Johnny Ray Talley appeals from the judgment of sentence imposed following a bench-trial conviction on a charge of Firearms Not To Be Carried Without a License, 18 Pa.C.S. § 6106(a). Talley was sentenced to a term of incarceration of four to eight months. On appeal, Talley contends that the trial court erred in the denial of his motion to suppress physical evidence. We agree, and find that evidence seized during the search of the vehicle in which Talley was a passenger should have been suppressed as the product of an illegal search and seizure.
The underlying facts may be summarized as follows: At approximately 11:45 p.m. on November 6, 1991, Trooper Kevin Hughes was operating radar from his State Police cruiser when he observed the vehicle in which Talley was a passenger speeding at 68 m.p.h. in a 55 m.p.h. zone. Trooper Hughes testified that he pursued the vehicle, and, as he pulled behind the vehicle and stopped, observed that the passenger, Johnny Ray Talley, was moving "from side-to-side," "bent over in a forward position and he appeared to be fidgeting with the glove box." Trooper Hughes further testified that Talley's hands were near the glove box when he approached the stopped vehicle from the passenger's side. Trooper Hughes then testified that he informed the driver of the reason for the stop and then did a cursory search of the vehicle, of the hands of the driver and the passenger, and looked under the seats for weapons. Trooper Hughes then testified that:
Suppression Hearing, Notes of Testimony, September 2, 1992, at 4-5.
Following the preliminary hearing, Talley filed a Motion for Pretrial Omnibus Relief in the form of a motion to suppress. After a hearing, the trial court denied this motion. Post-trial motions were denied, and this appeal followed.
Initially, we note that our role in reviewing an order granting or denying a motion to suppress is as follows:
Commonwealth v. Lopez, 415 Pa.Super. 252, 255, 609 A.2d 177, 178-179 (1992), appeal denied, 533 Pa. 598, 617 A.2d 1273 (1992); see Commonwealth v. Germann, 423 Pa.Super. 393, 621 A.2d 589 (1993); see also Commonwealth v. Parker, 422 Pa.Super. 393, 619 A.2d 735 (1993). It is with this standard in mind, that we review this case.
Talley does not challenge the validity of the traffic stop of the vehicle in which he was a passenger. See e.g. Commonwealth v. Whitmyer, 415 Pa.Super. 393, 609 A.2d 809 (1992) (belief that a provision of the vehicle code was being violated). Accordingly, the only issue presented for our review is whether the search of the locked glove compartment during a routine traffic stop was illegal and whether the fruits of that search should have been suppressed due to the Commonwealth's failure to produce probable cause to warrant the search.
In Commonwealth v. Germann, supra, we stated:
Germann, 423 Pa.Super. at 398-399, 621 A.2d at 592.
In Germann, we discussed several cases in which we sanctioned the warrantless search of a vehicle: for example, Bailey, supra, (officer observed a white substance he believed to be cocaine contained in a plastic bag); Commonwealth v. Leet, 401 Pa.Super. 490, 585 A.2d 1033 (1991) (probable cause to search vehicle stopped for motor vehicle violation arose after police detected odor of marijuana and beer emanating from defendant's vehicle); Commonwealth v. Stoner, 236 Pa.Super. 161, 344 A.2d 633 (1975) (probable cause to search stopped vehicle after police observed marijuana seeds and leaves inside vehicle); Commonwealth v. Duell, 305 Pa.Super. 431, 451 A.2d 724 (1982) (probable cause to search stopped car where police detected strong odor of marijuana and open wine bottle inside vehicle).
Hughes testified that his reason for searching the vehicle in which Talley was a passenger was that Talley was "fidgeting with the glove box" and "then bec[ame] evasive." Hughes did not articulate any facts which suggested that Talley had committed any offense at the time of the search. Without articulable grounds to suspect the presence of drugs or other contraband, Hughes' authority was limited, by both the Pennsylvania and the United States Constitutions, to issuing a citation to the driver. Lopez, 415 Pa.Super. at 261, 609 A.2d at 177.
Not unlike the present case, in Guzman, supra, the officer attempted to articulate his suspicions by pointing to the demeanor and the answers to questions given by Guzman's wife. The Court of Appeals held that these suspicions did not arouse objective suspicion of any crime greater than failing to wear a seatbelt, the offense for which Guzman was stopped originally. The court also held that the officer's hunch was not sufficient to justify, after the fact, a seizure that was not objectively reasonable. Id.
We are constrained to reach the identical conclusion in the present case. The Commonwealth contends that Trooper Hughes did not exceed the scope of a permissible search when he unlocked and opened the vehicle's glove compartment. It is apparent from Trooper Hughes testimony that Trooper Hughes concluded that Talley was lying to him: "the key [was] hanging there . . . and he told me [that] he didn't have a key." N.T. 9/2/92 at 5. Citing to Commonwealth v. Morris, 422 Pa.Super. 343, 619 A.2d 709 (1992), alloc. denied, 534 Pa. 654, 627 A.2d 731 (1993), the Commonwealth argues that this Court found a search of the passenger compartment and a
Morris, as the Commonwealth properly notes, relies on Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which held that a police officer may "stop and frisk" an individual for weapons on an articulable suspicion that wrongdoing is afoot and that the subject may be armed. In addition, Morris relies on Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), which extended the Terry rationale to include the passenger compartment of a car, "limited to those areas in which a weapon may be placed or hidden . . . if the police officer possesses a reasonable belief based on `specific and articulable facts . . . taken together with the rational inferences from those facts, reasonably warrant' the officer in believing that the suspect is dangerous." Id. at 1049, 103 S.Ct. at 3481, 77 L.Ed.2d at 1220. These cases do not obviate the need for probable cause in this Commonwealth for the warrantless search of an automobile stopped for a traffic violation under the Bailey standard.
The level of probable cause necessary for a warrantless search of an automobile is the same as that needed to obtain a warrant. Commonwealth v. Pleummer, 421 Pa.Super. 51, 617 A.2d 718 (1993). The fact that the warrant requirement is relaxed for searches of vehicles does not likewise relax the need for probable cause prior to the search. Id. The trial court characterized the trooper's description of Talley's actions as "evasive" and "nervous" and stated that "the officer had a particularized objective basis for suspecting criminal activity." The trial court also stated that "to allow the vehicle safe passage without a search of the glove compartment would completely ignore the inferences and deductions made by a trained law enforcement officer."
Here, the Commonwealth argues that the officer made a lawful stop, therefore, the officer was entitled to search the glove compartment for his own protection. The argument
From the circumstances of this case, we are constrained to conclude that the search by Trooper Hughes was not based on independent probable cause. Accordingly, for the reasons stated, the judgment of sentence imposed is vacated, and this case is remanded for a new trial at which the Commonwealth may not introduce the illegally seized evidence. Judgment vacated. Case remanded. Jurisdiction relinquished.
OLSZEWSKI, J., files a Dissenting Opinion.
OLSZEWSKI, Judge, dissenting.
I respectfully dissent from the decision of my esteemed colleagues. I find that Trooper Hughes's search of the glove box was reasonable. Consequently, I would affirm the judgment of sentence.
In Commonwealth v. Morris, 422 Pa.Super. 343, 619 A.2d 709 (1992), this Court held that when a police officer lawfully stops a vehicle, he may search those areas of the passenger compartment where a weapon may be hidden or placed if he has any reasonable suspicion, based on articulable facts, that the vehicle's occupants are armed. This holding is based on the officer's legitimate interest in protecting himself or herself. Id., at 348, 619 A.2d at 712.
The facts in Morris are strikingly similar to those in the present case. Morris was a passenger in a car stopped by a police officer for failing to signal a right-hand turn. When the police officer approached the stopped car, he observed Morris stuffing a brown paper bag under the car seat. The officer went around the car to the passenger side and ordered Morris out of the car. The officer then searched the passenger
Turning to the case at hand, I find that Trooper Hughes's observations supported a genuine belief that his safety was in jeopardy and, at the very least, articulable suspicion that the glove box contained contraband or a dangerous weapon. Trooper Hughes testified that, after he pulled over the car in which appellant was riding, he observed appellant moving "around from side to side" and "fidgeting with the glove box." See majority opinion, at 352. When Trooper Hughes approached the passenger side of the car, he observed that appellant's hands were near the glove box. Id. Trooper Hughes informed the driver of the reason for the stop and then did a cursory search of the inside of the vehicle, of the hands of the driver and appellant, and looked under the seats for weapons. Id. Lastly, Trooper Hughes testified that appellant appeared "nervous" and was "evasive" when questioned. Id. at 357.
Based on these observations, I find that Trooper Hughes had a reasonable suspicion, supported by articulable facts, that appellant and/or the driver were armed and that a weapon was hidden in the glove box. Consequently, I would hold that Trooper Hughes was entitled to search the glove box for his own protection. Furthermore, I agree with the trial court that "under these facts, to allow the vehicle safe passage without a search of the glove compartment would completely ignore the inferences and deductions made by a trained law enforcement officer." Trial court opinion, 1/27/93, at 2.