Opinion
Criminal Action No. 03-838.
May 20, 2004
MEMORANDUM
The Defendant has been indicted on three counts, charging possession with intent to distribute a controlled substance, possession of a firearm in furtherance of a drug trafficking crime, and as a felon in possession of a firearm and ammunition. Defendant filed a Motion to Suppress the Physical Evidence (Docket No. 22) on March 16, 2004, and the Court held a hearing on Defendant's Motion on April 21, 2004, and argument on May 3, 2004.
The principal witness at the hearing was James McFillim, a Lower Merion police officer. Officer McFillim testified that he had been a Lower Merion patrolman for over twenty years and had extensive experience with motor vehicle stops. On November 8, 2003, at approximately 12:49 p.m., Officer McFillim was working in the Bala Cynwyd section of Lower Merion Township, and observed a Chevrolet vehicle with heavily tinted windows, which had turned left onto southbound City Line Avenue. He believed that the tint was so dark that it was illegal; he also observed that the vehicle did not have a registration sticker on its rear window. A tint meter test conducted later showed that the visibility rating was only 10%, which was well below the 70% threshold required under the Pennsylvania Motor Vehicle law. (N.T. 7-8.)
After Officer McFillim turned on his lights and siren, the vehicle subsequently pulled over, and before he approached the vehicle, he could see through the rear window the driver and the passenger doing something which Officer McFillim characterized as unusual:
A. The driver was reaching in to the back seat as was the front seat passenger. They were repeatedly back there. They seemed to be moving something around, reaching from the back seat back to the front seat.
And they were continually looking back at me, they seemed very nervous that I was stopping them at that point.
(N.T. 10.)
Officer McFillim noticed that the driver put his keys on top of the vehicle, which he thought was strange, but the driver answered Officer McFillim's questions and produced his driver's license and vehicle registration card.
The Defendant was identified as the passenger. Officer McFillim testified that because the driver was nervous, Officer McFillim called for a back-up police car to come to the scene. He asked the driver whether there were any weapons in the car, and the driver answered in the negative. However, the Defendant, seated in the passenger seat, did not answer the first two times that Officer McFillim asked this question that eventually was answered in the negative. (N.T. 17.)
Officer McFillim described the Defendant's appearance as follows:
A. At this point, he seemed — also seemed extremely nervous with my presence. He was sitting very still to the point of being rigid. He has his left hand along his side in a very unnatural position. He was looking forward. His eyes seemed to be ever glass — a little bit glassy.
Q. Now, with regard to Mr. Bryant, did you have occasion to ask him his name at that time?
A. Yes, I did.
Q. Did he respond to you?
A. Yes, he did.
Q. Describe how he responded to you when you asked him that question?
A. He had difficulty answering me, his voice cracked. He seemed to swallow when he was trying to answer me. His voice would trail off as he spoke with me. He — he looked away, he couldn't look at me.
(N.T. 16.) Officer McFillim testified that based upon the behavior that he had witnessed, he had become "very nervous" and "felt for [his own] safety and for the safety of the people around at that point." (N.T. 17.)
Officer McFillim testified that because of his safety concerns, he told the driver and the Defendant that the back-up police officer and he would take them out of the car and frisk them. Due to the behavior of the Defendant — for example, his conspicuously rigid posture and apparent nonresponsiveness to questioning — Officer McFillim decided to have him exit the vehicle first. Officer McFillim gave the following justification for wanting to frisk or "pat down" the Defendant:
A. We opened the — the passenger-side door of the car. He was still seated in the car, he was facing towards us.
I asked him again, if there were any drugs and the weapon — or weapons — in the car and hoped to eliminate any kind of problem that would develop once he was outside of the car. It's much more — it's a much safer situation to know what you're dealing with while a person is inside a car, than when you're out of the car, it just increases the risk for myself, my — the officers near me and any — any of the people that would be in the area.
(N.T. 21.)
The pat down revealed a hard object concealed on Defendant's left hip, which Officer McFillim suspected was a firearm. (N.T. 23.) Officer McFillim then handcuffed Defendant, after which the back-up officer retrieved from Defendant's waistband the gun that was tucked into his pants. (N.T. 23.) The officers continued searching Defendant. In Defendant's left rear pants pocket, a plastic container was located which contained forty-six bags of a substance later identified as crack cocaine. (N.T. 24-25.) A black ski mask was found in the front right pants pocket. (N.T. 25.)
Subsequently, the driver was patted down, but nothing was found of an incriminating nature. Although the driver received a citation for the illegally-tinted windows and he was taken into police custody for several hours, no charges were imposed against him.
The Third Circuit has recently reviewed the applicable law on searches of drivers and passengers in vehicles in United States v. Bonner, 363 F.3d 213 (3d Cir. 2004). In summarizing the law, the Third Circuit held as follows:
It is uncontested that the initial traffic stop was lawful under the Fourth Amendment. A police officer who observes a violation of state traffic laws may lawfully stop the car committing the violation. Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S. Ct. 330, 332, 54 L. Ed. 2d 331 (1977). It is also well settled that a police officer executing such a stop may exercise reasonable superintendence over the car and its passengers. Under Mimms, the officer may order the driver out of the vehicle without any particularized suspicion. Mimms, 434 U.S. at 110-11, 98 S. Ct. at 333. The Supreme Court extended that bright line rule to allow the officer to order any passengers out of the car as well. Maryland v. Wilson, 519 U.S. 408, 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997). Alternatively, the officer may order all of the occupants to remain in the car with their hands up. United States v. Moorefield, 111 F.3d 10 (3d Cir. 1997). In addition, the officer may pat down the occupants of the vehicle and conduct a search of the passenger compartment, if he has a reasonable suspicion that the occupants might be armed and dangerous. Michigan v. Long, 463 U.S. 1032, 1049-50, 103 S. Ct. 3469, 3481, 77 L. Ed. 2d 1201 (1983) (permitting search of vehicle during traffic stop); Mimms, 434 U.S. at 111-112, 98 S. Ct. at 334 (permitting pat down of driver upon reasonable suspicion); Terry v. Ohio, 392 U.S. 1, 17, 88 S. Ct. 1868, 1877, 20 L. Ed. 2d 889 (1968); Moorefield, 111 F.3d at 13-14 (permitting pat down of passenger upon reasonable suspicion).363 F. 3d at 216.
Defendant agrees that, because of the heavily tinted windows, Officer McFillim might have had a "marginally valid reason" for initially stopping the vehicle. (Def.'s Mot. at 4.) However, the defendant contends that the officer lacked reasonable suspicion and/or probable cause to continue to detain the vehicle. The defendant admits that he, as a passenger, may not directly challenge the legality of the vehicle search, but contends that he may challenge the seizure of his own person that resulted from the illegal seizure of the car.
Further, the defense contends that the Defendant was unlawfully seized when Officer McFillim detained him without reasonable suspicion beyond the time necessary to investigate the initial traffic stop for tinted windows and registration inspection. Defendant disagrees that the rummaging around in the backseat, which Officer McFillim noticed and which supposedly contributed to the officer's sense of unease and distress, could have constituted reasonable suspicion or probable cause for searching the vehicle's occupants for weapons. Instead, Defendant argues that "[o]ne should infer that Officer McFillin [sic] simply observed [the driver] reaching for his coat in order to look for [his driver's license, registration, and insurance card] knowing the Officer would request them." (Def.'s Br. at 4.) The Court will not so infer, given that it credits Officer McFillim's testimony. It is not for this Court to second-guess the judgment of experienced law enforcement officers concerning the risks posed by a certain situation simply because reasonable minds may differ.
Defendant also argues that his nervousness cannot be a contributing factor to the officer's decision to search him, as nervousness when confronted by police officers is normal behavior for many people. Notwithstanding a factual scenario where the officer's only proffered justification was the suspect's nervousness upon police presence, that is not the case here. In this case, the defendant's nervousness was but one factor among several (such as the rummaging about the backseat) that in combination formed Officer McFillim's decision to search the vehicle's occupants for weapons.
Defendant contends that even if, assuming arguendo, Officer McFillim had a reasonable suspicion to detain the vehicle beyond the traffic stop, he did not have probable cause to arrest the defendant. The defense argues that prior to Defendant's exiting the vehicle and being handcuffed for the pat down, the police did not observe the defendant engage in anything that would have established probable cause necessary to make a warrantless arrest. The Court disagrees with Defendant's recitation of the facts and legal argument. The Court has already found that Officer McFillim had a valid reason for frisking the vehicle's occupants. Furthermore, according to Officer McFillim's testimony, Officer McFillim frisked the defendant and felt the hard object at Defendant's left hip before handcuffing him. Having discovered the handgun, Officer McFillim had probable cause to arrest, and the subsequent search, during which the forty-six bags containing crack cocaine were recovered, was valid as a search incident to Defendant's arrest for possession of the handgun.
Under the Supreme Court holdings cited above, it is well established that once a motor vehicle has been stopped for a traffic violation, an officer does not violate the Fourth Amendment by requiring persons in the automobile to get out of the automobile. This constitutional interpretation applies to passengers as well as drivers. InMaryland v. Wilson, supra, the Court noted that the 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, 519 U.S. at 414, and "the additional intrusion on the passengers is minimal." Id. at 415. Under all of the circumstances, the pat down of Defendant after he got out of the automobile was reasonable and appropriate for the safety of the police officers on the scene.
Based on the applicable legal principles and the testimony of Officer McFillim, the Motion to Suppress will be denied.
An appropriate Order follows.