Com. v. Ranger, O. ( 2017 )

J-S43036-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
OLUBAYA MUDADA MENSAH RANGER
Appellant No. 147 WDA 2017
Appeal from the Judgment of Sentence January 6, 2017
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0002382-2015
BEFORE: STABILE, SOLANO, and FITZGERALD* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED: July 20, 2017
Appellant, Olubaya Mudada Mensah Ranger, appeals from a judgment
of sentence of six to twelve months’ imprisonment for knowing and
intentional possession of a controlled substance.1 Appellant argues that the
trial court erred by denying his motion to suppress baggies of cocaine
removed from his pants pocket during a warrantless search. We conclude
that Appellant was subject to a valid investigative detention, and that the
seizure of the cocaine was proper under the plain feel doctrine. Accordingly,
we affirm.
On October 22, 2015, police officers arrested Appellant and charged
him with drug-related offenses. On April 14, 2016, the court held a hearing
*
Former Justice specially assigned to the Superior Court.
1
35 P.S. § 780-113(a)(16).
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relating to Appellant’s motion to suppress. In an opinion and order dated
May 2, 2016, the suppression court denied Appellant’s motion to suppress.
The suppression court entered the following findings of fact:
1. Sergeant Christopher Moser has been employed by the
Altoona Police Department since March 1, 2015. Prior to
being employed with the Altoona Police Department[,] he
was employed by the Williamsburg and Tyrone Borough
Police Departments.
2. Sergeant Moser was assigned to the Blair County Drug
Task Force after completing his probationary period with
the Altoona Police Department and also during his
employment with the Williamsburg Borough Police
Department.
3. Sergeant Moser has been involved in several hundred
prosecutions of narcotics and hundreds of search warrants.
4. Since March 2015, Sergeant Moser has been the officer
in charge of the Altoona Police Department Narcotics and
Vice Unit.
5. In the summer of 2015, Sergeant Moser began an
investigation of Henry Agnew.
6. During the investigation of [Agnew], [o]fficers made
three or four controlled purchases of narcotics from
[Agnew].
7. Sergeant Moser was aware that [Agnew] had a criminal
history that involved assault convictions.
8. Sergeant Moser utilized a confidential informant (“CI”)
to set up a controlled purchase with expectation that the
controlled purchase would occur on October 22, 2015.
This was the same [CI] who had made previous controlled
purchases from [Agnew] during the investigation.
9. The intent of the officers involved was to make an
arrest of [Agnew] after the controlled purchase on October
22, 2015. This is commonly referred to as a “buy bust.”
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The officers intended to purchase an eight ball of cocaine
(1/8 of an ounce) for $250.00.
10. The purchase of 1/8 ounce of cocaine from [Agnew]
would be the largest amount of controlled substances
purchased from [Agnew] during the investigation.
11. [Because] the officers intended to conduct a “buy
bust”, two or three different surveillance vehicles with two
officers in each vehicle were utilized during the October
22, 2015 buy bust. The Altoona Police Department also
had a marked unit from Logan Township assisting.
12. Once the [o]fficers began the investigation on October
22, 2015, the [CI] indicated that [Agnew] wanted the [CI]
to meet him at the Logan Towne Centre. In light of the
fact that several businesses would be open for business,
public safety was a concern for the officers.
13. Sergeant Moser believes that weapons are always a
concern in conducting a “buy bust” operation with a
suspected narcotics dealer.
14. [Because] the controlled purchase was expected to
occur at the Logan Towne Center, officers were given
assignments in and around Logan Towne Centre. The
normal procedures of searching the [CI]’s person and his
vehicle occurred and the [CI] was provided buy money.
He was also followed to the Logan Towne Centre area.
15. When arriving at Logan Towne Centre, the [CI]
initially parked in the area of Dick’s Sporting Goods.
Officers took surveillance locations around this area so
they were able to view the [CI]. Sergeant Moser parked
close to the Verizon Store which was north of the location
where the [CI] parked.
16. At his surveillance location, Sergeant Moser received a
text from the [CI] stating that he was to meet [Agnew] at
the Verizon Store. Sergeant Moser witnessed [Agnew]
walking toward the Verizon Store. Sergeant Moser also
witnessed the [CI] exit his vehicle and meet [Agnew].
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17. Sergeant Moser witnessed an exchange occur between
the [CI] and [Agnew] and the [CI] returned to his vehicle.
[Agnew] then walked towards the area of Panera Bread.2
18. The [CI] informed Sergeant Moser that [Agnew] told
the [CI] that he had to go meet his “dude” to get the
cocaine. The [CI] told Sergeant Moser that he was waiting
for him to return.
19. Eventually, [Agnew] came back into view of the
officers after being in the area of Panera Bread. The
officers then observed the [CI] pick up [Agnew] and drive
around.
20. The officers followed the vehicle . . . . After the vehicle
. . . drove behind the Logan Towne Centre complex, the
[CI] stopped and [Agnew] exited the vehicle at Panera
Bread. The [CI] then contacted Sergeant Moser.
21. Sergeant Moser [instructed] the [CI] to park at
Boscovs and Corporal Plummer would get in the vehicle
with him. Sergeant Moser also observed [Agnew enter]
Panera Bread.
22. Sergeant Moser was informed that the [CI] received
the eight ball of cocaine from [Agnew].
23. Pennsylvania Attorney General Agent Thomas Brandt
conducted surveillance from inside the Panera Bread store.
24. Agent Brandt maintained consistent phone contact
with Sergeant Moser and informed him that [Agnew] was
with a black male and white female.
25. Based on the observations made by Sergeant Moser
and the actions of [Agnew] as well as the surveillance
conducted by Agent Brandt, Sergeant Moser believed that
the male individual with [Agnew] in the Panera Bread store
was [Agnew]’s source for his cocaine.
2
There was no testimony during the suppression hearing that any officer
saw Agnew enter Panera Bread at this time. Sergeant Moser testified that
“we lost [Agnew] in the area of Panera Bread.” N.T., 4/14/16, at 28.
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26. Once [Agnew] exited the Panera Bread store, officers
took him into custody and arrested him for the delivery
charge.
27. Officers also detained [Appellant] and a female Rachel
Gray. Agent Brandt had notified the officers that the
individuals were leaving the Panera Bread prior to officers
taking the individuals into detention.
28. When [Agnew] was taken into custody by the officers
and searched incident to arrest he was found to have
$50.00 of buy money on his person.
29. Altoona Police Department Officer Dan Vasil was the
individual who made contact with [Appellant] after the
officers approached the three individuals.
30. Patrolman Vasil has worked for the Altoona Police
Department for seven years.
31. Patrolman Vasil was part of the arrest team and was
also assigned to conduct transport. The three individuals,
[Agnew], [Appellant] and [Gray,] entered a red Dodge
Charger after exiting Panera Bread. Patrolman Vasil
parked his cruiser in a position near the driver’s side rear.
32. As Patrolman Vasil approached the Charger,
[Appellant] opened the door and moved as if he was going
to exit the Charger.
33. At that point, Patrolman Vasil and Patrolman Hanelly
ordered [Appellant] to continue exiting and to place his
hands on his head. Patrolman Vasil physically attempted
to move [Appellant’s] hands up [but] when [Appellant] got
close to where Patrolman Vasil wanted his hands to be,
[Appellant] began to tense his arms as though he was
going to pull away. These actions caused Patrolman Vasil
to believe that [Appellant] was going to fight or run.
34. As a result of [Appellant’s] actions, Patrolman Vasil
placed him in handcuffs. While Officer Vasil was placing
him into handcuffs, Patrolman Crist read [Appellant] his
Miranda warnings.
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35. After placing [Appellant] in handcuffs, Patrolman Vasil
began to pat down [Appellant’s] clothing for weapons.
Patrolman Vasil removed a cell phone from [Appellant’s]
front sweatshirt pocket. This cell phone later was found to
contain a bag of cocaine.3
36. When Patrolman Vasil was patting down [Appellant’s]
left front jeans pocket, he recognized that the pocket
contained knotted bags containing a powdery substance
that he believed to be cocaine. Patrolman Vasil removed
the bags and found them to be apparent powdered cocaine
of an approximate eight ball size. There were nine bags
total. After locating the cocaine, Patrolman Vasil also
found $200.00 in [Appellant’s] right front pocket.
37. Patrolman Vasil indicated that there [were]
approximately five officers in or around the area of
[Appellant] during his interaction with [Appellant].
Suppression Ct. Op., 5/2/16, at 2-7.
The suppression court found the testimony of Sergeant Moser and
Patrolman Vasil “credible in all respects.” Id. at 9. The court declined to
suppress the cocaine recovered by Patrolman Vasil because (1) Appellant’s
stop was an investigative detention instead of a custodial arrest, (2)
Appellant’s pat down was constitutional, and (3) Patrolman Vasil
“immediately recognized” the contraband. Id. at 11.
3
The suppression hearing transcript does not establish whether the
discovery of the bag of cocaine in the cell phone occurred before or after
Patrolman Vasil searched Appellant’s pants pocket. In any event, Appellant
does not argue that the seizure of the cell phone, or the discovery of the bag
of cocaine therein, tainted the subsequent frisk of his pants pocket or
seizure of the bags of cocaine from his pocket.
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On September 9, 2016, the case proceeded to a non-jury trial before a
different judge than the judge who presided over suppression proceedings.
The trial court found Appellant guilty of one count of possession of a
controlled substance. On January 6, 2017, the court imposed sentence.
Appellant timely appealed, and both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises three issues in this appeal:
I. Whether the suppression court erred and/or abused its
discretion when it denied Appellant’s motion to suppress
when it found that the Appellant was in an “investigative
detention” and not a “custodial detention” and when it
further allowed inadmissible hearsay [into] the suppression
hearing and relied on said inadmissible hearsay as
substantive fact to support its denial of Appellant’s motion
to suppress?
II. Whether the suppression court erred and/or abused its
discretion when it determined that Appellant’s suppression
[motion] be denied when it found that Officer Vasil’s
search of [Appellant] was a legal search?
III. Whether the trial court erred and/or abused its
discretion when it did not overrule the suppression court’s
ruling?
Appellant’s Brief at 4.
In essence, Appellant raises three arguments: (1) the suppression
court erroneously admitted hearsay during the suppression hearing; (2)
Appellant’s stop was a custodial detention instead of an investigative
detention, but the police officers lacked probable cause to conduct a
custodial detention; and (3) even if the stop was an investigative detention,
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Patrolman Vasil’s search was invalid under the plain feel doctrine, because
he did not immediately recognize the items on Appellant’s person as
contraband. We examine each of these issues below.
When the defendant files a motion to suppress, “it is the
Commonwealth’s burden to prove, by a preponderance of the evidence, that
the challenged evidence was not obtained in violation of the defendant’s
rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047-48 (Pa. 2012)
(citations omitted). When this Court addresses a challenge to the denial of a
suppression motion,
[we are] 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. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of
the Commonwealth and so much of the evidence for the
defense as remains uncontradicted when read in the
context of the record as a whole. Where the suppression
court’s factual findings are supported by the record, [the
appellate court is] bound by [those] findings and may
reverse only if the court’s legal conclusions are erroneous.
Where . . . the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court’s legal conclusions are not binding on an
appellate court, whose duty it is to determine if the
suppression court properly applied the law to the facts.
Thus, the conclusions of the courts below are subject to [ ]
plenary review.
Commonwealth v. Jones, 121 A.3d 524, 526–27 (Pa. Super. 2015)
(citation omitted). When reviewing the suppression court’s rulings, we
consider only the suppression record. See In re L.J., 79 A.3d 1073, 1085
(Pa. 2013) (“it is inappropriate to consider trial evidence as a matter of
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course, because it is simply not part of the suppression record, absent a
finding that such evidence was unavailable during the suppression hearing”).
Moreover,
the admissibility of evidence rests within the sound
discretion of the trial court, whose decision we will not
disturb absent a showing that its discretion has been
abused. Discretion is abused when the course pursued [by
the trial court] represents not merely an error of
judgment, but where the judgment is manifestly
unreasonable or where the law is not applied or where the
record shows that the action is a result of partiality,
prejudice, bias, or ill will.
Commonwealth v. Dargan, 897 A.2d 496, 500 (Pa. Super. 2006)
(citations and quotation marks omitted).
Appellant contends that the suppression court erred in denying his
motion to suppress on the basis of inadmissible hearsay, namely statements
by the CI to the police officers during the “buy bust” operation about what
Agnew said to the CI. We conclude that these statements were not hearsay,
because they were not admitted for their truth but to explain the police
officers’ course of conduct.
Hearsay is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” Pa.R.E. 801(c). “An out of court statement offered not for
its truth but to explain the witness’s course of conduct is not hearsay.” See
Commonwealth v. Rega, 933 A.2d 997, 1017 (Pa. 2007) (trooper’s
testimony that on morning following murder, codefendant had told trooper
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that he and defendant dropped defendant’s daughters off at defendant’s
mother’s home before leaving together, was not inadmissible hearsay, where
Commonwealth introduced testimony to explain reason for further
investigating codefendant and defendant); Commonwealth v. Sneed, 526
A.2d 749, 754 (Pa. 1987) (police officer’s testimony describing radio call that
prompted his trip to crime scene was not hearsay because it was introduced
solely to explain why he went to scene); Commonwealth v. Estepp, 17
A.3d 939, 945 (Pa. Super. 2011) (police officer’s testimony regarding
statements by confidential informant admissible to explain officer’s course of
conduct in investigating drug sales); Dargan, 897 A.2d at 500, 502(officer’s testimony as to out-of-court statements made to him by
confidential informant, consisting of report that heroin could be purchased
from defendant, description of defendant and his automobile, his address,
and name of his girlfriend, admissible for purpose of explaining officer’s acts
in connection with his investigation).
Here, the CI sent multiple text messages to police officers during the
buy bust operation concerning the location of his meeting with Agnew as
well as Agnew’s statement that he had to meet his “dude” to obtain the
cocaine. These text messages were admissible to explain the police officers’
course of conduct in tracking the CI’s and Agnew’s whereabouts and
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ultimately stopping Agnew, Appellant and Gray outside of Panera Bread.
Thus, no relief is due.4
In his second issue, Appellant argues that the suppression court erred
by determining that the police officers subjected him to an investigative
detention instead of a custodial detention. Appellant insists that the officers
conducted a custodial detention for which probable cause did not exist. The
suppression court held that the officers conducted an investigative detention
and reasoned, in the alternative, that probable cause existed for a custodial
detention. While the court did not explicitly address whether the officers
had reasonable suspicion to conduct an investigative detention, it implicitly
determined that they had reasonable suspicion by concluding that they
satisfied the steeper burden of probable cause.
We uphold the suppression court’s decision but for slightly different
reasons—specifically, the officers had reasonable suspicion to conduct an
investigative detention. See Commonwealth v. Judge, 916 A.2d 511, 517
n.11 (Pa. 2007) (“this Court may affirm on any ground”) (citation omitted).
Fourth Amendment jurisprudence has led to the
development of three categories of interactions between
citizens and the police. The first of these is a “mere
encounter” (or request for information) which need not be
4
Appellant points out that the trial court, unlike the suppression court, held
that the CI’s statements were inadmissible hearsay. Nevertheless, “the
record of the suppression hearing is intended to be the complete record for
suppression issues . . . .” L.J., 79 A.3d at 1084. Having reviewed the
suppression record, we think the suppression court’s decision was a proper
exercise of its discretion.
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supported by any level of suspicion, but carries no official
compulsion to stop or to respond. See Florida v. Royer,
460 U.S. 491 (1983); Florida v. Bostick, 501 U.S. 429,
(1991). The second, an “investigative detention[,]” must
be supported by a reasonable suspicion; it subjects a
suspect to a stop and a period of detention, but does not
involve such coercive conditions as to constitute the
functional equivalent of an arrest. See Berkemer v.
McCarty, 468 U.S. 420 (1984); Terry v. Ohio, 392 U.S. 1(1968). Finally, an arrest or “custodial detention” must be
supported by probable cause. See Dunaway v. New
York, 442 U.S. 200 (1979); Commonwealth v.
Rodriguez, 614 A.2d 1378 ([Pa.] 1992).
Commonwealth v. Ellis, 662 A.2d 1043, 1047–48 (Pa. 1995) (footnote
and parallel citations omitted).
Reasonable suspicion is a less stringent standard than
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. In order to justify the seizure, a police
officer must be able to point to specific and articulable
facts leading him to suspect criminal activity is afoot. In
assessing the totality of the circumstances, courts must
also 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 permit the investigative
detention.
***
The determination of whether an officer had reasonable
suspicion that criminality was afoot so as to justify an
investigatory detention is an objective one, which must be
considered in light of the totality of the circumstances. It
is the duty of the suppression court to independently
evaluate whether, under the particular facts of a case, an
objectively reasonable police officer would have reasonably
suspected criminal activity was afoot.
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Commonwealth v. Holmes, 14 A.3d 89, 95, 96 (Pa. 2011) (internal
citations, quotations, and emphasis omitted).
A wide variety of circumstances may give rise to reasonable suspicion
to conduct an investigative detention for a suspected drug sale. See, e.g.,
Commonwealth v. Thompson, 93 A.3d 478, 485-86 (Pa. Super. 2014)
(police officer had reasonable suspicion to believe that defendant was
engaged in drug-related crime, where officer engaged in surveillance of
convenience store after concerned citizens complained of suspected
narcotics activity near store, officer observed defendant signal to driver in
another vehicle in store parking lot and then leave the lot, officer followed
defendant to nearby location at which defendant approached and entered
vehicle that appeared to be waiting for him, and officer observed defendant
receive cash from passengers in vehicle, exit vehicle and retrieve plastic
baggie from hiding place next to nearby fence, and toss baggie into vehicle);
Commonwealth v. Clemens, 66 A.3d 373, 380 (Pa. Super. 2013) (police
officer had reasonable suspicion necessary to detain defendant after
suspected drug transaction; officer who had significant experience in
investigating drug offenses witnessed defendant engage in hand-to-hand
narcotics transaction with another individual in high-crime area, and, when
defendant made eye contact with officer after transaction, he fled and was
next seen sitting on porch of home to which he had no connection).
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In addition, information provided by a tipster can help establish
reasonable suspicion for an investigative detention. See Commonwealth
v. Ranson, 103 A.3d 73, 78-79 (Pa. Super. 2014) (tip from nightclub patron
while police officer was working security detail at club in high-crime area,
identifying defendant and stating that he was carrying firearm, was
legitimate factor upon which officer could rely in determining that reasonable
suspicion existed to stop defendant even though officer did not know
informant’s name; officer had seen tipster on regular basis because he was
patron at club every weekend, officer had opportunity to observe tipster’s
demeanor and assess his credibility in light of his eighteen years of
experience as police officer, and tipster gave specific tip pointing out
defendant).
Here, reasonable suspicion existed to stop Appellant outside of the
Panera Bread restaurant. Sergeant Moser, who had significant experience in
drug trafficking investigations, previously had used a reliable CI to make
controlled purchases of cocaine from Agnew. Law enforcement officials
arranged a buy/bust in which the same CI would purchase cocaine from
Agnew, and Agnew would be arrested. Multiple officers conducted
surveillance in the vicinity of the buy-bust. The CI was observed meeting
Agnew, who told the CI that he had to meet his “dude” to get the cocaine.
Agnew walked to the area of Panera Bread, where the officers briefly lost
sight of Agnew. The CI waited in his car for Agnew to return. Eventually,
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Agnew came back into view, the CI picked Agnew up, and they drove
around. The CI dropped off Agnew near Panera Bread, and the CI contacted
Sergeant Moser and reported that he had just purchased cocaine from
Agnew. A law enforcement official observed Agnew inside Panera Bread
eating with a black male and a white female. Sergeant Moser believed the
male at Panera Bread was the “dude” who supplied cocaine to Agnew.
Agnew, the male and the female exited Panera Bread and entered a red
Dodge Charger, but Patrolman Vasil stopped the vehicle from leaving.
Collectively, the CI’s history of reliability, his report that Agnew needed to
see his “dude” to obtain cocaine followed by his walk near Panera Bread, the
controlled purchase of cocaine, Agnew’s entry into Panera Bread after the
controlled purchase, and Agnew’s meeting with a male and female inside
Panera Bread provided reasonable suspicion that the male (Appellant) was
the supplier of Agnew's cocaine.
Further, the police officers only conducted an investigative detention,
which only required reasonable suspicion, instead of a custodial detention,
which would have required probable cause. “The key difference between an
investigative and a custodial [detention] is that the latter involves such
coercive conditions as to constitute the functional equivalent of an arrest.”
Commonwealth v. Pakacki, 901 A.2d 983, 987 (Pa. 2006) (citation and
internal quotation omitted). In determining whether an encounter with the
police is custodial, “[t]he standard . . . is an objective one, with due
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consideration given to the reasonable impression conveyed to the person
interrogated rather than the strictly subjective view of the troopers or the
person being seized,” and “must be determined with reference to the totality
of the circumstances.” Commonwealth v. Edmiston, 634 A.2d 1078,
1085–86 (Pa. 1993).
The court considers the totality of the circumstances to
determine if an encounter is investigatory or custodial, but
the following factors are specifically considered: the basis
for the detention; the duration; the location; whether the
suspect was transported against his will, how far, and why;
whether restraints were used; the show, threat or use of
force; and the methods of investigation used to confirm or
dispel suspicions.
Commonwealth v. Teeter, 961 A.2d 890, 899 (Pa. Super. 2008) (citation
omitted).
The suppression court observed that the officers only subjected
Appellant to an investigative detention:
The basis of the detention in this case was to further [the
officers’] investigation of [Appellant] and for officer safety.
It also occurred in a public location[,] further requiring the
actions to be made for public safety purposes. The
suspect was not transported to that location but was at
that location of his own free will. In addtion, the length of
the detention was brief[,] and there was no evidence
established at the evidentiary hearing . . . that there was
any significant use of force.
Suppression Ct. Op. at 10-11. We agree with this reasoning.
Appellant argues that the stop was a custodial detention because he
was placed in handcuffs, and because Sergeant Moser admitted during trial
that a “custodial detention” took place. Appellant’s Brief at 16 (citing
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Reproduced Record at 109). Neither argument has merit. Handcuffing a
suspect for officer safety does not transform a stop into a custodial
detention. See Commonwealth v. Rosas, 875 A.2d 341, 348 (Pa. Super.
2005) (citations omitted). Here, handcuffing Appellant “was merely part and
parcel of ensuring the safe detaining of the individual[] during [a] lawful
Terry stop,” id., and did not constitute an arrest. Moreover, Sergeant
Moser’s reference to a “custodial detention” during trial is of no moment. As
discussed above, the suppression hearing record is the complete record for
suppression issues, so trial testimony falls outside our scope of review on
this issue. In any event, the determination of whether the stop was an
investigative detention or custodial detention is an objective inquiry,
Edmiston, 634 A.2d at 1085–86, that does not turn upon the subjective
viewpoint of a testifying police officer.
Finally, Appellant argues that Patrolman Vasil’s search was invalid
under the plain feel doctrine, because he did not immediately recognize the
items in Appellant’s pocket as contraband. We disagree.
Under the plain feel doctrine,
a police officer may seize non-threatening contraband
detected through the officer’s sense of touch during a
Terry frisk if the officer is lawfully in a position to detect
the presence of contraband, the incriminating nature of the
contraband is immediately apparent from its tactile
impression and the officer has a lawful right of access to
the object. [T]he plain feel doctrine is only applicable
where the officer conducting the frisk feels an object
whose mass or contour makes its criminal character
immediately apparent. Immediately apparent means that
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the officer readily perceives, without further exploration or
searching, that what he is feeling is contraband. If, after
feeling the object, the officer lacks probable cause to
believe that the object is contraband without conducting
some further search, the immediately apparent
requirement has not been met and the plain feel doctrine
cannot justify the seizure of the object.
Pakacki, 901 A.2d at 989 (citations omitted). The plain feel exception is
satisfied when the officer feels both packaging material and drugs while
patting down the defendant's outer garments. In Commonwealth v.
Parker, 957 A.2d 311 (Pa. Super. 2008), the officer conducting the pat
down felt two plastic bags in the defendant's cargo pocket with some “hard,
rigid objects” that he believed were crack cocaine based on his training and
experience. We upheld the seizure of the drugs because the officer
immediately identified the object he felt as contraband (packaged crack
cocaine) before reaching into the defendant's pocket and looking at its
contents. Parker, 957 A.2d at 316. Similarly, in Commonwealth v.
Bryant, 866 A.2d 1143 (Pa. Super. 2005), we upheld a search where the
officer conducting the pat down immediately recognized the object as
packaged drugs due to his experience in over 100 drug arrests and his
familiarity with the packaging and feel of packaged drugs.5 Bryant, 866
A.2d at 1147.
5
Conversely, the plain feel exception is not satisfied when the officer only
feels a pill bottle, see Commonwealth v. Guillespie, 745 A.2d 654, 658
(Pa. Super. 2000), or only a zip-lock baggie, see Commonwealth v.
Stackfield, 651 A.2d 558, 562 (Pa. Super. 1994) (“[a] zip-lock baggie is not
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Here, the suppression court determined that Patrolman Vasil
immediately recognized the items in Appellant’s pocket as contraband. The
record supports this determination. Patrolman Vasil placed his hand on
Appellant’s pocket and pressed “pretty hard.” N.T., 4/14/16, at 56. He
immediately felt plastic bags with tied corners and a powdery substance
inside them. Id. Based on his extensive experience performing such
searches, but without manipulating or moving these items around, he
immediately recognized that they were contraband. Id. at 55-56, 61.
Accordingly, he lawfully removed these items from Appellant’s pocket.
For these reasons, the trial court properly denied Appellant’s motion to
suppress.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2017
per se contraband, although material contained in a zip-lock baggie may well
be”).
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