Com. v. Mickel, T. ( 2017 )

J-S35040-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
TYSHAUN DEVOE MICKEL
Appellee No. 47 WDA 2017
Appeal from the Order Entered December 8, 2016
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0001438-2016
BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 22, 2017
The Commonwealth of Pennsylvania appeals from the order, entered in
the Court of Common Pleas of Mercer County, granting the pretrial motion to
suppress filed by Appellee Tyshaun Devoe Mickel (“Mickel”). After our
review, we conclude that Officer Matthew Lehman did not possess an
“articulable and objectively reasonable belief that [Mickel was] potentially
dangerous,” and, thus the search of the locked glove compartment in his
vehicle exceeded the scope of Michigan v. Long, 463 U.S. 1032, 1049-51
(1983). We, therefore, affirm the suppression court’s order.
Mickel was arrested on July 30, 2016, and charged with the crimes of
possession with the intent to deliver a controlled substance, possession of a
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S35040-17
controlled substance, possession of drug paraphernalia and various
summary traffic offenses. These charges arose from the stop and
subsequent search of the motor vehicle Mickel was operating on June 30,
2016, in the city of Sharon.
Following a preliminary hearing on August 26, 2016 before Magisterial
District Judge Dennis Songer, the charge of possession with the intent to
deliver was withdrawn and Mickel was held for trial on the remaining
charges. Mickel was arraigned on October 25, 2016. On December 7, 2016,
a hearing was held on Mickel’s omnibus pretrial motion. On December 8,
2016, the suppression court granted Mickel’s motion to suppress. The
suppression court found that there were “no articulable facts to warrant a
reasonably prudent [officer] to conclude there was a gun in the glove
compartment.” Trial Court Opinion, 1/27/17, at 7. The court also
determined that “finding shreds of Chore Boy1 in the vehicle does not
establish probable cause to justify the search.” Id. at 8.
The Commonwealth appealed2 and presents two issues for our review:
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1
Chore Boy is a brand name for a cleaning pad made of copper or stainless
steel.
2
Pennsylvania Rule of Appellate Procedure 311(d) permits the
Commonwealth in a criminal case to appeal as of right from an order that
does not end the entire case where the Commonwealth certifies in the notice
of appeal that the order will terminate or substantially handicap the
prosecution. Commonwealth v. Whitlock, 69 A.3d 635, 636 n.2 (Pa.
(Footnote Continued Next Page)
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1. Whether the suppression court erred in concluding the search
of defendant’s glove compartment for officer safety exceeded
the scope of a lawful search for such purpose, where the
officer, who had demonstrated his legitimate and sincere
concern for his safety, was entitled to search the vehicle for
weapons in locations likely to contain those weapons, and
which are readily accessible by the defendant, who was
neither handcuffed nor under arrest and who would have had
easy access to that location after returning to his vehicle?
2. Whether the suppression court erred in concluding that the
search of the vehicle was not supported by probable cause to
search for drugs and/or drug paraphernalia where evidence
established the officer lawfully observed, among other things,
the defendant’s furtive movements, his nervousness, and
Chore Boy scattered about the back seat of the vehicle and
coming out of an eyeglasses case, and the totality of the
circumstances supported a finding of probable cause to
search the vehicle for drugs and/or drug paraphernalia?
Commonwealth’s Brief, at 4-5
When reviewing an [o]rder granting a motion to suppress
we are required to determine whether the record supports
the suppression court’s factual findings and whether the
legal conclusions drawn by the suppression court from
those findings are accurate. In conducting our review, we
may only examine the evidence introduced by appellee
along with any evidence introduced by the Commonwealth
which remains uncontradicted. Our scope of review over
the suppression court’s factual findings is limited in that if
these findings are supported by the record we are bound
by them. Our scope of review over the suppression court’s
legal conclusions, however, is plenary.
_______________________
(Footnote Continued)
Super. 2013). Here, the Commonwealth’s notice of appeal includes the
required certification. See Notice of Appeal, 1/5/17.
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Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012)
(quoting Commonwealth v. Henry, 943 A.2d 967, 969 (Pa. Super. 2008)).
See Commonwealth v. Boyd, 17 A.3d 1274, 1276 (Pa. Super. 2011).
Officer Lehman, a patrolman with the Sharon Police Department, was
on duty in the early morning hours of June 30, 2016. At approximately 2:00
a.m. on July 30, 2016, he was patrolling the area near the Shenango
Campus of the Pennsylvania State University. After observing a dark-
colored sedan with an expired registration, Officer Lehman proceeded to
stop the vehicle and saw “the driver making movements into the center
console area, and also reaching around within the vehicle.” N.T.
Suppression Hearing, 12/7/16, at 4-5. Officer Lehman called for backup.
After backup arrived, Officer Lehman and his backup officer approached the
vehicle, asked Mickel to step out, and conducted a Terry3 stop and frisk.
Id. at 6. Officer Lehman testified:
A: For officer safety reasons we were concerned that he possibly
had a weapon on his person at that time. We conducted a Terry
frisk.
Q: Did you find anything on the Terry frisk?
A: The only thing we found was approximately a six-inch long
drill bit in his right pocket.
Q: Then what did you do?
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3
Terry v. Ohio, 392 U.S. 1 (1968).
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A: At that time, I conducted a quick Terry search of the vehicle,
attempting to locate a weapon within arm’s reach of the driver’s
seat.
Id. Officer Lehman did not observe any weapon in the vehicle; however, he
did observe a soft eyeglasses case, with copper filaments sticking out of it.
Q: These copper filaments that you say you saw, do they have
like a common name?
A: For drug purposes, Chore Boy. Also, they are used for
scrubbing pots and pans and things of that nature.
****
Q: Now where, this glasses case was, was that where the
gentleman inside the car was reaching when you observed him,
walking up to the vehicle?
A: Yes. It was slightly back behind the passenger seat, front
passenger seat, easily within arm’s reach of where the driver
was sitting. [Officer Lehman then explained that copper filament
is sometimes used in the smoking of crack cocaine].
Id. at 6-7.
Officer Lehman testified that he had observed Chore Boy in other drug
cases. He continued:
A: I continued searching the vehicle, including the glove
compartment, which I did find to be locked, retrieved the keys
from the dashboard of the vehicle, and unlocked the glove box.
Q: Had you asked the defendant if you could open the glove
compartment?
A: No.
Q: So you just used the keys that were there?
A: Yes.
Q: What did you find inside the glove box?
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A: . . . It was a pink coin purse.
Id. at 9. Inside the pink opaque coin purse, Officer Lehman recovered a
spoon with burn marks and residue. He also recovered from the glove box a
small gold opaque container, in which he found a small baggie of pills and a
bag of what he believed was crack cocaine. Id. at 10-11, 21.
The Commonwealth argues that the suppression court erred in
concluding that the search of Mickel’s locked glove box exceeded the scope
of Long. We disagree.
First, we note that we agree with the suppression court’s
determination that the stop of the vehicle was lawful, as Mickel’s vehicle
registration was expired. We also conclude that the initial “protective
search” of the vehicle was lawful. It was only when that limited weapons
search turned into a search for drugs in the locked glove compartment, that
the suppression court determined the search exceeded the scope of Long.
In Long, the United States Supreme Court extended the Terry-stop
doctrine to allow for a search of those portions of the passenger
compartment of a car where a weapon could be hidden. The Long Court
stated:
[T]he search of the passenger compartment of an automobile,
limited to those 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 officer 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. at 1879]. “[T]he issue is whether a reasonably prudent
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man would be warranted in the belief that his safety or that of
others was in danger.” Id. at 27, [88 S. Ct. at 1883].
Michigan v. Long, 463 U.S. at 1049-1050 (emphasis added).
In Commonwealth v. Morris, 644 A.2d 721 (Pa. 1994), the
Pennsylvania Supreme Court adopted the Long standard for assessing the
constitutionality of a protective search of the interior of a vehicle for
weapons. In Morris, the officer testified that, after he stopped the
defendant’s vehicle, defendant was leaning to his right and towards the floor
near the center of the car. Additionally, when ordered to put his hands on
the steering wheel, defendant quickly reached between his legs. The Court
found these acts were consistent with an attempt to either conceal or reach
for a weapon. In addition, the officer discovered a metal pipe wedged
between the driver’s seat and the door, which would tend to indicate that
defendant might have access to other weapons in the passenger
compartment. Morris, 664 A.2d at 723. The Morris Court stated:
A review of the record reveals that under the circumstances
encountered by Officer Benincasa on May 8, 1990, a reasonably
prudent man would have believed his safety was compromised.
. . . Under Long, such a reasonable belief based on specific
articulable actions taken by appellant (i.e. specific articulable
facts) entitles an officer to conduct a search of those portions of
the passenger compartment of a suspect’s vehicle in which a
weapon could be placed. Thus, the bag in question was properly
searched since it was large enough to hold a weapon. Indeed,
had Officer Benincasa allowed appellant to return to his vehicle
without searching the bag in question, he would have been
taking a grave risk that appellant would remove a weapon from
the bag and use it. Our constitutional safeguards do not require
an officer to gamble with his life. Thus, the search in question
did not violate appellant’s right against unreasonable searches
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under the Fourth Amendment of the U.S. Constitution or Article
I, § 8 of the Pennsylvania Constitution.
Id. at 723-24.
The issue before us is properly framed as whether the search of the
locked glove box was supported by reasonable suspicion that Mickel may
have been armed and dangerous. On cross-examination, Officer Lehman
acknowledged that he initiated the traffic stop because of an expired
registration, that he had no information prior to approaching the vehicle that
Mickel might be armed and dangerous, and that he did not have any
information that Mickel was involved in any kind of criminal activity. N.T.
Suppression Hearing, supra at 12. Officer Lehman used a flashlight to look
inside Mickel’s vehicle, and he stated that he saw no weapons. Id. at 13.
He also acknowledged that his “search of the vehicle [was] to see if there
were any weapons within reach[.]” Id. at 15. Additionally, unlike in
Morris, on cross-examination, Officer Lehman stated that he looked under
the front seat and between the front seat and the console, and he found no
weapons:
Q: Now, you looked under the front seat and didn’t find
anything, correct?
A: Correct.
Q: Did you look in between the front seat – between the front
seat and the cons[ole]? Did you check that area?
A: Yes, sir.
Q: Okay. Did you find anything?
A: No, sir.
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Q: Did you check the center cons[ole] where you thought that
he had been reaching?
A: If I remember correctly, sir, I did not actually open the
center cons[ole], no
Q: Okay. And you found no weapons [i]n the interior of this
vehicle?
A: No, sir.
Id. at 16.
Officer Lehman did all he could to assure that there were no weapons
on Mickel’s person or in the driver, passenger and back seat compartments
of the vehicle. There was no testimony that this stop occurred in a high
crime area or that Mickel did not immediately stop his vehicle. There was no
testimony of “extreme nervousness” or unusual behavior. Although Officer
Lehman testified that he observed Mickel “making movements into the
center cons[ole] area” as he approached Mickel’s vehicle after the stop, id.
at 5, the subsequent protective search obviously dispelled any concerns
regarding that movement since Officer Lehmann chose not to open the
center console. As the Long Court stated: “The sole justification of the
search is the protection of police officers and others nearby.” Long, 463
U.S. at 1050 n.14 (citation and quotation omitted). Here, Officer Lehman
did not possess a reasonable belief based on “specific and articulable facts
which, taken together with the rational inferences from those facts,” would
reasonably warrant him in believing that Mickel was dangerous and might
gain immediate control of a weapon in a locked glove box. Id. at 1049-50.
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Notably, Officer Lehman testified that once he found the Chore Boy, he
decided he was going to open the glove box, and that at this point the
search turned into a search for narcotics, “[b]ased on the discovery of the
Chore Boy.” Id. at 18. Finding a scrubbing pad inside an eyeglasses case,
without more, does not create probable cause to unlock a glove box and
rummage through containers found inside that glove box. Commonwealth
v. Runyan, 160 A.3d 831, 837 (Pa. Super. 2017) quoting Commonwealth
v. Lechner, 685 A.2d 1014, 1016 (Pa. 1996) (warrantless search requires
more than mere suspicion or good faith belief on part of police officer).
Under the circumstances here, a reasonably prudent man would not
have believed his safety was compromised. This was a warrantless search
of the car for contraband, not a protective weapons search. Thus, the
search of the locked glove compartment exceeded the permissible scope of
Long.
Order affirmed.
RANSOM, J., joins the memorandum.
STEVENS, P.J.E., files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
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Date: 11/22/2017
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