Opinion
No. 1110 EDA 2020
12-29-2021
COMMONWEALTH of Pennsylvania, Appellee v. Ramon PADILLA, Appellant
MEMORANDUM BY KING, J.:
Appellant, Ramon Padilla, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his stipulated bench trial convictions for persons not to possess firearms, firearms not to be carried without a license, and carrying firearms on public streets or public property in Philadelphia. We affirm.
18 Pa.C.S.A. §§ 6105(a), 6106(a)(1), and 6108, respectively.
The relevant facts and procedural history of this case are as follows. On the evening of April 17, 2019, Officers Ryan Redmond, Mark Wildsmith and Robert McGrody of the Philadelphia Police Department were on routine patrol on the 3100 block of E Street in Philadelphia. (N.T. Suppression Hearing, 10/9/19, at 7). This area was known as a "high-drug and crime area; [with] lots of shootings" and a "lot of drugs sold on [this] block." ( Id. at 10). At this time, Officer Redmond had served as a Philadelphia Police Officer for four years. ( Id. ) During their patrol, the officers observed a white Toyota Corolla driving northbound on E Street with dark-tinted windows. ( Id. at 8). All the windows were illegally tinted except the windshield. ( Id. ) As a result of the tinted windows, the officers conducted a traffic stop. ( Id. ) Officers Redmond and McGrody approached the vehicle after it stopped. ( Id. at 12).
The vehicle had three occupants. ( Id. ) Appellant was in the front passenger seat. ( Id. ) Officer Redmond approached the passenger's side door and he positioned himself on the passenger side of the vehicle between the front and back seat passenger. ( Id. at 15). Officer Redmond testified that Appellant "kept on like adjusting his groin area, like trying to conceal something." ( Id. at 8). In the meantime, one of the officers asked for all three of the occupants' identifications. ( Id. at 18). The driver and Appellant complied with this request and provided their driver's licenses. ( Id. ) Officer Wildsmith took the licenses and returned to the patrol car to verify their information through a computer in the patrol car. ( Id. )
After Officer Wildsmith returned to the patrol car from running the licenses, Officer Redmond had a conversation with Appellant. "And throughout that talk, [Appellant] kept on adjusting [his groin] again. So at that point [Officer Redmond] thought [Appellant] might have been concealing something in his groin area consistent with a firearm." ( Id. at 8). Officer Redmond explained that typically when he recovers concealed guns from an individual they are usually located in the subject's waistband without a holster. ( Id. at 11).
In addition to his testimony, Officer Redmond's body cam was admitted as exhibit C-1 and viewed during the suppression hearing. ( Id. at 12). The body cam, which included audio, captured only a portion of this stop. ( See C-1 Body Cam). Officer Redmond's body cam includes the following interaction: Officer Redmond asked: "No weapons in the car?" ( Id. ) Nobody responded. ( Id. ) The officer then said "Nah?" ( Id. ) Again, none of the occupants responded. ( Id. ) Appellant failed to admit that he had a firearm on him, and instead he declined to answer. ( Id. )
After viewing a portion of the body cam, Officer Redmond testified that "[i]n that clip [of the body cam] you can actually see [Appellant]'s—I think it was his left hand actually on his crotch area." ( Id. at 14). Officer Redmond continued by testifying that "a few other times during the stop [Appellant] does the same thing, adjust his groin area." ( Id. ) Officer Redmond believed Appellant might have a concealed firearm because he typically recovered guns from individuals "usually in their waistband." ( Id. at 11). Officer Redmond elaborated on his training and experience as to why he thought Appellant's adjusting his groin area was indicative of a concealed weapon as follows: "But usually over the course of your career you develop cues on body language movements that they make when they're concealing a firearm. So over my four years I've discovered that, you know, constant movements toward [the groin] area would indicate that they're probably hiding something." ( Id. at 16).
Most of the body cam footage does not show Appellant's hands or his lap.
During his conversation with Appellant, Officer Redmond asked what was inside a shoebox located at Appellant's feet. Appellant said shoes, and then showed them to the officer. ( Id. at 19). After this interaction, the officer engaged the backseat passenger in conversation. ( Id. ) Officer Redmond then asked Appellant what was in his pocket, and Appellant removed a pill bottle which he showed the officer. ( Id. at 20). Subsequently, Officer Redmond had a conversation with Officer Wildsmith, during which Officer Wildsmith informed Officer Redmond that the backseat passenger had an outstanding warrant for trespassing. ( Id. at 24). In addition, the officers had a conversation about Appellant where they referenced Appellant as the "front-seat passenger." ( Id. at 25). Neither officer could recall the content of that conversation. ( Id. at 26, 37). Shortly after this conversation, Officer Redmond asked Officer Wildsmith to "pull [Appellant] out" of the car and then Officer Redmond stated "[l]et's check him out." ( Id. at 27).
Officer Redmond testified that the reason he asked Appellant to step out of the car was "[a]fter watching [Appellant] adjust the groin area, I thought [Appellant] was concealing a firearm." ( Id. at 15). Further, Officer Redmond explained that the reason for waiting for Officer Wildsmith before requesting Appellant exit the car was that Officer Redmond "was waiting just in case [Appellant] tried to run or anything. We'd have more officers in the area or close to the area, so [Appellant] wouldn't get away." ( Id. at 30). Officer Redmond reiterated his reason for waiting as follows: "I waited until he got out of the vehicle. So in case [Appellant] tried something, another officer would be right next to me to help me." ( Id. ) Immediately after Appellant exited the vehicle, Officer Redmond patted Appellant down and recovered a loaded handgun in Appellant's groin area. ( Id. at 8-9).
On July 11, 2019, Appellant filed a motion to suppress. The court held a suppression hearing on October 9, 2019. At the conclusion of the hearing, the court denied the motion to suppress. On October 29, 2019, Appellant filed a motion for reconsideration. The court denied the reconsideration motion without a hearing on November 13, 2019. On November 15, 2019, the court convicted Appellant of the above-mentioned crimes after a stipulated waiver trial. On March 4, 2020, the court sentenced Appellant to an aggregate 18 to 36 months' imprisonment plus two years of probation. Appellant filed a timely notice of appeal on April 3, 2020. On May 26, 2020, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and Appellant timely complied. Following the grant of an extension of time, Appellant filed a supplemental Rule 1925(b) statement on June 29, 2020.
Appellant raises the following issue for our review:
Did the suppression court err in denying Appellant's motion to suppress the firearm recovered from his person as fruit of an unlawful frisk unsupported by reasonable suspicion that he was armed and dangerous where Appellant, a compliant passenger in a car lawfully stopped for a traffic violation, adjusted his groin a few times while speaking to police?
(Appellant's Brief at 3).
"Our standard of review in addressing a challenge to a trial court's denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct." Commonwealth v. Williams , 941 A.2d 14, 26 (Pa.Super. 2008) (en banc ) (internal citations omitted).
[W]e may consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.
Id. at 27. The reviewing court's scope of review is limited to the evidentiary record of the pre-trial hearing on the suppression motion. In re L.J. , 622 Pa. 126, 79 A.3d 1073 (2013). "It is within the suppression court's sole province as factfinder to pass on the credibility of witnesses and the weight to be given their testimony." Commonwealth v. Luczki , 212 A.3d 530, 542 (Pa.Super. 2019) (quoting Commonwealth v. Clemens , 66 A.3d 373, 378 (Pa.Super. 2013) ). If appellate review of the suppression court's decision "turns on allegations of legal error," then the trial court's legal conclusions are nonbinding on appeal and subject to plenary review. Commonwealth v. Smith , 164 A.3d 1255, 1257 (Pa.Super. 2017).
Appellant argues that although the police conducted a lawful traffic stop of the vehicle, the officers lacked reasonable suspicion to perform a pat-down search for weapons. Appellant contends that he and the other occupants of the car complied with the officers' requests, did not act nervous, and did not attempt to flee. Appellant claims that Officer Redmond's testimony that Appellant adjusted his groin during his interaction with the officer did not support a belief that Appellant was armed and dangerous. Appellant emphasizes that his alleged movements toward his groin area are not seen on Officer Redmond's body cam video, which contradicts the officer's testimony. Further, Appellant asserts that Officer Redmond showed no concern for officer safety because the officer did not comment on Appellant's alleged movements during the traffic stop. Appellant highlights that Officer Redmond did not order Appellant out of the car immediately after he purportedly saw Appellant adjust his groin. Rather, Officer Redmond allowed Appellant to reach to the floor and open a shoebox. Appellant insists the officer's actions are inconsistent with his testimony that the officer believed Appellant could be armed and dangerous. Appellant reasons that Officer Redmond's observations consisted of a mere unparticularized suspicion or hunch, which was insufficient to warrant the serious intrusion of a pat-down search. Appellant concludes the trial court's suppression ruling was erroneous, and this Court should vacate the judgment of sentence and reverse the court's order denying his motion to suppress. We disagree.
Appellant concedes that the officers executed a lawful traffic stop based on the tinted windows. ( See Appellant's Brief at 15).
The Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution guarantee the right of the people to be secure in their persons, houses, papers, and possessions from unreasonable searches and seizures. Commonwealth v. Morrison , 166 A.3d 357, 363-64 (Pa.Super. 2017). "To secure the right of citizens to be free from unreasonable search and seizure, courts in Pennsylvania require law enforcement officers to demonstrate ascending levels of suspicion to justify their interactions with citizens to the extent those interactions compromise individual liberty." Commonwealth v. Hampton , 204 A.3d 452, 456 (Pa.Super. 2019). Because interactions between law enforcement and the general citizenry are widely varied, search and seizure law examines how the interaction is classified and if a detention has occurred. Commonwealth v. DeHart , 745 A.2d 633, 636 (Pa.Super. 2000).
The focus of search and seizure law "remains on the delicate balance of protecting the right of citizens to be free from unreasonable searches and seizures and protecting the safety of our citizens and police officers by allowing police to make limited intrusions on citizens while investigating crime." Commonwealth v. Moultrie , 870 A.2d 352, 356 (Pa.Super. 2005) (quoting Commonwealth v. Blair , 860 A.2d 567, 571 (Pa.Super. 2004) ) (internal quotation marks omitted). "[I]n assessing the lawfulness of citizen/police encounters, a central, threshold issue is whether...the citizen-subject has been seized." Commonwealth v. Strickler , 563 Pa. 47, 57, 757 A.2d 884, 889 (2000).
Contacts between the police and citizenry fall within three general classifications:
The first [level of interaction] 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 to respond. The second, an "investigative detention" must be supported by a reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. Finally, an arrest or "custodial detention" must be supported by probable cause.
Commonwealth v. Goldsborough , 31 A.3d 299, 305 (Pa.Super. 2011), appeal denied , 616 Pa. 651, 49 A.3d 442 (2012) (quoting Commonwealth v. Bryant , 866 A.2d 1143, 1146 (Pa.Super. 2005), appeal denied , 583 Pa. 668, 876 A.2d 392 (2005) ). Police must have reasonable suspicion that a person seized is engaged in unlawful activity before subjecting that person to an investigative detention. Commonwealth v. Cottman , 764 A.2d 595 (Pa.Super. 2000).
An investigative detention, unlike a mere encounter, constitutes a seizure of a person and thus activates the protections of Article 1, Section 8 of the Pennsylvania Constitution. To institute an investigative detention, an officer must have at least a reasonable suspicion that criminal activity is afoot. Reasonable suspicion requires a finding that based on the available facts, a person of reasonable caution would believe the intrusion was appropriate.
* * *
Reasonable suspicion exists only where the officer is able to articulate specific observations which, in conjunction with reasonable inferences derived from those observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and that the person he stopped was involved in that activity. Therefore, the fundamental inquiry of a reviewing court must be an objective one, namely, whether the facts available to the officer at the moment of intrusion warrant a [person] of reasonable caution in the belief that the action taken was appropriate.
Commonwealth v. Jones , 874 A.2d 108, 116 (Pa.Super. 2005) (internal citations omitted).
"[T]he question of whether reasonable suspicion existed at the time of an investigatory detention must be answered by examining the totality of the circumstances to determine whether there was a particularized and objective basis for suspecting the individual stopped of criminal activity." Cottman, supra at 598-99 (quoting Commonwealth v. Beasley , 761 A.2d 621, 625-26 (Pa.Super. 2000), appeal denied , 565 Pa. 662, 775 A.2d 801 (2001) ). "These circumstances are to be viewed through the eyes of a trained officer." Commonwealth v. Jackson , 907 A.2d 540, 543 (Pa.Super. 2006).
In making this determination, we must give due weight...to the specific reasonable inferences the police officer is entitled to draw from the facts in light of his experience. Also, the totality of the circumstances test does not limit our inquiry to an examination of only those facts that clearly indicate criminal conduct. Rather, even a combination of innocent facts, when taken together, may warrant further investigation by the police officer.
Commonwealth v. Young , 904 A.2d 947, 957 (Pa.Super. 2006), appeal denied , 591 Pa. 664, 916 A.2d 633 (2006) (internal citations and quotation marks omitted).
Additionally,
If, during the course of a valid investigatory stop, an officer observes unusual and suspicious conduct on the part of the individual which leads him to reasonably believe that the suspect is armed and dangerous, the officer may conduct a pat-down of the suspect's outer garments for weapons. In order to establish reasonable suspicion [to conduct a pat-down], the police officer must articulate specific facts from which he could reasonably infer that the individual was armed and dangerous.
Commonwealth v. Mack , 953 A.2d 587, 590 (Pa.Super. 2008).
The Terry totality of the circumstances test applies to traffic stops or roadside encounters in the same way that it applies to typical police encounters. See Commonwealth v. Mesa , 683 A.2d 643, 646 (Pa.Super. 1996). Moreover, the principles of Terry apply to all occupants of a stopped vehicle, not just the driver. See id. (applying principles of Terry to determine whether police were permitted to conduct pat-down search of passenger in vehicle that was stopped pursuant to motor vehicle violation). Indeed, "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." In re O.J. , 958 A.2d 561, 564 (Pa.Super. 2008) (en banc ) (citing Michigan v. Long , 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) ).
Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1969) (holding police have authority to pat-down or frisk individual for weapons based upon reasonable belief that criminal activity is afoot, and that suspect might be armed and dangerous).
"The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent [person] in the circumstances would be warranted in the belief that his safety or the safety of others was in danger." Commonwealth v. Cooper , 994 A.2d 589, 592 (Pa.Super. 2010), appeal denied , 608 Pa. 660, 13 A.3d 474 (2010). See also Commonwealth v. Watley , 153 A.3d 1034, 1045 (Pa.Super. 2016) (explaining that it was not relevant to reasonable suspicion inquiry that "neither of the troopers testified that they feared for their safety"; rather, relevant inquiry is objective reasonableness of search). The sole justification for the pat-down is the protection of the police officers and others nearby. Commonwealth v. Cartagena , 63 A.3d 294, 299 (Pa.Super. 2013) (en banc ), appeal denied , 620 Pa. 728, 70 A.3d 808 (2013). The pat-down of an individual must be confined in scope to an intrusion reasonably designed to discover weapons. Commonwealth v. Wilson , 927, A2d 279, 285 (Pa.Super. 2007).
In Commonwealth v. Simmons , 17 A.3d 399 (Pa.Super. 2011), police pulled over a vehicle in a high crime area for inoperable brake lights. Simmons was the passenger. The officer, a twelve-year veteran, saw Simmons make a movement toward the floor and across his chest. Accordingly, he conducted a pat-down search while the defendant was seated in the car and recovered several vials of cocaine. In analyzing whether the search was valid, this Court stated:
Under such circumstances, we hold that [the officer's] observation of furtive movements, within the scope of a lawful stop, led him to reasonably be concerned for his safety and therefore justified the Terry protective frisk. Indeed, on multiple occasions we have held that similar furtive movements, when witnessed within the scope of a lawful traffic stop, provided a reasonable basis for a protective frisk.
Id. at 404.
Similarly, we have held that a defendant's "furtive movement of leaning forward and appearing to conceal something under his seat, along with his extreme nervousness and [a] nighttime stop, was sufficient to warrant a reasonable police officer to believe that his safety was in danger and that [the defendant] might gain immediate control of a weapon." Commonwealth v. Buchert , 68 A.3d 911, 916-17 (Pa.Super. 2013), appeal denied , 623 Pa. 759, 83 A.3d 413 (2014). See also Commonwealth v. Foglia , 979 A.2d 357, 361 (Pa.Super. 2009) (en banc ) (stating "if a suspect engages in hand movements that police know, based on their experience, are associated with the secreting of a weapon, those movements will buttress legitimacy of a protective weapons search of the location where hand movements occurred"); O.J., supra at 566 (holding police had reasonable suspicion where traffic stop occurred at night, defendant initially failed to stop his vehicle when signaled by police, and defendant made "rapid and furtive hand movements over the [vehicle's] console," which had been left partially opened); Commonwealth v. Tuggles , 58 A.3d 840, 844 (Pa.Super. 2012) (explaining "[w]here a person performs an activity that is indicative of an attempt to secrete a weapon, that movement, regardless of whether it is singular or multiple, can support a belief that the person has a gun"); Commonwealth v. Murray , 936 A.2d 76, 80 (Pa.Super. 2007) (holding police had reasonable suspicion where traffic stop occurred at night and in high-narcotics area, defendant's vehicle had tinted windows, and defendant made "a lot of movement in the vehicle" as officer was approaching); Commonwealth v. Jackson , 907 A.2d 540 (Pa.Super. 2006) (recognizing that frisks for weapons can be appropriate when police confront suspect in area known for guns and violence).
A suspect's location in a high-crime area may be a factor supporting an officer's reasonable suspicion that criminal activity is afoot. See Commonwealth v. Mackey , 177 A.3d 221, 233 (Pa.Super. 2017). "This factor [of being located in a high-crime area] enhances the danger that police may encounter an armed subject in a fashion similar to, but greater than, a nighttime stop." Commonwealth. v. Scarborough , 89 A.3d 679, 683-84 (Pa.Super. 2014). Also relevant are the time of day, "[t]he danger of approaching a vehicle with tinted windows," and "excessive movement" within the car. See Murray, supra at 79-80.
We also observe that a video recording made part of the certified record may, in rare cases, contradict a trial court's factual findings that are based on credibility determinations. See Commonwealth v. Griffin , 116 A.3d 1139, 1143 (Pa.Super. 2015) (reversing trial court's denial of suppression motion on basis that officer's testimony alleging lawfulness of at-issue seizure of contraband was clearly contradicted by video evidence; stating "[t]his is one of those rare cases where a dash cam video, which was made a part of the certified record, can contradict a trial court's factual finding often based on its credibility determinations"). This Court subsequently clarified that the Griffin Court's analysis applies solely to situations where the video in question blatantly contradicts the officer's testimony such that we would be compelled to reject the trial court's credibility determination. See Commonwealth v. Goral , 222 A.3d 802 (Pa.Super. filed Oct. 3, 2019) (unpublished memorandum).
An unpublished non-precedential memorandum decision of the Superior Court filed after May 1, 2019, may be cited for its persuasive value. See Pa.R.A.P. 126(b)(1) and (2).
Instantly, the court explained its reasoning for denying the motion to suppress as follows:
... Officer Redmond testified that [Appellant's] left hand moved to his groin area multiple times during the vehicle stop. This [c]ourt was also shown body worn camera footage that showed [Appellant's] left hand near his groin. Officer Redmond believed [Appellant's] hand movement near his groin to be an attempt by [Appellant] to conceal a gun. ... Officer Redmond, in his 4 years as a Philadelphia Police Officer, had recovered multiple firearms from individuals and in his experience, most recovered firearms were located in the waistband without a holster. Thus, Officer Redmond [had] reasonable suspicion to perform a frisk of [Appellant].
(Trial Court Opinion, filed 10/21/20, at 8). On this record, we see no reason to disrupt the court's credibility determination in favor of Officer Redmond.
Although Appellant contends that his alleged movements provided the sole basis for Officer Redmond's suspicion that Appellant was armed and dangerous ( see Appellant's Brief at 13), the record shows that various factors existed to support reasonable suspicion: (1) Officer Redmond's four years' experience as a Philadelphia Police Officer, see Jackson, supra ; (2) a roadside vehicle stop, see In re O.J., supra ; (2) the stop occurred at nighttime, see Buchert, supra ; (3) the vehicle had tinted windows, see Murray, supra ; (4) the stop occurred in a high crime area, see Simmons, supra ; (5) the area was known for gun violence, see Jackson, supra ; (6) Appellant made furtive movements towards his groin, see Tuggles, supra ; (7) Appellant's hand movements were associated with an area used for secreting a weapon, see Foglia, supra ; and (8) the pat-down occurred for protection of the police officers, see Cartagena, supra .
Further, Appellant's argument that the body cam video contradicts Officer Redmond's testimony regarding Appellant's hand movements is unpersuasive. Even if other movements occurred that were not captured by the body cam, the trial court credited Officer Redmond's testimony that Appellant "kept on like adjusting his groin area, like trying to conceal something." (Trial Court Opinion at 3). Notably, Officer Redmond's body cam footage did not begin until after the traffic stop was made and the police obtained the occupants' identification cards. ( See N.T. Suppression Hearing at 13). As a result, the body cam footage did not capture Officer Redmond's initial interaction with Appellant and the car's other occupants. ( Id. ) The body cam is also positioned in the middle of the officer's chest and does not reveal everything that the officer observed. ( Id. at 15). Regardless of whether Appellant's movements are depicted on the body cam footage, the trial court was free to credit Officer Redmond's testimony where the footage does not contradict that testimony. The record simply does not support Appellant's argument that the body cam footage blatantly contradicts Officer Redmond's testimony that he observed Appellant adjust his groin area several times, such that we should reject the trial court's credibility determination. See Griffin, supra ; Goral, supra .
We also disagree with Appellant's assertion that Officer Redmond's actions contradict his testimony that he feared Appellant might be armed and dangerous. Although Officer Redmond did not immediately remove Appellant from the vehicle once he suspected that Appellant might be armed, Officer Redmond explained that he "was waiting just in case [Appellant] tried to run or anything. We'd have more officers in the area or close to the area, so [Appellant] wouldn't get away." (N.T. Suppression Hearing at 30). Officer Redmond reiterated his reason for waiting as follows: "I waited until he got out of the vehicle. So in case [Appellant] tried something, another officer would be right next to me to help me." ( Id. )
In light of this testimony, the record demonstrates that Officer Redmond suspected Appellant was concealing a firearm but wanted to wait for more officer assistance before immediately removing Appellant from the vehicle. The fact that Officer Redmond subsequently learned information from Officer Wildsmith during their conversation which provided additional reasons to justify the frisk did not negate the officer's concern for safety. Under these circumstances, Officer Redmond's observation of Appellant's repeated movements towards his groin, within the scope of a lawful stop, led him to reasonably be concerned for his safety and therefore justified the Terry protective frisk. See Simmons, supra . Accordingly, we affirm.
Judgment of sentence affirmed.
Judge McLaughlin joins this memorandum.
Judge Pellegrini files a dissenting memorandum.
DISSENTING MEMORANDUM BY PELLEGRINI, J.:
Because the uncontroverted facts establish that Padilla was not frisked for officer safety but for reasons that the police officers did not remember, reasonable suspicion was not established. Accordingly, I respectfully dissent.
At the suppression hearing, the Commonwealth called Officer Ryan Redmond, the officer who conducted the frisk. As part of his testimony, the Commonwealth played his body camera (body-cam) footage to show what happened during the traffic stop. On the night of Padilla's arrest, around 10:00 p.m., Officer Redmond was on patrol with Officers Mark Wildsmith and Robert McGrody. While on patrol, Officer Redmond saw a white Toyota Corolla with dark-tinted windows. Because he could not see inside the vehicle, Officer Redmond pulled the car over. The car's driver complied and pulled over around the 3100 block of E Street. There were three males in the car; Padilla was in the front passenger seat. The officers obtained their IDs and handed them to Officer Wildsmith to run them through the patrol car's computer system. While that was occurring, Officer Redmond stood on the passenger side of the car while Officer McGrody was on the driver's side. Officer Redmond described the area as being "a high-drug and crime area" with "lots of shootings."
According to Officer Redmond, Padilla adjusted his groin area several times during the traffic stop as if he were "trying to conceal something." Officer Redmond did not immediately remove Padilla from the car, nor did he tell him to stop reaching for his groin. Instead, as his body-cam footage showed, Officer Redmond talked to Padilla and the backseat passenger while Officer Wildsmith was checking the IDs. First, Officer Redmond asked Padilla what was in a shoe box near his feet. Padilla responded that it was shoes and reached down and opened the shoe box to show it to Officer Redmond. Next, the backseat passenger told Officer Redmond that he was at work that day. Officer Redmond turned his attention to him, asking him for his name and whether he had been "locked up" before. The backseat passenger responded that he had. Finally, Officer Redmond then turned back to Padilla and asked him what was in his pocket. Padilla stuck his hand in his pocket and pulled out a pill bottle. Officer Redmond asked if the pills were his, to which Padilla responded they were.
After Padilla showed Officer Redmond the pill bottle, Officer Redmond walked pack to the patrol car. Officer Wildsmith told him that the backseat passenger had a warrant for trespassing. Id . at 23-24. Officer Redmond confirmed at the suppression hearing that Officer Wildsmith was not referring to Padilla. Id . at 24. Officer Redmond then said, "he seemed pretty calm." Id .
Officer Wildsmith then began to look down at a cell phone. While he did so, Officer Redmond asked, "[i]s that one of them?" Id . at 25. When asked if he recalled what he was referring to, Officer Redmond responded that he did not. Id . Then, when Officer Wildsmith nodded his head in response to Officer Redmond's question, Officer Redmond asked, "[t]he guy in the passenger or front-seat passenger," with Officer Wildsmith responding, "[f]ront." Id . Again, when asked if he recalled what this was about, Officer Redmond responded, "I don't." Id . at 26. Officer Wildsmith, meanwhile, responded the same, stating: "I don't recall exactly. I'm not going to sit up here under oath and say I remember exactly because I don't." Id . at 37.
After that, Officer Redmond asked Officer Wildsmith to "pull him out." Id . at 27. Officer Redmond then said, "[l]et's check him out," which he confirmed at the hearing.
Q. Just stopping the [body cam footage], Officer. You would agree that's you saying, "Let's check him out."
A. Yes.
Q. And that's, again, referring to Mr. Padilla.
A. Yes.
Id .
Officer Redmond next prepared to approach the car but waited a few moments for Officer Wildsmith in case Padilla tried to run. Id . at 30. At that moment, however, a police sergeant pulled up and got out of his car, at which point Officer Redmond walked to the passenger door and said to Padilla, "[a]ll right, my man, step out for me." Id . at 28.
The majority finds that reasonable suspicion existed because:
Although Appellant contends that his alleged movements provided the sole basis for Officer Redmond's suspicion that Appellant was armed and dangerous, the record shows that various factors existed to support reasonable suspicion: (1) Officer Redmond's four years' experience as a Philadelphia Police Officer; (2) a roadside vehicle stop; (2) the stop occurred at nighttime; (3) the vehicle had tinted windows; (4) the stop occurred in a high crime area; (5) the area was known for gun violence; (6) Appellant made furtive movements towards his groin; (7) Appellant's hand movements were associated with an area used for secreting a weapon; and (8) the pat-down occurred for protection of the police officers. (citations omitted.)
Majority Memorandum, at 16.
I disagree with the majority because it was apparent from the testimony of Officer Redmond and Officer Wildsmith, confirmed by the body-cam footage and the trial court's finding, that Padilla was not searched because for fear of officer safety.
At the outset, I recognize we are bound by the suppression court's factual findings that are supported by the record. Officer Redmond testified that he saw that Padilla "kept on like adjusting his groin area, like trying to conceal something." See N.T., 10/9/19, at 8. While the body-cam footage does not depict the movements, there is also nothing in the body-cam footage to contradict Officer Redmond's testimony that he observed the movements. Because Officer Redmond testified that he saw the movements and the suppression court credited that testimony, we are bound by that factual finding. I also agree that the other factors mentioned by the majority can be taken into consideration in determining whether an officer can conduct a search, but absent Padilla's movements, there would be no basis to conduct the search because if that were so, just driving in that neighborhood would justify a search. However, I disagree with the majority because the uncontradicted facts evidence that officer safety or any belief that Padilla was armed and dangerous was not the reason for the search. Moreover, it is the Commonwealth's burden to show reasonable suspicion for the search, and neither Officer Redmond nor Officer Wildsmith could not provide any reason why they decided to "check [Padilla] out."
First, the uncontradicted facts show that after observing Padilla's furtive movements in a high crime neighborhood in a car with tinted windows at night, Officer Redmond, with his four years' experience, did not immediately remove Padilla from the vehicle nor show any concern about his personal safety or that he believed that Padilla was armed and dangerous. Instead, after observing those movements, Officer Redmond:
• did not remove Padilla from the car but talked to Padilla and the backseat passenger while the other officer was checking IDs.
• asked Padilla what was in a shoe box near his feet, Padilla responded and allowed him to reach down and open the shoe box to show it to him with not a concern that a weapon may be in it.
• then turned his attention to the backseat passenger and asked him for his name and whether he had been "locked up" before. The backseat passenger responded that he had.
• then turned back to Padilla and asked him what was in his pocket. He permitted Padilla, without concern, to put his hand in his pocket from which he pulled out a pill bottle. Officer Redmond asked if the pills were his, to which Padilla responded they were.
Officer Redmond's conduct is not consistent that had a reasonable suspicion that Padilla was armed and dangerous or that he was in any danger. If so, with the other two officers that were on scene, he would have ordered the occupants to exit the car immediately for his protection and that of his fellow officers.
Moreover, the body-cam footage conclusively confirms that officer safety was not the reason for the search. After engaging in the conduct described above, Officer Redmond returned to the police car to talk with Officer Wildsmith, most of which Officer Redmond was asked about on cross-examination and confirmed.
That footage contradicts Officer Redmond's contention that he pulled Padilla out of the car and frisked him for officer safety. In fact, the suppression court addressed these facts in its Rule 1925(a) opinion and acknowledged that Officer Redmond and Officer Wildsmith decided to remove Padilla from the car and check him out.
Officer Redmond then returned to the patrol car to speak with Officer Wildsmith. The content of the conversation was unclear but it is undisputed that Officers Redmond and Wildsmith referenced [Padilla] as the "front-seat passenger." Neither officer could remember the reason for the reference to [Padilla], nor does the body worn camera footage clarify the context. Officer Redmond then asked Officer Wildsmith to "pull him [Padilla] out" and said "let's check him out." It is clear from the testimony and the footage that the officers decided to remove [Padilla] from the vehicle .
Trial Court Opinion, 10/21/20, at 3 (emphasis added).
The majority ignores the trial court finding that Officer Redmond and Officer Wildsmith decided to remove Padilla from the car and "check him out" after their conversation and could not provide a reason why they did so. As a result, both the suppression court's analysis and the majority overlook the "totality of the circumstances" of the traffic stop, including the evidence that contradicted Officer Redmond's contention that he frisked Padilla out of safety concerns. See Commonwealth v. Davis , 188 A.3d 454, 459-60 (Pa. Super. 2018) (reversing suppression court's probable cause finding for vehicle search where court acknowledged only one fact weighing against probable cause and ignored all other facts that weighed heavily against probable cause).
Likewise, the majority's analysis disregards Officer Redmond and Officer Wildsmith's conversation as depicted in the body-cam footage. According to the majority, this conversation "did not negate the officer's concern for safety." See Majority Memorandum, at 18. Under this rationale, Officer Redmond saw Padilla adjust his groin and concluded that Padilla was possibly armed and dangerous but engaged in the previously described conduct that was inconsistent with any such belief. What is shown on the body-cam footage is that Officer Redmond and Officer Wildsmith decided to check out Padilla based on a reason that neither could explain at the suppression hearing. If you, the officer, can't explain why the search occurred, obviously reasonable suspicion has not been made out.
For these reasons, I would reverse the suppression court's order denying suppression and reverse all of Padilla's convictions for firearm possession.
Accordingly, I respectfully dissent.