Com. v. Rios, H. ( 2023 )


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  • J-A24031-22
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    Appellant           :
    :
    :
    v.                         :
    :
    :
    HECTOR RIOS                             :   No. 2195 EDA 2021
    Appeal from the Order Entered September 29, 2021
    In the Court of Common Pleas of Philadelphia County Criminal Division at
    No(s): CP-51-CR-0002156-2020
    BEFORE: PANELLA, P.J., BENDER, P.J.E., and SULLIVAN, J.
    MEMORANDUM BY SULLIVAN, J.:                     FILED FEBRUARY 21, 2023
    The Commonwealth appeals from the order granting the suppression
    motion filed by Hector Rios (“Rios”). We affirm.
    The suppression court summarized the factual history relevant to this
    appeal as follows:
    On December 10, 2019, at approximately 8:20 P.M.,
    Philadelphia Police Officer Theodore [Brown] (“Officer Brown”)
    responded to a radio call concerning a person with a weapon at
    Nazareth Hospital . . .. The call relayed a general description of a
    Hispanic male wearing a red hat, red pants, and driving a silver
    BMW. [When he arrived a]t the scene, Officer Brown, an 18-year
    veteran at the time, testified he observed a male wearing a red
    hat and matching the radio call description, driving towards the
    exit of the parking lot. Specifically, Officer Brown saw this male
    as he pulled into the Nazareth Hospital parking lot.
    Once inside the parking lot, Officer Brown . . . turned his
    vehicle around and got behind [Rios’s] vehicle. When Officer
    Brown exited his vehicle and approached [Rios’s] vehicle, [Rios’s]
    vehicle had already been stopped by fellow officers[,] and [Rios]
    was standing outside the driver’s door.       [Rios] was not in
    [handcuffs]. Officer Brown brought [Rios] to the rear of the BMW
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    and asked him to place his hands on the trunk of the vehicle.
    Officer Brown could not recall whether he escorted [Rios], or
    whether [Rios] simply walked with him to the rear of the vehicle.
    Once at the rear of [Rios’s] vehicle, [Officer Brown] asked whether
    [Rios] had any weapons on his person, [to] which [Rios] replied[,]
    “No.” Officer Brown completed a brief frisk around [Rios’s]
    waistband.
    Officer Brown escorted [Rios] to the rear of his police vehicle
    and waited with him. The rear of Officer Brown’s police car was
    approximately two . . . car lengths away from the door of the
    BMW.
    Officer Brown testified that [Rios] was “cooperative” and
    “polite.” They stood behind the police vehicle for approximately
    [ten] minutes and engaged in a brief conversation for paperwork
    purposes. Officer Brown stated [Rios’s] overall behavior was not
    alarming. Officer Brown stated he was physically holding onto
    [Rios] while they stood at the rear of the police car; however,
    [Rios] made no effort to run or break free. Officer Brown stated
    he felt secure standing next to [Rios]. There were no civilians in
    the area. . . ..
    The [c]omplainant [who reported that Rios had threatened
    her] was in an emergency department waiting room when officers
    arrived. The [c]omplainant told Sergeant [Zaqueo] Velez that
    [Rios] threatened to get a gun, come back, and do something to
    her following a domestic dispute. The [c]omplainant further told
    Sergeant Velez that [Rios’s] firearm was in his car, under the
    steering column in a hole cut in the dash or a slit. Sergeant Velez
    subsequently radioed the officers outside to look in the car for the
    firearm in the location given by the [c]omplainant. The officers
    outside relayed back to Sergeant Velez that they had looked
    around, but they did not see anything. Sergeant Velez then
    walked out to the vehicle. Per Sergeant Velez, [Rios] was already
    inside of a police vehicle when he walked out to the car to look for
    the weapon about which the [c]omplainant told him.
    There was no contraband in plain view inside [Rios’s] car,
    per Sergeant Velez. Ultimately, Sergeant Velez found a hole cut
    underneath the steering column of [Rios’s] BMW. He stuck his
    hand into the cut hole, up to his wrist, and felt a metal object he
    perceived to be a firearm. He subsequently pulled out a firearm.
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    The officers did not obtain a search warrant prior to
    searching the vehicle. Moreover, [Rios] did not consent to the
    search of his vehicle.
    Suppression Court Opinion, 3/9/22, at 2-4 (paragraph numbers and citations
    to the record omitted).
    The police arrested Rios and charged him with violations of the Uniform
    Firearms Act and other offenses.1 Rios filed a suppression motion challenging
    the warrantless search of his car and the recovery of the gun. The suppression
    court held a hearing at which Officer Brown and Sergeant Velez testified. See
    N.T., 9/14/21, at 7-45.         The Commonwealth asserted that the sergeant
    properly recovered the gun because the police had probable cause and exigent
    circumstances to conduct a warrantless search of Rios’s car. See id. at 53-
    57; see also Commonwealth v. Alexander, 
    243 A.3d 177
    , 207 (Pa. 2020)
    (holding that the Pennsylvania Constitution requires a warrantless vehicle
    search be supported by probable cause and exigent circumstances).
    Alternatively, the Commonwealth argued that police conducted a proper
    protective search of the car for weapons based on reasonable suspicion that
    Rios was armed and dangerous.             See N.T., 9/14/21, at 57-58; see also
    Commonwealth v. Morris, 
    644 A.2d 721
    , 723-24 (Pa. 1994) (adopting
    Michigan v. Long, 
    463 U.S. 1032
     (1983), holding that permitted protective
    searches of vehicles for weapons).
    ____________________________________________
    1 See 18 Pa.C.S.A. §§ 6105(a), 6106(a)(1), 6108. The criminal complaint
    also charged Rios with terroristic threats, simple assault and recklessly
    endangering another person, see 18 Pa.C.S.A. §§ 2706, 2701, 2705, but the
    municipal court dismissed those charges for lack of evidence.
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    The suppression court rejected the Commonwealth’s arguments and
    granted Rios’s suppression motion.             Specifically, the suppression court
    concluded that the police had probable cause to believe that Rios had
    committed a crime but no exigent circumstances justified Sergeant Velez’s
    warrantless search of Rios’s vehicle. Additionally, the court determined that
    a protective search did not apply because the police had already detained Rios
    and other officers had searched the vehicle before the sergeant searched the
    vehicle for a second time and found the gun. See N.T., 9/29/21, at 8-9. The
    Commonwealth timely appealed pursuant to Pa.R.A.P. 311(d), and both it and
    the suppression court complied with Pa.R.A.P. 1925.
    The Commonwealth raises the following issue for our review:
    Did the lower court err in suppressing a gun police found in
    [Rios’s] car after a legal stop on the ground that they did not first
    obtain a warrant, where the police were justified in conducting a
    protective safety search of the car . . .?
    Commonwealth’s Brief at 4.2
    Our review of an order granting a suppression motion is governed by
    the following standards:
    [A]n appellate court is required to determine whether the
    record supports the suppression court’s factual findings and
    whether the inferences and legal conclusions drawn by the
    suppression court from those findings are appropriate. [Where
    the defendant] prevailed in the suppression court, we may
    consider only the evidence of the defense and so much of the
    evidence for the Commonwealth as remains uncontradicted when
    ____________________________________________
    2The Commonwealth has abandoned its claims that Sergeant Velez conducted
    a proper warrantless search under Alexander. See Commonwealth’s Brief at
    7 n.2. Rios did not file an appellee’s brief.
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    read in the context of the record as a whole. Where the record
    supports the factual findings of the suppression court, we are
    bound by those facts and may reverse only if the legal conclusions
    drawn therefrom are in error. However, where the appeal of the
    determination of the suppression court turns on allegations of
    legal error, the suppression court’s conclusions of law are not
    binding on an appellate court, whose duty it is to determine if the
    suppression court properly applied the law to the facts.
    Commonwealth v. Cartagena, 
    63 A.3d 294
    , 298 (Pa. Super. 2013) (en
    banc) (internal citation omitted).
    “[I]t is hornbook law that the [F]ourth [A]mendment to the United
    States Constitution as well as Article I, § 8 of the Pennsylvania Constitution
    protect citizens from ‘unreasonable searches and seizures.’” Commonwealth
    v. Simmons, 
    17 A.3d 399
    , 402-03 (Pa. Super. 2011) (internal citation
    omitted). “Warrantless searches and seizures . . . are unreasonable per se,
    unless conducted pursuant to specifically established and well-delineated
    exceptions to the warrant requirement.” See 
    id.
    A protective search of a vehicle for weapons is one such exception to
    the warrant requirement.      In Long, the United States Supreme Court
    extended the principles of a protective “frisk” exception to an automobile. See
    Long, 
    463 U.S. at 1049
     (discussing Terry v. Ohio, 
    392 U.S. 1
     (1968), and
    holding that Terry applied to persons as well as property, such as a vehicle);
    see also Morris, 644 A.2d at 723 (adopting Long). Under the protective
    search exception, police may search the passenger compartment of a vehicle,
    and containers therein, where a weapon may have been placed or hidden.
    See Long, 
    463 U.S. at 1049
    . The validity of a protective search of a vehicle
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    turns on whether a reasonably prudent officer would be warranted in the belief
    that his or her safety or the safety of others was in danger, that is, whether
    the police possess specific and articulable facts to sustain a reasonable
    suspicion that the person is dangerous and may gain control of a weapon.
    See 
    id.
     As the United States Supreme Court reasoned in Long:
    Just as a Terry suspect on the street may, despite being under
    the brief control of a police officer, reach into his clothing and
    retrieve a weapon, so might a Terry suspect in a [vehicle stop]
    break away from police control and retrieve a weapon from his
    automobile. In addition, if the suspect is not placed under arrest,
    he will be permitted to reenter his automobile, and he will then
    have access to any weapons inside. Or . . . the suspect may be
    permitted to reenter the vehicle before the Terry investigation is
    over, and again, may have access to weapons. In any event, we
    stress that a Terry investigation . . . involves a police
    investigation at close range, when the officer remains particularly
    vulnerable in part because a full custodial arrest has not been
    effected, and the officer must make a quick decision as to how to
    protect himself and others from possible danger . . ..
    Long, 
    463 U.S. at 1051-52
     (internal citations and quotations omitted).
    The facts and circumstances giving rise to an officer’s reasonable belief
    that a person is dangerous and could gain control of a weapon versus exigent
    circumstances justifying a warrantless vehicle search based upon probable
    cause may overlap. Compare Commonwealth v. Perry, 
    798 A.2d 697
    , 703
    (Pa.   Super.   2002)   (plurality)   (finding   probable   cause   and   exigent
    circumstances when the occupants of a vehicle attempt to elude police and
    stopped their vehicle in the middle of a road, the officers’ specific knowledge
    of a shooting that had occurred, and eyewitness identifications of the car’s
    occupants as being involved in the shooting) with In re O.J., 
    958 A.2d 561
    ,
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    566 (Pa. Super. 2008) (en banc) (holding that driver’s dangerous driving,
    failure to immediately stop for police, and rapid and furtive hand movements
    over a console that was left partially open were factors that supported the
    officer’s belief that the driver weapon may have been secreted in the console
    and justified a protective search) and Cartagena, 
    63 A.3d at 307
     (holding
    that the Commonwealth did not prove a reasonable basis for a protective
    search based on evidence of the driver’s nervousness during a late night stop
    of a vehicle with heavily tinted windows). Yet, the exceptions permitting a
    warrantless search to discover or preserve evidence with probable cause and
    exigent circumstances under Alexander and a search to ensure officer safety
    under Long and Morris are distinct, and it is the Commonwealth’s burden to
    establish that the police did not recover the challenged evidence in violation
    of the defendant’s rights. See Pa.R.Crim.P. 581(H).
    The Commonwealth here argues that the police search of the vehicle
    was permissible as a protective search of Rios’s car for weapons.        See
    Commonwealth’s Brief at 9. The Commonwealth notes, correctly, that “Terry,
    Long, and Morris speak to a wholly different body of law than” the
    requirement, under Alexander, that a warrantless search be conducted with
    probable cause and exigent circumstances. Id. at 10. The Commonwealth
    asserts the reports from a known complainant that Rios previously hid a gun
    in his car that he threatened to retrieve during an argument gave rise to
    specific and articulable facts for police to believe that Rios was armed and
    dangerous. See id. at 13. The Commonwealth claims that the police thus
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    had reasonable suspicion to search Rios’s vehicle for a weapon and that the
    suppression court erred when finding that Rios did not pose an immediate
    threat because he had been separated from his car and detained. See id. at
    13-14. Further, the Commonwealth argues that the suppression court erred
    by conflating the officer safety concerns allowing a protective search for
    weapons with Alexander’s requirements for exigent circumstances. See id.
    The suppression court, in its Rule 1925(a) opinion, concluded          that
    Sergeant Velez’s search of Rios’s car exceeded the scope of the protective
    safety search exception. The court distinguished Morris, finding:
    When Officer Brown arrived at Nazareth Hospital, [Rios] had
    already been removed from his vehicle. Officer Brown conducted
    a brief frisk of [Rios], and no weapons were found on him. Officer
    Brown testified [Rios’s] actions were not alarming, as compared
    to Morris, who failed to comply with [an] officer’s direction to put
    his hand on the st[ee]ring wheel. Officer Brown testified [Rios]
    was cooperative. There was no testimony of contraband, or
    weapons in plain view, as compared to Morris, where [a] metal
    pipe was visible as soon as the police opened [Rios’s] car door.
    Furthermore, in the instant case, the officers had already
    done a search of the vehicle and had not found anything
    until Sergeant Velez searched the vehicle again, while [Rios]
    was in [or by] the police car, and recovered the hidden firearm.
    Suppression Court Opinion, 3/9/22, at 9 (emphasis added).
    Following our review, we are constrained to conclude that the
    Commonwealth fails to address the critical point in the trial court’s opinion,
    namely, that Sergeant Velez searched the vehicle after a previous, but
    unsuccessful, protective search. See Suppression Court Opinion, 3/9/22, at
    3-4; see also N.T., 9/14/21, at 37-40 (indicating that the sergeant testified
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    he obtained information from the complainant, ordered the first search of
    Rios’s car, “tried to describe” where the gun was, but the other officers
    reported they did not find “any type of access” to where to the gun was
    located, whereupon he walked outside to the car, entered the vehicle, and
    found the gun in the steering column). We acknowledge the Commonwealth’s
    legal and policy arguments in support of reversal, and we agree that
    Pennsylvania law recognizes a protective search of a vehicle for weapons as a
    settled exception to the warrant requirement that is independent of
    Alexander.    We do not dispute that vehicle stops are among the most
    dangerous types of interactions involving the police. We also acknowledge
    that the mere fact that an officer detains an individual away from a vehicle
    will not diminish the threat posed by a suspected dangerous individual were
    he to have access to a weapon upon returning to his vehicle. See Long, 
    463 U.S. at 1051-52
    ; In re O.J., 958 A.2d at 563.           The Commonwealth’s
    arguments may justify the first protective search of Rios’s vehicle, which
    police conducted after Sergeant Velez received information to believe that Rios
    was armed and dangerous and at the sergeant’s direction.
    However, it is the second search that is at issue here, and the
    Commonwealth provides no meaningful discussion of the search of Rios’s
    vehicle that was conducted after the previous unsuccessful search.         The
    Commonwealth only once refers to the fact that there were two searches of
    Rios’s car, see Commonwealth’s Brief at 6-7, and it offers no legal argument
    -9-
    J-A24031-22
    or citation to a decision concerning a second or subsequent Terry search.3
    Thus, we conclude that the Commonwealth has not adequately developed its
    argument on appeal, and, accordingly, it has waived its arguments in support
    of the lawfulness of the second search. See Commonwealth v. Kane, 
    10 A.3d 327
    , 331 (Pa. Super. 2010) (noting that this Court will not act as counsel
    and will not develop arguments on behalf of an appellant). Accordingly, we
    affirm the order suppressing the gun as the fruit of the unlawful second search
    of Rios’s car.
    Order affirmed.
    ____________________________________________
    3 We have yet to find a published Pennsylvania case addressing a scenario
    similar to this case. However, other courts, and at least one unpublished
    decision from this Court, have considered second or subsequent Terry
    searches and reached differing conclusions. Cf. United States v. Osbourne,
    
    326 F.3d 274
    , 278 (1st Cir. 2003) (declining to find a subsequent frisk
    unreasonable per se and holding that a second frisk was proper based on
    information that the defendant always carried a gun, was involved in gang
    activity and police were attempting to detain multiple occupants of a car);
    State v. Flowers, 
    734 N.W.2d 239
    , 255 (Minn. 2007) (noting that the basis
    for an initial detention and vehicle search for weapons had dissipated by the
    time of a second search); State v. Pierce, 
    77 P.3d 292
    , 296 (N.M. 2003)
    (concluding that a second frisk constituted an impermissible search for drugs
    on the defendant’s person); Balentine v. State, 
    71 S.W.3d 763
    , 770 (Tex.
    Crim. App. 2002) (holding that a defendant’s behavior after a first frisk gave
    rise to a belief that the defendant may be armed to justify a second frisk); cf.
    also Commonwealth v. Powell, 
    222 A.3d 816
    , 
    2019 WL 4949373
    , at *5
    (Pa. Super. Oct. 2019) (unpublished memorandum) (rejecting a claim that a
    second frisk was improper noting that the defendant continued to touch his
    jacket after a first frisk); Pa.R.A.P. 126 (permitting citation to unpublished
    memorandum of this Court filed after May 2019).
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/21/2023
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