Commonwealth v. Graham

685 A.2d 132, 454 Pa. Super. 169, 1996 Pa. Super. LEXIS 3528

• Court: Superior Court of Pennsylvania
• Decided: October 22, 1996
• Docket: 01968
• Status: Published

Opinions

OLSZEWSKI, Judge.

Since the law in Pennsylvania is unsettled concerning the level of antecedent justification necessary to subject an arres-tee’s companion to a “pat-down” search, the opportunity to definitively address the issue in this case is welcomed.

On August 8, 1995, appellant Durrell Graham was convicted, after a non-jury trial, of possession and possession with intent to deliver 3.37 grams of crack cocaine. The Honorable Jess S. Juliante sentenced Graham to one to two years’ imprisonment plus a $5,000 fine. Post-sentence motions were subsequently filed and denied, and this appeal follows wherein Graham claims that the trial court erred in failing to suppress the crack cocaine.¹ In support of his claim, Graham contends that the stop and frisk, which resulted in the recovery of the illicit drugs, was violative of his rights under the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution.

On an appeal from a motion to suppress, we only review whether the record supports the trial court’s factual findings and whether the trial court’s legal conclusions drawn from the facts are in error. Commonwealth v. Medley, 531 Pa. 279, 282-84, 612 A.2d 430, 432 (1992). Instantly, the record supports the trial court’s following findings:

[O]n July 18, 1994, at approximately 1:45 a.m., K-9 Officer Terry Dawley of the Erie Police Department was on routine patrol in the area of 23rd and German Streets with his dog[,] “Cujo.” While on patrol, in this high crime, high drug-trafficking area[,] Officer Dawley noticed three (3) black males on the porch of the Gateway Day Care Center. Recognizing some of those individuals, he determined that there was an outstanding arrest warrant for one of the three, i.e, Mr. Ronnie Beason. He recognized the other individuals as [Graham] and Mr. Terry Jones.[] As he watched the three (3) men, they began walking in an easterly direction on East 23rd Street. At that time he yelled for them to stop in order to apprehend Mr. Beason. Upon catching up to the three, he told Mr. Beason that he had a warrant for him and directed him to lie down. As Officer Dawley was about to arrest Beason on the authority of the outstanding warrant, he looked at [Graham,] who was approximately three (3) feet from him. At the same time he noticed a bulge in [Graham’s] front left pocket. Officer Dawley testified that[,] as this was occurring, he was concerned for his safety and the dangers involved in being in this particular area. It is also significant that at the time of this incident, Officer Dawley was alone.

In order to allay his concerns for safety, Officer Dawley patted [Graham] down and felt what he believed was money in the Defendant’s front pocket. He asked [Graham] what was in his pocket and the defendant admitted that it was money. Officer Dawley then patted [Graham’s] back pockets and, as he was doing so, shined a flashlight down to the pocket and noticed a Lifesaver Holes bottle which appeared to contain crack cocaine.

Opinion, 2/21/96 at 2-4 (citations omitted). Consequently, Officer Dawley seized the cocaine and arrested Graham.

Was Officer Dawley justified in conducting a pat-down search upon Graham? This question is not so easily answered. Both the United States and Pennsylvania Constitutions protect citizens from “unreasonable searches and seizures.” U.S. Const. amend. IV; Pa. Const. art. 1, § 8. Thus, a seizure of the person without probable cause normally renders all evidence obtained as a result of the illegality inadmissible at trial. Commonwealth v. Elliott, 376 Pa.Super. 536, 544-45, 546 A.2d 654, 658 (1988), alloc. denied, 521 Pa. 617, 557 A.2d 721 (1989). Nevertheless, in limited circumstances, an individual may be stopped, briefly detained and frisked for investigatory purposes without probable cause. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969). In order for such a stop and frisk to be reasonable, however, the police conduct must meet two separate and distinct standards. Commonwealth v. Robinson, 410 Pa.Super. 614, 618-620, 600 A.2d 957, 959 (1991), alloc. denied, 533 Pa. 599, 617 A.2d 1273 (1992); Commonwealth v. Martinez, 403 Pa.Super. 125, 588 A.2d 513 (1991), alloc. denied, 530 Pa. 653, 608 A.2d 29 (1992). First, in order for the stop to be appropriate, the officer must have reasonable suspicion, based upon specific and articulable facts, that criminal activity may be afoot. Robinson, supra; Martinez, supra. Second, in order to justify the frisk, the officer must reasonably believe that the suspect is armed and dangerous. Robinson, supra; Martinez, supra.

Despite these standards, there is authority in Pennsylvania to find that law enforcement officers are per se authorized to conduct a pat-down search upon an arrestee’s companions. In Commonwealth v. Chamberlain, 332 Pa.Super. 108, 480 A.2d 1209 (1984), this Court quoted with approval the following language from U.S. v. Berryhill, 445 F.2d 1189 (9th Cir.1971):

We think that Terry recognizes and common sense dictates that the legality of such a limited intrusion into a citizen’s personal privacy extends to a criminal’s companions at the time of arrest. It is inconceivable that a police officer effecting a lawful arrest of an occupant of a vehicle must expose himself to a shot in the back from [the suspect’s] associate because he cannot, on the spot, make a nice distinction between whether the other is a companion in crime or a social acquaintance. All companions of the arrestee within the immediate vicinity, capable of accomplishing a harmful assault on the officer are constitutionally subjected to the cursory “pat-down” reasonably necessary to give assurance that they are unarmed.

332 Pa.Super. at 114, 480 A.2d at 1212 (emphasis added).

While the Supreme Court of Pennsylvania has acknowledged Berryhill's “automatic companion rule,” the Court noted that the rule has drawn a large amount of criticism. Commonwealth v. Shiflet, 543 Pa. 164, 174 n. 4, 670 A.2d 128, 133 n. 4 (1995) (citing 3 LaFave, Search and Seizure § 9.4a at 511, n. 71 (2d ed.1987); Notes, The Automatic Companion Rule: An Appropriate Standard to Justify the Terry Frisk of an Arrestee’s Companion?, 56 Fordham L.Rev. 917 (1988); Comment, United States v. Bell, Rejecting Guilt by Association in Search and Seizure Cases, 61 Notre Dame L.Rev. 258, 269 (1986); United States v. Flett, 806 F.2d 823 (8th Cir.1987); United States v. Bell, 762 F.2d 495 (6th Cir.1986)). After careful review, Berryhill’s critics must prevail in that the “automatic companion rule” is contrary to both the United States and Pennsylvania Constitutions.²

The “automatic companion rule” grants authority to the police to stop and search an individual based solely upon his choice of company without requiring reasonable suspicion that either criminal activity is afoot or that the individual is armed and dangerous. As such, it is not harmonious with the state or federal constitution. First, the Supreme Court of the United States of America has rejected the notion that a brightline test may be applied to warrantless search cases. See Sibron v. New York, 392 U.S. 40, 59, 88 S.Ct. 1889, 1901, 20 L.Ed.2d 917, 932 (1968) (“The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case.”). See also Terry, 392 U.S. at 29, 88 S.Ct. at 1884, 20 L.Ed.2d at 910.

Secondly, and more specific to the subject of searching an arrestee’s companion, the Supreme Court has stated that “a person’s mere propensity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Ybarra v. Illinois, 444 U.S. 85, 86, 100 S.Ct. 338, 339, 62 L.Ed.2d 238, 245 (1979). See also United States v. Di Re, 332 U.S. 581, 587, 68 S.Ct. 222, 225, 92 L.Ed. 210, 216 (1948) (the Court was “not convinced that a person, by mere presence in a suspected car, loses immunities from search of his person to which he would otherwise be entitled.”). Further, our State Supreme Court has concluded that:

third parties (or their property) are generally not subject to searches merely because they are in the vicinity of an arrest unless there is probable cause or an articulable reasonable suspicion that the subject of the search is engaged in criminal activity or harbors a weapon.

Shiflet, supra at 170-72, 670 A.2d at 131. See also Commonwealth v. Eichelberger, 352 Pa.Super. 507, 508 A.2d 589 (1986), alloc. denied, 515 Pa. 619, 531 A.2d 427 (1987) (bystanders in location that is the subject of a lawful search warrant are not themselves subject to search absent probable cause or reasonable suspicion). In light of the above, a per se rule that a companion to an arrestee is subject to a “pat-down” search regardless of justification, effectively warrants “unreasonable searches” and is, thus, contrary to the Fourth Amendment of the United States Constitution and Article I, § 8 of the Pennsylvania Constitution.

Having rejected the “automatic companion rule,” the question next becomes what is the appropriate manner of review for cases involving the stop and frisk of an arrestee’s companion. As noted above, a proper stop and frisk must usually meet two separate and distinct standards. Robinson, supra at 618-20, 600 A.2d at 959. See Commonwealth v. Jackson, 451 Pa.Super. 129, 678 A.2d 798 (1996). The officer must have reasonable suspicion, based upon specific and articulable facts, that 1) criminal activity may be afoot and 2) the suspect is armed and dangerous. Robinson, supra. Bystander cases are unique, however, and warrant special consideration under this bifurcated test.

It is well settled that to determine whether a search or seizure is reasonable, under the United States or Pennsylvania Constitution, “we must balance the societal interest in law enforcement and in protecting law enforcement officials against the individual’s right to personal security free from arbitrary government interference.” Commonwealth v. Davidson, 389 Pa.Super. 166, 170-71, 566 A.2d 897, 899 (1989), alloc. denied, 525 Pa. 624, 578 A.2d 412 (1990). See United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, , 45 L.Ed.2d 607, 614-15 (1975); Commonwealth v. Leninsky, 360 Pa.Super. 49, 55-57, 519 A.2d 984, 988 (1986). Under the instant set of facts, the societal interest in safeguarding law enforcement officials is at a premium. Unquestionably, the officer’s task of performing an arrest is inherently fraught with danger. Any other conclusion is belied by the fact that 23% of all law enforcement officers killed in the line of duty are killed while attempting arrests. See Note: The Automatic Companion Rule: A Bright Line. Standard for the Terry Frisk of an Arrestee’s Companion, 62 Notre Dame L.Rev. 751, 758 (1987).

In light of the extreme risks facing lawmen in performing arrests, it will always be reasonable for officers to take some actions to insure their safety concerning companions of arrestees. To find otherwise, would be equivalent to turning a blind eye to reality and declaring open season on our protectors of the peace. Consequently, it is inherently reasonable for a law enforcement officer to briefly detain and direct the movement of an arrestee’s companion, regardless of whether reasonable suspicion exists that the companion is involved in criminal activity.³ Such minimal intrusion upon the companion’s federal and state constitutional rights are clearly outweighed by the need to extinguish the risks otherwise posed to the lawman’s well-being. Accordingly, the first prong of the “stop and frisk” test is a nullity in cases involving an arrestee’s companion.⁴

Frisking the companion, however, involves a much greater intrusion upon the person’s constitutional rights than a mere detention. As stated in Terry, “[e]ven a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.” 392 U.S. at 25, 88 S.Ct. at 1882, 20 L.Ed.2d at 908. Further, the lawman’s interest in safety is aptly protected by the ability to direct an unarmed companion to move to a location beyond physical reach. Thus, without additional justification, we cannot find that a “pat-down” search of the arrestee’s companion serves to insure the safety of the officer to any greater extent than the officer’s ability to briefly detain the companion and direct his/her movement. Accordingly, as with any “stop and frisk,” the officer must have reasonable and articulable suspicion that the arrestee’s companion is armed and dangerous before conducting a pat-down search. See Davidson, supra.

Thus, the question in the instant case becomes whether Officer Dawley’s belief that Graham was armed and dangerous was reasonable. It was. The officer was alone and executing an arrest warrant at 1:45 a.m. in a high-crime and high drug-trafficking area. Further, and more importantly, Officer Dawley observed a bulge in Graham’s pocket. In light of these circumstances, it was reasonable for Officer Dawley to conclude that Graham may have been armed and dangerous and, thus, the lawman was justified in frisking appellant. See Commonwealth v. Fitzpatrick, 446 Pa.Super. 87, 92, 666 A.2d 323, 326 (1995) (bulge in suspect’s pocket allowed court to conclude that “officers had a reasonable belief that their safety was in jeopardy.”); Commonwealth v. Patterson, 405 Pa.Super. 17, 22, 591 A.2d 1075, 1078 (1991) (“The police may reasonably believe themselves to be in danger when the hour is late or the location is desolate.”).⁵

As to the actual discovery and seizure of the crack cocaine on Graham’s person, it was the result of nothing less than thorough police work. It is well settled that the “ ‘plain view⁵ doctrine permits a warrantless seizure of private possessions by police.” Commonwealth v. Kendrick, 340 Pa.Super. 563, 569, 490 A.2d 923, 926 (1985). The requirements for the “plain view” doctrine are: 1) the police officer must lawfully make an “initial intrusion” or otherwise properly be in a position to view the evidence; 2) the officer must discover the incriminating evidence inadvertently; and 3) there must be probable cause to associate the observed property with criminal activity. Id. at 569-70, 490 A.2d at 927.

Instantly, having been authorized to conduct a “pat-down” search of appellant, Officer Dawley was lawfully in a position to observe the exposed contents of Graham’s back pocket. Further, there is no evidence that the lawman opened or even touched Graham’s pocket when he used the flashlight to illuminate its contents. In fact, at Graham’s suppression hearing, Officer Dawley testified as follows:

A. I continued to pat Durrell. I went around to the rear of him and patted his back pockets. In his right rear pocket I felt what I believed to be a Lifesavers Holes bottle.

Q. And at that point what did you do?

A. At that point I shined my flashlight down to his pocket, observed the Lifesavers Holes bottle with rocks of crack cocaine.

Q. Were you able to see the rocks of crack cocaine.

A. Yes.

N.T., 6/26/95 at 8.⁶

While Officer Dawley would not have been warranted in opening or reaching into Graham’s pocket to expose its contents, he was clearly justified in using his flashlight to illuminate its already exposed cargo. Commonwealth v. Merkt, 411 Pa.Super. 127, 131, 600 A.2d 1297, 1299 (1992) (“the use of flashlights during the observation does not negate plain visibility.”); Commonwealth v. Bentley, 276 Pa.Super. 41, 48, 419 A.2d 85, 88 (1980) (“The fact that [officer] required illumination from a flashlight to see into the darkened interior of the vehicle did not prevent the [evidence] from being in plain view or render the policeman’s conduct unreasonable.”); Commonwealth v. Clelland, 227 Pa.Super. 384, 387, 323 A.2d 60, 61 (1974) (“Since it was dark, the [officer’s] use of an artificial light to look into the vehicle was justified.”). See Commonwealth v. Milyak, 508 Pa. 2, 493 A.2d 1346 (1985) (officers were justified in seizing stolen items which they had viewed through car window with the aid of a flashlight); Commonwealth v. Burton, 292 Pa.Super. 73, 436 A.2d 1010 (1981) (“officer’s discovery, albeit with the aid of a flashlight, of marijuana in plain view was not improper”).⁷ Further, there is no evidence that Officer Dawley frisked Graham for any reason other than to insure his own safety. As such, the discovery of the drugs must be deemed inadvertent. Finally, as the lawman could see the rocks of cocaine in the bottle, there was no question that he had probable cause to associate the observed property with criminal activity. Consequently, Officer Dawley’s seizure of the drugs was proper and Graham’s judgment of sentence must be affirmed.

Judgment of sentence affirmed.

McEWEN, President Judge, concurs in the result. FORD ELLIOTT, J., files a dissenting opinion.

1 . Graham also contends that the trial court improperly allowed an expert witness to testify as to whether Graham possessed his drugs with an intent to deliver. This argument is easily disposed of, however, as this Court has already stated that expert testimony concerning whether "the packaging, paraphernalia, and quantity of [seized] cocaine ... was consistent with distribution” is "clearly admissible.” Commonwealth v. Montavo, 439 Pa.Super. 216, 225 n. 5, 653 A.2d 700, 705 n. 5, alloc. denied, 541 Pa. 636, 663 A.2d 689 (1995). See Commonwealth v. Campbell, 418 Pa.Super. 391, 402-04, 614 A.2d 692, 698 (1992), alloc. denied, 535 Pa. 630, 631 A.2d 1003 (1993).

2 . While the Pennsylvania Supreme Court recognized the existence of the “automatic companion rule” in Shiflet, the Court declined to address whether the rule was constitutional. 543 Pa. at 174 n. 4, 670 A.2d at 133 n. 4. Furthermore, the Chamberlain Court, likewise, did not address this constitutional issue. As such, the issue is ripe for our consideration.

3 . Clearly, this decision is not meant to allow the law enforcement officer to utilize the level of restraint associated with a formal arrest of the companion. The officer is merely warranted in effecting a protective detention of the person. As with investigatory detentions, the factors utilized in determining whether the detention became so coercive as to constitute the equivalent of a formal arrest include: the duration of the detention; the location; whether and how far the suspect was transferred against his will; whether restraints were used; and the show, threat, or use of force. See Commonwealth v. Diaz, 442 Pa.Super. 238, 252-54, 659 A.2d 563, 570, alloc. denied, 542 Pa. 658, 668 A.2d 1123 (1995).

4 . This decision is not novel. In cases involving "stop and frisks” of persons located on premises in which a search warrant is being executed, our state and federal courts have not required that law enforcement officers possess reasonable suspicion that the suspect may be involved in criminality. The courts have focused merely upon whether the officers possessed a reasonable belief that the suspect was armed and dangerous. See Ybarra, supra; Commonwealth v. Eichelber-ger, supra; Commonwealth v. Luddy, 281 Pa.Super. 541, 422 A.2d 601 (1980). The United States Supreme Court has stated that "the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence. The risk of harm to both the police and the occupants is minimized if the officers routinely exercised unquestioned command of the situation.” Michigan v. Summers, 452 U.S. 692, 702-03, 101 S.Ct. 2587, 2594, 69 L.Ed.2d 340, 349-50 (1981) (emphasis added) (footnote omitted).

5 . The dissent contends that the instant analysis of the automatic companion rule is unwarranted. This view, however, is short-sighted. Clearly, analysis of the automatic companion rule is necessary in determining die proper standard to be applied in the instant case. The dissent can necessarily overlook this point as it baldly concludes, without offering any analysis, that ‘‘[u]nder the facts of this case, I agree that the officer was justified in conducting a pat down.” Dissenting Opinion at 1. Consequently, one is merely left to speculate as to how, in reaching its conclusion,'the dissent would distinguish Martinez, supra (flight from street comer and bulge in jacket do not support a conclusion that criminal activity is afoot).

6 . The dissent places great emphasis upon whether the bottle was protruding out of Graham’s pocket or entirely inside an open pocket. This distinction, however, is irrelevant. If the bottle was exposed above the pocket line, then there is no question that the plain view doctrine warranted its seizure. As explained below, however, the same holds true if the bottle was inside Graham’s pocket which was open and, thus, exposing its contents to the outside world.

7 . The dissent likens the instant matter to a police officer crouching down and shining his flashlight under the seat of a car. This analogy totally misses the point concerning the plain view doctrine. It is well settled that “[t]he only requirement for the plain view doctrine is that the officer must have had a right to be in the position to have the view.” E.g., Clelland, 227 Pa.Super. at 387, 323 A.2d at 61. Instantly, the dissent agrees that Officer Dawley had a right to be in the position to view Graham’s opened pocket, i.e., while conducting the “pat down” search. Consequently, the dissent's analogy, in which the officer clearly does not have the right to be position to view evidence, is inapplicable. The more appropriate comparison is to where an officer utilizes a flashlight to peer into a darkened car and observes the contents of an opened glove compartment. In both the instant matter and the glove compartment scenario, where the officer has a right to be where he observes evidence, the mere additional element of using a flashlight for illumination cannot render the officer’s conduct improper. Id.