Com. v. Canning

• Decision Date: 27 February 1991
• Docket Number: No. 48,48
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Richard CANNING, Appellant. Phila. 1988.
• Court: Pennsylvania Superior Court

Page 330

587 A.2d 330

402 Pa.Super. 438

COMMONWEALTH of Pennsylvania, Appellee, v. Richard CANNING, Appellant.

No. 48 Phila. 1988.

Superior Court of Pennsylvania.

Submitted Sept. 24, 1990.

Filed Feb. 27, 1991.

David S. Rudenstein, Philadelphia, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before POPOVICH, FORD ELLIOTT and MONTGOMERY, JJ.

MONTGOMERY, Judge.

Appellant Richard Canning was convicted in Philadelphia Municipal Court of possession of a controlled substance. He was sentenced to thirty days in the county jail. No direct appeal was filed. Appellant then filed a petition under the Post Conviction Hearing Act, ¹ alleging denial of the right to appeal. Appellant was granted permission to appeal nunc pro tunc. This appeal, raising only the issue of whether the Court of Common Pleas erred in reversing the Municipal Court's suppression order, followed. Finding no error, we affirm.

On July 5, 1985, Philadelphia Police Officer Robert McCarthy responded to a radio call to investigate complaints that a stranger was pacing back and forth on a neighbor's porch. When Officer McCarthy arrived, he observed appellant pacing back and forth on the front porch of 4420 Howell Street. Appellant was wearing no shirt, shoes, or socks. When Officer McCarthy asked him what he was doing there, appellant replied that he was looking for his car. The residents of the home advised Officer McCarthy that they did not know appellant and had not realized he was on their porch. Because appellant appeared intoxicated and confused and had an odor of alcohol on his breath, Officer McCarthy decided to transport appellant to the police station for public intoxication. Before placing appellant in the police wagon, the officer searched appellant and discovered two packets, one containing methamphetamine and the other containing marijuana, in appellant's pants pocket. Appellant was then charged with possession of controlled substances.

Appellant filed a motion to suppress the drugs which was granted by the Municipal Court. The Commonwealth appealed that order to the Court of Common Pleas and it was reversed. Appellant was then tried and convicted in Municipal Court. On this appeal, appellant contends that the Court of Common Pleas erred in reversing the suppression order.

Appellant first argues that the search was outside the permissible scope of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry, the United States Supreme Court articulated a police officer's "narrowly drawn" authority to conduct a reasonable search for weapons for the officer's protection. Id. at 27, 88 S.Ct. at 1883. The officer may pat down or frisk a suspect for weapons only if he reasonably believes that criminal activity is afoot, and that the suspect may be armed and dangerous. Id. The officer must be able to articulate specific facts to justify his belief that the suspect may be armed and dangerous. Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). Moreover, the scope of a Terry search is limited. Because the "sole justification of the search ... 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 hidden instruments for the assault of the police officer." Terry v. Ohio, supra, 392 U.S. at 29, 88 S.Ct. at 1884. In the instant case, the officer exceeded the scope of a Terry search. In order to reach into a suspect's pockets during a Terry search, the officer would have to feel something that appears to be a weapon. "Nothing in Terry can be understood to allow ... any search whatever for anything but weapons." Ybarra v. Illinois, supra, 444 U.S. at 93-94, 100 S.Ct. at 343. Herein, Officer McCarthy, did not articulate any specific facts to justify a belief that appellant might be armed and dangerous nor did he confine his search to items that may have reasonably appeared to be weapons. As noted by the Municipal Court judge, the items retrieved from appellant's pocket, two small plastic bags, one containing a white powder and one containing a green weed, do "not feel like a gun, knife, or a blackjack or anything else." N.T., December 12, 1985, p. 12. Thus, the search cannot be justified under Terry.

The search can be justified, however, as a search incident to an arrest. Commonwealth v. Plusquellic, 303 Pa.Super. 1, 449 A.2d 47 (1982) (seizure proper if incident to an arrest). At the time of the incident, the Rules of Criminal Procedure provided that in non-traffic summary cases, a defendant could be arrested without a warrant when such arrest is necessary in the judgment of the police officer, the officer is in uniform or displays a badge or other sign of authority and such arrest is authorized by law. Pa.R.Crim.P. 51 A(3)(c). ² Under the Crimes Code, a person is guilty of a summary offense if he appears in a public place under the influence of alcohol to the degree that he may endanger himself or others or annoy persons in his vicinity. 18 Pa.C.S. § 5505. See, Commonwealth v. Shillingford, 231 Pa.Super. 407, 411 n. 6, 332 A.2d 824, 826 n. 6 (1975) (custodial arrest permissible for public drunkenness). To determine the validity of the search under this standard, we must only determine whether the officer had probable cause for the arrest. Probable cause is found if the facts and...