Nervous and out after dark? Better make sure your glove box has a deadbolt.

The Superior Court recently issued a troubling per curiam opinion approving a warrantless search of a locked glove box because the motor vehicle stop occurred at night in a high crime area and the driver of the car was nervous and unlicensed.

In Commonwealth v. Micking, an en banc panel of the Pennsylvania Superior Court split four to four on the question of whether the search was unconstitutional and the evidence should be suppressed.  The first panel to consider this case held that it was unconstitutional.  After the Commonwealth requested reargument, that decision was withdrawn and an en banc panel reargument was granted.

At about 8:30 p.m. in November, 2006, two police officers in a patrol car initiated a traffic stop of Defendant’s car after observing Defendant fail to signal as he made a right turn off Kingsessing Street onto Alden Street.  At least one officer approached Defendant’s vehicle and requested his license, registration and insurance information.  Defendant informed the officer that his license was suspended.  As the officer and Defendant spoke, the officer noted that Defendant appeared nervous; his hands were shaking and his voice was trembling.  The officer then removed the keys from the ignition and opened the locked glove box, while the Defendant remained in the driver’s seat.  There were two firearms inside the glove box.  Defendant was not eligible to carry firearms due to a prior conviction and one of the firearms had an obliterated serial number.  Defendant was arrested and charged with various firearm offenses based on his possession of the weapons.

The opinion in support of affirmation held that the search was not a warrantless vehicle search but, instead, was merely a “protective weapons search of the interior passenger compartment, including, as expressly permitted in Long and Morris, any containers where a weapon may be placed or hidden.”  According to the opinion, the search was permissible because it was “fueled by reasonable suspicion that [Defendant] mat have been armed and dangerous.”  As those familiar with either the federal or Pennsylvania Constitutions and readers of this blog know, suspicion that an individual is armed and dangerous will only support a Terry frisk when it is based on specific, articulable facts.  A brief review of the facts set forth above fail to indicate any information that suggests the Defendant was armed and dangerous, so it is worth repeating the paragraph where the opinion supporting the trial court explains what these specific articulable facts are:

 . . . First, [Defendant] was extremely nervous, shaking and trembling, and his voice was quivering.  There was no apparent reason for [Defendant’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.  Second, roadside traffic stops are fraught with danger for police officers.  As noted by the [United States] Supreme Court, “According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile.” (quoting Long).  Third, it was approximately 8:00 p.m. on a November night, and the police officers faced a greater risk that [Defendant] could reach a weapon inside the car without being easily detected.

Commonwealth v. Micking, 2011 PA Super 45, *18-19 (citations omitted).

That’s it.  One, Defendant was nervous.  Two, sometimes people shoot cops during motor vehicle stops.  Three, it was dark.

The opinion then employs  scare tactics and suggests a scenario where the officers do not engage in this search but the scenario cannot be taken seriously.  The opinion suggests that maybe, if the officers had not searched the vehicle immediately, then they would have been waiting around for thirty minutes for a tow truck (the officers were entitled to tow the vehicle based on Philadelphia’s Live Stop program and Defendant’s lack of a license).  During this wait, the Defendant would not have been under arrest because his lack of license would be insufficient to arrest him.  However, maybe the Defendant had another set of keys, and maybe he would be able to sneak back to the car under cover of darkness, and maybe he would retrieve the weapons, and maybe he would shoot the police officers.


However, maybe not.  As the opinion in support of reversal points out, the crucial issue is the conduct of the officers.  In all prior cases where a protective Terry frisk of a motor vehicle’s passenger compartment is found constitutional, the occupants of the vehicle were removed and patted down.  To paraphrase, it simply does not make sense that an officer who has fear for their safety would first check a locked glove compartment for weapons.  The decision to look in the locked glove compartment require the officers to bypass the defendant’s actual person, the area under the driver’s seat, the center console, the map pocket on the driver’s side door, etc. where the defendant might have stored a weapon and where the defendant could certainly access the weapon more easily than removing the key from the ignition, leaning over and unlocking the glove box and accessing whatever it contained.  If these places had been searched and the Defendant removed from the vehicle, the argument that the police officers were acting in a reasonable manner would have more persuasive force.  Although there would be no new facts to support a belief that Defendant was armed and dangerous (the only weapons recovered were those in the glove box) , the search would at least comport with commonsense.

Fortunately, because the court split, this opinion is not binding authority on the trial courts of Pennsylvania.  It is persuasive, however, a trial judge in Philadelphia may still look at the exact same situation and suppress the evidence because he or she recognizes the constitutional violations inherent in the search.  Defendant has also requested permission to appeal to the Pennsylvania Supreme Court.  Stay tuned for updates!

Read both opinions here.

Megan’s Law Loophole

In Pennsylvania, defendants can become subject to lifetime Megan’s Law reporting requirements in two different ways.  The first is through conviction in the Pennsylvania court system.  In that case, as part of sentencing, the defendant will be subject to a SVP evaluation that determines if the defendant fits the profile of a sexually violent predator.  If the evaluation determines that it is appropriate, the defendant will be subject to a lifetime reporting requirement.  A lifetime reporting requirement also applies when convicted of certain more serious offenses (rape, involuntary deviate sexual intercourse, sexual assault, aggravated indecent assault, and incest where the victim is under the age of twelve) or upon the second conviction for offenses that typically only have a ten year reporting requirement.

Additionally,  second group of offenders is also subject to a lifetime reporting requirement.  Defendants convicted outside of Pennsylvania of an offense similar to the more serious crimes (rape, involuntary deviate sexual intercourse, sexual assault, aggravated indecent assault, and incest where the victim is under the age of twelve) are also subject to a lifetime reporting requirement.

However, an interesting twist to the lifetime reporting requirement for out of state offenders is that there is no penalty in Pennsylvania for failure to register.  Although it is clear from 42 Pa. C.S. § 9795.1(b)(4) that these offenders are subject to a reporting requirement, the statute that makes it a crime to fail to register does not include this subsection in the group of offenders subject to penalty.  As recognized in Commonwealth v. Gordon, 2010 PA Super 49, 992 A.2d 204, 206 (Pa. Super. March 26, 2010), the penalty is

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