Suppression • Terry Stop • Reasonable Suspicion • Weapons Search

Commonwealth v. Cartagena, PICS Case No. 13-0181 (Pa. Super. Jan. 23, 2013) Donohue, J.; Mundy, J., dissenting (38 pages).

The commonwealth failed to justify a Terry search of the vehicle console where officers conducted a late-night stop of a vehicle suspected of having illegally tinted windows, whose driver exhibited extreme nervousness while complying with officers’ orders to lower the windows and produce license, insurance and registration information. Order of suppression court affirmed.

On Sept. 20, 2009, Officers Michael Johncola and Glebowski stopped appellee Jamie Cartagena, who was driving a vehicle with tinted windows in violation of 75 Pa.C.S.A. §4524(e)(1). Officer Johncola testified that the windows were so heavily tinted that he could not see inside the vehicle, even with his flashlight.

Both officers approached. Cartagena lowered the windows on the officers’ second request. Officers described Cartagena as “extremely nervous” and “[t]ripping over his words and shaking.”

Officers asked Cartagena to step out of the vehicle, where they conducted a patdown search and also searched the driver’s seat and center console of the vehicle. The patdown search revealed no weapons or contraband. Officers recovered a loaded 0.32 caliber gun with an obliterated serial number from the center console of the vehicle.

Police issued Cartagena a citation for the tinted windows and charged him with several violations of the Uniform Firearms Act. On Jan. 8, 2010, Cartagena filed a motion to suppress the gun, arguing that police conducted the warrantless search of the vehicle without reasonable suspicion or probable cause. The suppression court granted Cartagena’s motion to suppress, finding that the search of the center console was unlawful and a violation of Cartagena’s rights. The case came before the Superior Court en banc.

The court emphasized that the holding in Terry v. Ohio, 392 U.S. 1 (1968), did not permit police to conduct a search of a vehicle during every investigative stop. “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.” An officer must therefore have a 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.

The court found the commonwealth’s grounds for a protective search were largely unsupported by the record. The court concluded that the totality of the circumstances did not prove reasonable suspicion to conduct the search at issue.

The court observed that “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.” The court further observed that “without more, the nervousness of a driver of a vehicle during a late-night stop for suspected violation of the tinted window prohibition did not suffice to allow police to conduct a Terry frisk and a protective weapon search of the vehicle.”