[J-6-2021] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
IN THE INTEREST OF: T.W., A MINOR : No. 22 EAP 2020 APPEAL OF : T.W. : : Appeal from the Judgment of : Superior Court entered on February : 4, 2020 at No. 2390 EDA 2018 : affirming the Order entered on July : 10, 2018 in the Court of Common : Pleas of Philadelphia County, : Juvenile Division, at No. CP-51-JV- : 0001105-2018. : : ARGUED: March 9, 2021
OPINION
JUSTICE MUNDY DECIDED: October 20, 2021 In this appeal by allowance, Appellant, T.W., a minor, appeals from the February
4, 2020 order of the Superior Court of Pennsylvania, which affirmed the July 10, 2018
order of the Court of Common Pleas of Philadelphia County denying a motion made by
Appellant to suppress physical evidence and adjudicating Appellant delinquent for
unlawful possession of a controlled substance. As will be discussed more fully below,
Appellant’s arrest for unlawful possession of a controlled substance arose from a vehicle
stop and a subsequent Terry1 frisk. Upon frisking Appellant, a police officer of the
Philadelphia Police Department felt a hard object in Appellant’s left pants pocket. Fearing
that the unknown object could be a weapon, the officer reached into Appellant’s pocket
and removed the object. Appellant was arrested for possessing the object and a
1 Terry v. Ohio, 392 U.S. 1 (1968). subsequent search incident to arrest led to the discovery of a controlled substance on
Appellant’s person. Before trial, Appellant made a motion to suppress the physical
evidence recovered from his person, arguing that the police officer exceeded the scope
of a permissible Terry frisk by reaching into Appellant’s pocket and removing an object
during the frisk.
We granted review in this matter to address the standards by which a police officer
may remove an object from within a suspect’s clothing during a Terry frisk. We previously
addressed this issue in Commonwealth v. Taylor, 771 A.2d 1261 (Pa. 2001) (plurality).
Our review in that case resulted in a plurality decision whereby the opinion announcing
the judgment of the Court held that a police officer conducting a lawful Terry frisk may
remove an object from within a suspect’s clothing if the officer has reasonable suspicion
to believe that the object is a weapon. Id. at 1269. In light of the fact that Taylor did not
produce a majority opinion, we reexamine the issue anew.
I. Factual Background and Procedural History
The salient facts of this case are not in dispute. During the early morning hours of
June 19, 2015, Officers Grant and Heeney of the Philadelphia Police Department
observed two vehicles making illegal u-turns. The officers pursued both vehicles, which
were ignoring multiple traffic signals and traveling through the streets of Philadelphia at a
high rate of speed. One of the vehicles eventually crashed, and the two individuals
occupying the vehicle fled on foot. The officers, also on foot, pursued the two individuals
but lost them during the chase. While pursuing the two fleeing individuals, the officers
observed the second car they had been pursuing. The officers, still on foot, initiated a
stop of that vehicle.
[J-6-2021] - 2 There were three individuals occupying the second vehicle: a driver, a front
passenger, and Appellant, who was sitting in the rear. The officers asked all three
individuals for identification, but Appellant was not able to produce identification. At that
point, Officer Grant observed Appellant attempt to shield his body from the officers’ view
and reach into his pockets. Officer Grant directed Appellant not to reach into his pockets
and when Appellant did not comply with this direction, Officer Grant removed Appellant
from the vehicle and conducted an open handed pat down of Appellant’s outer clothing.
During the frisk, Officer Grant felt a hard object in Appellant’s left pants pocket.
Officer Grant was not able to identify the object by touch, but feared that the object could
be a weapon. Based on his experience as a police officer, Officer Grant knew the area
in which the vehicle was stopped to be a high-crime area. Additionally, Officer Grant had
personal experience with recovering weapons during traffic stops in that area. Officer
Grant reached into Appellant’s pants pocket and removed the object, which was a glass
prescription medication bottle labeled “promethazine.” The medication was prescribed to
an individual other than Appellant. Officer Grant then placed Appellant under arrest and
conducted a search incident to arrest. During the search, Officer Grant discovered a
second pill bottle in Appellant’s right pants pocket. The bottle contained two pills, which
were identified as oxycodone. Thereafter, Appellant was charged with unlawful
possession of a controlled substance for possessing the two oxycodone pills.2
Appellant’s case proceeded to a juvenile adjudication hearing, where Appellant
made a motion to suppress the physical evidence recovered from his person by Officer
Grant. Before the trial court, Appellant conceded that his removal from the vehicle and
2 Section 13(a)(1) of The Controlled Substance, Drug, Device and Cosmetic Act prohibits
the possession of a “controlled substance.” Act of April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-113(a)(1). Section 4(2)(i) of that Act defines the term “controlled substance” to include the drug oxycodone. 35 P.S. § 780-104(2)(i).
[J-6-2021] - 3 the subsequent frisk by Officer Grant were lawful. However, Appellant argued, in relevant
part, that Officer Grant exceeded the scope of a permissible frisk by reaching into
Appellant’s left pants pocket and removing an object during the frisk.
Officer Grant was the sole witness to testify at the suppression hearing. He
testified as to the facts summarized above. At the conclusion of the hearing, the trial court
denied Appellant’s motion to suppress physical evidence. The court then immediately
moved into the trial phase of the proceeding. Based upon the record created during the
hearing on Appellant’s motion to suppress physical evidence, as well as additional
exhibits entered by the Commonwealth during the trial phase, the trial court adjudicated
Appellant delinquent for the unlawful possession of a controlled substance.
Following his adjudication of delinquency, Appellant filed a notice of appeal. The
trial court ordered Appellant to file a statement of errors complained of on appeal pursuant
to Pennsylvania Rule of Appellate Procedure 1925(b), Pa.R.A.P. 1925(b). Therein,
Appellant’s sole complaint was that the trial court erred in denying his motion to suppress
physical evidence. Appellant again argued that Officer Grant exceeded the scope of a
permissible frisk by reaching into Appellant’s pants pocket and removing an object during
the frisk.
In support of its July 10, 2018 order adjudicating Appellant delinquent, the trial
court issued an opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
After examining Terry v. Ohio, 392 U.S. 1 (1968), the trial court applied a reasonable
suspicion standard to determine whether Officer Grant’s belief that the object in
Appellant’s left pants pocket was a weapon was reasonable so as to justify him reaching
into and removing the object from Appellant’s pocket during the frisk. Examining the
record created during the suppression hearing, the trial court concluded, based upon the
totality of the circumstances, Officer Grant had a reasonable suspicion that the object in
[J-6-2021] - 4 Appellant’s left pants pocket was a weapon. The trial court based this conclusion on the
following facts: Appellant was a passenger in a vehicle that was involved in a chase with
police in a high crime area; Officer Grant had personal experience recovering weapons
from traffic stops in the area in which the vehicle was stopped; Officers Grant and Heeney
made the stop and on foot and without the benefit and protection of a police vehicle;
Appellant attempted to hide his body from the officers’ view during the vehicle stop while
reaching into his pockets; and Appellant did not comply with Officer Grant’s direction for
Appellant to stop reaching into his pockets. Trial Court Opinion at 4-5. As such, the trial
court concluded Officer Grant did not exceed the scope of a permissible Terry frisk.
The appeal proceeded to the Superior Court, which affirmed. In re T.W., No. 2390
EDA 2018, 2020 WL 551354 (Pa. Super. Feb. 4, 2020). Before the Superior Court,
Appellant again conceded that his removal from the vehicle and the subsequent frisk by
Officer Grant were lawful. Id. at *3. However, Appellant maintained that the trial court
erred in denying his motion to suppress physical evidence because Officer Grant
exceeded the scope of a permissible frisk by reaching into his left pants pocket and
removing an object during the frisk. The Superior Court rejected this argument. Citing
Taylor, the Superior Court, like the trial court, applied a reasonable suspicion standard to
determine whether Officer Grant was justified in reaching into Appellant’s left pants pocket
during the frisk. Id. at *4.
Upon review of the record, the Superior Court agreed with the trial court that based
upon a totality of the circumstances, Officer Grant had “a reasonable belief that what he
felt in [A]ppellant’s pocket was a weapon.” Id. As such, the Superior Court concluded
“Officer Grant did not exceed the scope of a permissible search by reaching into
[A]ppellant’s left pants pocket during an otherwise valid Terry pat-down.” Id. In doing so,
the Superior Court determined that the “plain feel doctrine,” as set forth in Minnesota v.
[J-6-2021] - 5 Dickerson, 508 U.S. 366 (1993) (holding that police officers may seize nonthreatening
contraband detected during a lawful frisk if the incriminating nature of the contraband is
immediately apparent by touch), did not apply in Appellant’s case because Officer Grant
removed the object from Appellant’s left pants pocket under the reasonable suspicion that
the object was a weapon rather than under the belief that the object was contraband. In
the Int. of: T.W, 2020 WL 551354, at *4.
Appellant then initiated the instant appeal by the filing of a petition for allowance of
appeal, which we granted to address the following issue: “Should this Court clarify the
issue left unresolved by this Court’s split decision in [Taylor] relating to the standard for
when police may conduct an additional more intrusive search of a pocket following a pat-
down for weapons?” In re T.W., 237 A.3d 416 (Table) (Pa. 2020) (per curiam order).
II. Discussion
Preliminarily, before turning to the merits of this appeal, we set forth our standard
of review, which is as follows:
An appellate court’s standard of reviewing the denial of a suppression motion is limited to determining whether the suppression court’s factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Thus, our review of questions of law is de novo. Our scope of review is to consider only the evidence for the defense as remains uncontradicted when read in the context of the suppression record as a whole.
Commonwealth v. Shaffer, 209 A.3d 957, 968-69 (Pa. 2019) (citations omitted). Where,
as here, the issue on appeal relates solely to a suppression ruling, we examine “only the
suppression hearing record” and exclude from consideration “evidence elicited at trial.”
Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017). With our standard of review
in mind, we turn to the issue at hand.
[J-6-2021] - 6 This appeal concerns the contours of the protection against unreasonable
searches and seizures set forth in the United States and Pennsylvania Constitutions. As
such, we begin our review by recounting the law surrounding searches and seizures. The
Fourth Amendment to the United States Constitution, incorporated to the states by and
through the Fourteenth Amendment to the United States Constitution, and Article I,
Section 8 of the Pennsylvania Constitution protect citizens from “unreasonable searches
and seizures.” The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. CONST. amend. IV. Similarly, Article I, Section 8 provides:
The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.
PA. CONST. art. 1, § 8. Generally, for a search or seizure to be reasonable under the
Fourth Amendment and Article I, Section 8, police officers must obtain a warrant before
conducting the search or seizure. A search or seizure without a warrant “is presumptively
unreasonable . . . subject to a few specifically established, well-delineated exceptions.”
Commonwealth v. Chase, 960 A.2d 108, 113 (Pa. 2008). The present appeal involves
the investigatory detention exception, commonly referred to as the Terry stop and frisk in
reference to the case in which the exception was recognized.
In Terry, a Cleveland police officer observed three men whom he believed were
canvassing a store in preparation for committing a robbery. The officer approached the
[J-6-2021] - 7 men and, fearing that they may be armed, frisked all three. The officer detected a pistol
in the pockets of two of the men’s overcoats and removed the pistols from inside those
pockets. Before trial, the two men whom were discovered with weapons, sought to
suppress the admission of the weapons.
In its review of the case, the United States Supreme Court examined “whether it is
always unreasonable for a policeman to seize a person and subject him to a limited
search for weapons unless there is probable cause for an arrest.” 392 U.S. at 15. In
doing so, the Court recognized the competing interests between an individual’s Fourth
Amendment right to be free from unreasonable searches and seizures and the
government’s interest in crime detection and prevention as well as the interest of
protecting police officers and the public from armed and dangerous criminals. The Court
struck a careful balance, holding that it is reasonable under the Fourth Amendment for
police officers to briefly stop a suspect “where a police officer observes unusual conduct
which leads him reasonably to conclude in light of his experience that criminal activity
may be afoot.” Id. at 30. The Court further held that it is reasonable under the Fourth
Amendment for the brief stop to also include a frisk of the suspect’s outer clothing where
the police officer has reason to believe the suspect is “armed and dangerous.” Id. The
purpose of the frisk, the Court explained, is to dispel a reasonable fear that the stopped
suspect possesses a weapon which could be used to harm a police officer or the public
during the stop. Id. The term “weapon” was given a broad definition by the Court, which
did not define the term to refer solely to guns or knives, but defined the term to include
“guns, knives, clubs, or other hidden instruments.” Id. at 29. With respect to determining
whether there is reasonable suspicion that a suspect is armed, the Supreme Court made
clear that the applicable standard is an objective one. Id. at 21-22. The Court wrote that
police officers “need not be absolutely certain that the individual is armed” but rather the
[J-6-2021] - 8 appropriate standard is “whether a reasonably prudent man in the circumstances would
be warranted in the belief that his safety or that of others was in danger.” Id. at 27.
Applying the foregoing standards to the officer’s conduct, the United States
Supreme Court concluded the scope of the search by the officer “presents no serious
problem” as the officer “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.” Id. at 29-30.
To summarize, for a stop and frisk to be constitutionally sound, the following two
conditions must be met:
First, the investigatory stop must be lawful. That requirement is met in an on-the street encounter . . . where the police officer reasonably suspects that the person apprehended is committing or has committed a criminal offense. Second, to proceed from a stop to a frisk, the police officer must reasonably suspect that the person is armed and dangerous.
Arizona v. Johnson, 555 U.S. 323, 326-27 (2009).
This Court recognized the exception set forth in Terry in Commonwealth v. Hicks,
253 A.2d 276 (Pa. 1969) and, while “[t]he protection against unreasonable searches and
seizures afforded by the Pennsylvania Constitution is broader than that under the federal
constitution,” “Pennsylvania has always followed Terry in stop and frisk cases.”
Commonwealth v. Jackson, 698 A.2d 571, 573 (Pa. 1997); see also Commonwealth v.
Brown, 996 A.2d 473, 476 (Pa. 2010) (recognizing Terry “sets forth the reasonableness
standard for Article I, [Section] 8 of the Pennsylvania Constitution.”).
In the present appeal, Appellant concedes his removal from the vehicle and the
subsequent frisk by Officer Grant were lawful. Appellant’s Brief at 13; see also In re T.W.,
2020 WL 551354, at *3. However, Appellant contends Officer Grant exceeded the scope
of a permissible frisk by reaching into Appellant’s pants pocket and removing an object
[J-6-2021] - 9 during the frisk. Therefore, we proceed to the issue of what standards govern when a
police officer may remove an object from within a suspect’s clothing during a Terry frisk.
We previously addressed the question presented in this appeal in the case of
Taylor. Our review in that case resulted in a plurality decision. While plurality decisions
are not binding,3 Taylor provides a helpful starting point to begin our analysis. In Taylor,
police officers of the Duquesne Police Department executed a search warrant on a
convenience store as part of a drug trafficking investigation. Two of the officers entered
the basement of the building and encountered Taylor, who was receiving a haircut and
wearing a black barber’s apron. As the officers announced their presence, one of the
officers, Officer Adams, observed Taylor moving his hands under the barber’s apron.
Officer Adams instructed Taylor not to move, but Taylor continued to move his hands
under the apron. Fearing Taylor could be armed, Officer Adams removed the apron and
frisked Taylor. During the frisk, Officer Adams felt a hard cylindrical object in Taylor’s
pocket that was approximately four inches long. He concluded “that the object was not a
gun or a knife” but feared that the object could be “some type of weapon.” Taylor, 771
A.2d at 1270. Officer Adams then reached into Taylor’s pocket and removed the object,
which was a plastic prescription bottle containing crack cocaine. Taylor was placed under
arrest and charged with possession of a controlled substance with intent to deliver.
Before trial, Taylor sought to suppress the physical evidence removed from his person.
In our review of Taylor, we examined, among other things, the standards by which
a police officer may reach into a suspect’s clothing during a Terry frisk. The Honorable
Justice Sandra Newman authored the opinion announcing the judgment of the Court. She
began her analysis by examining Terry. Observing that under Terry a police officer may
frisk a suspect if the officer has reasonable suspicion to believe that the suspect is armed
3 Commonwealth v. Thompson, 985 A.2d 928, 937 (Pa. 2009)
[J-6-2021] - 10 and dangerous and that the purpose of the frisk is to search for weapons, Justice Newman
concluded that a police officer may “reach into a suspect’s pocket during a frisk” where
the officer “feel[s] something that reasonably appears to be a weapon.” Id. at 1269.
Applying that holding to Taylor’s case, Justice Newman concluded that, based upon a
totality of the circumstances, Officer Adams had a reasonable suspicion that the object in
Taylor’s pocket was a weapon. Justice Newman explained her reasoning as follows:
Officer Adams had been involved in the investigation of the drug trafficking at the convenience store. . . . Officer Adams . . . found Taylor in the basement. Immediately after encountering police, Taylor reached for his pocket, despite being told not to move several times. After observing Taylor fumble under the black barber’s apron, Officer Adams touched Taylor’s pocket. Officer Adams felt a hard, cylinder-type object. Because an officer need only be reasonably, and not absolutely, certain that an individual is armed in order to investigate for weapons, we conclude that Officer Adams was reasonable in suspecting that Taylor could be armed and dangerous. Therefore, Officer Adams justifiably reached into Taylor’s pocket in order to protect his safety and the safety of others in the basement.
Id. at 1270. As such, Justice Newman concluded Officer Adams did not exceed the scope
of a permissible Terry frisk by reaching into Taylor’s pocket during the frisk. In doing so,
Justice Newman determined the plain feel doctrine set forth in Dickerson was not
applicable to the case because Officer Adams reached into Taylor’s pocket under the
reasonable suspicion that the object was a weapon rather than contraband. Id. at 1269
n.4.
The Honorable Justice Russell Nigro authored a concurring and dissenting opinion
in Taylor. With respect to whether Officer Adams exceeded the scope of a lawful Terry
frisk by reaching into Taylor’s pocket during the frisk, Justice Nigro did not take issue with
Justice Newman’s conclusion that a reasonable suspicion standard applies to the retrieval
of an object suspected to be a weapon. Instead, Justice Nigro wrote that once Officer
Adams “patted Taylor’s pocket and felt a cylinder object of approximately four inches in
[J-6-2021] - 11 length . . ., which he determined was neither a gun nor a knife, Officer Adams was not
constitutionally justified in further searching Taylor’s pocket and seizing the pill bottle.” Id.
at 1275 n.5.
Prior to Taylor, the Superior Court had similarly held that “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.” In Int. of S.D., 633 A.2d 172, 173 (Pa. Super. 1993); see also In Int. of Dixon,
514 A.2d 165 (Pa. Super. 1986).
Likewise, federal courts have also determined that during a lawful Terry frisk a
police officer may retrieve an object from within a suspect’s clothing if the officer has
reasonable suspicion that the object is a weapon. See, e.g., United States v. Houston,
920 F.3d 1168, 1173 (8th Cir. 2019); United States v. Richardson, 657 F.3d 521, 524 (7th
Cir. 2011); United States v. Swann, 149 F.3d 271, 276 (4th Cir. 1998). In Swann, for
example, a police officer, while investigating the theft of a wallet, stopped and frisked
Swann. During the frisk, the officer felt a “hard and unusual” object in one of Swann’s
socks. Swann, 149 F.3d at 272. Not knowing what the object was, the officer removed
the object, which turned out to be a stack of credit cards that had been stolen. Before
trial, Swann sought to suppress the evidence on the grounds that the officer exceeded
the scope of a permissible Terry frisk. In its review of the case, the United States Court
of Appeals for the Fourth Circuit, citing the language in Terry that a police officer may frisk
a suspect if the officer has reason to believe the suspect is armed and dangerous,
concluded that the standard by which an officer may reach into a suspect’s pocket to
remove a suspected weapon is an objective one. Specifically, the court articulated the
appropriate standard as: “would a reasonable officer in those circumstances have
believed that the item would likely be a weapon.” Id. at 275. Based on the facts of the
[J-6-2021] - 12 case, the court determined the police officer had reasonable suspicion to believe the
object in Swann’s sock was a weapon and, therefore, the officer did not exceed the scope
of a permissible Terry frisk by removing the object from Swann’s sock.
In the present appeal, Appellant acknowledges the holding in Justice Newman’s
opinion in Taylor sets forth that a police officer may reach into a suspect’s pocket and
remove an object during a lawful Terry frisk if the officer has a reasonable suspicion that
the object is a weapon. Appellant contends, however, that Justice Newman’s holding
was incorrect. According to Appellant, pursuant to the plain feel doctrine, as set forth in
Dickerson, a police officer that detects an object in a suspect’s pocket during a Terry frisk
“may only reach in to seize the contents of [the suspect’s] pockets if the pat down leads
to probable cause to believe that the person is in possession of weapons or contraband.”
Appellant’s Brief at 12. As such, Appellant asks this Court to clarify Taylor and make
clear that pursuant to the plain feel doctrine, “[p]robable cause is required for any seizure
extending beyond the pat down authorized by Terry.” Id. at 20.
Appellant’s argument requires us to examine Dickerson. In Dickerson, the United
States Supreme Court examined “whether police officers may seize nonthreatening
contraband detected during a protective pat down search of the sort permitted by Terry.”
508 U.S. at 373. Upon review, the Supreme Court equated the “tactile discoveries of
contraband” during a Terry frisk with contraband left open for plain view, explaining that
in seizing illegal contraband detected during a lawful Terry frisk “there has been no
invasion of the suspect’s privacy beyond that already authorized by the officer’s search
for weapons.” Id. at 375. The Court ultimately held that police officers may seize
contraband detected during a lawful frisk if the identity of the illegal contraband is
“immediately apparent” upon touching the object. Id. However, if after conducting the
Terry frisk, the police officer knows the detected object is not a weapon, the plain feel
[J-6-2021] - 13 doctrine does not permit an officer to squeeze, slide, or otherwise manipulate the object
in an attempt to identify the object for purposes of establishing probable cause. Id. at
378.
This Court formally adopted the plain feel doctrine as consistent with Article I,
Section 8 of the Pennsylvania Constitution in Commonwealth v. Zhahir, 751 A.2d 1153,
1163 (Pa. 2000). However, this Court acknowledged the plain feel doctrine before Zhahir,
and has long interpreted Dickerson as having limited applicability. It is well-established
under our precedent that the plain feel doctrine is an extremely narrow doctrine and is
“only applicable where the officer conducting the frisk feels an object whose mass or
contour makes its criminal character immediately apparent.” Commonwealth v.
Stevenson, 744 A.2d 1261, 1265 (Pa. 2000). Justice Newman recognized the limited
applicability of the plain feel doctrine in Taylor, writing that plain feel doctrine did not apply
in that case because Officer Adams retrieved the object from Taylor’s pocket under the
reasonable suspicion that the object was a weapon rather than nonthreatening
contraband. Taylor, 771 A.2d at 1269 n.4. The Superior Court in the present matter
likewise recognized the limited applicability of the plain feel doctrine explaining the
doctrine did not apply in the present case on similar grounds as Justice Newman set forth
in Taylor. In re T.W., 2020 WL 551354, at *4.
Federal courts have also recognized the limited applicability of the plain feel
doctrine. See, e.g., United States v. Harris, 313 F.3d 1228, 1238 (10th Cir. 2002);
Richardson, 657 F.3d at 524; Swann, 149 F.3d at 275. In Richardson, for example, a
police officer frisked Richardson and “felt a hard object in” his right pants pocket. 657
F.3d at 522. Unsure of what the object was, the officer removed it. The object turned out
to be a packet of cocaine. Richardson was charged with possession of cocaine with the
intent to distribute. Before trial, Richardson sought to suppress the packet of cocaine.
[J-6-2021] - 14 Citing Dickerson, Richardson argued that the frisk became “an impermissible exploratory
search when [the police officer] removed the cocaine [] from Richardson’s right pants
pocket and inspected it.” Id. at 523-524. The United States Court of Appeals for the
Seventh Circuit rejected this argument, writing that Richardson’s argument misapplied
Dickerson. The court concluded that the rule set forth in Dickerson that a police officer
may not go beyond a frisk unless immediately apparent illegal contraband is detected
“does not apply until the officer concludes that the object at issue is not a weapon.” Id. at
524. Since the officer was unsure whether the object was a weapon, the court concluded
the applicable standard to measure whether the officer exceeded the scope of a
permissible frisk was whether the officer had a reasonable suspicion that the object in
Richardson’s pocket was a weapon. Id.
Upon review of Terry and Dickerson, as well as decisions of courts of this
Commonwealth and federal courts interpreting and applying those cases, it is clear that
Terry and Dickerson set forth two distinct justifications and accompanying standards by
which a police officer may remove an object from a suspect’s clothing during a lawful
Terry frisk.
The purpose of a Terry frisk is to dispel any fear that the stopped suspect is armed
and dangerous. 392 U.S. at 30. Considering that a police officer may frisk a suspect
based upon a reasonable suspicion that the suspect is armed and dangerous, which does
not require the officer to “be absolutely certain that the individual is armed” in order to
conduct the frisk, id. at 27, it would be illogical then for police officers to be limited to
removing suspicious objects detected during the frisk based upon, as Appellant suggests,
the heightened standard of probable cause that the object is a weapon. While it was
apparent to the officer in Terry that what he felt in the overcoats of the two men was a
pistol, it may not always be so obviously apparent to an officer conducting a Terry frisk
[J-6-2021] - 15 that a detected object is a weapon. To interpret Terry as requiring the heightened
standard of probable cause to remove an object believed to be a weapon would undercut
the very purpose of a Terry frisk and would require police officers to allow suspicious
objects to remain on a suspect’s person during a stop, which could potentially be used to
harm police officers or the general public. A Terry frisk then would do little to dispel a fear
that the suspect is armed and dangerous. As we have previously observed “[o]ur
constitutional safeguards” against unreasonable searches and seizures “do not require
an officer to gamble with his life.” Commonwealth v. Morris, 644 A.2d 721, 724 (Pa.
1994).
In so concluding, we reject Appellant’s argument that the plain feel doctrine sets
forth a probable cause standard applicable to the removal of all objects during a Terry
frisk. The plain feel doctrine allows police officers to remove immediately apparent illegal
contraband from within a suspect’s clothing during a lawful frisk. Dickerson, 508 U.S. at
375. It is well-established in state and federal jurisprudence that Dickerson has limited
applicability. The United States Supreme Court was clear in its holding in Dickerson that
the plain feel doctrine applied only to the removal of illegal nonthreatening contraband
detected during a lawful frisk. Id. If the Court had intended for Dickerson to set forth a
standard applicable to the removal of all objects during a lawful frisk, it likely would have
indicated as much instead of writing specifically in the limited context of illegal
nonthreatening contraband.
Furthermore, to interpret Dickerson as setting forth a single standard applicable to
the removal of all objects would seemingly put the plain feel doctrine in direct conflict with
the purpose of a Terry frisk. Again, the purpose of a Terry frisk is to dispel any fear that
the stopped suspect is armed and dangerous and could harm police officers or the
general public during a stop. 392 U.S. at 30. Dickerson on the other hand provides that
[J-6-2021] - 16 police officers may seize immediately apparent illegal contraband detected during a lawful
frisk. 508 U.S. at 375. It may not be immediately apparent that the possession of a
weapon, such as a firearm for example, is illegal contraband. A Terry frisk then would
serve little purpose if police officers could only remove objects which they reasonably
suspect to be a weapon if it was immediately apparent that possession of the weapon
was illegal.
This leads us to hold as follows. If a police officer conducting a lawful Terry frisk
detects an object within a suspect’s clothing, assuming no other exception to the general
warrant requirement applies, the officer may remove the object under one of two
justifications. Pursuant to Terry, and consistent with Justice Newman’s opinion in Taylor,
a police officer may remove an object from within a suspect’s clothing under the
reasonable suspicion that the object is a weapon. If, however, during the frisk the police
officer is able to determine that the object is not a weapon, pursuant to Dickerson, the
officer may only remove the object if, by touch, it is immediately apparent that the object
is illegal contraband.
Having determined the two standards by which a police officer may remove an
object from within a suspect’s clothing during a lawful Terry frisk, we turn to the facts of
this case to determine whether Officer Grant exceeded the scope of a permissible Terry
frisk by reaching into and removing an object from Appellant’s left pants pocket during the
frisk. We reiterate that our scope and standard of review when reviewing the denial of a
motion to suppress limits us to determining whether the trial court’s “factual findings are
supported by the record and whether the legal conclusions drawn from those facts are
correct.” Shaffer, 209 A.3d at 968-69. In doing so, we “do not simply comb through the
record to find evidence favorable to a particular ruling. Rather, [we] look to the specific
findings of fact made by the [trial] court.” In re L.J., 79 A.3d 1073, 1085 (Pa. 2013).
[J-6-2021] - 17 Here, the trial court found:
[Appellant] was a passenger in a vehicle that was [] in a high speed chase with police at 4:15 in the morning in a high crime area where Officer Grant has a plethora of personal experience with weapons recovered from traffic stops. Moreover, the officers made the stop without the benefit of a police vehicle. [Appellant] did not comply with Officer Grant’s order to stop hiding his body and reaching into his pockets. It was only after a limited search of the outside of [Appellant’s] clothes and feeling a hard object that was not readily identifiable that Officer Grant expanded his search to the inside of that particular pocket.
Trial Court Opinion at 4-5. Applying a reasonable suspicion standard to the question of
whether Officer Grant exceeded the scope of a permissible Terry frisk, the trial court
concluded, based upon the foregoing facts, “Officer Grant had a reasonable suspicion . .
. that [Appellant] may be armed and dangerous” and, therefore, Officer Grant was justified
in removing the object from Appellant’s left pants pocket. Id. at 5.
Before this Court, Appellant argues the plain feel doctrine applies to the present
matter such that Officer Grant was required to have probable cause, rather than
reasonable suspicion as the trial court concluded, to reach into and remove an object
from Appellant’s left pants pocket during the frisk. Again, under the plain feel doctrine, if
a police officer determines an object detected during a lawful frisk is not a weapon, the
officer may remove the object from within a suspect’s clothing only if it is immediately
apparent by touch that the object is illegal contraband. Dickerson, 508 U.S. at 375. Here,
there is no indication in the record that during the frisk of Appellant, Officer Grant
concluded the object in Appellant’s left pants pocket was not a weapon. Officer Grant
candidly testified during the hearing on Appellant’s motion to suppress physical evidence
that at the time of the frisk he did not know what the object in Appellant’s left pants pocket
was but he feared the object could be a weapon. Seeing that Officer Grant did not
determine during the frisk that the unknown object was not a weapon, the present case
[J-6-2021] - 18 is unlike Commonwealth v. Graham, 721 A.2d 1075, 1079-80 (Pa. 1998) (plurality) and
Commonwealth v. E.M., 735 A.2d 654, 660-62 (Pa. 1999), wherein we held that it was
unreasonable for the police officers in those cases to remove objects as part of a Terry
frisk as the police officers determined during those frisks that the objects were not
weapons and where the plain feel doctrine did not justify the removal of those objects.
Therefore, we agree with the Superior Court that the plain feel doctrine does not apply in
this case and, as the trial court and Superior Court did, we apply a reasonable suspicion
standard to determine whether Officer Grant exceeded the scope of a permissible Terry
frisk by reaching into and removing an object from within Appellant’s left pants pocket
during that frisk.
Appellant does not contest that the trial court’s factual findings are supported by
the record. However, Appellant does question whether the trial court’s findings are
sufficient to establish a reasonable suspicion that the object in Appellant’s left pants
pocket was a weapon. It is well-established that “[r]easonable suspicion is a less stringent
standard than [the] probable cause necessary to effectuate a warrantless arrest, and
depends on the information possessed by police and its degree of reliability in the totality
of the circumstances.” Brown, 996 A.2d at 477. In examining whether the totality of the
circumstances provide an officer with reasonable suspicion, we “must [] afford due weight
to the specific, reasonable inferences drawn from the facts in light of the officer’s
experience[,] and acknowledge that innocent facts, when considered collectively, may”
give the officer reasonable suspicion. Id. Thus, we must examine the trial court’s findings
to determine whether they are sufficient, under an objective standard, to establish a
reasonable suspicion that the object in Appellant’s left pants pocket was a weapon.
Accepting the uncontested findings of the trial court, we agree that based upon a
totality of the circumstances Officer Grant had a reasonable suspicion that the object in
[J-6-2021] - 19 Appellant’s left pants pocket was a weapon. This conclusion is not based entirely on the
fact that Appellant possessed a hard object on his person. There are other factors to
consider in determining whether Officer Grant possessed reasonable suspicion that the
object in Appellant’s pocket was a weapon. After all, a combination of factors, none of
which alone would support a finding of reasonable suspicion, may be sufficient to support
a finding of reasonable suspicion. Commonwealth v. Cook, 735 A.2d 673, 677 (Pa. 1999).
The fact that Appellant was a passenger in a vehicle that was involved in a high
speed chase with police at night4 and in a high crime area5 coupled with the fact that
when vehicle was stopped Appellant attempted to shield his body from the view of Officers
Grant and Heeney6 and reach into his pockets despite being told not to,7 would allow a
reasonable prudent person to suspect that the object in Appellant’s left pants pocket was
4 Erratic or evasive driving is a factor that may be considered in determining whether there
is reasonable suspicion that a suspect is armed and dangerous. In re O.J., 958, A.2d 561, 565-66 (Pa. Super. 2008), see also United States v. Rice, 483 F.3d 1079, 1084-85 (10th Cir. 2007). Additionally, a vehicular stop, which occurs at night, “creates a heightened danger that an officer will not be able to view a suspect reaching for a weapon.” In re O.J., 958 A.2d at 566. 5 We acknowledge a suspect’s mere presence in a high crime area is not sufficient by
itself to support reasonable suspicion. See In re D.M., 781 A.2d 1161, 1163-64 (Pa. 2001) (citing Illinois v. Wardlow, 528 U.S. 119, 124 (2000)). However, presence in a high crime area may be considered in examining the totality of the circumstances. Id. 6 A suspect’s attempt to shield parts of his or her body or clothing from a police officer
during a stop, an act sometimes referred to as “blading,” “is an indication the suspect might be armed” and may be considered in determining whether there is reasonable suspicion that the suspect is armed and dangerous. Commonwealth v. Bozeman, 205 A.3d 1264, 1276 (Pa. 2019); see also United States v. Coleman, 383 F. App’x 180, 181- 82 (3d Cir. 2010). 7 A suspect’s attempt to keep his or her hands inside a pocket or within clothing after
being asked to remove them by a police officer during a stop may be considered in determining whether there is reasonable suspicion that a suspect is armed and dangerous. Commonwealth v. Scarborough, 89 A.3d 679, 684 (Pa. Super. 2014); see also United States v. Cornelius, 391 F.3d 965, 967-68 (8th Cir. 2004).
[J-6-2021] - 20 a weapon.8 Again, Officer Grant was not required to be absolutely certain that the object
in Appellant’s pocket was a weapon, rather, under the applicable standard, he need only
have reasonably suspected the object to be a weapon in order to conduct a search of the
pocket. As such, we conclude Officer Grant did not exceed the scope of a permissible
Terry frisk by reaching into and removing a suspected weapon from Appellant’s left pants
pocket during the frisk.9
8 Justice Wecht writes in his Concurring and Dissenting Opinion that Officer Grant did not
have a reasonable suspicion that the object in Appellant’s left pants pocket was a weapon, in part, because the object “was more consistent with the many and sundry innocuous objects that people carry in their pockets.” Concurring and Dissenting Opinion at 29 (Wecht, J.). However, the reasonable suspicion standard does not require a police officer to be absolutely certain that an object detected within a suspect’s clothing is a weapon. Rather, as indicated above, courts look to the totality of the circumstances to determine whether reasonable suspicion exists. In Int. of A.A., 195 A.3d 896, 904 (Pa. 2018). 9 Justice Wecht, in his Concurring and Dissenting Opinion, concludes Officer Grant did
exceed the scope of a permissible Terry frisk. Concurring and Dissenting Opinion at 30 (Wecht, J.). Justice Wecht arrives at this conclusion after examining, sua sponte, the question of “whether a police officer conducting a protective search must utilize the least intrusive means reasonably available to the officer” to detect the presence of weapons. Id. at 9. Despite the fact that this question was not raised by Appellant at any stage of this case, the responsive opinions suggest that we can consider the question because it is encompassed within the issue on which we granted review. Id. at 31 n.24 (Wecht, J.); Concurring and Dissenting Opinion at 2 n.1 (Donohue, J); Concurring Opinion at 5 n.3 (Dougherty, J.). To address the foregoing question, as the responsive opinions suggest, would require us to disregard our established rules on issue preservation.
Generally, for an issue to be reviewable by this Court, it must have been “preserved at all stages in the lower courts.” Commonwealth v. Hays, 218 A.3d 1260, 1265 (Pa. 2019). In examining whether an issue has been preserved for our review, we first look to the record to determine whether the issue was raised before the trial court, including in the statement of errors complained of on appeal if the trial court ordered such a statement be filed. See Pennsylvania Rule of Appellate Procedure 302(a), Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot be raised for the first time on appeal.”); Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the [s]tatement [of errors complained of on appeal] . . . are waived); see also Commonwealth v. Romberger, 378 A.2d 283, 286 (Pa. 1977) (setting forth that the doctrine of waiver applies “even where the issue is of
[J-6-2021] - 21 III. Conclusion
We granted review in this matter to examine the standards by which police officers
may remove objects detected during a Terry stop and frisk from within a suspect’s
clothing. Upon review, for the reasons set forth above, we conclude that Terry and
Dickerson set forth separate and distinct justifications and accompanying standards for
constitutional dimensions.”). Upon review of the record, it is clear Appellant did not raise the question examined by the responsive opinions in his argument before the trial court or in his statement of errors complained of on appeal filed after the trial court’s adjudication. In his statement of errors complained of on appeal, Appellant identified only a single issue for appellate review, which is: whether “[t]he [trial] court erred in denying [Appellant’s] motion to suppress physical evidence, as the [Appellant] was searched and arrested without probable cause.” Appellant’s Statement of Errors Complained of on Appeal at 2. This issue cannot reasonably be read to include the question examined by the responsive opinions.
While we need not examine the record to determine if the foregoing question was preserved before the Superior Court because it is clear that the question was not raised before the trial court, we do so for completeness. In his brief to the Superior Court, Appellant identifies the “statement of the question involved” as follows: “Did not the [trial] court err in denying the motion to suppress physical evidence, insofar as appellant was arrested and searched without probable cause?” Appellant’s Brief to the Superior Court at 3. This question cannot reasonably be read to include the question examined by the responsive opinions. Therefore, even if the question had been raised before the trial court, it still would not be preserved for our review because it was not raised before the Superior Court. See Pennsylvania Rule of Appellate Procedure 2116(a), Pa.R.A.P. 2116(a) (“No question will be considered unless it is fairly stated in the statement of questions involved or is fairly suggested thereby.”).
The law is clear that “where the parties in a case fail to preserve an issue for appeal, an appellate court may not address the issue sua sponte.” Johnson v. Lansdale Borough, 146 A.3d 696, 709 (Pa. 2016). Appellate courts must be mindful not to address issues which are not preserved for review as it “disturbs the process of orderly judicial decision- making by depriving the court of the benefit of counsel’s advocacy . . . and depriving the litigants the opportunity to brief and argue the issues.” Id. Accordingly, in light of the fact that the question examined by the responsive opinions was not raised by Appellant at any stage in this case, we cannot, sua sponte, raise and address the question as it was not preserved for our review.
[J-6-2021] - 22 removing objects from within a suspect’s clothing during a lawful Terry frisk. As Justice
Newman held in Taylor, we hold a police officer may remove an object from within a
suspect’s clothing during a Terry frisk if the officer has reasonable suspicion that the
object is a weapon. If during the search, however, the officer determined the object is not
a weapon, the officer may only remove the object if it is immediately apparent by touch
the object is illegal contraband. In the present case, for the foregoing reasons, we
conclude Officer Grant had a reasonable suspicion that the object in Appellant’s left pants
pocket was a weapon. Therefore, Officer Grant did not exceed the scope of a permissible
Terry frisk by reaching into and removing an object from Appellant’s pocket. Accordingly,
we affirm the February 4, 2020 order of the Superior Court.
Chief Justice Baer and Justices Saylor and Dougherty join the opinion.
Justice Dougherty files a concurring opinion in which Justice Todd joins.
Justice Donohue files a concurring and dissenting opinion.
Justice Wecht files a concurring and dissenting opinion.
[J-6-2021] - 23