B.C., In Interest of

• Decision Date: 10 October 1996
• Citation: 683 A.2d 919,453 Pa.Super. 294
• Parties: In the Interest of B.C. Appeal of B.C.
• Court: Pennsylvania Superior Court

Page 919

683 A.2d 919

453 Pa.Super. 294

In the Interest of B.C.

Appeal of B.C.

Superior Court of Pennsylvania.

Argued April 9, 1996.

Filed Oct. 10, 1996.

Paul M. George, Assistant Public Defender, Philadelphia, for appellant.

Mary L. Porto, Assistant District Attorney, Philadelphia, for Commonwealth, participating party.

Before CIRILLO, President Judge Emeritus, and BECK, J., and CERCONE, President Judge Emeritus.

CIRILLO, President Judge Emeritus:

Appellant, B.C., was adjudicated delinquent for possessing a controlled substance ¹ following the denial of his motion to suppress evidence of thirty-three packets of crack cocaine. B.C. was placed on intensive drug and alcohol probation. In this appeal, B.C. alleges that the trial court erred in denying his motion to suppress because: (1) there was insufficient justification for the initial Terry ² stop; (2) the "frisk" exceeded the scope permitted by the "plain feel" doctrine articulated in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); and (3) the Dickerson "plain feel" doctrine violates this Commonwealth's fundamental commitment to privacy under Article I, Section 8 of the Pennsylvania Constitution. We disagree with B.C. and, therefore, affirm.

At the outset, we reiterate that on review of an order denying a motion to suppress evidence, this court must determine whether the factual findings, inferences and legal conclusions of the trial court are supported by the record. Commonwealth v. Fitzpatrick, 446 Pa.Super. 87, 666 A.2d 323 (1995). We may only consider the evidence of the Commonwealth's witnesses, and so much of the evidence presented by the defendant, which remains uncontradicted when fairly read in the context of the record as a whole. Id. The suppression court has exclusive province to determine the credibility of witnesses and the weight accorded their testimony. Id. If the record supports the factual findings of the trial court, we are bound by such findings and may reverse only for an error of law. Id.

At the January 17, 1995 suppression hearing before the Honorable Sheldon J. Jelin, B.C. presented no evidence. The sole Commonwealth witness was Police Officer Jose Perez. The suppression court found Officer Perez' testimony credible and concluded that the officer had stated enough facts to warrant briefly detaining the suspect in order to investigate the situation, to conduct the pat down for weapons, and to seize the contraband.

The following uncontradicted facts of record support the suppression court's conclusion: At approximately ten o'clock a.m. on August 7, 1994, Officer Perez was on routine patrol in the area of Master and Myrtlewood Streets in Philadelphia. As he stopped his marked police vehicle at the intersection and looked down the 1400 Block of Myrtlewood Street, Officer Perez observed B.C. standing approximately 70 feet away on the sidewalk. Officer Perez watched B.C. remove a clear plastic sandwich bag that "had an orange-tint to it" from the waistband of his pants and show it to a woman companion. "The orange [tint]," the officer clarified, "came from the small packets inside the bag." Officer Perez testified that "when I saw the plastic baggie, from my experience I knew it to be narcotics, especially when I saw him retrieve it from his waistband." The officer then drove around the block, approached B.C., and conducted a pat-down search for weapons. During the pat-down, no weapon was found, however, when the officer reached the front area of B.C.'s waistband, he felt the bulge from the plastic bag. Officer Perez explained that when he felt something during a pat down, he would give a slight squeeze, and that "when you feel down for the baggie with the packets in there, it's like--just like a small bulge in there, which I felt several hundred times. So from my experience I knew what it was." Officer Perez then removed the baggie, which contained thirty-three orange-tinted packets of crack cocaine. Officer Perez testified that he was a four and one-half year veteran of the police force, and had participated in two hundred and sixty narcotics arrests in the previous year alone. The officer classified the 1400 block of Myrtlewood Street as a high drug-crime area, as he had made several drug-related arrests at the same location.

B.C. argues that the officer pointed to a very limited number of factors to support the decision to stop appellant. B.C. specifically claims that the officer did not see him conduct any kind of transaction, nor did the officer have any prior contact with appellant. B.C. also claims that simply because the area in which he was stopped was a "high crime area," the observation of the baggie alone was insufficient to create reasonable suspicion. The stop, he asserts, was unreasonable and, thus, unconstitutional.

As this court succinctly noted, "[i]t is hornbook law that the [F]ourth [A]mendment of the United States Constitution as well as Article I, § 8 of the Pennsylvania Constitution protect citizens from unreasonable searches and seizures." ³ Commonwealth v. Baer, 439 Pa.Super. 437, 440-41, 654 A.2d 1058, 1059 (1994). See also Commonwealth v. Reiss, 440 Pa.Super. 151, 655 A.2d 163 (1995). Warrantless searches and seizures are unreasonable per se, unless conducted pursuant to a specifically established and well-delineated exception to the warrant requirement. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). One such exception, the Terry "stop and frisk," permits a police officer to briefly detain a citizen for investigatory purposes if the officer "observes unusual conduct which leads him to reasonably conclude, in light of his experience, that criminal activity may be afoot." Fitzpatrick, 446 Pa.Super. at 91, 666 A.2d at 325 (citation omitted); Commonwealth v. Hicks, 434 Pa. 153, 158, 253 A.2d 276, 279 (1969).

In order to be constitutionally reasonable, the police officer must articulate specific facts which, "in conjunction with rational inferences deriving therefrom," would warrant the initial stop. Commonwealth v. Arch, 439 Pa.Super. 606, 612, 654 A.2d 1141, 1143 (1995) (quoting Commonwealth v. Prengle, 293 Pa.Super. 64, 68, 437 A.2d 992, 994 (1981)). Although the officer's conclusion cannot be based on an "unparticularized suspicion" or "hunch," Terry, 392 U.S. at 27, 88 S.Ct. at 1883, the reasonable suspicion which justifies the brief detention of a person is a less demanding standard and can be established from less reliable information than that required to show probable cause. Commonwealth v. Campbell, 418 Pa.Super. 391, 398-400, 614 A.2d 692, 696 (1992) (citing Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990)). See also United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). In deciding whether reasonable suspicion of criminal activity was present, courts must take into account "the totality of the circumstances--the whole picture." Campbell, 418 Pa.Super. at 399, 614 A.2d at 697 (citing United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981)). We do not view the situation as an ordinary citizen might, but instead "focus on the circumstances as seen through the eyes of the trained officer." Commonwealth v. Quiles, 422 Pa.Super. 153, 167, 619 A.2d 291, 298 (1993) (en banc ) (citation omitted). An officer who makes a valid investigatory stop may perform a limited search or "frisk" of the suspect for weapons, if he reasonably believes that his safety or the safety of others is threatened. Arch, 439 Pa.Super. at 612-14, 654 A.2d at 1144 (citing Terry, 392 U.S. at 27, 88 S.Ct. at 1883). See also Dickerson, supra. If either the search or the seizure is found to be unreasonable, however, the remedy is to exclude all evidence derived from the illegal governmental activity. Commonwealth v. Gibson, 536 Pa. 123, 638 A.2d 203 (1994).

The analysis of the totality of the circumstances surrounding an investigatory stop when the police officer observes citizens engaged in suspicious activity on public thoroughfares is a difficult one. Commonwealth v. Agnew, 411 Pa.Super. 63, 600 A.2d 1265 (1991). Although specifically dealing with probable cause, the Pennsylvania Supreme Court, in Commonwealth v. Lawson, 454 Pa. 23, 309 A.2d 391 (1973), enumerated some of the factors which should be considered, stating:

All of the detailed facts and circumstances must be considered. The time is important; the street location is important; the use of a street for commercial transactions is important; the number of such transactions is important; the place where items were kept by one of the sellers is important; the movement and manners of the parties are important.

* * * * * *

It is difficult to isolate any one fact or circumstance and assign to it a given weight.

Id. at 28-29, 309 A.2d at 394.

In Commonwealth v. Burnside, 425 Pa.Super. 425, 625 A.2d 678 (1993), this court found that the police had probable cause to arrest the defendant after they observed him in a "high drug area" holding small blue packets known for carrying drugs. The Burnside court stated that "while a particular type of container may have lawful purposes, the circumstances under which a trained narcotics detective views its use may be tantamount to a view of actual contraband." Id. at 430, 625 A.2d at 681. The court relied on the following facts to support its holding: the officer involved with the arrest was familiar with the area and knew it to be the site of prior drug transactions; the officer had made forty previous drug arrests; and, the officer testified that he knew the packets he observed were the type used by local drug dealers. Id. See also Commonwealth v. Brinkley, 423 Pa.Super. 289, 620 A.2d 1226 (1993) (officer had probable cause to arrest when he observed defendant holding a bag with white powder at eye level); Commonwealth v. Mallory, 418 Pa.Super. 614, 618, 614 A.2d 1174,...