Hand Movements Not Enough to Justify Warrantless Search

by | Oct 22, 2008

The Pennsylvania Superior Court handed down a new case this month about warrantless searches of automobiles in In re O.J., 2008 Pa. Super. 234 (Oct. 1, 2008) (No, this case is not about O.J. Simpson, but it sure would be more fun if it were. It’s a juvenile case, so the minor’s name is protected by using initials.).

The basic facts follow. The police were on routine patrol when they noticed the defendant’s car traveling at a speed that appeared to be over the speed limit of 25 miles per hour and proceeding through a red light in a residential neighborhood. This occurred at about 8:00 P.M. After the police activated his siren, the defendant did not stop, but continued to travel, made a right turn and then stopped.

Before the police exited their patrol car, they noticed the defendant engage in a lot of movement of the arms and hands in the center console area of the vehicle. The officer also testified that there was a lot of shuffling and moving around in the center console area. The police then removed the defendant and a passenger from the vehicle, searched them for weapons and placed them in the patrol car. The police found no weapons upon their search of the two.

While the two were in the rear of the patrol car, a police officer went to the defendant’s car and searched the center console area, which was partially opened, but into which the officer could not see. The officer lifted the lid of the console and found what appeared to be cocaine.

The police officer testified that police normally conduct a search when they see these types of hand movements, because the it creates a fear of the existence of a weapon. He also stated that he conducted the search because he was letting the two go without arresting them, and was only issuing a traffic citation.

The trial-level criminal court suppressed the evidence of cocaine, as it found that the warrantless search was conducted without probable cause and exigent circumstances.

The Superior Court, with an opinion written by Judge Bowes, reversed, finding that there the officer has reasonable and articulable suspicion that the defendant may have been armed with a weapon, and the search of the console area was permissible. (See Michigan v. Long, 463 U.S. 1032 (1983), which holds that, under the Fourth Amendment to the U.S. Constitution, law enforcement may “frisk” the inside of an automobile where they can articulate reasonable suspicion that there may be a weapon. This type of automobile “frisk” is followed under Pennsylvania jurisprudence.) The court stated that it used the factors of the stop being at night, the defendant was driving dangerously and did not heed the officer’s inital signal to stop the car, and there were rapid hand movements near the console area.

Judge Musmanno wrote a dissenting opinion, which was joined by Judge Donahue and Judge Allen. The dissenting opinion viewed these facts as a search of the vehicle, as opposed to a vehicle “frisk”, as the matter was analyzed by Judge Bowes. The dissent did not see probable cause and exigent circumstances to justify a search. Specifically, it noted that, other than hand movements by the two occupants of the car, the officer failed to state with particularity, any reasonable belief that the suspects could have had a weapon in the console area of the vehicle.

Lesson learned: When you’re pulled over, keep your hands where they can see ’em.

If you enjoyed this post, check out this article about criminal defense.

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