Com. v. Graham

• Decision Date: 22 October 1996
• Parties: COMMONWEALTH of Pennsylvania v. Durrell GRAHAM, Appellant.
• Court: Pennsylvania Superior Court

Page 132

685 A.2d 132

454 Pa.Super. 169

COMMONWEALTH of Pennsylvania v. Durrell GRAHAM, Appellant.

Superior Court of Pennsylvania.

Submitted June 10, 1996.

Filed Oct. 22, 1996.

Joseph P. Burt, Erie, for appellant.

Christian A. Trabold, Assistant District Attorney, Erie, for Commonwealth, appellee.

Before McEWEN, President Judge, and FORD ELLIOTT and OLSZEWSKI, JJ.

OLSZEWSKI, Judge.

Since the law in Pennsylvania is unsettled concerning the level of antecedent justification necessary to subject an arrestee's companion to a "pat-down" search, the opportunity to definitively address the issue in this case is welcomed.

On August 8, 1995, appellant Durrell Graham was convicted, after a non-jury trial, of possession and possession with intent to deliver 3.37 grams of crack cocaine. The Honorable Jess S. Juliante sentenced Graham to one to two years' imprisonment plus a $5,000 fine. Post-sentence motions were subsequently filed and denied, and this appeal follows wherein Graham claims that the trial court erred in failing to suppress the crack cocaine. ¹ In support of his claim, Graham contends that the stop and frisk, which resulted in the recovery of the illicit drugs, was violative of his rights under the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution.

On an appeal from a motion to suppress, we only review whether the record supports the trial court's factual findings and whether the trial court's legal conclusions drawn from the facts are in error. Commonwealth v. Medley, 531 Pa. 279, 282-84, 612 A.2d 430, 432 (1992). Instantly, the record supports the trial court's following findings:

[O]n July 18, 1994, at approximately 1:45 a.m., K-9 Officer Terry Dawley of the Erie Police Department was on routine patrol in the area of 23rd and German Streets with his dog[,] "Cujo." While on patrol, in this high crime, high drug-trafficking area[,] Officer Dawley noticed three (3) black males on the porch of the Gateway Day Care Center. Recognizing some of those individuals, he determined that there was an outstanding arrest warrant for one of the three, i.e, Mr. Ronnie Beason. He recognized the other individuals as [Graham] and Mr. Terry Jones. [ ] As he watched the three (3) men, they began walking in an easterly direction on East 23rd Street. At that time he yelled for them to stop in order to apprehend Mr. Beason. Upon catching up to the three, he told Mr. Beason that he had a warrant for him and directed him to lie down. As Officer Dawley was about to arrest Beason on the authority of the outstanding warrant, he looked at [Graham,] who was approximately three (3) feet from him. At the same time he noticed a bulge in [Graham's] front left pocket. Officer Dawley testified that[,] as this was occurring, he was concerned for his safety and the dangers involved in being in this particular area. It is also significant that at the time of this incident, Officer Dawley was alone.

In order to allay his concerns for safety, Officer Dawley patted [Graham] down and felt what he believed was money in the Defendant's front pocket. He asked [Graham] what was in his pocket and the defendant admitted that it was money. Officer Dawley then patted [Graham's] back pockets and, as he was doing so, shined a flashlight down to the pocket and noticed a Lifesaver Holes bottle which appeared to contain crack cocaine.

Opinion, 2/21/96 at 2-4 (citations omitted). Consequently, Officer Dawley seized the cocaine and arrested Graham.

Was Officer Dawley justified in conducting a pat-down search upon Graham? This question is not so easily answered. Both the United States and Pennsylvania Constitutions protect citizens from "unreasonable searches and seizures." U.S. Const. amend. IV; Pa. Const. art. 1, § 8. Thus, a seizure of the person without probable cause normally renders all evidence obtained as a result of the illegality inadmissible at trial. Commonwealth v. Elliott, 376 Pa.Super. 536, 544-45, 546 A.2d 654, 658 (1988), alloc. denied, 521 Pa. 617, 557 A.2d 721 (1989). Nevertheless, in limited circumstances, an individual may be stopped, briefly detained and frisked for investigatory purposes without probable cause. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969). In order for such a stop and frisk to be reasonable, however, the police conduct must meet two separate and distinct standards. Commonwealth v. Robinson, 410 Pa.Super . 614, 618-620, 600 A.2d 957, 959 (1991), alloc. denied, 533 Pa. 599, 617 A.2d 1273 (1992); Commonwealth v. Martinez, 403 Pa.Super. 125, 588 A.2d 513 (1991), alloc. denied, 530 Pa. 653, 608 A.2d 29 (1992). First, in order for the stop to be appropriate, the officer must have reasonable suspicion, based upon specific and articulable facts, that criminal activity may be afoot. Robinson, supra; Martinez, supra. Second, in order to justify the frisk, the officer must reasonably believe that the suspect is armed and dangerous. Robinson, supra; Martinez, supra.

Despite these standards, there is authority in Pennsylvania to find that law enforcement officers are per se authorized to conduct a pat-down search upon an arrestee's companions. In Commonwealth v. Chamberlain, 332 Pa.Super. 108, 480 A.2d 1209 (1984), this Court quoted with approval the following language from U.S. v. Berryhill, 445 F.2d 1189 (9th Cir.1971):

We think that Terry recognizes and common sense dictates that the legality of such a limited intrusion into a citizen's personal privacy extends to a criminal's companions at the time of arrest. It is inconceivable that a police officer effecting a lawful arrest of an occupant of a vehicle must expose himself to a shot in the back from [the suspect's] associate because he cannot, on the spot, make a nice distinction between whether the other is a companion in crime or a social acquaintance. All companions of the arrestee within the immediate vicinity, capable of accomplishing a harmful assault on the officer are constitutionally subjected to the cursory "pat-down" reasonably necessary to give assurance that they are unarmed.

332 Pa.Super. at 114, 480 A.2d at 1212 (emphasis added).

While the Supreme Court of Pennsylvania has acknowledged Berryhill's "automatic companion rule," the Court noted that the rule has drawn a large amount of criticism. Commonwealth v. Shiflet, 543 Pa. 164, 174 n. 4, 670 A.2d 128, 133 n. 4 (1995) (citing 3 LaFave, Search and Seizure § 9.4a at 511, n. 71 (2d ed.1987); Notes, The Automatic Companion Rule: An Appropriate Standard to Justify the Terry Frisk of an Arrestee's Companion?, 56 Fordham L.Rev. 917 (1988); Comment, United States v. Bell, Rejecting Guilt by Association in Search and Seizure Cases, 61 Notre Dame L.Rev. 258, 269 (1986); United States v. Flett, 806 F.2d 823 (8th Cir.1987); United States v. Bell, 762 F.2d 495 (6th Cir.1986)). After careful review, Berryhill 's critics must prevail in that the "automatic companion rule" is contrary to both the United States and Pennsylvania Constitutions. ²

The "automatic companion rule" grants authority to the police to stop and search an individual based solely upon his choice of company without requiring reasonable suspicion that either criminal activity is afoot or that the individual is armed and dangerous. As such, it is not harmonious with the state or federal constitution. First, the Supreme Court of the United States of America has rejected the notion that a brightline test may be applied to warrantless search cases. See Sibron v. New York, 392 U.S. 40, 59, 88 S.Ct. 1889, 1901, 20 L.Ed.2d 917, 932 (1968) ("The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case."). See also Terry, 392 U.S. at 29, 88 S.Ct. at 1884, 20 L.Ed.2d at 910.

Secondly, and more specific to the subject of searching an arrestee's companion, the Supreme Court has stated that "a person's mere propensity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person." Ybarra v. Illinois, 444 U.S. 85, 86, 100 S.Ct. 338, 339, 62 L.Ed.2d 238, 245 (1979). See also United States v. Di Re, 332 U.S. 581, 587, 68 S.Ct. 222, 225, 92 L.Ed. 210, 216 (1948) (the Court was "not convinced that a person, by mere presence in a suspected car, loses immunities from search of his person to which he would otherwise be entitled."). Further, our State Supreme Court has concluded that:

third parties (or their property) are generally not subject to searches merely because they are in the vicinity of an arrest unless there is probable cause or an articulable reasonable suspicion that the subject of the search is engaged in criminal activity or harbors a weapon.

Shiflet, supra at 170-72, 670 A.2d at 131. See also Commonwealth v. Eichelberger, 352 Pa.Super. 507, 508 A.2d 589 (1986), alloc. denied, 515 Pa. 619, 531 A.2d 427 (1987) (bystanders in location that is the subject of a lawful search warrant are not themselves subject to search absent probable cause or reasonable suspicion). In light of the above, a per se rule that a companion to an arrestee is subject to a "pat-down" search regardless of justification, effectively warrants "unreasonable searches" and is, thus, contrary to the Fourth Amendment of the United States Constitution and Article I, § 8 of the Pennsylvania Constitution.

Having rejected the "automatic companion rule," the question next becomes what is the appropriate manner of review for cases involving the stop and frisk of an arrestee's companion. As noted above, a proper stop and frisk must usually meet two separate and distinct standards. Robinson, supra at 618-20, 600 A.2d at 959. See Commonwealth v. Jackson, 451 Pa.Super. 129, 678 A.2d 798 (1996). The officer must have reasonable suspicion, based upon specific and articulable facts,...