Reasonable Suspicion to Support Pat-Down of Vehicle Passenger During Traffic Stop
Commonwealth v. Dobson, 2022 WL 2311335 (Pa. Super.) (unreported), allocatur granted March 15, 2023, appeal docket 24 MAP 2023
Jeff Dobson was convicted of firearms not to be carried without a license, persons not to possess firearms, possession of a controlled substance and possession of drug paraphernalia based on evidence discovered by police during a pat down of Dobson search during a traffic stop. Prior to trial, Dobson moved to suppress evidence on the basis that the police lacked reasonable suspicion to suspect that he was armed and dangerous to justify the initial pat-down search. Superior Court summarized the facts, based on the testimony of Officer Duncan, the sole witness at the suppression hearing:
On the night of August 19, 2018, just before 10:30 p.m., Officer Duncan of the Chester City Police Department was on patrol in a marked police car when he was dispatched for shots fired at West 6th Street and Lloyd Street. See N.T., 1/9/20, at 8. Officer Duncan arrived within minutes and began to canvass the area. Id. at 9. While doing so, he saw a maroon sedan go through the red light at the intersection of 7th Street and Lloyd Street. Id. at 9. Upon seeing the traffic violation, Officer Duncan activated his lights and got behind the sedan to initiate the traffic stop. Id. at 10. The sedan began to slow down and pull over to the right-hand side of the road but did not come to a complete stop. Id. at 10. Instead, the sedan continued south on Lloyd Street, going only about 5 mph. Id. at 10, 22.
As he followed, Officer Duncan relayed to incoming units that he was trying to stop the sedan. Id. at 11. While this was happening, Officer Kleinfeld2 was in another police vehicle at 6th Street and Lloyd Street. Id. As the sedan approached, Officer Kleinfeld activated his lights and pulled out into the middle of Lloyd Street, forcing the sedan to make a right-hand tun into a parking lot for Dorian Court apartments, where it pulled into a parking space. Id. at 12.
Officer Duncan drove to the apartments’ other exit to “stop or cut off the vehicle if it was indeed fleeing.” Id. As he did so, Officer Duncan saw the sedan had parked and that the driver was now out of the car speaking to Officer Kleinfeld. Id. At that time, Officer Duncan noticed that the sedan had two other occupants: Dobson in the front passenger seat and someone else in the backseat. Id. at 16.
The officers ran the occupants’ information through their system and discovered that the driver had a suspended license for DUI while the rear passenger had an active warrant, meaning the sedan would need to be towed. Id. at 17-18. Once the rear passenger was in custody, Officer Duncan asked Dobson to step out of the car and advised him that he would do a pat-down search for officer safety. Id. During the pat-down, Officer Duncan immediately recognized that a bulge above Dobson’s right knee was a firearm. Id. at 19. Once the firearm was removed, Officer Duncan asked Dobson if he had a license to carry, to which he replied he did not. Id. at 20. At that point, Dobson was arrested and transported to the Chester City Police Department. Id. at 21. There, the police searched Dobson and discovered that he had cocaine in his underwear. Id.
Before trial, Dobson moved to suppress the firearm and drugs discovered through the pat-down search and subsequent search incident to arrest. At the suppression hearing, the Commonwealth asked Officer Duncan why he tried to stop the sedan. He answered:
I was stopping the vehicle mainly because – primarily because it ran a violation right in front of me. It committed a traffic violation right in front of me. Then as it committed the traffic violation it wouldn’t stop for police which raised suspicion especially because we just had a shots fired call in that area.
Id. at 13.
He added that the area of the shots fired call (6th and Lloyd) was only “300, 500 feet” away from where he first saw the sedan. He also testified that the area is designated a high-crime area in the city of Chester, including “violent crimes, shootings, shots fired, high drug area.” Id. at 14. He explained that he knows it is a high-crime area through his personal experience from responding to about 5 to 10 shots fired calls in the area within two years, along with information received from other officers, the narcotics division and roll call. Id. at 14-15.
The Commonwealth also asked him about the pat-down:
Q Okay. And can you just testify for the Court what specifically did you believe – what fear did you have at that time? Why did you want to pat him down?
A Possibly concealing a weapon of any sort.
* * *
Q Concealing a weapon. And what led you to believe that he could be concealing a weapon?
A Being the area that we were currently in.
Q Okay. And I believe the car fled, correct?
A Correct.
Q Did that also lead you to believe that there could be something suspicious going on in the vehicle including with the occupants?
A Yes.
Id. at 18-19.
Slip op. at 2-5 Based on Officer Duncan’s testimony, the trial court denied the motion to suppress finding there was reasonable suspicion to conduct the pat-down of Dobson:
Here, Officer Duncan testified he responded to the location because of a report of shots fired received minutes before his arrival. Officer Duncan observed the vehicle [Dobson] was a passenger in, travel through a steady red light. When Officer Duncan attempted to conduct a lawful traffic stop, the vehicle slowed but did not stop. Not only did the vehicle refuse to stop for Officer Duncan, but also turned into an apartment complex to avoid another police vehicle blocking its way further down the street. The area is known as a high crime area in the City of Chester. After the stop, Officer Duncan learned through NCIC that the driver had a suspended license for DUI and the rear passenger had an active arrest warrant. The court finds that these circumstances, when coupled with the fact that the stop was conducted in an area known for incidents of violent crime, certainly gave Officer Duncan reason to believe that [Dobson] could be armed such that Officer Duncan was permitted to conduct a pat-down search for officer safety.
Slip op. at 5 (quoting the trial court’s order). Following his conviction, Dobson appealed the trial court’s denial of the motion to suppress, arguing that:
Officer Duncan lacked reasonable suspicion to conduct a pat-down search. Dobson first disputes that the sedan fled from Officer Duncan after he activated his lights. On this point, he emphasizes that the sedan traveled only one block from the red light to where it turned into the apartments. He also notes that the sedan did not speed away from Officer Duncan; instead, the sedan slowed down to 5 mph. Dobson observes that he did not drive the sedan, nor did get out of the car when it finally came to a stop. Dobson also emphasizes that Officer Duncan admitted that before the pat-down search, he did not see any firearms or drugs in plain view in the car. He likewise agreed that Dobson complied with all instructions while he was seated inside the sedan and did not try to run. Further, Dobson notes, there was no evidence that he ever appeared nervous or made any furtive movements while he was in the sedan.
Slip op. at 10. Dobson further argued that his case was analogous to Commonwealth v. Arrington, 233 A.3d 910 (Pa. Super. 2020), where Superior Court held that the fact that a traffic stop occurred at night in a high-crime area did not provide reasonable suspicion to support a search of the vehicle.
Superior Court affirmed the trial court’s denial of Dobson’s suppression motion. Superior Court explained that while “Officer Duncan did not observe any suspicious actions by [Dobson] individually,” there was sufficient reasonable suspicion for a pat-down search given the totality of the circumstances. Slip op. at 10. Specifically, Superior Court observed:
Indeed, there were several circumstances that, while not dipositive on their own or individually applicable to Dobson, combined to support reasonable suspicion for the pat-down search.
First, Officer Duncan was on routine patrol at nighttime when he responded to a report of shots fired at West 6th Street and Lloyd Street in the city of Chester. See N.T., 1/9/20, at 8. Based on his personal experience, that area is a “high crime drug area as well as violent area,” which, though not sufficient by itself to support reasonable suspicion, may be considered in examining the totality of the circumstances. See In re D.M., supra at 1163-64 (citation omitted).
Second, after arriving within “a couple minutes,” Office Duncan saw the sedan go through a red light. See N.T., 1/9/20, at 9. Notably, Officer Duncan saw the traffic violation take place at the intersection 7th Street and Lloyd Street—only a block away from the shots fired report. He added that there were no other vehicles at the time he arrived. Id. at 11. Thus, because of its temporal and geographic proximity to the shots fired report, coupled with the traffic violation, Officer Duncan believed that the sedan “could have” been involved in the shooting. Id. at 13.
Third, rather than stop when Officer Duncan activated his emergency lights, the sedan “began to slow down and pull over to the right” but would not come to a complete stop, as it continued to travel south down Lloyd Street with Officer Duncan following behind. Id. at 10. While Dobson disputes that the sedan was fleeing because it was going only 5 mph, the sedan still failed to stop when Officer Duncan tried to stop the car on Lloyd Street after it went through the red light.
Fourth, and perhaps more importantly, the sedan also failed to stop when Officer Kleinfeld pulled out into the middle of the road, effectively cutting off the sedan from traveling any farther on Lloyd Street. Id. at 12. However, rather than stop with Officer Kleinfeld to its front and Officer Duncan to its back, the sedan made a right turn into Dorian Court. Again, even if this did not arise to the level of erratic or dangerous driving, the sedan’s failure to yield to two marked police vehicles with their lights activated was a factor that Officer Duncan could consider under the circumstances.
Fifth, after the sedan came to a stop and parked, the driver did not wait for the officers and got out to speak to Officer Kleinfeld. Putting aside that the fact that the driver immediately exited the sedan, the situation then turned into a nighttime vehicle stop, which is another factor to take into consideration. See Commonwealth v. Zhahir, 751 A.2d 1153, 1157 (Pa. 2000) (holding that time of day is relevant to a reasonable suspicion analysis); In re O.J., supra at 566 (holding the officer’s “protective search was constitutionally valid,” in part, because “[t]he vehicular stop occurred at night, which creates a heightened danger that an officer will not be able to view a suspect reaching for a weapon”).
Again, while any one of these circumstances in isolation would not establish reasonable suspicion that Dobson was armed and dangerous, we examine the totality of the circumstances, which is not limited to an examination of only those facts that clearly indicate criminal conduct. See Young, supra. To recap, Officer Duncan immediately responded to a shots fired report in a high-crime area at night and observed a car go through a red light and then fail to stop when he activated lights and further failed to stop for another police vehicle that cut it off. We have found similar circumstances were enough to support reasonable suspicion for a pat-down search. See, e.g., Commonwealth v. Raglin, 178 A.3d 868, 873 (Pa. Super. 2018) (holding police had reasonable suspicion to pat-down defendant where gunshot sensor alerted shots fired in high crime area, defendant was near the area, and defendant’s evasive behavior when police arrived).
Slip op. at 10-13. Thus, Superior Court found this case was not analogous to Arrington, concluding that:
There, police were on patrol at 2:00 a.m. in a high-crime area when they observed defendant’s vehicle in the incorrect lane of travel. Suspecting the defendant was possibly DUI, the police pulled over the vehicle and removed the defendant, following which they conducted a search of the vehicle and found a firearm in a shoe box on the back seat. This Court ultimately concluded that the officers lacked reasonable suspicion to conduct a protective weapons search of the vehicle, emphasizing that, although the stop occurred at night in a high-crime area, the police neither observed any weapons in plain view nor saw the defendant make any furtive movements. See Arrington, supra at 917.
Here, in contrast, the police were responding to a shots fired call and saw the only vehicle in the area commit a traffic violation and then fail to stop for two police vehicles when they tried to pull the car over. Unlike Arrington, where the sole factors for reasonable suspicion were the stop occurred at night in a high-crime area, the police here responded to a potentially dangerous situation and then observed a car in which Dobson was a passenger fail to stop when the police tried to pull it over. Accordingly, we find Arrington inapplicable, and conclude that the trial court did not err in denying Dobson’s motion to suppress evidence.
Slip op. at 13-14.
Judge McCaffery dissented on the basis that Officer Duncan “failed to articulate any facts to support a reasonable belief that Appellant was armed and dangerous” reasoning that:
Although his stated reasons — the failure to stop at a steady red signal — justified the vehicle stop, it is uncontradicted that Appellant was not the driver but merely a passenger, and as discussed above, Officer Duncan cited no suspicious behavior by Appellant or any other passenger in the vehicle, while the car was in motion or after the stop. armed and dangerous. To the contrary, if we were to allow a pat-down of every person travelling in a vehicle in a high crime area, the protections of the Fourth Amendment would be meaningless. Accordingly, I disagree that the officer’s testimony supported a reasonable belief that Appellant could be
Dissent slip op. at 4-5.
The Pennsylvania Supreme Court granted allocatur to consider:
Did the Superior Court err in affirming the trial court’s denial of Defendant’s motion for suppression of the evidence seized from the Defendant’s person by an illegal detention and search due to the officer’s lack of probable cause and/or reasonable suspicion that the Defendant, front seat passenger of a motor vehicle stop, was armed and dangerous?
For more information, contact Kevin McKeon or Dennis Whitaker.