Com. v. Booker, M.

J-A04005-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MYRON BOOKER :
:
Appellant : No. 1127 EDA 2019
Appeal from the Judgment of Sentence Entered March 19, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002775-2018,
MC-51-CR-0008062-2018
BEFORE: PANELLA, P.J., STRASSBURGER, J.*, and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: FILED MARCH 13, 2020
Myron Booker challenges the judgment of sentence entered in the
Philadelphia County Court of Common Pleas, following his convictions for
possession of cocaine and possession with intent to deliver.1 On appeal,
Booker claims the trial court erred in concluding police had reasonable
suspicion to conduct a protective search of his vehicle for weapons. After
careful review, we affirm.
Philadelphia Police Officers Robert Filler and Oswaldo Toribio were on
routine patrol, around dusk, on the 3100 block of North 2nd Street when they
spotted a white SUV with a defective passenger brake light. Due to the motor
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 See 35 P.S. § 780-113 (a)(16); 35 P.S. § 780-113 (a)(30).
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vehicle infraction, they activated their emergency lights and pulled the SUV
over.
Booker initially stopped his vehicle in the travel lane and made a
movement toward the center console. The police officers then directed Booker
to pull his car to the side of the road, which he did. There, Booker motioned
once again toward the center console.
Officer Filler, who was in the front passenger seat of the police cruiser,
observed Booker’s furtive movements. Concerned for his safety, Officer Filler
approached the passenger side of Booker’s car and immediately opened the
front passenger door. There, he observed in plain view a clear plastic bag on
the floorboard containing what appeared to be narcotics.
Officer Toribio, who had approached the SUV on the driver’s side,
removed Booker from his vehicle and placed him inside the patrol car.
Thereafter, a subsequent search of the SUV was conducted during which
Officer Filler found packets of cocaine from under the cup holder in the center
console.
Booker moved to suppress the cocaine, claiming the police did not
possess reasonable suspicion to search his vehicle for weapons. After a
suppression hearing, the court denied the motion to suppress, and Booker
proceeded to a bench trial. The trial court found Booker guilty of both charges
and sentenced him to 4-10 years’ imprisonment.
Booker filed a timely post-sentence motion, which was denied without a
hearing. This timely appeal followed.
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In his only issue, Booker contends the trial court erred in denying his
motion to suppress the cocaine found during Officer Filler’s search of the
vehicle. See Appellant’s Brief, at 9.
In reviewing the denial of a suppression motion, we must determine
whether the record supports the lower court’s factual findings and whether
the legal conclusions drawn from those facts are correct. See
Commonwealth v. Raglin, 178 A.3d 868, 871 (Pa. Super. 2018). While our
standard of review is highly deferential to the suppression court’s factual
findings and credibility determinations, we afford no deference to the court’s
legal conclusions, and review such conclusions de novo. See Commonwealth
v. Hughes, 836 A.2d 893, 898 (Pa. 2003).
Here, Booker does not challenge the legality of the underlying traffic
stop. Instead, he argues the police did not have reasonable suspicion to
conclude either he was in possession of a weapon or that he might gain control
of one. See Appellant’s Brief, at 9. Booker maintains slight body movements
and the location of where the traffic stop occurred are not enough to establish
reasonable suspicion and relies on this Court’s decision in Commonwealth v.
Cartagena, 63 A.3d 294 (Pa. Super. 2013) (en banc) to support his claim.
See Appellant’s Brief, at 9, 14.
In evaluating whether Officer Filler was justified in conducting a
protective search for weapons, we employ the standard the Supreme Court of
Pennsylvania adopted in Commonwealth v. Morris, 644 A.2d 721 (Pa.
1994).
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Our Supreme Court in Morris applied the test set forth in Michigan v.
Long, 463 U.S. 1032 (1983), and held that the search of the passenger
compartment of an automobile is permissible if a police officer possesses
reasonable suspicion that the suspect may gain immediate control of a
weapon. See Morris, 644 A.2d at 723. In reaching this decision, the Court
explained that, since roadside encounters are inherently dangerous, “[o]ur
constitutional safeguards do not require an officer to gamble with his life.” Id.,
at 724.
Indeed, due to the heightened risk of danger, we have held that furtive
movements, when witnessed in the scope of a lawful traffic stop, provide a
reasonable basis for the police to conduct a protective frisk. See
Commonwealth v. Simmons, 17 A.3d 399, 404 (Pa. Super. 2011); see also
In re O.J., 958 A.2d 561, 566 (Pa. Super. 2008) (en banc) (stating
defendant’s “rapid and furtive hand movements over the console indicated
that he may have been hiding a weapon in that location” and “the police officer
was permitted to engage in a search of that compartment for his own
protection”).
However, we have clarified that “pre-stop furtive movements, by
themselves, [do not] . . . justify . . . [a] search . . . where the totality of the
circumstances . . . established that the furtive movement did not raise
immediate concern for the safety of the officer who undertook the initial
vehicle detention.” Simmons, 17 A.3d at 405; see also Commonwealth v.
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Moyer, 954 A.2d 659, 670 (Pa. Super. 2008) (en banc) (finding “[f]urtive
movements and nervousness, standing alone, do not support the existence of
reasonable suspicion”).
Therefore, the Commonwealth must both show the police saw furtive
movements during the stop and that there were additional reasons for them
to be concerned about the presence of weapons in order to demonstrate
reasonable suspicion. See Commonwealth v. Buchert, 68 A.3d 911, 916-
917 (Pa. Super. 2013).
Here, as discussed above, Booker made two separate furtive
movements during the traffic stop. He was observed motioning toward the
center console while stopped in the traffic lane. See N.T., Suppression
Hearing, 11/29/18, at 9. He was also seen motioning toward the center
console after parking his car on the side of the road. See id. As a result, these
furtive movements prompted Officer Filler to believe Booker had access to a
firearm. See id., at 12.
In addition, the stop occurred at dusk on North 2nd Street. See id., at
11-12. Officer Filler - a 12-year veteran of the Philadelphia Police Department
- described this area as a high crime, high narcotics area in light of his
experience. See id.
Based on the foregoing, we conclude this combination of factors
provided a reasonable basis for Officer Filler to suspect that there might be a
weapon in the vehicle. See Commonwealth v. Tuggles, 58 A.3d 840, 845
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(Pa. Super. 2012) (holding sufficient reasonable suspicion to justify protective
weapons sweep where traffic stop took place at night, in a high crime area,
and police observed defendant make a furtive movement).
Moreover, we find Booker’s reliance on our decision in Cartagena
misplaced. There, two police officers pulled the defendant’s car over at night
due to a violation of the Motor Vehicle Code. See Cartagena, 63 A.3d at 296.
After one of the officers asked the defendant for his license and registration,
the defendant “opened his center console, looked inside like he was going to
retrieve paperwork [. . .] [and] then closed it.” See id. (internal quotations
omitted). Because of his nervousness, police asked the defendant to step out
of the vehicle. See id., at 297. They then conducted a search of the driver’s
center console and recovered a firearm. See id.
Importantly, the suppression court in Cartagena suppressed the
evidence. See id., at 297. In affirming the suppression court’s ruling, the
Cartagena panel concluded, under the particular circumstances in the case,
the police did not possess a sufficient basis to conduct a search where the only
evidence was that the stop occurred at night and the defendant was extremely
nervous. See id., at 304.
However, the circumstances here are entirely different from Cartagena.
First, the suppression court here denied suppression. We are therefore
required to give deference to the suppression court’s finding that the officers
reasonably believed that Booker might have a weapon unless there is no
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support in the record. Further, the present case involves a situation where
Booker made two separate furtive movements, thus raising concerns for
officer safety during a traffic stop in a high-crime area. Therefore, we find our
decision in Cartagena is inapplicable in the current matter.
For the reasons discussed above, we find the record supports both the
trial court’s factual findings and its legal conclusions. Booker’s only issue on
appeal does not merit relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/20
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