Commonwealth v. Dorsey

TAMILIA, Judge.

Charles Dorsey appeals from the January 5, 1994 judgment of sentence entered following a nonjury trial in which he was found guilty of possession,¹ possession with intent to deliver a controlled substance² and possession of drug parapheranlia.³ Following the denial of post-trial motions, appellant was sentenced to a term of eighteen (18) to seventy-two (72) months’ imprisonment. The charges stem from the following set of facts.

On October 1, 1992, officers of Ridley Township Police Department and detectives from Delaware County Criminal Investigation Division (CID), Narcotics Unit, executed a search warrant at 1400 West MacDade Boulevard, Apt. D371, Woodlyn, Delaware County. The apartment was rented by a Donald Crews who was not at home at the time the warrant was executed. As a result of the execution of the search warrant, a substantial amount of money, marijuana, a scale, bagging materials, and tally sheets were seized.

Towards the conclusion of the search, surveillance officers outside the residence observed Donald Crews and this defendant arrive in a silver colored station wagon. A detective outside recognized at least Crews as the subject of the warrant and followed the pair into the apartment building. The officers inside the building closed the apartment door and situated themselves around the outside of the apartment.

Crews and Dorsey entered the apartment building and proceeded up the stairs towards Crews’ apartment. The officers moved in and arrested Crews at the doorway to his apartment. Dorsey was stopped at the top of the stairs by Detective Glen Greenwalt.

Detective Greenwalt, as well as Detective Azpell, testified at the suppression hearing that as Dorsey was [sic] attempted to flee down the stairs and that at the same time Dorsey’s right hand appeared to be reaching toward his right pants pocket. Detective Greenwalt identified himself as a police officer and ordered Dorsey to assume a prone position with his hands in front of him. Greenwalt told Detective Azpell to watch Dorsey’s hands.

Detective Azpell began a pat down search of Dorsey for his safety and as a result of the suspicious movement of the defendant’s hands. He felt a pager attached to Dorsey’s belt and a lump in his right pants pocket which he from experience believed it to [be] marijuana. He observed a plastic bag consistent with that used for controlled substances protruding from Dorsey’s right pants pocket. Detective Azpell removed that plastic bag which contained smaller bags of marijuana and also removed a large sum of cash from Dorsey’s left pocket.

(Slip Op., Bradley, J., 3/15/94, pp. 2-3.)

On appeal to this Court, appellant argues the trial court erred in denying his motion to suppress the evidence obtained from him during this search. Specifically, appellant contends the trial court erred in finding the police conducted a valid Terry⁴ search for weapons as the Commonwealth failed to set forth particular facts which show the arresting officer could reasonably infer appellant was armed and dangerous. Since there was no probable cause to arrest appellant and thus conduct a legal search, there must be a reasonable basis for the police officer to believe appellant was armed and dangerous to warrant conducting a protective frisk. Appellant argues he was laying prone on the staircase with his arms outstretched with approximately ten police officers nearby, thus he was no threat to the police. Accordingly, he suggests the evidence does not support a reasonable basis for the officers to believe he posed any threat to them.

In reviewing the denial of a motion to suppress, we must first determine whether the suppression court’s factual findings, inferences and legal conclusions are supported by the record. Commonwealth v. Lopez, 415 Pa.Super. 252, 609 A.2d 177 (1992). Because the suppression court held for the Commonwealth, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Id. Additionally, it is exclusively the province of the suppression court to determine the credibility of the witnesses and weight to be accorded to their testimony. Commonwealth v. Neely, 298 Pa.Super. 328, 444 A.2d 1199 (1982). If the factual findings are supported by the record, then we may reverse only for an error of law. Lopez, supra, 415 Pa.Super. at 252, 609 A.2d 177.

A review of the record finds the suppression court had ample evidence to support its decision finding the police lawfully conducted a protective pat-down search of appellant. To justify a frisk incident to an investigatory stop, police need to point to specific and articulable facts indicating the person they intend to frisk may be armed and dangerous. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985). Appellant arrived at the scene of an execution of a search warrant for drugs with the named subject of the search. When he saw police, he attempted to flee, putting his hands in his pants. Despite being ordered to place his hands where police could see them, he refused to do so. Clearly, under these facts the police had a reasonable belief their safety was in jeopardy, and a limited search for weapons was warranted. Furthermore, this Court has held that when a police officer is confronted with someone who he reasonably believes is involved in narcotics traffic, a Terry pat-down frisk for protection of the officer is proper. Commonwealth v. Patterson, 405 Pa.Super. 17, 591 A.2d 1075 (1991) (taking judicial notice that drug dealers are likely to be armed and dangerous). Accordingly, we find appellant’s argument to be without merit.

Appellant next argues the seizure incident to the pat-down frisk was a violation of Article 1, section 8, of the Pennsylvania Constitution, which protects citizens against unreasonably searches and seizure. The officer conducting the protective Terry frisk lacked independent probable cause to remove the bag of drugs from appellant’s pocket because it was not in “plain view.” Furthermore, appellant argues Pennsylvania does not have a “plain touch” doctrine, see Commonwealth v. Marconi, 408 Pa.Super. 601, 597 A.2d 616 (1991), which is an extension of the “plain view” doctrine. Finally, although this Court recognized the “plain touch” doctrine in Commonwealth v. Johnson, 429 Pa.Super. 158, 631 A.2d 1335 (1993), appellant contends the case is not controlling as it was decided under the federal constitution and not the Pennsylvania Constitution which affords greater protection to individuals.

Recent case law has drawn an analogy between the warrantless seizure of contraband in plain view of a police officer conducting a Terry search and when an officer discovers the contraband through his sense of touch. Minnesota v. Dickerson, 508 U.S. -, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); Johnson, supra, 429 Pa.Super. at 158, 631 A.2d 1335. The “plain view” doctrine allows such a seizure if the contraband is observed by a police officer from a lawful vantage point, is in plain view and its 'incriminating character is immediately apparent. By analogy the United States Supreme Court in Dickerson, supra, and this Court in Johnson, supra, held:

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 warrantless seizure would be justified by the same practical considerations that inhere in the plain view context.

Id. at 166, 631 A.2d at 1339-40, citing Dickerson, supra (footnote omitted).

Here, the arresting officer testified his tactile impression combined with his years of training and experience as a police officer, in addition to the surrounding circumstances, led him to reasonably conclude that what he felt was a controlled substance (N.T., 8/10/93, pp. 38-40). “Where it is ‘immediately apparent’ from the tactile impression that the suspect possesses contraband on his person, a seizure of the contraband is justified.” Johnson, supra, citing Dickerson, supra. Accordingly, we find the seizure did not violate appellant’s rights under the fourth amendment.

Appellant further contends Johnson is not controlling since it was not decided under the Pennsylvania Constitution which requires this Court to reject the “plain touch” doctrine. Initially, we note that appellant’s reliance upon Marconi, supra, is misplaced. First, in deciding Marconi under the federal constitution, this Court acknowledged our State Constitution as well. Id. at 603, 597 A.2d 617 n. 1. Secondly, in Marconi, we determined “the minute amount of drugs that was found on Marconi’s person could not have been identified through the sense of touch.” Id. at 615, 597 A.2d at 623. Thirdly, this Court expressly overruled Marconi insofar as it is inconsistent with Dickerson. In the Interest of S.D., 429 Pa.Super. 576, 584, 633 A.2d 172, 176 n. 3 (1993).

After a thorough review of appellant’s brief, we find that it lacks, beyond bold assertions, any detailed analysis as to a distinction between the federal constitution and our state constitution in regard to the “plain touch” doctrine. In Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991), our Supreme Court delineated four aspects of any claimed distinction between the constitutions which must be analyzed in order to demonstrate why the Pennsylvania Constitution should be interpreted differently. Although appellant briefly has mentioned these aspects, he has failed to undertake any analysis of them. He simply argues Pennsylvania may adopt a state constitution which imposes greater limitations than those imposed by the federal constitution. Under these circumstances it would be inappropriate for this Court to conduct an in-depth analysis as to the distinction between the constitutions.

However, a cursory review of the doctrine reveals no greater privacy interests would be advanced for the citizen of this Commonwealth by holding Article 1, Section 8 of the Pennsylvania Constitution does not support the “plain touch” doctrine. In order for this doctrine to apply, an individual must already be lawfully stopped and subject to a lawful Terry frisk by the police officer. “Plain touch” merely permits the officer to invoke probable cause to search during this frisk as the result of his sense of touch coupled with the surrounding circumstances and his personal knowledge, experience and common sense. Rejecting this doctrine under the Pennsylvania Constitution would not prevent individuals from being stopped and frisked, nor would it eliminate any touching to which they are already subject. Rejection of the doctrine would merely require an officer to ignore that which, as the result of training, experience and common sense, is known to be contraband. The inherent protection within the doctrine is contained in the requirement that it must be “immediately apparent” the object felt is contraband. Accordingly, it is unnecessary to reject the “plain touch” doctrine to protect the privacy of the citizens of this Commonwealth, since the doctrine, by its own restrictions, provides that protection.

Judgment of sentence affirmed.

McEWEN, J., concurs in the result. Dissenting opinion by FORD ELLIOTT, J.

1 . 35 P.S. § 780-113(a)(16).

2 . Id., § 780-113(a)(30).

3 . Id., § 780-113(a)(32).

4 . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).