Com. v. Johnson

• Decision Date: 30 September 1993
• Citation: 429 Pa.Super. 158,631 A.2d 1335
• Parties: , 62 USLW 2247 COMMONWEALTH of Pennsylvania, Appellant, v. Dwight JOHNSON, Appellee.
• Court: Pennsylvania Superior Court

Page 1335

631 A.2d 1335

429 Pa.Super. 158, 62 USLW 2247

COMMONWEALTH of Pennsylvania, Appellant, v. Dwight JOHNSON, Appellee.

Superior Court of Pennsylvania.

Argued Jan. 5, 1993.

Filed Sept. 30, 1993.

Joseph J. Mittleman, Asst. Dist. Atty., Media, for Com., appellant.

Dennis Woody, Media, for appellee.

Before CIRILLO, BECK and KELLY, JJ.

KELLY, Judge:

In this opinion we are called upon to determine whether a police officer's tactile impression of contraband during a valid Terry stop was sufficient to constitute probable cause to arrest. We hold that it was, and under the standard recently announced by the United States Supreme Court in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (No. 91-2019, slip opinion filed June 7, 1993), we reverse.

The facts and procedural history of this case may be summarized as follows. In order to execute a warrant for the arrest of Derrick Griffin, Chester Police officers awaited Griffin's arrival at a Howard Johnson's restaurant where, the police were informed, Griffin was scheduled to participate in a drug transaction. One police officer, who had known Griffin by sight, observed in an undercover capacity. Meanwhile, other officers conducted surveillance of the area, awaiting Griffin's arrival.

Griffin arrived, as a passenger in a car driven by Dwight Johnson, appellee, who backed his car into a spot in the parking lot. Appellee turned the lights off and remained in the car as Griffin exited and walked toward the Howard Johnson's entrance. Police officers apprehended Griffin and the undercover police officer to maintain that officer's undercover status. No controlled substances were found on Griffin's person. Observing appellee in the car, one of the officers, Officer Sendek, approached appellee, ordering him not to move. Officer Sendek then frisked appellee. Officer Sendek later explained:

Q. Conduct a pat down of him?

A. I crunched his clothes.

Q. Okay. What did you discover upon crunching his clothes as you say?

A. In--I did a squeeze of his entire body and then when I went into--in his crotch area, I--crotch area I could--I though I felt a controlled substance there.

Q. What makes you think that? What was it you felt in particular that led you to believe it was a controlled substance?

A. When I went under--in his testicle area, I felt something crunchy.

Q. So, you felt the area between his testicles and his anus then.

A. Yes, sir.

Q. And what was in that--what was the feel of that area? What did you--what did you note?

A. Well, as many crotches I felt, it was something that normally isn't there.

Q. All right. What was it? Was it--was there a substance there then?

A. I felt it was a controlled substance.

* * * * * *

THE COURT:

That was beautifully phrased.

* * * * * *

BY MR. LAURIE:

Q. But there was noticeably something that you know is not there ...

A. Not supposed to be there, yes.

Q. Physiologically, is that correct?

A. Yes.

Q. All right. And the substance that you're describing, can you tell us what it felt like? Was it a hard substance, soft? Did it have a consistency to it? What was it?

A. Something--something granular.

Q. All right. Have you felt such a substance prior to this occasion?

A. Quite a few occasions, yes, sir.

Q. Can you estimate how many times you--you've handled chunky, granular substances that turned out to the [sic] controlled substances?

A. I'd say at least 50 times, sir, in the past four years.

Q. And at that time--after feeling this substance, did you confront this to the Defendant Johnson? Say anything to him at that time?

A. I honestly don't remember what I said to him, sir.

Q. What did you do then?

A. I told Sgt. Butler, Wendell Butler, "I think he's got something in his crotch."

* * * * * *

Q. Okay. Have you conducted these types of pat down searches and I think you did crotch searches in the past?

A. Yes, we have, sir.

Q. Have you had occasion, on these--on these other searches to, in fact, touch--occasion to touch testicles in the process of conducting such a search?

A. I--I feel--I feel a lot of guys' crotches, yes.

Q. Okay. Did this feel like a testicle?

A. No. It didn't. No, no--the ...

Q. Very good.

A. The cocaine did not feel like anyone's testicle.

N.T. November 21, 1991 at 14-16; 18-19.

After feeling the crunchy, granular substance in appellee's crotch, Officer Sendek concluded that appellee possessed illegal narcotics. Appellee was then taken to the police station where he was asked to remove his clothing. The search at the police station revealed a package of cocaine in appellee's crotch.

Appellee was arrested and charged with possession and possession with intent to deliver a controlled substance. Appellee moved to suppress the cocaine found in his crotch. The Court of Common Pleas conducted a hearing and ordered the evidence suppressed. The Commonwealth timely appealed. ¹

On appeal, the Commonwealth presents the following issues for our review:

WHETHER THE POLICE HAD PROBABLE CAUSE TO ARREST THE DEFENDANT WHERE, DURING A PAT-DOWN FRISK OF THE DEFENDANT, THE POLICE OFFICER FELT AN OBJECT WHICH HE KNEW COULD NOT BE PART OF THE DEFENDANT'S BODY AND WHICH THE OFFICER BELIEVED WAS COCAINE, THE OFFICER HAVING FELT SUCH AN OBJECT NUMEROUS TIMES BEFORE?

Commonwealth's Brief at 4.

When reviewing the Commonwealth's appeal from an adverse decision of the suppression court, we must consider "only the evidence of the defendant's witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted." Commonwealth v. Smith, 396 Pa.Super. 6, 8, 577 A.2d 1387, 1388 (1990). When the evidence supports the trial court's findings of fact, we may reverse only when the legal conclusions drawn from these facts are erroneous. Id. It is the sole province of the suppression court, as finder of fact, to weigh the credibility of the witnesses. Id. Thus, the fact finder is free to believe all, part or none of a witnesses' testimony.

Commonwealth v. Quiles, 422 Pa.Super. 153, 154, 619 A.2d 291, 292 (1993) (en banc ).

Recently, the United States Supreme Court addressed itself to the precise issue before this Court today. In Minnesota v. Dickerson, supra, the Supreme Court was asked to consider whether and to what extent an officer's tactile impressions may be used to justify the search of an individual whom the officer has detained pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Thus, the Court explained:

The Fourth Amendment, made applicable to the State by way of the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643[, 81 S.Ct. 1684, 6 L.Ed.2d 1081] (1961), guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Time and again, this Court has observed that searches and seizures " 'conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well delineated exceptions.' " Thompson v. Louisiana, 469 U.S. 17, 19-20[, 105 S.Ct. 409, 410, 83 L.Ed.2d 246] (1984) (per curiam ) (quoting Katz v. United States, 389 U.S. 347, 357[, 88 S.Ct. 507, 514, 19 L.Ed.2d 576] (1967) (footnotes omitted)); Mincey v. Arizona, 437 U.S. 385, 390[, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290] (1978); see also United States v. Place, 462 U.S. 696, 701[, 103 S.Ct. 2637, 2641, 77 L.Ed.2d 110] (1983). One such exception was recognized in Terry v. Ohio, 392 U.S. 1[, 88 S.Ct. 1868, 20 L.Ed.2d 889] (1968), which held that "where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot" the officer may briefly stop the suspicious person and make "reasonable inquiries" aimed at confirming or dispelling his suspicions. Id., at 30; see also Adams v. Williams, 407 U.S. 143, 145-146[, 92 S.Ct. 1921, 1922-23, 32 L.Ed.2d 612] (1972).

Terry further held that "when an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others," the officer may conduct a patdown search "to determine whether the person is in fact carrying a weapon." 392 U.S. at 24. "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...." Adams, supra, [407 U.S.] at 146. Rather, a protective search--permitted without a warrant and on the basis of reasonable suspicion less than probable cause--must be strictly "limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby." Terry, supra, [392 U.S.] at 26; see also Michigan v. Long, 463 U.S. 1032, 1049, and 1052, n. 16 (1983); Ybarra v. Illinois, 444 U.S. 85, 93-94[, 100 S.Ct. 338, 343, 62 L.Ed.2d 238] (1979). If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed. Sibron v. New York, 392 U.S. 40, 65-66[, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917] (1968).

* * * * * *

We have already held that police officers, at least under certain circumstances, may seize contraband detected during the lawful execution of a Terry search.... The Court in [Michigan v. Long, 463 U.S. 1032 (1983) ] justified this ... holding by reference to our cases under the "plain-view" doctrine. See Long, supra, at 1050; see also United States v. Hensley, 469 U.S. 221, 235[, 105 S.Ct. 675, 683, 83 L.Ed.2d 604] (1985) (upholding plain-view seizure in context of Terry stop). Under that doctrine, if police are lawfully in a position from which they view and object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may...