J-S19005-19

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 v.

SAMUEL ANDINO,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 1541 EDA 2018

Appeal from the Judgment of Sentence May 8, 2018

in the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0003625-2017

BEFORE: LAZARUS, J., KUNSELMAN, J. and STRASSBURGER, J.*

DISSENTING MEMORANDUM BY STRASSBURGER, J.: FILED MAY 17, 2019

Because police had reasonable suspicion to conduct a pat down search, 

I respectfully dissent and offer the following analysis.

In this case, there is no dispute that Appellant’s vehicle was subject to 

a lawful traffic stop.1 

As provided for by statute, anytime a police officer has 

“reasonable suspicion” to believe a violation of the Motor Vehicle 

Code is occurring or has occurred, the officer may initiate an 

investigatory vehicle stop. Incident to this stop, an officer may 

check the vehicle’s registration, the driver’s license and obtain 

any information necessary to enforce provisions of the motor 

vehicle code. Additionally, police may request both drivers and 

their passengers to alight from a lawfully stopped car as a 

matter of right.

 

1 “[Appellant] is not challenging the stop; here, police observed [Appellant] 

commit a Motor Vehicle Code violation, and a check revealed that the 

registration of the car had expired, so police had the proper legal authority 

to pull the car over.” Appellant’s Brief at 7.
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[A]llowing police officers to control all movement in a 

traffic encounter ... is a reasonable and justifiable step towards 

protecting their safety. 

‘If, during the course of a valid investigatory 

stop, an officer observes unusual and suspicious 

conduct on the part of the individual which leads him 

to reasonably believe that the suspect may be armed 

and dangerous, the officer may conduct a pat-down 

of the suspect’s outer garments for weapons.’ 

Commonwealth v. E.M./Hall, [] 735 A.2d 654, 

659 ([Pa.] 1999). In order to establish reasonable 

suspicion, the police officer must articulate specific 

facts from which he could reasonably infer that the 

individual was armed and dangerous. When 

assessing the validity of a Terry stop, we examine 

the totality of the circumstances, [] giving due 

consideration to the reasonable inferences that the 

officer can draw from the facts in light of his 

experience, while disregarding any unparticularized 

suspicion or hunch. 

Commonwealth v. Wilson, 927 A.2d 279, 284 

(Pa.Super.2007).

While the law of search and seizure is constantly evolving, 

its focus remains on the delicate balance of protecting the right 

of citizens to be free from unreasonable searches and seizures 

and protecting the safety of citizens and police officers by 

allowing police to make limited intrusions on citizens while 

investigating crime. The court must be guided by common sense 

concerns, giving preference to the safety of the officer during an 

encounter with a suspect where circumstances indicate that the 

suspect may have, or may be reaching for, a weapon. 

Commonwealth v. Mack, 953 A.2d 587, 589-90 (Pa. Super. 2008) (some 

citations and quotation marks omitted).

Instantly, the testimony of Officer Davis, which was credited by the 

trial court, established the following. Officer Davis observed Appellant’s 

vehicle double-parked in a “[h]igh crime, high drug neighborhood.” N.T., 
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12/14/2017, at 6. When police pulled up behind Appellant, Appellant “took 

off from that location.” Id. at 7. Appellant then failed to use a turn signal,

police activated overhead lights and sirens, and Appellant pulled over. Police 

learned that the registration for Appellant’s car had expired.

Officer Davis testified that upon walking up to the driver’s side 

window, he detected “[t]he odor of burnt marijuana coming from the 

vehicle.”2 Id. at 10. Officer Davis testified that based upon his experience, 

“whenever there’s drugs, there’s guns.” Id. at 19. In the 16 years he has 

been a patrol officer, he has recovered a firearm one third of the time in a 

narcotics arrest, particularly in the area of the stop. Id. at 20. Moreover, 

Officer Davis testified that his concern is heightened when it is nighttime. 

Id. at 17. In an effort to search for the marijuana, Officer Davis reached 

into the vehicle. At that point, Appellant “leaned over towards the steering 

 

2 The trial court specifically credited this testimony. Trial Court Opinion, 

8/21/2018, at 4. This Court is “bound by the suppression court’s factual 

findings so long as they are supported by the record.” Commonwealth v. 

Yandamuri, 159 A.3d 503, 516 (Pa. 2017). Here, the Majority concludes 

that the trial court’s credibility determination should “not be considered” 

because it was contradicted by the other officer involved in the stop. 

Majority, at 7; see N.T., 12/14/2017, at 36 (Officer Murphy testifying that 

he does not “recall any odor of marijuana coming from the vehicle that 

night”). Officer Murphy’s testimony does not contradict Officer Davis’s 

testimony. It was Officer Murphy’s position throughout his testimony that he 

did not remember the traffic stop at all. See N.T., 12/14/2017, at 34 

(Officer Murphy testifying that he did not remember the traffic stop of 

Appellant at all without reviewing the paperwork). Thus, this Court is bound 

by the trial court’s credibility determination that it believed Officer Davis’s 

testimony regarding the smell of burnt marijuana.
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wheel.”

3 Id. at 21. Upon patting Appellant’s pocket, Officer Davis 

discovered a magazine with 15 live rounds. Id. at 11-12. At that point, 

Officer Davis asked Appellant to step out from the car so he could conduct a 

protective search.

Here, the totality of the circumstances demonstrates that the trial 

court did not commit an error of law in concluding that Officer Davis had 

reasonable suspicion to conduct a pat-down search of Appellant. Appellant’s 

vehicle was lawfully stopped, and he was driving the vehicle with an expired 

registration sticker in a high-crime area. Because of the lawful traffic stop, 

even without the smell of burnt marijuana emanating from the vehicle, 

Officer Davis had the authority to search Appellant and/or order Appellant 

out of his vehicle for police officer safety. As this Court has pointed out,

the sole justification for a Terry search is the protection of the 

police and others nearby, [therefore,] such a protective search 

must be strictly limited to that which is necessary for the 

discovery of weapons which might be used to harm the officer or 

others nearby. Thus, the purpose of this limited search is not to 

discover evidence, but to allow the officer to pursue his 

investigation without fear of violence. Adams v. Williams, 407 

U.S. 143 [] (1972). If the protective search goes beyond what is 

necessary to determine if the suspect is armed, it is no longer 

valid under Terry and its fruits will be suppressed.

 

3 The trial court characterized this movement as a “furtive” movement that 

“in the officer’s opinion was out of the ordinary.” Trial Court Opinion, 

8/21/2018, at 4. The Majority concludes that this movement, which 

occurred after Officer Davis commenced the pat-down search, could not be 

utilized the justify the search itself. I agree with this conclusion. 
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Commonwealth v. Guillespie, 745 A.2d 654, 657-58 (Pa. Super. 2000) 

(some internal citations and quotation marks omitted).

Here, Officer Davis conducted a very limited pat-down search of 

Appellant where he immediately discovered live ammunition, which would 

lead any reasonable person to believe that Appellant was indeed armed and 

dangerous. I would conclude that this type of search is well within the 

confines of Terry, and therefore I would affirm Appellant’s judgment of 

sentence.