Commonwealth v. Grahame

OPINION BY

KLEIN, J.:

¶ 1 Lekeyia Grahame appeals from the judgment of sentence entered against her following a bench trial on September 29, 2006. Grahame was found guilty of simple possession and possession of drug paraphernalia and was sentenced to 4 years’ probation. Grahame argues that the trial court erred in denying her motion to suppress because there was no valid consent to search her pocketbook, and no exigent circumstances existed to justify a warrantless search.¹ After a thorough review of the record, we affirm.

¶ 2 Police officers conducted a consensual search of a house in which an informant had just purchased drugs. During the search, an officer saw the defendant sitting on a couch with a large pocketbook at her feet. Since the experienced officer knew that guns are frequently found in drug houses, she was concerned that there may be a gun in the large pocketbook. While doing a basic check in the main compartment of the pocketbook for a gun, she discovered illegal drugs.

¶ 3 Generally, consent to search a house does not extend to allowing the search of a guest merely sitting in the house. However, there are several distinguishing factors in this case. The defendant had a large bag, easily capable of holding a gun. Also, a few minutes prior to the search the seller emerged from the house after selling drugs to a confidential informant. Drugs and guns frequently go hand in hand. The officer had a right to conduct a minimally intrusive search for weapons in order to protect herself. The dealer could have easily dropped a gun in the large bag on the way out of the house. This is akin to a Terry² stop, except instead of patting down someone’s body to check in pockets, the officer opened and checked a woman’s handbag in her immediate control.

¶ 4 A full discussion follows.

FACTS

¶ 5 On November 13, 2005 at approximately 6:00 p.m., Officer Renee Russell observed D.W., a juvenile, enter a home at 126 North Salford Street. On Officer Russell’s order, a confidential informant (Cl) walked to 126 North Salford Street. D.W. exited the home and spoke with the Cl briefly. The informant gave D.W. prerecorded buy money in exchange for two packets of crack cocaine. The informant returned to another officer, and gave him the drugs; D.W. went into the house. Half an hour later, D.W. walked out of the house and back-up officers arrested him. After a search of D.W., officers found the pre-recorded buy money and two packets of crack cocaine.

¶ 6 Officer Russell knocked on the door of 126 North Salford Street and asked to speak to D.W.’s legal guardian. His mother, Virginia Walker, came to the door. Officer Russell told Ms. Walker that she suspected her son of dealing drugs from the house. Officer Russell asked Ms. Walker to sign a consent form to search the home, believing Ms. Walker had authority to do so. When Officer Russell entered the home she observed Grahame sitting on a couch in the living room with a large pocketbook lying at her feet. From her experience, the officer was concerned that there may be a gun in the pocketbook because guns are frequently found in drug homes. Officer Russell asked Grahame if the bag was hers and Grahame replied that it was. Looking for weapons, Officer Russell opened the large bag. While searching the main portion of the bag, the officer found a clear plastic bag containing marijuana, a brown bag containing $900.00 in cash, and a Ziploc container with new and unused plastic packets.³ Grahame was charged with possession with intent to deliver, simple possession, possession of drug paraphernalia and criminal conspiracy to commit possession with intent to deliver.

¶ 7 On September 29, 2006, Grahame moved to suppress the evidence found in the pocketbook. After oral argument, the court denied Grahame’s motion. After a bench trial, Grahame was convicted of simple possession and possession of drug paraphernalia. On November 9, 2006, Grahame was sentenced to two years’ probation on the charge of simple possession and a consecutive two years’ probation on the drug paraphernalia charge. Grahame appeals, arguing that the police did not have permission to search the home and there was no reasonable suspicion to search her pocketbook. We disagree and affirm.

¶8 Grahame argues that Ms. Walker had no authority to consent to a search of the house and therefore Officer Russell had no right to search the home. “A search warrant is not required if the search has been with voluntary consent.” Commonwealth v. Barnette, 760 A.2d 1166, 1170 (Pa.Super.2000). Our Supreme Court has stated:

A third party with apparent authority over the area to be searched may provide police with consent to search. Third party consent is valid when police reasonably believe a third party has authority to consent. Specifically, the apparent authority exception turns on whether the facts available to police at the moment would lead a person of reasonable caution to believe the consenting third party had authority over the premises.

Commonwealth v. Strader, 593 Pa. 421, 931 A.2d 630, 634 (2007).

¶ 9 Instantly, Officer Russell saw D.W. go in and out of 126 North Salford Street, in the midst of conducting hand-to-hand drug transactions. Also, D.W. remained in the house for about half an hour after the sale of drugs to the Cl. When the officer asked to speak to D.W.’s guardian, Ms. Walker identified herself as his mother. Officer Russell asked Ms. Walker to sign a consent to search warrant. Ms. Walker signed the form and invited the officer inside the house. These facts were enough to warrant a reasonable person to believe Ms. Walker had apparent authority to consent to a search of the home. Strader, supra.

¶ 10 Next, Grahame argues that the officer had no reasonable suspicion to search her pocketbook. Specifically, Grahame contends the officer lacked reasonable suspicion where Grahame was not present during the drug transaction. This argument also lacks merit.

¶ 11 In order to search for a weapon a “police officer must have a ‘reasonable, articulable suspicion’ that criminal activity may be afoot and that the suspect may be armed and dangerous.” In re N.L., 739 A.2d 564, 567 (Pa.Super.1999). In Commonwealth v. Thompson, 989 A.2d 371 (Pa.Super.2007), this Court determined that an officer’s experience and knowledge is an important factor in establishing reasonable suspicion of the existence of a weapon.

The trial court ... noted the particular relevance of [the defendant] reaching into his pocket when specifically directed by Officer Fones to keep his hands in view, leading Fones to believe [the defendant] may have been reaching for a gun. The trial court found that these facts, in light of Officer Fones’ experience as a narcotics officer, his knowledge of [the defendant’s] prior drug convictions, and his knowledge that drug dealers often arm themselves, gave Fones “more than a hunch that the subject was involved in illegal activities.” The record supports this finding; Officer Fones did articulate specific facts from which he could reasonably infer that his safety was compromised.

Id. (emphasis added).

¶ 12 In Commonwealth v. Davidson, 389 Pa.Super. 166, 566 A.2d 897 (1989), this Court held that a search of a person’s handbag is justified where the search is designed to discover guns or other weapons. In Davidson, officers stopped a car for traffic violations, arrested the driver and found drugs on his person. The defendant was a passenger in the car. The officers volunteered to drive the defendant to the police station because the driver’s car had been impounded. During the drive down to the police station the police secured the defendant’s purse for their own safety. Once at the station, the defendant asked for the purse back. An officer searched the bag before giving it back to the defendant and found weapons and drugs.

¶ 13 This Court determined that “the sole justification of the search in the present situation 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 instruments for the assault of the police officer.” Id. at 899 (citations omitted)(emphasis in original). This Court also recognizes that a pocketbook “is the most likely place for a woman to conceal a weapon.” Id. Finally, this Court noted that when drugs are involved, “[t]he officer’s subsequent actions should be measured against a background that includes the violent nature of narcotic crimes. To substantial dealers in narcotics, firearms are as much tools of the trade as are most commonly recognized articles of narcotic paraphernalia.” Id. at 900.

¶ 14 We also note that while the Pennsylvania Constitution offers greater privacy rights, it is not unlimited. Our Supreme Court has determined that, “we are to construe the Pennsylvania constitution as providing greater rights to its citizens than the federal constitution ‘only where there is a compelling reason to do so.’” Commonwealth v. Crouse, 729 A.2d 588 (Pa.Super.1999)(quoting Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921, 926 (1985)).

¶ 15 The Crouse Court held that “[w]here the safety of the arresting officers can be jeopardized, their safety outweighs the minimal intrusion a properly executed sweep may have upon an individual’s privacy. Thus, we see no compelling reason to ... provide greater rights in this context at the expense of the safety of our state law enforcement personnel.” Id. at 598. Additionally, the Court stated, “[t]o expect the officers to wait for an overt act of hostility before they are allowed to try to neutralize the threat of physical harm is simply unwise especially where they are in a known drug-trafficking location which also happens to be the dealer/arrestee’s home turf.” Id.

¶ 16 Here, Officer Russell had articula-ble facts that drug activity was taking place inside 126 North Salford Street. Not only was this a potential drug location, but also the dealer’s “turf,” which a reasonable officer should recognize as a potential threat on their safety as they are entering an adversarial environment. Crouse, supra. Officer Russell viewed a large handbag at the feet of Grahame and asked if it belonged to her. She opened the large bag to conduct a basic search for weapons. Grahame presents no evidence that the officer went beyond the minimally intrusive search in an effort to see if there was a gun in Grahame’s bag. At the suppression hearing, Officer Russell testified that she felt that a concealed weapon may have been in Grahame’s large pocketbook, and may have compromised her safety. She stated she searched the bag “[b]e-cause the drugs was [sic] coming out of the property[.] The boy had drugs on him and drugs and guns go hand-in-hand.” (N.T. Suppression Hearing, 9/29/06, at 13.) Officer Russell appropriately took steps to neutralize a potentially dangerous situation and therefore, we find she had reasonable suspicion to search Grahame’s pocketbook. Davidson, supra.

¶ 17 Judgment of sentence affirmed.

¶ 18 KELLY, J., files a Dissenting Opinion.

1 . Our standard of review of a denial of suppression is whether the record supports the trial court’s factual findings and whether the legal conclusions drawn therefrom are free from error. Our scope of review is limited; we may consider only the evidence of the prosecution 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 record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts. Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa.Super.2002) (citations omitted).

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

3 . Grahame does not dispute that the discovery of the drugs was incident to the search for a gun.