Commonwealth v. Pratt

930 A.2d 561, 2007 Pa. Super. 217, 2007 Pa. Super. LEXIS 2114

• Court: Superior Court of Pennsylvania
• Decided: July 20, 2007
• Status: Published

Opinions

OPINION BY

TODD, J.:

¶ 1 Duran Pratt appeals the judgment of sentence¹ imposed by the Philadelphia County Court of Common Pleas after he was convicted of two counts of violating the Pennsylvania Uniform Firearms Act, 18 Pa.C.S.A. §§ 6101-6125. We affirm.

¶ 2 On August 5, 2005, at approximately 10:00 p.m., Philadelphia Police Officer Vincent Visco was on highway patrol in the area of 1800 West Susquehanna Avenue in Philadelphia, an area known for a high presence of drugs and guns, with his partner, Officer James Moore. The officers were in full uniform in a marked police vehicle. Officer Visco observed a white Mazda Millennium with a broken right brake light headed westbound on Susquehanna Avenue. The officers activated their fights and siren and initiated a traffic stop of the Mazda.

¶ 3 According to Officer Visco’s testimony at trial, as soon as the Mazda came to a stop, Appellant, who was in the front passenger seat, exited the vehicle and began to walk away. Officer Visco stated that he twice ordered Appellant back into the vehicle before Appellant complied. Officer Visco testified that as he approached the passenger side of the vehicle, he observed Appellant reach into the front of his waistband and adjust something with his right hand. Officer Visco testified that, based on his 7]é years of experience as a police officer, he believed Appellant had a weapon and, for his and his partner’s safety, that he ordered Appellant to exit the vehicle for a safety frisk.

¶4 Appellant exited the vehicle and placed his hands on the vehicle as directed, but then began to run. As he ran, Appellant removed and discarded from his waistband a black Kel-Tech 9-millimeter handgun, which was loaded with 11 five rounds. After he discarded the gun, Appellant continued to run. Officer Visco recovered the gun from where it had been dropped. The driver of the vehicle was Durel Pratt, Appellant’s brother. Appellant eventually was arrested and charged with carrying a firearm without a license,² and carrying a firearm on public streets or public property.³

¶ 5 Prior to trial, Appellant filed a motion to suppress, which was denied by the trial court on September 15, 2005. Appellant proceeded to a bench trial on that same day, following which he was convicted of the aforementioned offenses. Appellant was sentenced to two concurrent terms of three years reporting probation; he also was ordered to pay court costs and to obtain and maintain employment. On appeal, Appellant contends that the trial court erred in denying his pretrial motion to suppress evidence of the firearm on the basis that, under the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution, the police did not have probable cause to detain Appellant by ordering him back into the vehicle which Appellant had exited once the vehicle had stopped.

¶ 6 It is well settled that

[w]hen we review the ruling of a suppression court, we must determine whether its factual findings are supported by the record. Where the defendant challenges an adverse ruling of the suppression court, we will consider only the evidence for the prosecution and whatever evidence for the defense which is uncontradicted on the record as a whole; if there is support on the record, we are bound by the suppression court, and we may reverse that court only if the legal conclusions drawn from these facts are erroneous.

Commonwealth v. Slonaker, 795 A.2d 897, 400 (Pa.Super.2002) (citation omitted).

¶ 7 As we explained in Commonwealth v. Campbell, 862 A.2d 659 (Pa.Super.2004),

The Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protects individuals from unreasonable searches and seizures, thereby insuring the “right of each individual to be let alone.” Evidence obtained from an unreasonable search or seizure is inadmissible at trial. To secure the right of citizens to be free from such intrusions, courts in Pennsylvania require law enforcement officers to demonstrate ascending levels of suspicion to justify their interactions with citizens as those interactions become more intrusive.

The first of these [interactions] is a ‘mere encounter’ (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or respond. The second, an ‘investigative detention’ must be supported by reasonable suspicion; it subjects a suspect to a stop and period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of arrest. Finally, an arrest or ‘custodial detention’ must be supported by probable cause.

A forcible stop of a motor vehicle by a police officer constitutes a seizure of a driver and the occupants; this seizure triggers the protections of the Fourth Amendment. An officer is permitted to stop a motor vehicle to investigate a vehicle code violation which he or she observed.

Id. at 668 (citations omitted and alterations original).

¶ 8 Appellant does not dispute that the initial police stop of the vehicle in which he was a passenger was supported by probable cause based on Officer Visco’s observation of a Motor Vehicle Code violation. Rather, Appellant contends that Officer Visco’s act of ordering him to get back into the vehicle after Appellant exited the car and began to walk away constituted an independent seizure of his person requiring probable cause, which Officer Visco did not possess. Appellant further argues that even if the act of ordering him to get back into the car constituted merely an investigative detention, Officer Visco did not have the reasonable suspicion necessary to support the detention. As a result, Appellant contends evidence seized as a result of Officer’s Visco’s observation of Appellant adjusting something in his waistband, which occurred after Appellant re-entered the vehicle at the officer’s direction, should have been suppressed as fruit of the poisonous tree.

¶ 9 In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), the United States Supreme Court held that police may require the driver of a lawfully stopped vehicle to exit the vehicle without any additional probable cause or reasonable suspicion without violating an individual’s Fourth Amendment rights. In so holding, the Court balanced the need to protect police officers from the serious and substantial dangers inherent in traffic stops, and the relatively minor intrusion upon the privacy rights of the driver in situations where the vehicle has been lawfully stopped.

¶ 10 Subsequently, this Court applied the rationale of Mimms to allow a police officer to order passengers in a lawfully stopped vehicle to exit that vehicle where the officer has an articulable and reasonable suspicion that criminal activity may be afoot. See Commonwealth v. Baer, 439 Pa.Super. 437, 654 A.2d 1058 (1994); Commonwealth v. Elliott, 376 Pa.Super. 536, 546 A.2d 654 (1988).

¶ 11 Several years later, in Commonwealth v. Brown, 439 Pa.Super. 516, 654 A.2d 1096 (1995), this Court, again relying on Mimms, retreated from this reasonable suspicion standard and held that “police may request both drivers and their passengers to alight from a lawfully stopped car without reasonable suspicion that criminal activity is afoot.” Id. at 528, 654 A.2d 1096, 654 A.2d at 1102. In so holding, we opined that “in all cases involving lawful traffic stops, it is not unreasonable for an officer to request that the passengers in a lawfully stopped car exit the vehicle so that the safety of the officer is, if not insured, at least better protected.” Id. at 527 n. 5, 654 A.2d at 1102 n. 5.

¶ 12 In Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), the United States Supreme Court explicitly extended the rule of Mimms, as this Court had in Brown, stating:

In summary, danger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car. While there is not the same basis for ordering the passengers out of the car as there is for ordering the driver out, the additional intrusion on the passenger is minimal. We therefore hold that an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.

Id. 117 S.Ct. at 886. Thus, following a lawful traffic stop, an officer may order both the driver and passengers of a vehicle to exit the vehicle until the traffic stop is completed, even absent a reasonable suspicion that criminal activity is afoot. Appellant does not dispute this.

¶ 13 In the instant case, however, we are asked to consider as a matter of first impression in this Commonwealth whether an officer may similarly order a passenger of a lawfully stopped vehicle to remain inside or get back into the vehicle. We join the numerous other state and federal courts which have held that an officer may, in fact, do so without violating an individual’s Fourth Amendment rights.

¶ 14 In United States v. Moorefield, 111 F.3d 10 (3d Cir.1997), the Third Circuit Court of Appeals considered whether the district court properly suppressed evidence of a firearm seized from a passenger in a vehicle that was stopped for a routine traffic stop. In his motion to suppress, Moorefield argued, inter alia, that police officers unlawfully ordered him and the driver to remain in the car with their hands in the air. Moorefield failed to comply, and officers observed movements which they believed were attempts to conceal a weapon or narcotics. After additional officers arrived at the scene, Moore-field and the driver were ordered to exit the vehicle, and a pat-down search of Moorefield revealed a pistol in his waistband. The district court held that the officers acted lawfully in ordering Moore-field and the driver to remain in the vehicle with their hands in the air, but held that the pat-down was not justified.

¶ 15 The court of appeals reversed, holding that, pursuant to Wilson, supra, the officers lawfully ordered Moorefield to remain in the car with this hands in the air while they conducted the traffic stop, and, furthermore, that the officers were justified in conducting a pat-down search for weapons based on Moorefield’s behavior, specifically, his failure to follow directions. The appeals court stated:

In view of the Supreme Court’s ruling in Wilson, we have no hesitancy in holding that the officers lawfully ordered Moorefield to remain in the car with his hands in the air. We follow the Court’s analysis in Wilson. The only change in Moorefield’s circumstances resulting from the order to remain in the car and put his hands in the air, was that he remained inside of the stopped car with his hands in view, rather than inside of the stopped car with his hands lowered into a passenger compartment that could potentially contain a concealed weapon. Just as the Court in Wilson found ordering a passenger out of the car to be a minimal intrusion on personal liberty, we find the imposition of having to remain in the car with raised hands equally minimal. We conclude that the benefit of added officer protection far outweighs this minor intrusion.

Id. at 13.

¶ 16 Similarly, in Rogala v. District of Columbia, 161 F.3d 44 (D.C.Cir.1998), the Court of Appeals for the District of Columbia concluded that a police officer did not violate a passenger’s Fourth Amendment rights when he ordered her to get back into a car in which she was a passenger while the officer administered a field sobriety test to the driver of the vehicle, which the officer had lawfully stopped based on his suspicion that the driver of the car was under the influence of alcohol. The court opined that “it follows from Maryland v. Wilson that a police officer has the power to reasonably control the situation by requiring a passenger to remain in a vehicle during a traffic stop, particularly where, as here, the officer is alone and feels threatened.” 161 F.3d at 53 (emphasis original).

¶ 17 The Eleventh Circuit Court of Appeals, in United States v. Clark, 337 F.3d 1282 (11th Cir.2003), citing the holdings in both Rogala, supra, and Moorefield, supra, likewise concluded that an officer did not violate an individual’s Fourth Amendment rights by detaining that individual who was a passenger in a vehicle that was next to two men engaged in a violent fight, so that the officer, who was acting alone, could “control the situation to protect his safety.” 337 F.3d at 1288.

¶ 18 Later, in United States v. Williams, 419 F.3d 1029 (9th Cir.2005), the Ninth Circuit Court of Appeals likewise held that an officer could order a passenger who exited a lawfully stopped vehicle back into the vehicle. In doing so, the court acknowledged:

Those circuits to address the issue post-Wilson have agreed that officers may detain passengers during a traffic stop, whether it is by ordering the passenger to remain inside the automobile or by ordering the passenger to get back into an automobile that he or she voluntarily exited. See, e.g., Rogala v. District of Columbia, 161 F.3d 44, 53 (D.C.Cir.1998) (holding that a passenger ordered by police to get back onto the vehicle that she voluntarily exited was not an unreasonable seizure because “a police officer has the power to reasonably control the situation by requiring a passenger to remain in a vehicle during a traffic stop”) (emphasis in original); United States v. Moorefield, [supra].

Id. at 1032. The court further explained:

When Williams attempted to exit the vehicle, the automobile had already been lawfully stopped with him inside. The officer’s order to get back into the automobile merely maintained the status quo by returning the passenger to his original position as an occupant inside the car. Just as in Wilson and Mimms, little is changed upon compliance with the officer’s order except the position of the passenger. At most, such an order to re-enter a car that the passenger voluntarily entered, and just exited, cannot be characterized [as] anything but a “mere inconvenience,” Terry [v. Ohio], 392 U.S. [1], at 17, 88 S.Ct. 1868[, 20 L.Ed.2d 889 (1968) ], that we think falls far short of a “serious intrusion upon the sanctity of the person,” or even a “petty indignity.” Mimms, 434 U.S. at 111, 98 S.Ct. 330; see also Moorefield, 111 F.3d at 13....

Furthermore, the public concern for officer safety here is as weighty as it was in Wilson. We have no reason to believe, nor has Williams provided any evidence to the contrary, that traffic stops today present safer encounters for police officers than they did less than ten years ago when Wilson was decided. We are convinced that in this case the continuing importance of, and the public interest in, promoting officer safety outweighs the marginal intrusion on personal liberty. Rogala, 161 F.3d at 53; Moorefield, 111 F.3d at 13; see also Mimms, 434 U.S. at 111, 98 S.Ct. 330, 54 L.Ed.2d 331.

Id. at 1033.

¶ 19 Finally, the court in Williams opined:

Giving officers the authority to control all movement in a traffic encounter is sensibly consistent with the public interest in protecting their safety. Allowing a passenger, or passengers, to wander freely about while a lone officer conducts a traffic stop presents a dangerous situation by splitting the officer’s attention between two or more individuals, and enabling the driver and/or the passenger to take advantage of a distracted officer. Balancing the competing interests does not require us to ignore real dangers to officers, especially in light of the minimal intrusion.

Id. at 1034 (citations omitted).

¶ 20 We are cognizant that in the cases cited above, the officer was acting alone, while in the instant case, two officers were present. However, we do not believe this distinction compels a contrary result, in that the purpose of allowing an officer to require a passenger to remain in or reenter a vehicle is to facilitate the officer’s control of the situation, which we do not find necessarily dependent on the ratio between officers and vehicle occupants. See, e.g., United States v. Hampton, 2007 WL 1139586 (W.D.Pa. filed April 12, 2007) (holding that Fourth Amendment rights of a passenger of a legally stopped vehicle were not violated by police officers’ instruction that he remain inside the vehicle during traffic stop after passenger repeatedly tried to exit).

¶ 21 We also recognize that certain state courts have reached the opposite conclusion under circumstances similar to those present in the case sub judice. See, e.g., Dennis v. Maryland, 345 Md. 649, 693 A.2d 1150 (holding that police officer was not justified in detaining a passenger who exited and began to walk away from a lawfully stopped vehicle absent an articulated reason as to why it was necessary to detain the passenger for the officer’s safety), cert denied, 522 U.S. 928, 118 S.Ct. 329, 189 L.Ed.2d 255 (1997); Walls v. State, 714 N.E.2d 1266 (Ind.App.1999) (holding that passenger who attempts to walk away from a legal traffic stop cannot be detained absent reasonable suspicion of dangerous or criminal activity); Wilson v. Florida, 734 So.2d 1107 (Fla.Dist.Ct.App.1999) (officer may not, as a matter of course, order a passenger who has exited a lawfully stopped vehicle to return to and remain in the vehicle for duration of traffic stop absent an articulable suspicion of criminal activity or a reasonable belief that the passenger poses a threat to the safety of the officer, himself, or others).

1122 These decisions, however, have not consistently been followed. See, e.g., Coffey v. Morris, 401 F.Supp.2d 542 (W.D.Va.2005) (refusing to follow Dennis and instead following the various federal courts which have applied the rationale of Maryland v. Wilson, including Moorefield, Williams, Clark, and Rogala); Tawdul v. State, 720 N.E.2d 1211 (Ind.App.2000) (declining to follow Walls and holding that, pursuant to Maryland v. Wilson, police have a limited right to order a passenger who has exited a lawfully stopped vehicle to return to the vehicle to allow officer to make an initial assessment of the situation).⁴

¶ 23 After careful consideration, this Court hereby concludes that, pursuant to Mimms and Maryland v. Wilson, a police officer may lawfully order a passenger who has exited and/or attempted to walk away from a lawfully stopped vehicle to re-enter and remain in the vehicle until the traffic stop is completed, without offending the passenger’s rights under the Fourth Amendment. In reaching this conclusion, we rely on many of the factors specifically set forth by the Ninth Circuit Court of Appeals in Williams, supra, including the fact that the passenger had voluntarily entered the vehicle, and that an officer’s order to get back into a vehicle simply maintains the status quo by returning the passenger to his original position as an occupant inside the car.

¶ 24 As the same reasonable suspicion standard used in determining the propriety of an investigative detention under the Fourteenth Amendment applies to an analysis under Article 1, Section 8 of the Pennsylvania Constitution, see Commonwealth v. Ayala, 791 A.2d 1202, 1208 (Pa.Super.2002), we likewise hold that a police officer’s instructions to a passenger of a lawfully stopped vehicle to re-enter and remain in the vehicle do not violate an individual’s rights under the Article I, Section 8 of the Pennsylvania Constitution.

¶25 We further recognize, as did the court in Williams, that traffic stops today present the same, if not greater, safety concerns for police officers than they did when Wilson was decided, and that the public interest in promoting the safety of police officers outweighs the marginal intrusion on personal liberty. We believe that allowing police officers to control all movement in a traffic encounter, and, in particular, eliminate the possibility of a passenger, who has an obvious connection to the vehicle’s driver, from distracting or otherwise interfering with an officer engaged in a traffic stop, whether by exiting the car and remaining at the scene, or attempting to leave the scene for unknown reasons, is a reasonable and justifiable step towards protecting their safety.⁵

¶ 26 Accordingly, finding that the Appellant’s rights under the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution were not violated when he was ordered by Officer Visco to get back into the lawfully stopped vehicle, we hold that the trial court did not err in denying Appellant’s motion to suppress evidence of the firearm, the seizure of which was based on Officer Visco’s observation of Appellant’s movements after he was ordered to re-enter the vehicle.

¶ 27 Judgment of sentence AFFIRMED.

¶ 28 JOHNSON, J. files Concurring Opinion.

1 .Appellant purports to appeal from the September 15, 2005 order denying his pretrial motion to suppress. A direct appeal by a defendant in a criminal proceeding lies from the judgment of sentence. See Commonwealth v. Schauffler, 397 Pa.Super. 310, 313, 580 A.2d 314, 316 (1990). The appeal in this case falls within no recognized exception to the general rule. See id.

2 . 18 Pa.C.S.A. § 6106.

3 . 18Pa.C.S.A. § 6108.

4 . We also note that in Walls, the detaining officer testified that once the passenger exited the lawfully stopped car, the officer recognized him from prior encounters, and, furthermore, that he did not know Walls to carry a weapon or be a violent person; rather, the officer testified that “he was simply suspicious of Walls walking away from the scene.” 714 N.E.2d at 1267.

5 . We find Appellant's reliance on Commonwealth v. Shiflet, 543 Pa. 164, 670 A.2d 128 (1995), for the proposition that third-party bystanders to a traffic stop do not give up their right to be free of unreasonable searches and seizures, to be misplaced. In Shiflet, the appellant was a passenger in a vehicle which was stopped on suspicion that the driver was intoxicated. After the driver was arrested, one of the arresting officers offered the appel-lee a ride due to the fact that she did not have a driver's license. When the appellee accepted, the officer seized her purse from under her arm, and without asking for permission, began rifling through its contents, discovering a leather pouch containing marijuana and drug paraphernalia. Despite the officer’s testimony at a suppression hearing that it was his customary practice to look for weapons inside the purse of any females he transported, for safety purposes, our Supreme Court affirmed this Court's order reversing the trial court’s denial of the suppression motion. In doing so, the Court concluded, inter alia, that the search of the appellee’s purse was too attenuated to be incident to arrest of the driver or a third passenger who was arrested for disorderly conduct, and was unsupported by any reasonable suspicion that criminal activity was afoot or that the appellee was armed and dangerous. In the instant case, Officer Visco did not search Appellant's person; he merely ordered Appellant to re-enter the vehicle, which we conclude, as discussed above, was a reasonable extension of the Supreme Court’s holding in Maryland v. Wilson that a police officer may order a passenger to exit a vehicle even absent a reasonable suspicion that criminal activity is afoot.