Com. v. Abdul-Aziz, S.

• Court: Superior Court of Pennsylvania
• Decided: May 28, 2024
• Docket: 285 EDA 2023
• Status: Unpublished

Opinion

J-S47008-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SAMIR F. ABDUL-AZIZ : : Appellant : No. 285 EDA 2023

Appeal from the Judgment of Sentence Entered January 4, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000794-2022

BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*

DISSENTING MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 28, 2024

Our courts have recognized the harsh reality that “police officers risk

their lives daily in the line of duty, especially when conducting a vehicle stop,

as they do not know what they will encounter when they approach a car.”

Commonwealth v. Cartagena, 63 A.3d 294, 306 (Pa.Super. 2013) (citing

Michigan v. Long, 463 U.S. 1032, 1049 (1983) (“roadside encounters

between police and suspects are especially hazardous”).

As the responding officer who conducted the vehicle stop in this case

was presented with circumstances that would lead a reasonable person to

believe that Appellant was concealing a weapon in his vehicle, the officer had

reasonable suspicion to conduct a limited protective sweep of the vehicle for

his own safety.

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* Former Justice specially assigned to the Superior Court. J-S47008-23

Moreover, while we respect the privacy rights of individuals, those rights

must give way when the safety of police officers is at risk, such as in this case.

The Majority recognizes this is a “close” case, and thus, in my view, the

balance must tip in favor of officer safety. As the trial court properly denied

Appellant’s suppression motion, I dissent.

It is well-established that police officers may conduct a limited frisk of a

suspect if they have reasonable suspicion that criminal activity is afoot and

that the suspect is “armed and dangerous.” Int. of T.W., 261 A.3d 409, 417

(Pa. 2021) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). The purpose of a

protective frisk is to “dispel a reasonable fear that the stopped suspect

possesses a weapon which could be used to harm a police officer or the public

during the stop.” Int. of T.W., 261 A.3d at 417 (citing Terry, 392 U.S. at

30). While it is not necessary for the police officer to be “absolutely certain

that the individual is armed,” courts employ an objective standard to

determine “whether a reasonably prudent man in the circumstances would be

warranted in the belief that his safety or that of others was in danger.” Int.

of T.W., 261 A.3d at 417 (citing Terry, 392 U.S. at 27).

An officer conducting a traffic stop may also conduct a protective search

of the passenger compartment of a vehicle in certain circumstances:

[the] 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

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areas in which a weapon may be placed or hidden, 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, 392 U.S. at 21, 88 S.Ct. 1868. ‘The 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, 88 S.Ct. 1868. If a suspect is ‘dangerous,’ he is no less dangerous simply because he is not arrested.

Cartagena, 63 A.3d 294, 298–99 (quoting Long, 463 U.S. at 1049–50).

(footnote and brackets omitted)).

The applicable legal standard requires this Court to view the facts “not

in isolation but in light of the totality of the circumstances when determining

whether the police officers [] had reasonable suspicion to have concern for

their safety.” Cartagena, 63 A.3d at 304 (citation omitted).

In this case, the totality of the circumstances justified Officer Sutton’s

decision to conduct a limited protective sweep of Appellant’s vehicle. Officer

Sutton pulled Appellant’s vehicle over after he had observed Appellant’s

vehicle dart into an oncoming lane to pass a car in his lane of traffic and then

subsequently run a red light at the next intersection. The nighttime vehicle

stop occurred at 10:50 p.m. in a high-crime area where shootings and criminal

activity often occur. When Officer Sutton exited his patrol car and approached

Appellant to investigate further, he noticed that Appellant was nervous, was

stuttering, and was repeatedly glancing at a black bag on the front passenger

seat of his vehicle.

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While Appellant stood at the back of his vehicle with Officer Sutton’s

partner, Officer Sutton performed a limited vehicle search to pat down the

black bag which was in Appellant’s reach and felt a metal object that was

shaped like a gun. Appellant then admitted that he did not have a license to

carry a firearm.

While the majority relies on this Court’s decision in Cartagena, the

factual circumstances of that case can be distinguished from those in the

instant case. In Cartagena, this Court concluded that an officer lacked

reasonable suspicion to conduct a warrantless search of the defendant’s

vehicle based solely on the defendant’s nervousness during the nighttime

traffic stop of his vehicle that had tinted windows. Cartagena, 63 A.3d at

306 (“[w]ithout more, the nervousness of a driver of a vehicle during a late

night stop for suspected violation of the tinted window prohibition does not

suffice to allow police to conduct a Terry frisk and a protective weapons

search of a vehicle”).

In reaching the decision in Cartagena, this Court characterized the

“barebones record” as “nothing more than a late night stop of a vehicle

suspected of having illegally tinted windows whose driver exhibited

nervousness while complying with the officers’ orders.” Id. at 307. The

Cartagena Court was careful to point out that there was no testimony

indicating that the stop occurred in a high-crime area and no indication that

the defendant made any movements that caused the officer to believe that

the defendant was in possession of a weapon or posed a threat. Id. at 302-

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303. While the defendant in Cartagena exhibited nervousness, there was no

evidence upon which an inference could be made that that the defendant’s

nervousness resulted from a fear that a weapon could be discovered by police.

Id. at 305.

In contrast, the roadside encounter in this case presented hazardous

circumstances as Officer Sutton initiated a nighttime stop of a vehicle that had

been observed swerving into an oncoming lane and running a red light in a

high-crime area known for shootings and criminal activity. Where the

defendant in Cartagena merely exhibited nervousness upon his encounter

with the responding officers, Appellant’s nervousness and stuttering speech

was coupled with his repetitive furtive glances at the black bag on the

passenger seat that was large enough to hold a firearm. It was reasonable to

infer that Appellant’s nervousness was the result of his fear that Officer Sutton

would discover that he had a concealed firearm in the bag that was within his

reach.

The Majority also cites this Court’s decisions in Commonwealth v.

Moyer, 954 A.2d 659 (Pa.Super. 2008) and Commonwealth v. Reppert,

814 A.2d 1196 (Pa.Super. 2002) for the proposition that “furtive movements

and nervousness, standing alone, do not support the existence of reasonable

suspicion.” Moyer, 954 A.2d at 670 (citing Reppert, 814 A.2d at 1206).

However, those cases are inapposite to the instant case as the defendants

argued that the responding officers lacked reasonable suspicion to continue

the investigatory seizure after the initial valid detention had already

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concluded. This Court held that there is “no basis to conclude that excessive

nervousness and furtive movements, even considered together, give rise to

reasonable suspicion of criminal activity” to justify a further investigatory

detention.

However, the key issue in this case was not whether Appellant’s

nervousness and furtive eye glances provided reasonable suspicion for the

stop, but instead whether Officer Sutton had reasonable suspicion to conduct

a limited protective sweep of Appellant’s vehicle for officer safety during a

valid investigatory detention. Officer Sutton had not concluded the initial

investigatory stop when he conducted the limited protective sweep of

Appellant’s vehicle while his partner prepared to conduct field sobriety testing

with Appellant.

As noted by the majority, an investigatory detention during a vehicle

stop “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 1052 (quoting

Terry, 392 U.S. at 24-28). As such,

[w]hen the officer has a reasonable belief “that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.”

Long, 463 U.S. at 1047 (quoting Terry, 392 U.S. at 24).

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Based on the totality of the circumstances, we agree with the trial court

that Officer Sutton was justified in performing a limited protective sweep of

Appellant’s vehicle while conducting an investigatory detention at night in a

high-crime area. Appellant’s right to privacy must yield to officer safety as

the Commonwealth met its burden to show that that it was reasonable for

Officer Sutton to believe that Appellant was dangerous and could gain

immediate control of a weapon in his vehicle. See Cartagena, supra.

Accordingly, the trial court did not err in denying Appellant’s suppression

motion.

For the foregoing reasons, I dissent.

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