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w . v i l l a no v a . e du/thir dc ir c uit_2012/9731 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 11

- 1853
UNITED STATES OF AMERICA

v. RONALD COLEN,

Appellant On Appeal from the United States Distr ict Court for the Eastern District of Pennsylvania ( Crim. No. 2

- 10

- cr - 00474

- 001) District Judge: Honorable John P. Fullam Submitted under Third Circuit LAR 34.1(a)

April 19, 2012 Before: McKEE, Chief Judge , SLO VITER, Circuit Judge , and O‟CONNOR, Associat e Justice (Ret.) * (Opinion filed: May 18, 2012 )

OPINION McKEE, Chief Judge

. Ronald Colen was indicted by a grand jury on July 27, 2010, and charged with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)( 1). Prior to trial, Colen filed a motion to suppress physical evidence and an inculpatory statement that police obtained after he was searched during the course of a traffic stop. T he district court denied the motion and Cole n thereafter entered a

* Hon. S andra Day O‟Connor, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation.2

cond itional guilty plea to possession of a firearm by a convicted felon, thereby reserving the right to appeal the suppression ruling. For the reasons that follow, we will affirm the district court. 1
I. Since we write primarily for the parties who are familia r with this case, we need not set forth the underlying facts or procedural history except to the extent that they assist our brief discussion.
T he Fourth Amendment prohibits “unreasonable searches and seizures,” and searches without a warrant are presumpt ively unreasonable. U.S. Const. amend. IV; Horton v. California , 496 U.S. 128, 133 (1990). However, in Terry v. Ohio , 392 U.S. 1 (1968), the Supreme Court held that “police can stop and briefly detain a person for investigative purposes if the officer ha s a reasonable suspicion supported by articulable facts that criminal activity „may be afoot,‟ even if the officer lacks probable cause.” United States v. Sokolow , 490 U.S. 1, 7 (1989) (quoting Terry , 392 U.S. at 30). Thus, where

– as here

– police condu ct a valid traffic stop they may conduct a limited search for weapons by patting

- down the driver and/or occupants of the stopped vehicle for their own protection. I f t he police have reasonable suspicion to be lieve that the person stopped may be armed and dangerous , such a suspicion is supported by articulable facts

. Terry , 392 U.S. at 21; Arizona v. Johnson , 555 U.S. 323, 327 (2009).

1 We review the district court‟s denial of a motion to suppress for clear error as to the underlying factual findings and exercise plenary revie w of the district court‟s application of the law to those facts. United States v. Perez , 280 F.3d 318, 336 (3d Cir. 2002).3

However, beca use of the danger police face when they engage in traffic stops, the Supreme Court has held that the Four th Amendment allows them to extend the scope of the Terry search to areas of the stopped vehicle where a weapon may be hidden

. Michigan v. Long , 463 U.S. 1032, 1050 (1983).
In Maryland v. Buie , 494 U.S. 325, 332 (1990), the Supreme Court explained:
In Michigan v. Long , 463 U.S. 1032 (1983), the principles of Terry were applied in the context of a roadside encounter: “[T]he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissi ble if the police officer possesses a reasonable belief based on „specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant‟ the officer in believing that the suspect in dangerous and the suspect may gain immediate control of weapons.” Id . at 1049

- 1050 (quoting Terry , supra , 392 U.S., at 21). The Long Court expressly rejected the contention that Terry restricted preventative searches to the person of the detained suspect. 463 U.S. at 1047. In a sense, Long authorized a “frisk” of an automobile for weapons. Reasonable suspicion is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence. United States v. Arvizu , 534 U.S. 266, 2 73

- 74 (2002) (quoting Sokolow , 490 U.S. at 7). Although reasonable suspicion requires more than an “unparticularized suspicion or „hunch,‟” the police officer “need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in his belief that his safety or that of others was in danger.” Terry , 392 U.S. at 27. “To determine whether reasonable suspicion exists, we must consider the “ „totality of the circumstances

– the whol e picture.‟” United States v. Robertson , 305 F.3d 164, 167 (3d Cir. 2002)4

(quoting Sokolow , 490 U.S. at 8). This includes the officer‟s “knowledge, experience, and common sense j udgment about human behavior.” Robertson , 305 F.3d at 167. “This . . . a llows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” Arvizu , 534 U.S. at 273 (citation and internal
qu otation marks omitted).
I I. Colen argues that the circumstances here did not support a reasonable suspicion that he was armed and dangerous. He submits that after being stopped for a tra ffic violation, he remained cal m and cooperated with the police. C olen relies on United States v. McKoy , 428 F.3d 38 (1st Cir. 2005), in arguing that reaching for a center console during a traffic stop in a high crime neighborhood does not warrant this kind of search and that a contrary ruling would diminish the privacy rights of all who reside in such neighborhoods as they would be subject to a search whenever they gesture toward their consoles or glove compartments during a traffic stop.
In McKoy , the court granted a suppression motion and explained that: “[i]t is simp ly not reasonable to infer that a driver is armed and dangerous because the officers believe that he appears nervous and reaches toward the car‟s console when approached by police, even in a high

- crime area.” Id . at 41. The court noted that reaching towa rd the center console “is also consistent with reaching for a driver‟s license or registration, a perfectly lawful action that is to be expected when one is pulled over by the police. The5

government‟s proposed standard comes too close to allowing an autom atic frisk of anyone who commits a traffic violation in a high

- crime area.” Id . at 40. McKoy doesn‟t help Cole n because the police had already s een him retrieve his license and registration from his pocket. They therefore kne w he was not reaching for either of those items when they saw him gesture toward the center console. They therefore had reason to both suspect his intentions and reason to be concerned for their own safety.
T he police officers had a valid basis to stop Colen for investigation of a motor vehicle code violation because he was driving an automobile with excess ively tinted windows

. Pennsylvania v. Mimms , 434 U.S. 106, 109 (1977). In the course of such a stop, police may exercise reasonable control over the car and its passengers. United
States v. Bonner , 363 F.3d 213, 216 (3d Cir. 2004). Th e Supreme Court has explained that this goes as far as allowing police to order the occupants o ut o f a car and searching them even in the absence of particularized suspicion. Mimms , 434 U.S. at 110

- 11. Here, once police made the va lid traffic stop of the car Cole n was driving, they quite properly ask ed him for his license and registration. United States v. Johnson , 63 F.3d 242, 245 (3d Cir. 1995). Here, the police acted reasonably. Their s uspicion was aroused when they saw Colen quickly shut the center console as they first approached the car

. T hey did not conduct a search at that point although they clearly could have under Mimms. Thereafter, Colen removed his license and registration fr om his rear pants pocket, thus negating a
po ssible explanation for his gestures toward the center console. W hen the officers6

returned to their car, they both saw Colen again reaching for the center console. Only then di d the officers remove him from the car , frisk him , and search the portion of the interior of the car that would have been within his immediate control when they allowed him to get back in. It was during that protective search that Officer Mason found the loaded handgun. When decidi ng to conduct the kind of limited search that occurred here, “ „a n officer need not be absolutely certain that the individual is armed‟ so long as the officer‟s concern was objectively reasonable.” United States v. Kithcart , 218 F.3d 213, 219 (3d Cir. 2000 ) (quoting Moorefield , 111 F.3d at 13

- 14). The officer s‟ decision to check the center console for weapons was completely justified by the circumstances here.
I II . For all of the above reasons, we will affirm the district court.