Com. v. Graham

• Decision Date: 22 December 1998
• Citation: 721 A.2d 1075,554 Pa. 472
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Durrell GRAHAM, Appellant.
• Court: Pennsylvania Supreme Court

554 Pa. 472

721 A.2d 1075

COMMONWEALTH of Pennsylvania, Appellee, v. Durrell GRAHAM, Appellant.

Supreme Court of Pennsylvania.

Argued September 18, 1997.

Decided December 22, 1998.

Joseph P. Burt, Erie, for Durrell Graham.

Joseph P. Conti, Christian A. Trabold, Erie, for Com.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.

OPINION ANNOUNCING JUDGMENT OF THE COURT

NIGRO, Justice.

This is an appeal from an Order of the Superior Court affirming Appellant's sentence for Possession and Possession With Intent to Deliver narcotics. The issue in this appeal is whether evidence seized from Appellant should be suppressed. Because we find it should, we reverse.

The facts of this case as found by the trial court established that on July 18, 1994, at approximately 1:45 a.m., K-9 Officer Terry Dawley of the Erie Police Department was alone, on routine patrol in the area of 23rd and German Streets with his dog "Cujo." N.T. 6/26/95. This area was known to Officer Dawley as a high crime, high drug-trafficking area. Officer Dawley noticed three black males on the porch of the Gateway Day Care Center. Recognizing those individuals, he recalled that there was an outstanding arrest warrant for one of the three, a Mr. Ronnie Beason. He recognized the other two as Appellant and Mr. Terry Jones. As he watched the three men, they began walking in an easterly direction on East 23rd Street. Officer Dawley then yelled for them to stop in order to apprehend Mr. Beason. When they complied, the Officer told Mr. Beason that he had a warrant for him and directed him to lie down. Officer Dawley then looked at Appellant, standing approximately three feet from him, and noticed a bulge in his front left pocket. In order to allay his concerns for safety, Officer Dawley patted Appellant's front and felt what he believed, and Appellant confirmed, to be money in his front pocket. Officer Dawley then patted Appellant's back pockets and felt what he believed was a Lifesavers Holes container. He shined a flashlight down into the pocket and noticed a Lifesavers Holes container which appeared, and was later determined to contain, 3.37 grams of crack cocaine.

Following arrest, Appellant filed a Motion to Suppress which was denied by the trial court.

On August 8, 1995, following a non-jury trial, Appellant was convicted of Possession and Possession With Intent to Deliver 3.37 grams of crack cocaine. The Superior Court affirmed. Appellant then filed a Petition for Allowance of Appeal with this Court claiming the seizure of crack cocaine from his back pocket exceeded the scope of the search permitted under the Fourth Amendment to the United States Constitution, and Article I, Section 8 of the Pennsylvania Constitution. We granted allocatur to determine whether the Superior Court properly affirmed the trial court's denial of Appellant's Motion to Suppress.

The standard of review for the denial of a motion to suppress evidence is firmly established. When deciding a motion to suppress, the trial court must make findings of fact and conclusions of law determining whether evidence was obtained in violation of a defendant's rights. Commonwealth v. Hubble, 509 Pa. 497, 530, 504 A.2d 168, 185 (1986). The burden of proof that a defendant's rights were not violated lies with the Commonwealth. Thus, when reviewing the suppression court's denial of a defendant's motion, we consider only the evidence of the prosecution, and so much of the evidence for the defense that remains uncontradicted. If this evidence supports the factual finding, we may only reverse if the legal conclusions drawn therefrom are in error. Commonwealth v. Cortez, 507 Pa. 529, 532, 491 A.2d 111, 112 (1985) (citation omitted), cert. denied, 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297, (1985); Commonwealth v. Slaton, 530 Pa. 207, 208, 608 A.2d 5 (1992)(in reviewing a suppression court's ruling, we are bound by those factual findings of the suppression court which are supported by the record).

The first step in our analysis is to determine whether Officer Dawley was justified in conducting a Terry frisk of the Appellant.

In Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276, (1969), this Court set out the requirements for a Terry frisk as follows:

[e]ven if probable cause to arrest is absent, the police officer may still legitimately seize a person . . . and conduct a limited search of the individual's outer clothing in an attempt to discover the presence of weapons which might be used to endanger the safety of the police officer and others, if the police officer observes unusual and suspicious conduct on the part or the individual seized which leads him to reasonably conclude that criminal activity may be afoot and that the person with whom he is dealing may be armed and dangerous.

Hicks, 434 Pa. at 158-59, 253 A.2d at 279. In Commonwealth v. Pinney, 474 Pa. 210, 378 A.2d 293 (1977), the Supreme Court further outlined the requirements for a Terry search, explaining it is justified:

... on the ground that it protects a police officer's safety. The United States Supreme Court was careful to point out, however, in both Terry and the companion case of Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), that in the case of a self-protective search for weapons, a police officer must be able to point to particular facts from which he could reasonably infer that the individual was armed and dangerous.

Pinney, 474 Pa. at 216, 378 A.2d at 296.

Applying the stop and frisk concept outlined by Terry, and adopted by this Court in Hicks, to the instant case, we note that Officer Dawley was alone, late at night, with three individuals. Further, in order to effectuate the arrest of Ronnie Beason, Officer Dawley had to turn his back on Appellant. At that point, the officer, noticing a bulge in Appellant's front pants pocket, feared for his safety. On these facts, we find Officer Dawley reasonably concluded that Appellant was armed, and criminal activity was afoot, and therefore conducted a lawful pat-down search for weapons.¹

Having determined Officer Dawley was justified in performing a pat-down search of Appellant for his own safety, we next examine Appellant's contention that Officer Dawley exceeded the scope of a permissive pat-down. Under Pennsylvania caselaw, the police may conduct "a limited search of an individual's outer clothing in an attempt to discover the presence of weapons which may be used to endanger the safety of police or others." Commonwealth v. Hicks, 434 Pa. at 158, 253 A.2d at 279 (citing Terry, 392 U.S. at 20, 88 S.Ct. at 1879). See also Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972)(the purpose of this limited search is not to discover evidence of crime but to allow the officer to pursue his investigation without fear of violence). In Pinney, the Court explained that although Terry justifies a search of outer clothes, "any `search' of articles discovered as a result of the pat-down must also be justified by the circumstances which give rise to the original interference." Pinney, 474 Pa. at 216,378 A.2d at 296 (citing Terry, 392 U.S. at 19-20, 88 S.Ct. at 1879). See also Commonwealth v. Canning, 402 Pa.Super. 438, 440, 587 A.2d 330, 331 (1991)(agreeing with Terry that because the sole justification for the search is the protection of the officer, it must be confined in scope to a search for weapons).

In Pinney, police officers approached three individuals who matched the description for suspects in a recent homicide. After the three men produced identification inconsistent with the names of the murder suspects, one of the officers conducted a pat-down search and felt a bulge in defendant's pocket which the officer testified might have been a small automatic weapon. After the officer ordered the defendant to empty his pocket, the bulge was revealed to be a plastic bag containing marijuana and six foil packets containing diamphetamine tablets. The Commonwealth argued that the search of the defendant fell under the ambit of Terry. Concluding that the police officer's search of appellant was unjustified from its inception, the Court in Pinney stated:

[w]e need not address the second issue which Terry v. Ohio would otherwise present whether the police officer's further examination of the plastic bag and foil wrappers, after it had become obvious that this "bulge" in appellant's coat was not a weapon, was unconstitutional in that the search was not reasonably related in scope to the circumstances which justified the governmental intrusion in the first place. See Commonwealth v. Freeman, 222 Pa.Super. 178, 293 A.2d 84, 86 (1972).

Pinney, 474 Pa. at 217, 378 A.2d at 297.

We have long accepted the principles of Terry and its companion case Sibron, that if the protective search goes beyond that which is necessary to determine whether the suspect is armed, it is no longer valid, and its fruits will be suppressed. Terry, 392 U.S. at 29, 88 S.Ct. at 1884; Sibron, 392 U.S. at 65-66, 88 S.Ct. at 1904. See also Commonwealth v. Norris, 498 Pa. 308, 316, 446 A.2d 246, 249 (1982); Pinney, 474 Pa. at 217,378 A.2d at 296; Hicks, 434 Pa. at 158,253 A.2d at 279. Therefore, where the police extend a frisk beyond Terry's limited purpose, the Commonwealth needs a separate exception to justify the search and any subsequent seizure of an individual's personal property.

In the case at bar, Officer Dawley's pat-down of Appellant immediately relieved his fear that Appellant was not carrying a weapon. At the suppression hearing, Officer Dawley described his reaction to seeing a bulge in Appellant's pocket:

A. I patted the bulge, and it felt like money. I asked Durrell [the Appellant] if it was money, and he said it was.

Q. All right. After that what did you do?

A. I continued to pat Durell. [sic] I went around to the rear of him and patted his back pockets. In his right rear pocket I felt what I believed to be a

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