PA: Protective weapons search valid (but court equally divided)

Protective weapons search of a locked glove compartment that produced two guns was valid under Michigan v. Long (affirmance by an equally divided court). Commonwealth v. Micking, 2011 PA Super 45, 2011 Pa. Super. LEXIS 59 (March 10, 2011)*:

For affirmance:

The issue before us is properly defined as whether the protective search of the glove box was fueled by reasonable suspicion that Appellant may have been armed and dangerous. We find as a matter of law that the following facts supported Officer Tamulis’s articulated concern for his and his partner’s safety and sufficiently established reasonable suspicion to support a weapons search. First, Appellant was extremely nervous, shaking and trembling, and his voice was quivering. There was no apparent reason for Appellant’s extreme level of concern given the minor nature of the traffic infraction. As we noted supra, this type of conduct displays consciousness of guilt. Additionally, our case law provides that a defendant’s display of excessive nervousness is a factor supporting the existence of reasonable suspicion. See, e.g., Commonwealth v. Rogers, 849 A.2d 1185 (Pa. 2004) (fact that defendant’s hands were shaking and he evidenced extreme nervousness, together with other factors, provided police with reasonable suspicion that he was committing a crime). Second, roadside traffic stops are fraught with danger for police officers. As noted by the Supreme Court: “According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile.” Long, supra at 1048 n.13. Third, it was approximately 8:00 p.m. on a November night, and the police officers faced a greater risk that Appellant could reach a weapon inside the car without being easily detected. See In re O.J., 958 A.2d 561 (Pa.Super. 2008) (en banc).

We further observe that both Morris and Long support the opening of the locked glove compartment because it could have contained a weapon. Consider the following scenario: police limited their search to the passenger compartment and did not examine the glove compartment. Due to Appellant’s suspended license, the vehicle was to be towed, and the police awaited the arrival of the tow truck, which, in this case, took thirty minutes. Appellant, who would not have been under arrest since the weapons were not discovered, could have possessed another key or some other means to access the locked compartment and the loaded weapons contained therein. Since it was nighttime, and since he was free to roam the area as he was not in custody, Appellant could have retrieved a gun in a surreptitious manner and used it on Officers Tamulis and McDonald.

We do not expect, nor do we believe Pennsylvania jurisprudence requires, police officers, whose trained professional judgment has been placed on alert by circumstances, to expose themselves to this danger. The stakes are too high; the infringement is too narrow; the risk is too great. Indeed, the protective search undertaken in this case may well have saved their lives that night.

Opinion for reversal:

While we fully agree with the discussion in the Opinion in support of affirmance addressing the need for police officers to be protected in the line-of-duty, our review of the record regretfully compels us to register our dissent from the portion of the decision affirming the suppression court’s conclusion that Officer Tamulis was permitted to conduct a protective weapons search of the locked glove box. Thus, for the reasons that follow, we would reverse.

. . .

However, our review of the record reflects that the facts presented at the suppression hearing do not support the trial court’s conclusion. As the Opinion in support of affirmance indicates, “[t]he issue before us is properly defined as whether the protective search of the glove box was fueled by reasonable suspicion that Appellant may have been armed and dangerous.” Slip Op. at 14. Upon review of the transcripts, there is no doubt that Officer Tamulis failed to ask Appellant to exit the vehicle prior to the search of the passenger compartment and the glove box. Likewise, our review further indicates that, contrary to the statement of the trial court, Officer Tamulis failed to conduct a patdown search of Appellant for weapons. Rather, Officer Tamulis stated simply that he conducted a “protective pat down of the area” for his and his partner’s “safety.” N.T., 2/10/08, at 7. Thus, the officer failed to establish that he had a reasonable belief based on specific articulable facts, which would have entitled him to conduct a search of the portions of the passenger compartment of the vehicle in which a weapon could be placed pursuant to Morris.