Commonwealth v. Perez

595 A.2d 1315, 407 Pa. Super. 614, 1991 Pa. Super. LEXIS 2588
CourtSuperior Court of Pennsylvania
DecidedSeptember 4, 1991
DocketNo. 2612
StatusPublished

This text of 595 A.2d 1315 (Commonwealth v. Perez) is published on Counsel Stack Legal Research, covering Superior 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. Perez, 595 A.2d 1315, 407 Pa. Super. 614, 1991 Pa. Super. LEXIS 2588 (Pa. Ct. App. 1991).

Opinion

WIEAND, Judge:

When a police officer makes a lawful Terry stop and, after frisking the suspect, finds no weapon, may the officer then seize and open a small, nondescript, leather pouch protruding from the suspect’s pocket? The trial court held [615]*615that the search of the pouch exceeded the proper scope of the lawful stop and frisk and suppressed the contents of the pouch. The Commonwealth appealed. It has certified that the cocaine found inside the pouch is essential to prove appellee’s guilt of the drug offenses with which he has been charged.1

The standard of review to be employed in conducting appellate review of the suppression court’s order was stated in In the Interest of Jermaine, 399 Pa.Super. 503, 505, 582 A.2d 1058, 1059 (1990), as follows:

In reviewing an appeal taken by the Commonwealth from an order suppressing evidence,

we must consider only the evidence of the defendant’s witnesses and so much of the Commonwealth evidence that, read in the context of the record as a whole, remains uncontradicted. See Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983). Furthermore, our scope of appellate review is limited primarily to questions of law. See Commonwealth v. White, 358 Pa.Super. 120, 516 A.2d 1211 (1986). We are bound by the suppression court’s findings of fact if those findings are supported by the record. Id. Factual findings wholly lacking in evidence, however, may be rejected. Id.

Commonwealth v. Stine, 372 Pa.Super. 312, 314, 539 A.2d 454, 455 (1988). See also: Commonwealth v. James, 506 Pa. 526, 532-533, 486 A.2d 376, 379 (1985); Commonwealth v. Elliott, 376 Pa.Super. 536, 543, 546 A.2d 654, 657 (1988).

Id. 399 Pa.Super. at 505, 582 A.2d at 1059.

On May 18, 1990, police officers Ron Fisher and Gordon Roberts were on patrol in support of a "sting” operation being conducted in Reading, Berks County. The officers, who were in separate vehicles, learned by radio that a drug transaction had occurred nearby and received a description of a suspect who had eluded the police. Shortly thereafter, Roberts came upon Alejandro Garcia Perez, who was on his [616]*616hands and knees, reaching beneath the underside of a parked vehicle. As Roberts continued to observe, Perez rose and began to walk away. Although his clothing was different than that being worn by the person who had eluded police following the earlier drug transaction, Roberts believed Perez to be the suspect for whom the police were looking. In fact, Roberts was mistaken. The undercover agent who had witnessed the prior drug transaction stated, when later called to make an on-the-scene identification, that Perez was not the person for whom police had been looking. In any event, Roberts called Fisher for assistance, and the two officers stopped Perez. While he was being questioned by Roberts, Fisher conducted a pat-down search. No weapons were found. However, Perez appeared to be attempting to hide from observation a small, leather pouch which was partially protruding from a pocket of his trousers. Fisher removed the pouch from Perez’s pocket, believing it to contain drugs. He testified that the pouch was of a kind commonly used to transport illegal drugs, but the suppression court expressly rejected this testimony and found that “there [was] nothing apparently incriminating about the pouch to justify giving the [ojfficers probable cause to ‘associate the property with criminal activity.’ ” The suppression court also found that the officers could not have believed the pouch to contain a weapon. Nevertheless, Fisher opened the pouch, without Perez’s consent and without a warrant, and found therein twenty-six (26) “dime” sized packets of cocaine. The suppression court concluded that the search of the pouch had exceeded the proper bounds of a Terry search and suppressed the cocaine.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court of the United States defined the purpose and limits for the stop and frisk of a suspect in the following language:

[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 [617]*617this 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. at 30, 88 S.Ct. at 1884-1885, 20 L.Ed.2d at 911. The limits of a Terry search were emphasized by the Superior Court in Commonwealth v. Canning, 402 Pa.Super. 438, 587 A.2d 330 (1991), as follows:

In Terry, the United States Supreme Court articulated a police officer’s “narrowly drawn” authority to conduct a reasonable search for weapons for the officer’s protection. Id. [392 U.S.] at 27, 88 S.Ct. at 1883. The officer may pat down or frisk a suspect for weapons only if he reasonably believes that criminal activity is afoot, and that the suspect may be armed and dangerous. Id. The officer must be able to articulate specific facts to justify his belief that the suspect may be armed and dangerous. Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). Moreover, the scope of a Terry search is limited. Because the “sole justification of the search ... is the protection of the police officer and others nearby, ... it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Terry v. Ohio, supra, 392 U.S. at 29, 88 S.Ct. at 1884. In the instant case, the officer exceeded the scope of a Terry search. In order to reach into a suspect’s pockets during a Terry search, the officer would have to feel something that appears to be a weapon. “Nothing in Terry can be understood to allow ... any search whatever for anything but weapons.” Ybarra v. Illinois, supra, 444 U.S. at 93-94, 100 S.Ct. at 343.

Id., 402 Pa.Superior Ct. at 440-41, 587 A.2d at 331.

Although our research has disclosed no decision by the appellate courts of this Commonwealth which could be said [618]

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Related

Terry v. Ohio
392 U.S. 1 (Supreme Court, 1968)
Arkansas v. Sanders
442 U.S. 753 (Supreme Court, 1979)
Ybarra v. Illinois
444 U.S. 85 (Supreme Court, 1980)
Commonwealth v. White
516 A.2d 1211 (Supreme Court of Pennsylvania, 1986)
Commonwealth v. Hamlin
469 A.2d 137 (Supreme Court of Pennsylvania, 1983)
Commonwealth v. Canning
587 A.2d 330 (Superior Court of Pennsylvania, 1991)
Commonwealth v. Dugger
486 A.2d 382 (Supreme Court of Pennsylvania, 1985)
Commonwealth v. James
486 A.2d 376 (Supreme Court of Pennsylvania, 1985)
In the Interest of Jermaine
582 A.2d 1058 (Supreme Court of Pennsylvania, 1990)
Commonwealth v. Elliott
546 A.2d 654 (Supreme Court of Pennsylvania, 1988)
Commonwealth v. Kendrick
490 A.2d 923 (Supreme Court of Pennsylvania, 1985)
Commonwealth v. Stine
539 A.2d 454 (Supreme Court of Pennsylvania, 1988)

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Bluebook (online)
595 A.2d 1315, 407 Pa. Super. 614, 1991 Pa. Super. LEXIS 2588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-perez-pasuperct-1991.