By Burt Rose
The Superior Court of Pennsylvania en banc has decided the case of COMMONWEALTH of Pennsylvania, Appellant v. Jamie CARTAGENA, Appellee, 2013 WL 239082, 2013 PA Super 12, 2628 EDA 2010 (Jan. 23, 2013). This was an appeal from the Order of Judge Paula Patrick of the Court of Common Pleas of Philadelphia County, Criminal Division, CP–51–CR–0014083–2009 granting a motion to suppress. The Judges on the Court were FORD ELLIOTT, MUSMANNO, BENDER,DONOHUE, SHOGAN, LAZARUS, MUNDY, OLSON and WECHT. Judge Donohue wrote the Opinion for the 6-3 majority.
The issue presented was whether the Commonwealth met its burden of establishing the legality of the warrantless protective sweep of Cartagena’s vehicle. The police activated the lights on their marked vehicle to stop Cartagena at nearly two o’clock in the morning due to heavily tinted windows. 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. Cartagena complied by lowering both the driver- and passenger-side windows. A firearm was found in the center console.
On appeal from the grant of suppression, the Commonwealth contended 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. Although Cartagena’s failure to immediately respond to the officers’ request to lower his windows was a factor weighing in favor of creating a reasonable suspicion that the officers’ safety was in jeopardy, the Court en banc found that the Commonwealth’s recitation of the specific and articulable grounds that would permit a protective search of the passenger compartment of Cartagena’s vehicle were largely unsupported by the record.
There was no indication that Cartagena did not immediately stop for the police, that the police saw any weapons in the vehicle prior to conducting a the protective search or that he made any movements that caused the Officer to believe that Cartagena was in possession of a weapon or that Cartagena posed a safety threat. In determining whether the police had reasonable suspicion to conduct a protective weapons search of the passenger compartment of Cartagena’s vehicle, the legitimate factors were that the stop occurred at night, Cartagena’s windows were tinted, and Cartagena appeared to be nervous. While 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, neither the Superior Court, the PA 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. Rather, this search can only be legitimized if the officer had a reasonable suspicion that Cartagena was armed and dangerous. 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. Therefore, suppression of the firearm found in the center console was affirmed.
The Appellee was represented by Joseph Kelly, Esq. of Philadelphia.
Note: The original panel also affirmed in an Opinion by Judge Ott but an application for reargument en banc was granted.