Commonwealth v. Zhahir

751 A.2d 1153, 561 Pa. 545, 2000 Pa. LEXIS 1245
Supreme Court of Pennsylvania·Decided May 19, 2000·No. 30 E.D. Appeal Docket 1999·Published·Cited by 172 cases

Opinions

OPINION

SAYLOR, Justice.

The issues in this case concern police decisions to stop, frisk, and seize contraband from Appellant.

On March 4, 1992, at approximately 5:30 p.m., Officers Singletary and Corely of the Philadelphia Police Department were advised by their captain that a male, wearing a green jacket and blue jeans, was selling narcotics at 60 th and Lansdowne Avenue in Philadelphia. The source of the captain’s information is unknown. Two and one-half hours later, the officers proceeded to the designated area in a marked police cruiser and observed Appellant, Abdul Zhahir (“Zhahir”), standing in front of a Chinese restaurant, wearing clothing matching the description. Upon seeing the officers, Zhahir turned, walked into the restaurant, and appeared to throw something on the floor with his left hand. The officers. were able to view Zhahir’s actions through the window and door to the restaurant, and such conduct was consistent with the officers’ experience that individuals trafficking in narcotics often attempt to abandon their contraband when seen by the police. The officers drove past the restaurant and began to turn their vehicle around, at which point, they noticed Zhahir exiting the restaurant and looking both ways. When the officers pulled in front of the restaurant, Zhahir had his back to them and was bending over to retrieve something from the [551] floor in the same area where previously he appeared to have discarded an item. Officer Singletary got out of the vehicle and approached Zhahir, who turned to face the officer with his left hand in his jacket pocket. Officer Singletary asked Zhahir what was in his pocket, immediately grabbed Zhahir’s left hand and pocket at the same time, and “felt what formed the consistency of a bundle of caps” (vials of cocaine). Officer Singletary then seized a plastic bag from Zhahir’s jacket pocket, which contained 98 vials of crack cocaine, the total weight of which was 3.70 grams. Zhahir was charged with unlawful possession of a controlled substance and unlawful possession with intent to deliver a controlled substance. See 35 P.S. § 780-113(a)(16), (30).

Prior to trial, Zhahir moved to suppress, arguing that the police lacked reasonable suspicion to stop him and, in the alternative, that in seizing the drugs, Officer Singletary exceeded the scope of a permissible frisk for weapons. The trial court denied the motion, finding that the information the officers received from their captain, the fact that Zhahir matched the description, and Zhahir’s suspicious activity upon observation provided a reasonable suspicion that criminality was afoot. The trial court also determined that the seizure of the contraband was proper pursuant to the “plain feel” doctrine, as it occurred during a permissible frisk for weapons, and the perceived consistency of the vials, the surrounding circumstances, and Officer Singletary’s experience allowed him to reasonably conclude that what he felt was a controlled substance. Following a jury trial, Petitioner was found guilty and was sentenced to a period of incarceration of three to six years. On appeal, the Superior Court affirmed in a memorandum opinion, reasoning that the stop of Zhahir was justified based upon the information provided to the officers and Zhahir’s suspicious behavior, police had not exceeded the permissible scope of the frisk for weapons, and the seizure of the drugs was permissible under the plain feel doctrine. This Court allowed appeal to consider whether the plain feel doctrine harmonizes with Article I, Section 8 of the Pennsylvania Constitution.

[552] Before reaching the application of the plain feel doctrine, however, we consider whether the stop and frisk were warranted in the first instance.1 Our “inquiry is a dual one — whether the officers’ action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968), quoted in Commonwealth v. Hicks, 434 Pa. 153, 158, 253 A.2d 276, 279 (1969). Regarding the stop, a police officer may, short of an arrest, conduct an investigative detention if he has a reasonable suspicion, based upon specific and articulable facts, that criminality is afoot. See Terry, 392 U.S. at 21, 30, 88 S.Ct. at 1880, 1884; Commonwealth v. Allen, 555 Pa. 522, 527, 725 A.2d 737, 740 (1999). The fundamental inquiry is an objective one, namely, whether “the facts available to the officer at the moment of the [intrusion] ‘warrant a man of reasonable caution in the belief that the action taken was appropriate.” Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880 (citations omitted). This assessment, like that applicable to the determination of probable cause, requires an evaluation of the totality of the circumstances, see United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981), with a lesser showing needed to demonstrate reasonable suspicion in terms of both quantity or content and reliability. See Alabama v. White, 496 U.S. 325, 330-31, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990).

Zhahir contends that Officer Singletary lacked reasonable suspicion to conduct an investigative detention, emphasizing that the origin and basis of the information provided by the officers’ captain were never revealed and no further investigation was done (independent of the encounter with Zhahir) to corroborate its reliability. In addition, Zhahir maintains that his mere presence in the vicinity two and one-half hours later and his innocent behavior in dropping and [553] retrieving an item in a Chinese restaurant did not provide sufficient corroboration to support reasonable suspicion.

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Commonwealth v. Zhahir, 751 A.2d 1153, 561 Pa. 545, 2000 Pa. LEXIS 1245 (Pa. 2000).

751 A.2d 1153 (Commonwealth v. Zhahir) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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