In the Interest of S.D.

633 A.2d 172, 429 Pa. Super. 576, 1993 Pa. Super. LEXIS 3695

• Court: Superior Court of Pennsylvania
• Decided: November 5, 1993
• Docket: 9
• Status: Published

Opinions

OLSZEWSKI, Judge:

On October 31, 1992, at 5:25 a.m., Police Officer Jose Acevedo spoke to a pedestrian who claimed there were two armed black men with drugs around the corner. Approximately fifty feet from where he received this information, Officer Acevedo observed appellant S.D. standing with another man. No one else was in the vicinity. Since Acevedo had been told they were armed, he immediately performed a “pat-down” search during which he felt a large hard object in S.D.’s pocket. He then removed a clear plastic bag containing 50 plastic vials of crack cocaine. N.T. 12/8/92 at 5-10, 21. S.D. was arrested and charged with possession of a controlled substance with intent to deliver and simple possession. S.D. filed a motion to suppress the cocaine which was heard before the Honorable Sheldon C. Jelin. The motion was denied and S.D. was tried and adjudicated delinquent. This timely appeal from the adjudication of delinquency followed.

S.D.’s sole contention on appeal is that the trial court erred in denying his motion to suppress the fifty vials of crack cocaine. On 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. Merkt, 411 Pa.Super. 127, 600 A.2d 1297 (1992); Commonwealth v. Medley, 531 Pa. 279, 282, 612 A.2d 430, 432 (1992). In this case, we must determine the validity of the trial court’s legal conclusion that Officer Acevedo had reasonable suspicion to stop and frisk S.D. As this Court has stated,

[pjursuant to the landmark decision of Terry v. Ohio, 392 U.S. 1, 88 S.Ct 1868, 20 L.Ed.2d 889 (1968), a police officer may temporarily detain a person if he observes unusual conduct which leads him to reasonably conclude, in light of his experience, that criminal activity may be afoot.

Commonwealth v. Patterson, 405 Pa.Super. 17, 20, 591 A.2d 1075 (1991). The reasonable suspicion necessary to justify a Terry stop is less stringent than probable cause, but the detaining officer must have more than a hunch as the basis for his stop. Id. “Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability.” Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990).

Guided by this standard, our review of the record reveals that the trial court was presented with sufficient evidence to justify both the initial investigatory stop of S.D. and an immediate frisk. At the outset, we note that a police officer need not personally observe the illegal or suspicious conduct which lead him or her to believe that criminal activity is afoot and that a person is armed and dangerous. Commonwealth v. Jackson, 359 Pa.Super. 433, 519 A.2d 427 (1986). Under such circumstances, we must consider “the specificity of the description of the suspect in conjunction with how well the suspect fits the given description, the proximity of the crime to the sighting of the suspect, the time and place of the confrontation, and the nature of the offense reported to have been committed.” Id. at 438, 519 A.2d at 430; Commonwealth v. Whelton, 319 Pa.Super. 42, 465 A.2d 1043 (1983). Viewing these factors under the totality of the circumstances, Terry, supra, we find that the informant gave sufficiently reliable information to justify the stop.

Officer Acevedo acted pursuant to a tip from a concerned citizen who claimed to have witnessed the fact that S.D. and another man were armed and possessed illegal narcotics.¹ Although the informant only described the suspects as two black males, S.D. and the other man were the only people in the general vicinity. Moreover, the men were standing exactly where the informant said they would be standing, approximately fifty feet away. N.T. 12/8/92 at 6, 10. In certain situations even a very limited description may justify an investigatory search. See Commonwealth v. Chase, 394 Pa.Super. 168, 575 A.2d 574 (1990) (general description corroborated by suspect’s presence at “precise location” indicated); Commonwealth v. White, 358 Pa.Super. 120, 516 A.2d 1211 (1986).

We must also take into consideration that the area where these events took place was an area of high drug incidence and that the encounter took place at 5:25 in the morning. See Jackson, 359 Pa.Super. at 439, 519 A.2d at 431 (“the time and place of an encounter may indicate that a person, conspicuous through their solitary presence at a late hour or desolate location, may be the object of a search”); Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985), cert. denied, 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985) (sufficient cause to stop arising out of defendant’s location in an alley in the early hours of a snowy morning when streets were empty). The time and place of the encounter in this case provided an independent basis for the officer to act on the informant’s tip. See Patterson 405 Pa.Super. at 21, 591 A.2d at 1078 (combination of the neighbors’ reports and suspicious heavy foot traffic during early morning hours in dark alley of suspected “crack house” sufficiently justified Terry stop); Commonwealth v. Williams, 298 Pa.Super. 466, 471, 444 A.2d 1278, 1280 (1982) (“officer may obtain sufficient information from an informant ... that, when coupled with the circumstances, gives rise to a reasonable suspicion that the appellant is presently involved in criminal activity”).

Having legally stopped S.D. for investigation, Officer Acevedo was justified in performing an immediate pat-down search for his protection. To justify á frisk incident to an investigatory stop, the officer must point to “specific and articulable facts indicating the person they intend to frisk may be armed and dangerous; otherwise, the talismanic use of the phrase ‘for our own protection’ becomes meaningless.” Patterson, 405 Pa.Super. at 21, 591 A.2d at 1078. An investigatory stop is permissible under this standard when the officer has reason to believe “that the person they intend to frisk may be armed.” Jackson 359 Pa.Super. at 439, 519 A.2d at 431; see also Commonwealth v. Capers, 340 Pa.Super. 136, 489 A.2d 879 (1985) (search justified when suspect is reported to possess or has used a weapon). Here, the frisk was justified since the officer was informed by an alleged eyewitness that the suspects were armed. Alternatively, the frisk was justified on the basis that the officer reasonably believed that the suspects were dealing drugs. In fact, this Court adopted a new rule in Patterson, stating that “[tjoday we additionally join the growing number of courts who have taken judicial notice of the fact that drug dealers are likely to be armed and dangerous.” Id. 405 Pa.Super. at 22, 591 A.2d at 1078.

Finally, we turn to S.D.’s contention that Officer Acevedo exceeded the scope of a permissible pat-down search when he retrieved the cocaine vials from his pocket. The scope of a Terry search is very limited since its sole justification “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 a police officer.” Commonwealth v. Canning, 402 Pa.Super. 438, 440, 587 A.2d 330, 331 (1991) (citing Terry v. Ohio, supra). Under the law of this Commonwealth, a more intrusive search of a suspect’s person following a protective pat-down search would only be justified under a Terry analysis where the officer reasonably believed he had felt what appeared to be a weapon. See In Interest of Dixon, 356 Pa.Super. 105, 514 A.2d 165 (1986) (scope of Terry search exceeded where there was no evidence officer reasonably believed suspect was armed and dangerous and where heart-shaped charm discovered during search could not reasonably be mistaken for a weapon); Canning, supra (assuming officer had probable cause to frisk suspect, search was not confined to items which could have reasonably appeared to be weapons where items retrieved from suspect’s pocket included two small plastic bags containing white powder and marijuana leaves); Commonwealth v. Marconi, 408 Pa.Super. 601, 597 A.2d 616 (1991), alloc. denied 531 Pa. 638, 611 A.2d 711 (1992) (scope exceeded where pliable plastic packet containing aspirin or button-sized amount of cocaine retrieved).

Recently, however, the Supreme Court of the United States adopted the “plain feel” exception to the warrant requirement, holding that a police officer may seize non-threatening contraband detected through the sense of touch during a protective pat-down search. Minnesota v. Dickerson, — U.S. -, -, 113 S.Ct. 2130, 2132, 124 L.Ed.2d 334 (1993). Such action is permissible, the Court concluded, so long as the search stays within the bounds marked by Terry. Under the plain view doctrine, the seizure of contraband which is left in open view and observed by a police officer from a lawful vantage point neither invades a legitimate expectation of privacy nor constitutes a “search” within the meaning of the Fourth Amendment. Id.; Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (plurality opinion); Illinois v. Andreas, 463 U.S. 765, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983); South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. , 49 L.Ed.2d 1000 (1976). The Court reasoned that the plain view doctrine:

has an obvious application by analogy to cases in which an officer discovers contraband through the sense of touch during an otherwise lawful search ... If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrant-less seizure would be justified by the same practical considerations that inhere in the plain view context.

Dickerson, supra — U.S. at-, 113 S.Ct. at 237. Thus, under the federal standard, if an officer lawfully “pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain view context.” Id. at--, 113 S.Ct. at 2137.

Prior to Dickerson, however, a panel of this Court expressed reservation with the so-called “plain feel” exception to the warrant requirement when applied to the search of an individual. Commonwealth v. Marconi, supra. The Court stated:

We might be inclined to agree that when a police officer feels the shape of a gun concealed in a bag, probable cause to search is present. U.S. v. Russell, 655 F.2d 1261 (D.C.Cir.1981), vacated in part by U.S. v. Russell, 670 F.2d 323 (D.C.Cir.1982); U.S. v. Portillo, 633 F.2d 1313 (9th Cir.1980). However, we are not willing to use this rationale to justify a search of an individual where probable cause cannot exist.

Id.Id. 408 Pa.Super. at 614-15, 597 A.2d at 623 (emphasis in original). Writing for the majority, Judge Popovich addressed a rudimentary concern that police could assume any small object contained in a pocket could be drugs, noting the packet of drugs actually seized had no discernable or distinctive characteristics. The sense of touch, he explained, “is not so definitive as the recognition of certain sounds, smells or tastes.” Id. 597 A.2d at 623, n. 17. Judge Popovich therefore determined that during a cursory search for weapons, it would “constrain logic to conclude that a small packet could, with any sort of probability, be identified as an element of criminal activity.”² Id.; but see Marconi concurring opinion by Kelly, J. (where officer frisks pursuant to reasonable fear that suspect is involved in criminal activity and possesses weapons, and discovers contraband other than weapons, no purpose announced under Terry served by excluding such evidence at trial). In the proper case, we must determine whether Dickerson is applicable under the Pennsylvania Constitution. See Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991) (Pennsylvania courts are free to reject conclusions of United States Supreme Court so long as they remain faithful to minimum guarantees established by United States Constitution). This, however, is not such a case.³

While it is clear that Officer Acevedo was justified in performing a pat-down search, there is simply no evidence to sustain the validity of the subsequent intrusion into S.D.’s pocket to retrieve the vials of cocaine. Officer Acevedo testifled at the suppression hearing that he “felt a bulge in [S.D.’s] right pants pocket” during the pat-down search. N.T. 12/8/92 at 6. He then stated he retrieved a bag containing numerous crack cocaine vials. Although Officer Acevedo was told that the suspects were carrying weapons and drugs, he never indicated what it was he perceived he had felt. Without such evidence, we cannot sustain the trial court’s conclusion that Officer Acevedo reached into S.D.’s pocket on the basis that he feared he had felt a weapon. Nor do we have occasion to explore the validity of the “plain feel” doctrine on the basis that Officer Acevedo recognized the vials as contraband. Consequently, we must conclude that the search exceeded the bounds of a Terry search in violation of S.D.’s constitutional rights.

For the foregoing reasons, the order denying S.D.’s motion to suppress physical evidence is reversed. Jurisdiction relinquished.

KELLY, J., concurs. JOHNSON, J., dissents.

1 . "[I]dentified citizens who report their observations of criminal activity to police are assumed to be trustworthy, in the absence of special circumstances.” Commonwealth v. Lutz, 298 Pa.Super. 473, 444 A.2d 1281 (1982); see also Commonwealth v. Bruner, 388 Pa.Super. 82, 564 A.2d 1277 (1989) (trustworthiness of information may be presumed when source is an eyewitness). This alone, provides justification to reject S.p.’s assertion that the informant's tip was not sufficiently reliable to justify the officer's investigatory search.

2 . The Court also noted that the plain view doctrine has traditionally been associated with seizures, not searches. See, id. (collecting cases).

3 . In response to the concurring statement, we wish to merely emphasize that we are not deciding a constitutional question in this case. Rather, we merely acknowledge the rather unremarkable proposition that our Supreme Court has held that, in certain instances, the analogous provisions in our State Constitution provide more protection to our citizens than does the Federal Constitution. Edmunds, supra. We also recognize that our Court decided Marconi under the Federal Constitution, however, we might call to the concurrence's attention that Marconi acknowledged our State Constitution as well. Marconi, supra 408 Pa.Super. at 603, 597 A.2d at 617 n. 1. Thus, while the concurrence is entirely correct in asserting that Marconi is overruled insofar as it is inconsistent with Dickerson, we have no reason to believe that its analysis is not appropriate under our State Constitution. Furthermore, we feel that ignoring Dickerson's existence in a case where the precise issue is whether a police officer properly seized narcotics during a Terry search would indicate that our inquiry in this very important case has been less than thorough, even where the parties have not brought it to our attention.