nervousness and quivering
voice; (6) Thorne’s refusal to exit the car when asked by officer; and (7)
Thorne lunging toward the center console when officer tried to forcible remove
him from vehicle. Under a totality of the circumstances, we believe that
Officer Sweeney had a reasonable belief, based on articulable actions taken
by Thorne, that his safety was compromised. See Commonwealth v.
Morris, 644 A.2d 721, 723 (Pa. 1994) (under circumstances encountered by
officer, “a reasonably prudent man would have believed his safety was
compromised” where defendant leaned briefly to right and towards floor near
center of car, reached quickly between legs when ordered to place hands on
steering wheel and officer discovered metal pipe wedged between driver’s seat
and door).
Most instructive to the case at bar is the following analysis from our
Court in Commonwealth v. Cartagena, 63 A.3d 294 (Pa. Super. 2013) (en
banc), which noted:
Absent some combination of evidence to give context to the
encounter – for example, testimony that the stop occurred in a
high-crime area; testimony regarding [the arresting] officer’s
training and experience and its role in formulating a reasonable
suspicion that Cartagena was armed and dangerous; and/or
testimony illuminating the length of delay in Cartagena lowering
his windows – we cannot overturn the suppression court’s decision
to suppress the gun found during the search of the passenger
compartment of the vehicle.
Cartagena, 63 A.3d at 306. Here, we have exactly the facts that our Court
mentioned were missing from the evidence in Cartagena.
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First, Thorne’s presence in a high-crime area, where there had been
three recent episodes of gun violence, is a factor supporting a determination
that reasonable suspicion exists. Commonwealth v. Foglia, 979 A.2d 357,
361 (Pa. Super. 2009). Next, Thorne’s “dipping” movements toward the floor
and center console of the car, refusal to exit the car when asked by Officer
Sweeney, and his lunging toward the center console when the officer was
trying to remove him from the vehicle were acts consistent with an attempt
to conceal or reach for a weapon. See In Interest of O.J., 958 A.2d 561(Pa. Super. 2008) (en banc) (police had reasonable suspicion to conduct
protective weapons search of console of vehicle where individual made several
hand movements over car’s center console and officer believed weapon may
have been secreted in console); Commonwealth v. Tuggles, 58 A.3d 840(Pa. Super. 2012) (even one motion by person indicative of attempt to secret
weapon can support belief that person has gun and justifies search of center
console based on fear weapon night be located there). Additionally, Officer
Sweeney’s law enforcement experience and personal knowledge of recent gun
violence in the area supported his belief that there may have been a gun in
the car; it was more than just a “hunch” as the trial court opined. See Trial
Court Opinion, 12/5/17, at 10. Moreover, the officer’s observation of Thorne’s
nervousness and quivering voice were additional factors justifying Officer
Sweeney’s reasonable suspicion. Buchert, supra. Finally, the fact that the
driver of the vehicle was a known gang member, while not determinative, is
certainly a factor to be considered in assessing the reasonableness of Officer
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Sweeney’s actions. See Commonwealth v. Carter, 779 A.2d 591 (Pa.
Super. 2001) (under some circumstances, officer’s concern for his safety
could be justified based on a defendant’s reputation as member of a violent
gang); see also United States v. Garcia, 459 F.3d 1059, 1066 (10th Cir.
2006) (gang connections are factor in determining reasonableness of officer’s
actions).
Accordingly, we conclude that Officer Sweeney was permitted to search
those portions of the passenger compartment of the car in which a weapon
could be placed, such as a center console, Long, supra, and the trial court
improperly suppressed the evidence uncovered during that search. This was
not a “classic case of [an officer’s] overreaching reaction based upon an
irrational suspicion or a predetermined decision to see if [he] could catch some
gang members with their illegal weapons.” Trial Court Opinion, 12/5/17 at
11. Rather, as the trial court acknowledged at the conclusion of the
suppression hearing, “it was prudent police activity.” N.T. Suppression
Hearing, 8/9/17, at 28.10 Tuggles, supra (search of vehicle’s center console
justified by officer where he had reasonable suspicion that he was in danger
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10 In fact, it is well-established that the search of passenger compartments of
stopped vehicles is permissible where the defendant has been removed from
the vehicle. Under such circumstances, where the officers had not planned to
arrest the occupants, but were going to allow the defendant to return to the
vehicle, the defendant could easily access a weapon in the console once he
returns to the vehicle and use it against the officer. See In the Interest of
O.J., supra; Commonwealth v. Rosa, 734 A.2d 412 (Pa. Super. 1999).
Similarly, there was no testimony or indication that Officer Sweeney planned
to arrest Thorne or the driver for any traffic violations. See Commonwealth
v. Boyd, 17 A.3d 1274 (Pa. Super. 2011).
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based on facts that: stop occurred in high crime, drug and gun area, at night,
and defendant’s arm made motion over center console).
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/29/18
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