COM. v. CARTAGENA

OPINION BY DONOHUE, J.:

The Commonwealth of Pennsylvania ("the Commonwealth") appeals from the August 18, 2010 order of the Court of Common Pleas, Philadelphia County, granting the motion to suppress filed by Jamie Cartagena ("Cartagena"). The issue presented is whether the Commonwealth met its burden of establishing the legality of the warrantless protective sweep of Cartagena's vehicle. Upon careful scrutiny of the record and a survey of the applicable law, we conclude that the Commonwealth failed to present sufficient evidence before the suppression court to save the firearm discovered in the center console of Cartagena's vehicle from suppression. We therefore affirm the order of the suppression court, albeit on grounds different from those supporting its order.

On September 20, 2009, at 1:50 a.m., Officer Michael Johncola and his partner, Officer Glebowski1 stopped Cartagena, who was driving a dark blue Chevrolet Suburban with tinted windows in violation of 75 Pa.C.S.A. § 4524(e)(1).2 The police activated their lights, and Cartagena pulled over in the center breakdown lane of Lehigh Avenue. N.T., 8/18/10, at 4. According to Officer Johncola, who was the only witness called by the Commonwealth to testify, the windows were so heavily tinted that he could not see inside of the vehicle, even with the use of his flashlight. Id.

The officers approached Cartagena's vehicle, with Officer Glebowski on the driver's side and Officer Johncola on the passenger's side. Id. Both of the officers asked Cartagena to lower his window. Id. at 4, 7. Cartagena did not immediately respond. When asked a second time, Cartagena lowered his window.3 Id. at 4. Officer Glebowski asked for his license, registration, and proof of insurance. Cartagena handed Officer Glebowski his license. Cartagena opened his center console, looked inside "like he was going to retrieve paperwork out of there[,] [...] looked stunned and then closed it." Id. at 6. He then opened his glove box and retrieved his registration and proof of insurance. Officer Johncola described Cartagena as "extremely nervous, [...] [t]ripping over his words and shaking." Id. at 5-6.

After Cartagena provided Officer Glebowski with the requested paperwork, because of his "nervousness," Officer Glebowski asked Cartagena to step out of the vehicle, and Cartagena complied. Id. at 5. Officer Glebowski conducted a pat down search of Cartagena, and Officer Johncola conducted "a courtesy search"4 of the driver's seat and the center console of Cartagena's vehicle. Id. The pat down search revealed no weapons or contraband; Officer Johncola recovered a loaded .32 caliber gun with an obliterated serial number from the center console of the vehicle. Id.

The police issued Cartagena a citation for the tinted windows and charged him with several violations of the Uniform Firearms Act.5 On January 8, 2010, Cartagena filed a motion to suppress the gun, arguing that the police conducted the warrantless search of his vehicle without reasonable suspicion or probable cause.6 The suppression court held a hearing on the motion on August 18, 2010. Officer Johncola was the only witness to testify at that hearing. In response to a question on direct examination by the Commonwealth, Office Johncola stated that he feared for his safety "when [Cartagena] first initially did not lower the window[.]" Id. at 6. At the conclusion of the hearing, the suppression court granted Cartagena's motion to suppress, as it found that the search of the center console was unlawful and done in violation of Cartagena's rights.7

On September 17, 2010, the Commonwealth filed a notice of appeal as well as an unsolicited concise statement of matters complained of on appeal pursuant to Pa. R.A.P. 1925(b). In its notice of appeal, the Commonwealth certified that the suppression court's order terminated or substantially handicapped the prosecution pursuant to Pa.R.A.P. 311(d). The suppression court authored a responsive opinion pursuant to Pa.R.A.P. 1925(a). On March 6, 2012, in a two-to-one non-precedential decision, a panel of this Court affirmed the decision of the suppression court. On March 14, 2012, the Commonwealth filed a motion for reargument en banc. On May 11, 2012, this Court granted the Commonwealth's request for reargument and withdrew its March 6 memorandum decision.

The case is now before the Court en banc for disposition. The Commonwealth raises the following issue for our review:

Commonwealth's Brief at 3.8

We review the suppression court's grant of a motion to suppress according to the following standard:

In re O.J., 958 A.2d 561, 564 (Pa.Super. 2008) (en banc) (quoting Commonwealth v. Mistler, 590 Pa. 390, 396-97, 912 A.2d 1265, 1268-69 (2006)) (internal citations and quotations omitted).

This case is controlled by the United States Supreme Court's decision in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). In Long, the Supreme Court applied the principles announced in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968),9 to a search of the passenger compartment of a vehicle for weapons:

Long, 463 U.S. at 1049-50, 103 S.Ct. 3469 (footnote omitted).

The Court emphasized that this holding does not permit police to conduct a search of a vehicle during every investigative stop. Id. at 1050 n. 14, 103 S.Ct. 3469. "A Terry search, unlike a search without a warrant incident to a lawful arrest, is not justified by any need to prevent the disappearance or destruction of evidence of crime. The sole justification of the search is the protection of police officers and others nearby." Id. (citation and quotation omitted). The Court stated that an officer must therefore have reasonable suspicion that the person subject to the stop has a weapon in order to conduct a lawful search of the passenger compartment of a vehicle at the time of the stop.10 Id.

In Commonwealth v. Morris, 537 Pa. 417, 644 A.2d 721 (1994), our Supreme Court applied the standard announced in Long to validate a vehicle search conducted during a traffic stop, finding the reasoning set forth in Long to be applicable to Article I, Section 8 of the Pennsylvania Constitution.11 Id. at 422 n. 3, 644 A.2d at 724 n. 3. In that case, police stopped the defendant when he made a turn without signaling. Id. at 419, 644 A.2d at 722. As the officer approached the defendant's vehicle, he observed the defendant lean to his right toward the floor of the center of the car. Id. The officer told the defendant to put his hands on the steering wheel, but the defendant did not comply, and instead he reached quickly between his legs toward the floor on the driver's side. Id. The officer ordered the defendant out of the car and upon opening the door, the officer observed a 24-inch metal pipe wedged between the driver's seat and the door. Id. A pat down search of the defendant revealed no weapons. Id. The officer then searched the passenger compartment of the car and found a bag on the seat large enough to hold a weapon which, when opened, revealed cocaine, marijuana, and drug paraphernalia. Id.

The trial court denied Morris' motion to suppress, and on appeal following his conviction and sentencing, this Court affirmed that decision. The Supreme Court granted allowance of appeal and likewise affirmed, stating:

Id. at 421-22, 644 A.2d at 723-24 (footnote omitted).

Applying these standards to the case at bar, the Commonwealth contends that "the police were justified in conducting a protective sweep of [Cartagena's] car when [Cartagena] was stopped late at night for extremely heavily tinted windows, disregarding an initial order to lower those windows, then exhibited extreme nervousness after opening and quickly shutting the center console of the car[.]" Commonwealth's Brief at 16. The suppression court found that the police lacked probable cause to search the vehicle, which the suppression court erroneously believed to be the applicable standard.12 Suppression Court Opinion, 5/18/11, at 7. It further incorrectly found that exigent circumstances beyond the mere mobility of the vehicle (i.e., the risk of the destruction of evidence or the threat of harm to police or others) were required to search the car in the absence of a warrant, and none existed here.13 Id. at 7-8. These errors by the suppression court do not affect our decision because, as we previously stated, the suppression court's legal conclusions are not binding on this Court. In re O.J., 958 A.2d at 564. Moreover, the law is well settled that if the record supports the result reached by the suppression court, we may affirm on any ground. Commonwealth v. Lewis, 39 A.3d 341, 345 (Pa.Super.2012).

After reviewing the notes of testimony from the suppression hearing, we find the Commonwealth's recitation of the specific and articulable grounds that would permit a protective search of the passenger compartment of Cartagena's vehicle to be largely unsupported by the record. The record does not support the Commonwealth's claim, for example, that Cartagena "exhibited extreme nervousness" only after he closed the center console. Rather, the record reflects that Officer Johncola did not testify that the nervousness occurred at any specific time during the stop, just that "[t]he male was extremely nervous[.]" N.T., 8/18/10, at 5.

Furthermore, there was no testimony that Cartagena "quickly shut" the center console, as the Commonwealth contends. According to Officer Johncola's testimony, Cartagena's closing of the center console appears to have been anything but "quick": "He goes to reach into the center console and looks, hesitates, and closes the center console." Id. (emphasis added). The officer went on to testify that when Cartagena went into the center console, "he looked into it like he was going to retrieve paperwork," id. at 6, which was precisely what he was asked to do. Not finding the requested paperwork in the center console, Officer Johncola testified that Cartagena opened his glove compartment, procured the paperwork and provided his registration and proof of insurance to Officer Glebowski. Id. at 5.

Officer Johncola did not testify that there was anything remarkable about the way Cartagena opened and/or closed the center console, only that he "looked stunned" before closing the compartment. Id. at 6. It appears Officer Johncola did not attach significance to the manner in which Cartagena opened and closed the center console, as Officer Johncola testified that they decided to subject Cartagena to a pat down and a protective vehicle search based solely upon Cartagena's "nervousness." Id. at 6.

We also do not agree, based on the testimony presented in this case, that Cartagena's failure to immediately respond to the officers' request to lower his windows is a factor weighing in favor of creating a reasonable suspicion that the officers' safety was in jeopardy. The Commonwealth asks us to attach a negative inference to the delay in Cartagena responding, stating that Cartagena "initially refused to lower his windows" and "ignored" the officers' first request to lower his windows. Commonwealth's Brief at 7, 11. The record, however, contains no testimony to support such an inference, as Officer Johncola did not testify to the length of the delay between the officers' first and second request for Cartagena to lower his windows. We do not know whether the requests were back-to-back in rapid succession, or whether a discernible number of seconds passed before the officers ordered Cartagena to lower the window a second time.

The facts of this case as established by the testimony of Officer Johncola indicate that he and his partner activated the lights on their police vehicle to stop Cartagena at nearly two o'clock in the morning. Cartagena pulled over and the officers approached his vehicle, one on the driver's side and the other on the passenger's side. Both officers (apparently simultaneously) ordered Cartagena to lower the windows (id. at 4) or to lower the window (id. at 7). Whether the order was to lower one or both of the driver- and passenger-side windows, the orders coming from both sides of the vehicle certainly can explain the hesitation caused by potentially conflicting orders. The orders from the two police officers from both sides of the vehicle also provide a reason for Cartagena's nervousness or apprehension.14 Regardless, it is clear that Cartagena complied by lowering both the driver- and passenger-side windows.15

In contrast to the Commonwealth's recitation of the facts, our review of the record in this case reveals that it is significantly lacking in articulable facts that would allow us to reverse the suppression court's decision.16 The entirety of Officer Johncola's testimony comprises little more than six pages of transcript, with the direct examination conducted by the Commonwealth covering just over three pages. The suppression hearing transcript contains no information about Officer Johncola's level of training or experience in conducting traffic stops (or even years of service) and is devoid of any testimony that Officer Johncola believed, based on his training and experience, that Cartagena possessed a weapon or had access to a weapon in his vehicle. See Terry, 392 U.S. at 30-31, 88 S.Ct. 1868; Long, 463 U.S. at 1049-50, 103 S.Ct. 3469; see also In re O.J., 958 A.2d at 563 (officer testifying that police "normally" conduct a protective weapons search of a vehicle where they observe furtive hand movements during a stop, as "that behavior creates a fear that a weapon may be located where the movements occurred.").17 There was also no testimony describing the neighborhood in which this stop occurred, i.e., there is no testimony that it was a high-crime area; only that police stopped Cartagena in the 100 block of Lehigh Avenue in Philadelphia.18 N.T., 8/18/10, at 4; see Commonwealth v. Murray, 936 A.2d 76, 80 (Pa.Super.2007).19 Furthermore, there is no indication that Cartagena did not immediately stop for the police (see In re O.J., 958 A.2d at 563); that the police saw any weapons in the vehicle prior to conducting a the protective search (see Long, 463 U.S. at 1051, 103 S.Ct. 3469; Morris, 537 Pa. at 419, 644 A.2d at 722; Commonwealth v. Rosa, 734 A.2d 412, 413 (Pa.Super.1999)20); or that he made any movements that caused Officer Johncola to believe that Cartagena was in possession of a weapon or that Cartagena posed a safety threat (see Commonwealth v. Foglia, 979 A.2d 357, 359 (Pa.Super.2009) (en banc)21; In re O.J., 958 A.2d at 563; Commonwealth v. Wilson, 927 A.2d 279, 284 (Pa.Super.2007)22; Commonwealth v. Boyd, 17 A.3d 1274, 1276 (Pa.Super.2011)23).

Rather, based upon the case presented by the Commonwealth at the suppression hearing, the only factors we can legitimately consider in determining whether the police had reasonable suspicion to conduct a protective weapons search of the passenger compartment of Cartagena's vehicle are: (1) the stop occurred at night, (2) Cartagena's windows were tinted, and (3) Cartagena appeared to be nervous. We acknowledge that each of these factors is properly considered in determining whether there was reasonable suspicion to conduct a Terry frisk or protective weapons search of a vehicle. See, e.g., Murray, 936 A.2d at 80; Commonwealth v. Gray, 896 A.2d 601, 607 n. 7 (Pa.Super.2006).24 We are also mindful of the legal standard requiring that we view facts not in isolation but in light of the totality of the circumstances when determining whether the police officers here had reasonable suspicion to have concern for their safety. Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa.Super.2011). Based upon the evidence of record, we conclude that the totality of the circumstances, taken together, fall short of a reasonable suspicion to conduct the search at issue in this case.25

We are cognizant of the potential dangers facing police officers approaching cars with heavily tinted windows. See Murray, 936 A.2d at 79-80 (quoting United States v. Stanfield, 109 F.3d 976, 981 (4th Cir. 1997)). However, neither this Court, our Supreme Court, nor the United States Supreme Court has held that tinted windows per se give rise to reasonable suspicion to conduct a Terry frisk and search of the passenger compartment of a vehicle, or that it is a factor entitled to greater weight than others in making such a determination.26

Moreover, just as the presence of the tinted windows is part of the totality of the circumstances, the timing of the search must likewise be considered. The record reflects that the officers did not order Cartagena out of his vehicle immediately upon approaching his vehicle after confirming by inspection the darkness of the vehicle's window tint, nor was the search conducted immediately after Cartagena's unspecified delay in lowering the windows. By the time Officer Glebowski ordered Cartagena out of the vehicle and Officer Johncola conducted the protective vehicle search, Cartagena had lowered both of his windows and the officers could freely see into the passenger compartment of the vehicle. It was not until Cartagena complied with Officer Glebowski's directive to produce his license, registration, and proof of insurance that the police decided to conduct a Terry frisk and protective search of the vehicle. See N.T., 8/18/10, at 5. Therefore, when the officers made the decision to conduct a Terry frisk and protective search of the vehicle, the window tint had receded as a factor in making a "reasonably prudent" person feel as though his or her safety was in jeopardy. See Long, 463 U.S. at 1049-50, 103 S.Ct. 3469. Indeed, as previously stated, Officer Johncola testified that he only conducted the protective vehicle search based upon Cartagena's "nervousness." N.T., 8/18/10, at 6.

We also note that there is no testimony from which we can draw an inference that Cartagena's nervousness resulted from fear that a weapon would be discovered by the police. Officer Johncola testified that Cartagena "looked stunned" when he opened his center console, but never testified that based on his training and experience, this reaction caused him to be in fear for his safety or the safety of others in the area.27 See N.T., 8/18/10, at 6. We reiterate that this search can only be legitimized if the officer had a reasonable suspicion that Cartagena was armed and dangerous. Long, 463 U.S. at 1050, 103 S.Ct. 3469; Morris, 537 Pa. at 422, 644 A.2d at 724.

It is the rare person who is not agitated to some extent when stopped by police, even if the driver is a law-abiding citizen who simply failed to notice or repair a broken taillight or was unaware that he or she was driving above the speed limit. Whether described as nervousness, apprehension, concern or otherwise, forced interaction with a police officer is not an everyday occurrence for the average citizen. Cf. Commonwealth v. Au, ___ Pa. ___, 42 A.3d 1002, 1010-11 (2012) (indicating that encounters with police are viewed through the eye of the reasonable person). Without more, the nervousness of a driver of a vehicle during a late night stop for suspected violation of the tinted window prohibition does not suffice to allow police to conduct a Terry frisk and a protective weapons search of a vehicle. A contrary ruling would serve to essentially eliminate a motor vehicle operator's protection against unreasonable searches and seizures guaranteed by the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution.28

Absent some combination of evidence to give context to the encounter — for example, testimony that the stop occurred in a high-crime area; testimony regarding Officer Johncola's training and experience and its role in formulating a reasonable suspicion that Cartagena was armed and dangerous; and/or testimony illuminating the length of the delay in Cartagena lowering his windows — we cannot overturn the suppression court's decision to suppress the gun found during the search of the passenger compartment of the vehicle. To do so would require an unwarranted expansion of police officers' ability to conduct Terry frisks and protective vehicle searches, and a concomitant erosion of the rights of citizens of Pennsylvania to be free of unreasonable search and seizure.

In the case of a motor vehicle stop, there is an obvious tension between the purpose of protecting individuals from unreasonable searches and seizures provided by the United States and Pennsylvania Constitutions and the recognized objective of protecting the safety of law enforcement officers. Courts are mindful that police officers risk their lives daily in the line of duty, especially when conducting a vehicle stop, as they do not know what they will encounter when they approach a car. See Long, 463 U.S. at 1049, 103 S.Ct. 3469 ("roadside encounters between police and suspects are especially hazardous"); In re O.J., 958 A.2d at 565 ("One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view.") (quoting New York v. Class, 475 U.S. 106, 112-13, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986)). Upon a challenge to the legality of a protective search of a vehicle, an individual's right to privacy yields to officer safety when the Commonwealth meets its burden of establishing that "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 officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons." Long, 463 U.S. at 1049, 103 S.Ct. 3469 (citation omitted). On this barebones record that establishes nothing more than a late night stop of a vehicle suspected of having illegally tinted windows whose driver exhibited nervousness while complying with the officers' orders to lower the windows and produce license, insurance and registration information, we conclude the Commonwealth did not meet its burden of establishing the legality of the search at issue.

Order affirmed.

MUNDY, J. files a Dissenting Opinion in which SHOGAN and OLSON, JJ. join.

DISSENTING OPINION BY MUNDY, J.:

I respectfully dissent from the learned Majority's decision to affirm the grant of suppression in this case. In my view, the uncontradicted evidence presented by the Commonwealth at the suppression hearing was sufficient to support a finding of reasonable suspicion on the part of Officer Johncola.

The Majority correctly utilizes the reasonable suspicion standard articulated in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).1 See Majority Opinion at 298. The United States Supreme Court has consistently observed that routine traffic stops often "resemble, in duration and atmosphere, the kind of brief detention authorized in Terry2[.]" Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 n. 29 (1984). However, the Supreme Court has also warned that said traffic stops are "especially fraught with danger to police officers[.]" Long, supra at 1047, 103 S.Ct. 3469. Police officers are permitted to "minimize the risk of harm by exercising `unquestioned command of the situation'[.]" Arizona v. Johnson, 555 U.S. 323, 330, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009), quoting Maryland v. Wilson, 519 U.S. 408, 414, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997); see also Terry, supra at 23, 88 S.Ct. 1868 (stating, "it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties[]"). In recognizing these considerations, the Supreme Court has permitted limited searches of an automobile's interior where a suspect could have access to weapons.

Long, supra at 1049-1050, 103 S.Ct. 3469 (footnote omitted); see also Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam) (stating that the interest in the safety of police officers during traffic stops is both "legitimate and weighty" for Fourth Amendment purposes).3 It is with this constitutional framework in mind that we should analyze the facts presented by the Commonwealth to the suppression court.

During the suppression hearing, Officer Johncola testified to several factors that were present on the night in question.

N.T., 8/18/10, at 3-6. Officer Johncola further described Appellee's hesitation to lower his window during cross-examination.

Id. at 7.

The Commonwealth avers that an examination of the aforementioned testimony reveals that Officer Johncola possessed the requisite reasonable suspicion to conduct a limited search of the center console. Commonwealth's Brief at 7. I agree. I find two recent decisions of this Court, Commonwealth v. Murray, 936 A.2d 76 (Pa.Super.2007), and In re O.J., 958 A.2d 561 (Pa.Super.2008) (en banc), to be particularly instructive, as they each discuss factors enumerated by the Commonwealth establishing the required reasonable suspicion in the present case.

In Murray, police stopped a Range Rover for not signaling a turn in a high-narcotics area. Murray, supra at 77. The vehicle's windows were also tinted so that it was difficult for the officers to see what was going on inside, but the officer could nevertheless discern "a lot of movement in the vehicle." Id. After frisking Murray and finding no weapon, the officer conducted a Long search of the area near where Murray was sitting and found a .40 caliber handgun under the right armrest. Id. The Murray court concluded that the tinted windows combined with "the knowledge of the neighborhood being a well-known narcotics area, when coupled with the excessive movement inside the vehicle and hour of night, raised serious and obvious safety concerns that justified a search for weapons." Id. at 80.

In O.J., the police observed a car speeding and failing to stop at a red light. O.J., supra at 563. The officers followed O.J. in their car and activated their lights and siren for O.J. to pull over. After initially ignoring the police car behind him, O.J. eventually pulled over. Id. Upon exiting their vehicle, the officers observed "a lot of movement of the arms and the hands in the center area of the vehicle which would have been the [center] console." Id. (citation omitted). After removing O.J. and his passenger from the vehicle, the officer searched the center console and found cocaine inside. Id. Appellant moved to suppress the drugs found in the center console and the trial court granted his motion. This Court, relying in part on Murray, concluded that the officer's limited search was reasonable under Long. Id. at 566.

Id.

In the case sub judice, Officer Johncola testified to four factors that led him to search the center console for weapons. First, the traffic stop occurred late at night. Commonwealth's Brief at 14. Second, Appellant ignored Officers Johncola and Glebowski's initial request to lower his heavily tinted windows. Id. at 11. Third, Appellant exhibited extreme nervousness, specifically when he opened and closed the center console.4 Id. Finally, the Commonwealth emphasizes that Appellant's windows were so heavily tinted that the officers could not see anything Appellant was doing inside the vehicle, even with their flashlights. Id. at 14. In my view, these circumstances, when considered together, support the reasonable suspicion required for Officer Johncola to make a limited search of the center console for weapons.

The Majority dismisses Appellee's hesitation to comply with the officers' request to lower his window as immaterial to whether Officer Johncola possessed the required reasonable suspicion. Majority Opinion at 301. I disagree. Traffic stops are everyday occurrences in this Commonwealth. It is common sense to anticipate that whenever a driver is pulled over by law enforcement for a traffic stop, the investigating officer will approach the driver's side window and request to speak to the driver, or at a minimum ask for the driver's license and vehicle registration. A driver pulled over for a traffic stop routinely expects to lower his window to interact with the police officer. See 75 Pa. C.S.A. § 6308(a) (stating that when a driver is pulled over by law enforcement for a Motor Vehicle Code violation, he or she "shall, upon request, exhibit a registration card, driver's license and information relating to financial responsibility, or other means of identification ...").

Furthermore, it is reasonable for a police officer approaching a vehicle with windows so heavily tinted that a flashlight does not penetrate the tint to allow visibility of the interior passenger compartment to infer for their safety that the occupant may have a weapon. When this factual situation arises and the driver refuses or delays in rolling down the window, these facts are equally concerning when the officer is able to observe suspicious behavior such as furtive hand movements. As this Court recently noted in O.J., "it appears that a significant number of murders of police officers occurs when the officers are making traffic stops." O.J., supra at 565 (internal quotation marks and citations omitted).

Additionally, I point out the reason for the traffic stop in this case was Appellee's tinted windows, which are illegal in this Commonwealth. See 75 Pa.C.S.A. § 4524(e)(1). I cannot agree that we should give Appellee credit on the constitutional level for successfully masking the interior of his car, in violation of the Motor Vehicle Code. I conclude the fact that Appellee refused the officers' initial request to lower his heavily tinted windows, which were so dark that the officers could not see anything going on inside the vehicle, supported Officer Johncola's belief that his safety was in danger. Therefore, in my view, it is certainly a relevant factor when ascertaining whether Officer Johncola had the required reasonable suspicion for a search pursuant to Long. See Commonwealth v. Tuggles, 58 A.3d 840, 842-43 (Pa.Super.2012) (concluding a car passenger's refusal to show a police officer his hands is a relevant factor in determining whether the officer had the required reasonable suspicion to conduct a Long protective search of the car's center console); see also United States v. Whitfield, 634 F.3d 741, 744 (3d Cir.2010) (stating that in the Terry context "[i]t is not necessary that the suspect actually have done or is doing anything illegal; reasonable suspicion may be based on acts capable of innocent explanation[]") (internal quotation marks and citation omitted; emphasis added); United States v. Moorefield, 111 F.3d 10, 14 (3d Cir.1997) (stating that Moorefield's "refusal to obey the officers' orders [when combined with other factors] constituted suspicious behavior[]").

The Majority attempts to distinguish Murray on the grounds that "the only similarities between [Murray and the instant case] are that both vehicles had tinted windows and the stops occurred at night...." Majority Opinion at 303 n. 19. While the Majority concludes, "Murray does not provide a basis to overturn the suppression court's suppression of the gun in question[]" because the case is not completely analogous, that is not the standard we must apply. Majority Opinion at 303 n. 19. As no case exists with this precise combination of factors, we must instead look to the totality of the circumstances of this case to decide whether Officer Johncola had the required reasonable suspicion to justify his search of the center console for weapons. See Long, supra at 1049-1050, 103 S.Ct. 3469. In my view, the factors of the heavily tinted windows at a 1:50 a.m. traffic stop, coupled with Appellee's extremely nervous movements toward the center console, and his unexplained hesitation to lower his window, clearly support the required reasonable suspicion.

Moreover, the Commonwealth stresses that although the vehicle in Murray had tinted windows, the officer was still able to see into the vehicle enough to make out furtive movements on Murray's part, whereas in this case, Officer Johncola and his partner were unable to see into the interior of the vehicle at all, even with the aid of their flashlights. Commonwealth's Brief at 14; N.T., 8/18/10, at 4. The Majority dismisses this as immaterial. Majority Opinion at 302 n. 14. I disagree, as the context for a Long protective search is the safety of the officers during the traffic stop.5 Moreover, I believe the Majority undervalues the Murray court's admonition regarding tinted windows in the context of traffic stops.

Murray, supra at 79-80, quoting United States v. Stanfield, 109 F.3d 976, 981 (4th Cir.1997), cert. denied, Stanfield v. United States, 522 U.S. 857, 118 S.Ct. 156, 139 L.Ed.2d 101 (1997) (emphasis in original).

Moreover, the Majority concludes that O.J. is distinguishable from the present case because "there is no indication that [Appellant] did not immediately stop for the police...." Majority Opinion at 303. While this is factually accurate, I conclude that this distinction is immaterial to the overall constitutional significance of this case. While Appellant did not ignore the officers' request to stop his vehicle, he did ignore their initial request to lower his heavily tinted windows, which I believe to be of equal significance in a Long analysis.

In summary, I would hold that the uncontradicted facts and circumstances articulated by Officer Johncola were sufficient to form the required reasonable suspicion to "believ[e] that [Appellee was] dangerous and ... may gain immediate control of weapons." Long, supra at 1050, 103 S.Ct. 3469. Based upon my review of the certified record, I conclude that Appellee's Fourth Amendment rights were not violated. I would therefore reverse the order granting Appellee's suppression motion and remand for further proceedings. I respectfully dissent.