Com. v. Marconi

• Court: Superior Court of Pennsylvania
• Writing for the Court: POPOVICH; KELLY; KELLY; Powell
• Citation: 408 Pa.Super. 601,597 A.2d 616
• Decision Date: 16 October 1991
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Robert MARCONI, Appellee.

Page 616

597 A.2d 616 408 Pa.Super. 601 COMMONWEALTH of Pennsylvania, Appellant,
v.
Robert MARCONI, Appellee. Superior Court of Pennsylvania. Argued April 24, 1991.
Filed Aug. 23, 1991.
Reargument Denied Oct. 16, 1991.

[408 Pa.Super. 603] Ann Osborne, Asst. Dist. Atty., Media, for Com., appellant.

Arthur T. Donato, Jr., Media, for appellee.

Page 617

David M. McGlaughlin, Philadelphia, for amicus curiae, Pennsylvania Ass'n of Defense Lawyers.

Before KELLY, POPOVICH and HOFFMAN, JJ.

POPOVICH, Judge:

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. CONST. amend. IV. ¹ Today, in light of this Constitutional mandate, we are asked to balance the individual's right to liberty against the societal need for police authority. In so doing, we must determine whether a Terry ² frisk, which produced contraband, constituted a reasonable search and seizure within the perimeters of the above provision.

[408 Pa.Super. 604] The appellee in this case, Robert Marconi, filed a motion to suppress evidence that he claimed was illegally procured during a cursory pat-down for weapons. Before us is the Commonwealth's appeal from the final order entered in the Court of Common Pleas of Delaware County granting Marconi's motion. Following review, we affirm.

The trial court has provided us with its findings of fact. After an independent reading of the suppression hearing notes of testimony, we conclude that the trial court's statement is adequately supported by the record. Thus, we adopt its recitation for purposes of appeal. We have added citations to the record and elaborations, where necessary, in footnotes.

1. On August 18, 1989 at approximately 7:15 p.m., Sgt. Charles Palo of the Ridley Township Police Department was on patrol duty in plain clothes in an unmarked vehicle. [N.T., July 11, 1990, at 7]

2. Officer Palo has been a police officer for 12 years and is qualified as an expert in narcotics investigation. [ Id. at 6-7]

3. While in the vicinity of the 600 block of South Avenue in Ridley Township, Sgt. Palo observed a 1982 Cadillac automobile pull into the parking lot of Our Lady of Lourdes Church and School which abuts South Avenue. [ Id. at 8] The church and school were closed at that time. [Id.] Officer Palo then pulled his vehicle into a parking lot across the street from the subject Cadillac automobile and parked in an area approximately 75 to 100 feet away from the Cadillac automobile. [ Id. at 9] There had been numerous previous acts of vandalism at the school and Sgt. Palo decided to observe the [...] Cadillac [...] so as to determine why [it] had parked in the school parking lot. [Id.] The weather was clear and there was daylight at the time. [Id.]

4. Sgt. Palo observed the driver of the subject vehicle, defendant Robert Marconi, exit from the driver's side of the [car] and begin to vomit. [ Id. at 10] The defendant then walked to the passenger side of the vehicle where [a] female passenger exited[.] [She] entered the driver's side [408 Pa.Super. 605] of the vehicle while defendant entered the passenger side[.] [ Id. at 11] After observing the subject vehicle for a period of three to five minutes, Sgt. Palo drove his vehicle to the subject vehicle to investigate. [ Id. at 12] He wanted to determine the condition of each of the vehicle's occupants to discover if they were intoxicated. He also sought to determine why they were parked next to the school. [ Id. at 13. See also id. at 24-25]

Page 618

5. Sgt. Palo then parked near the subject vehicle, exited his vehicle and walked to the driver's window. He recognized the driver as the defendant's wife. [ Id. at 16] Sgt. Palo had come into contact with the defendant and his wife in the past in responding to certain domestic disputes between them. [Id.] After identifying himself, Sgt. Palo observed the defendant as he appeared to conceal something in the rear of his pants; therefore, Sgt. Palo told the defendant to place his hands on the dashboard. [ Id. at 15] ³ Sgt. Palo was concerned for his safety as he knew that the defendant had been charged previously with drugs and weapons offenses. [ Id. at 16-17] ⁴

6. Sgt. Palo advised the defendant to exit the vehicle whereupon he performed a frisk of the defendant to determine if he had any weapons on his person. [ Id. at 17-18] Although he felt no weapon when patting the [408 Pa.Super. 606] rear pants pocket area, he felt an object in defendant's left rear pants pocket. [ id. at 18] ⁵ he reached into that pocket and retrieved two plastic bags which appeared to contain controlled substances. The smaller of the bags (Commw.Exh. No. 2) appeared only to contain residue. The larger of the bags (Commw.Exh. No. 1) contained approximately 1.08 grams of controlled substances which, if felt during a pat down, would feel like a button or a wad of paper. [ Id. at 18-19] ⁶

7. Sgt. Palo placed the defendant under arrest for alleged drug offenses and transported him to the police station. [ Id. at 19] In searching the defendant at the police station, Sgt. Palo removed $324.00 from defendant's person. [ Id. at 20] Sgt. Palo then provided defendant with the Miranda warnings whereupon defendant stated that he, in fact, did have methamphetamine, but possessed it for personal use and that he snorts it. [ Id. at 20-22]

8. Sgt. Palo at no time noticed an odor of alcohol on defendant's person nor did defendant have any problem speaking. [ Id. at 22-23] ⁷

Trial court opinion, at 1-4.

Based on the foregoing, the trial court was unable to find that Sgt. Palo had probable cause to believe that Marconi possessed evidence of crime which would justify an intrusion into his pants pocket at the time a frisk for weapons was conducted. Trial court opinion, at 5. We agree.

Before we discuss the Commonwealth's issue on appeal, we note that the Commonwealth certified in good faith that [408 Pa.Super. 607] the instant suppression order has substantially hampered the prosecution of this case. ⁸ In

Page 619

light of the certification, we may entertain this appeal. Commonwealth v. Dugger, 506 Pa. 537, 546-47, 486 A.2d 382, 386 (1985); see Commonwealth v. Rodriguez, 385 Pa.Super. 1, 2, 559 A.2d 947 (1989); Commonwealth v. Switzer, 375 Pa.Super. 137, 140, 543 A.2d 1216, 1218 (1988). See Commonwealth v. Defelice, 248 Pa.Super. 516, 522, 375 A.2d 360, 363 (1977).

Our scope and standard of review under the circumstances are established. Here, we may consider

only the evidence of the defendant's witnesses and so much of the Commonwealth evidence that, read in the context of the record as a whole, remains uncontradicted. Furthermore, our scope of appellate review is limited primarily to questions of law. We are bound by the suppression court's findings of fact if those findings are supported by the record. Factual findings wholly lacking in evidence, however, may be rejected.

Commonwealth v. Person, 385 Pa.Super. 197, 200, 560 A.2d 761, 762-63 (1989) (citations omitted); Commonwealth v. Stine, 372 Pa.Super. 312, 314, 539 A.2d 454, 455 (1988). See Commonwealth v. Cauto, 369 Pa.Super. 381, 393-94, 535 A.2d 602, 608-09 (1987) (this Court may reverse the suppression court only if its legal conclusions, drawn from the facts in the record, are erroneous). Cf. Commonwealth v. Fromal, 392 Pa.Super. 100, 111-12, 572 A.2d 711, 717 (1990).

On appeal, the Commonwealth raises one issue: whether probable cause to seize an object can arise where a police officer, during a frisk for weapons, feels what he believes (based on his training and experience) to be methamphetamine in the defendant's pocket. The Pennsylvania Association of Criminal Defense Lawyers, recognizing the importance of this issue, filed a brief of amicus curiae on behalf of Marconi. They phrased the statement of the [408 Pa.Super. 608] question involved as follows: "Should the Pennsylvania Courts recognize an exception to the probable cause/warrant requirements of the Fourth Amendment and Article I, § 8 based on the sense of touch and reputation of the person searched?" Amicus brief, at 4. ⁹ After a review of the record in this case, the parties' briefs and the applicable law, we conclude that the Sergeant's search exceeded the limits set forth by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and by the courts of this Commonwealth. ¹⁰ Accordingly, we affirm the trial court's order in this case.

In Terry, the Supreme Court defined the permissible scope of a "stop and frisk." ¹¹

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Eleven years later, the [408 Pa.Super. 609] Supreme Court cogently reiterated the principles underlying Terry in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). There, the Supreme Court wrote:

[t]he Terry case created an exception to the requirement of probable cause, an exception whose 'narrow scope' this Court 'has been careful to maintain.' Under that doctrine a law enforcement officer, for his own protection and safety, may conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted. [Citation omitted]. Nothing in Terry can be understood to allow a generalized [408 Pa.Super. 610] 'cursory search for weapons' or, indeed, any search whatever for anything but weapons. The 'narrow scope' of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place.

Id. at 93-94, 100 S.Ct. at 343 (emphasis added).

In Commonwealth v. Canning, 402 Pa.Super. 438,...