Commonwealth v. Cavalieri

485 A.2d 790, 336 Pa. Super. 252, 1984 Pa. Super. LEXIS 6860
CourtSupreme Court of Pennsylvania
DecidedDecember 5, 1984
Docket599
StatusPublished
Cited by12 cases

This text of 485 A.2d 790 (Commonwealth v. Cavalieri) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Cavalieri, 485 A.2d 790, 336 Pa. Super. 252, 1984 Pa. Super. LEXIS 6860 (Pa. 1984).

Opinions

CERCONE, Judge:

On February 3, 1982, appellant was arrested and charged with possession of a controlled substance. Immediately prior to trial in the Municipal Court of Philadelphia, a motion to suppress was litigated and denied. Appellant was then found guilty and sentenced to pay a fine of $150.00 plus costs. Appellant thereafter petitioned the Court of Common Pleas of Philadelphia County for a writ of certiorari asserting that his motion to suppress had been improperly denied. The writ of certiorari was denied and this appeal ensued. We reverse.

It is well settled that:

Our function on review of an order denying a motion to suppress is to determine whether the factual findings of the lower court are supported by the record. In making this determination, we are to consider only the evidence .of the prosecution’s witnesses and so much of the evi[255]*255dence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error.

Commonwealth v. Trenge, 305 Pa.Super. 386, 389, 451 A.2d 701, 703 (1982). Viewed in light of these principles, the record reveals the following.

On February 3, 1982, police officer Roy Wright and his partner responded to a radio call of a disturbance at the Parker Hotel in Philadelphia. When they arrived, Wright remained in the foyer where appellant was standing while his partner proceeded into the lobby to speak with the manager. Officer Wright noticed that appellant was wearing a jacket with bulging lower pockets into which he continuously moved his hands in and out. When questioned as to his purpose for being in the foyer, appellant responded that he was waiting for a narcotics officer. During the questioning, Wright’s partner informed him that appellant had refused the manager’s request to leave the premises. After appellant obeyed Wright’s order to remove his hands from his pockets, the officer then reached directly into appellant’s pockets to check for weapons. The officer found a vial of pills, a pack of cigarettes and a large wad of tissue. Officer Wright then frisked appellant’s outer clothing for weapons. No weapons were found and the pills— subsequently analyzed and determined to be controlled substances — provided the evidence for appellant’s arrest1 and conviction.

In the seminal case of Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968), the United States Supreme Court recognized that society’s interest in detecting and preventing crime permitted a law enforcement officer to stop and question an individual concerning possible criminal behavior notwithstanding the absence of proba[256]*256ble cause to arrest. The Court in Terry further recognized that a policeman conducting such an investigatory stop may in certain circumstances take appropriate measures to neutralize the threat of physical harm to himself or others. Id. Noting that the propriety of each “stop-and-frisk” case would have to be decided on the basis of its own facts, the Court held:

[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing, in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

Id., 392 U.S. at 30, 88 S.Ct. at 1884-85.

In our view, resolution of the instant case turns upon the question of whether it was reasonable for officer Wright, under the circumstances he encountered, to reach directly into appellant’s bulging pockets without first frisking or patting him down.2 “And in determining whether the seizure and search were ‘unreasonable’ our inquiry is a dual one — whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first [257]*257place.” Id., 392 U.S. at 19-20, 88 S.Ct. at 1878-79. In other words, we must decide whether the search and seizure was reasonable both at its inception and in the manner in which it was conducted. Both inquiries must "be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief that the action taken was appropriate.” Id. 392 U.S. at 21-22, 88 S.Ct. at 1879-80. Furthermore, "... in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. 392 U.S. at 21, 88 S.Ct. at 1880.

Instantly, we are of the opinion that regardless of whether officer Wright was justified in initiating a protective search of appellant, he exceeded the permissible scope of such a search when, under the circumstances of this case, he immediately reached into appellant’s pockets without first conducting a pat-down or frisk of appellant’s clothing.

In Terry, supra, the Court declined to establish the limitations which the Fourth Amendment places upon protective searches. Instead, the Court stated that these limitations will have to be developed on a case by case basis. The Court did note, however, that a Terry type protective search must “be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments of the assault of the police officer.” Id. 392 U.S. at 29, 88 S.Ct. at 1884. In approving the scope of the search conducted in Terry, the Court observed:

Officer McFadden patted down the outer clothing of petitioner and his two companions. He did not place his hands in their pockets or under the outer surface of their garments until he had felt weapons, and then he merely reached for and removed the guns. He never did invade Katz’ person beyond the outer surfaces of his clothes, since he discovered nothing in his pat-down which might have been a weapon.

[258]*258Id. 392 U.S. at 29-30, 88 S.Ct. at 1884. See also Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

This is not to say, however, that a Terry protective search must always commence with a frisk or pat-down of the suspect. In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), a reliable informant advised an officer that an individual seated in a car located in a high crime area at 2:15 a.m., was carrying narcotics and had a gun at his waist.

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Commonwealth v. Cavalieri
485 A.2d 790 (Supreme Court of Pennsylvania, 1984)

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Bluebook (online)
485 A.2d 790, 336 Pa. Super. 252, 1984 Pa. Super. LEXIS 6860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-cavalieri-pa-1984.