Com. v. Zhahir

• Decision Date: 19 May 2000
• Citation: 751 A.2d 1153,561 Pa. 545
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Abdul M. ZHAHIR, Appellant.
• Court: Pennsylvania Supreme Court

751 A.2d 1153

561 Pa. 545

COMMONWEALTH of Pennsylvania, Appellee, v. Abdul M. ZHAHIR, Appellant.

Supreme Court of Pennsylvania.

Submitted October 18, 1999.

Decided May 19, 2000.

John W. Packel, L. Roy Zipris, Philadelphia, for Abdul M. Zhahir.

Catherine Marshall, Philadelphia, Jeffrey M. Krulick, for the Com.

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

OPINION

SAYLOR, Justice.

The issues in this case concern police decisions to stop, frisk, and seize contraband from Appellant.

On March 4, 1992, at approximately 5:30 p.m., Officers Singletary and Corely of the Philadelphia Police Department were advised by their captain that a male, wearing a green jacket and blue jeans, was selling narcotics at 60th and Lansdowne Avenue in Philadelphia. The source of the captain's information is unknown. Two and one-half hours later, the officers proceeded to the designated area in a marked police cruiser and observed Appellant, Abdul Zhahir ("Zhahir"), standing in front of a Chinese restaurant, wearing clothing matching the description. Upon seeing the officers, Zhahir turned, walked into the restaurant, and appeared to throw something on the floor with his left hand. The officers were able to view Zhahir's actions through the window and door to the restaurant, and such conduct was consistent with the officers' experience that individuals trafficking in narcotics often attempt to abandon their contraband when seen by the police. The officers drove past the restaurant and began to turn their vehicle around, at which point, they noticed Zhahir exiting the restaurant and looking both ways. When the officers pulled in front of the restaurant, Zhahir had his back to them and was bending over to retrieve something from the floor in the same area where previously he appeared to have discarded an item. Officer Singletary got out of the vehicle and approached Zhahir, who turned to face the officer with his left hand in his jacket pocket. Officer Singletary asked Zhahir what was in his pocket, immediately grabbed Zhahir's left hand and pocket at the same time, and "felt what formed the consistency of a bundle of caps" (vials of cocaine). Officer Singletary then seized a plastic bag from Zhahir's jacket pocket, which contained 98 vials of crack cocaine, the total weight of which was 3.70 grams. Zhahir was charged with unlawful possession of a controlled substance and unlawful possession with intent to deliver a controlled substance. See 35 P.S. § 780-113(a)(16), (30).

Prior to trial, Zhahir moved to suppress, arguing that the police lacked reasonable suspicion to stop him and, in the alternative, that in seizing the drugs, Officer Singletary exceeded the scope of a permissible frisk for weapons. The trial court denied the motion, finding that the information the officers received from their captain, the fact that Zhahir matched the description, and Zhahir's suspicious activity upon observation provided a reasonable suspicion that criminality was afoot. The trial court also determined that the seizure of the contraband was proper pursuant to the "plain feel" doctrine, as it occurred during a permissible frisk for weapons, and the perceived consistency of the vials, the surrounding circumstances, and Officer Singletary's experience allowed him to reasonably conclude that what he felt was a controlled substance. Following a jury trial, Petitioner was found guilty and was sentenced to a period of incarceration of three to six years. On appeal, the Superior Court affirmed in a memorandum opinion, reasoning that the stop of Zhahir was justified based upon the information provided to the officers and Zhahir's suspicious behavior, police had not exceeded the permissible scope of the frisk for weapons, and the seizure of the drugs was permissible under the plain feel doctrine. This Court allowed appeal to consider whether the plain feel doctrine harmonizes with Article I, Section 8 of the Pennsylvania Constitution.

Before reaching the application of the plain feel doctrine, however, we consider whether the stop and frisk were warranted in the first instance.¹ Our "inquiry is a dual one—whether the officers' action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968),quoted in Commonwealth v. Hicks, 434 Pa. 153, 158, 253 A.2d 276, 279 (1969). Regarding the stop, a police officer may, short of an arrest, conduct an investigative detention if he has a reasonable suspicion, based upon specific and articulable facts, that criminality is afoot. See Terry, 392 U.S. at 21, 30,88 S.Ct. at 1880, 1884; Commonwealth v. Allen, 555 Pa. 522, 527, 725 A.2d 737, 740 (1999). The fundamental inquiry is an objective one, namely, whether "the facts available to the officer at the moment of the [intrusion] `warrant a man of reasonable caution in the belief' that the action taken was appropriate." Terry, 392 U.S. at 21-22,88 S.Ct. at 1880 (citations omitted). This assessment, like that applicable to the determination of probable cause, requires an evaluation of the totality of the circumstances, see United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981), with a lesser showing needed to demonstrate reasonable suspicion in terms of both quantity or content and reliability. See Alabama v. White, 496 U.S. 325, 330-31, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990).

Zhahir contends that Officer Singletary lacked reasonable suspicion to conduct an investigative detention, emphasizing that the origin and basis of the information provided by the officers' captain were never revealed and no further investigation was done (independent of the encounter with Zhahir) to corroborate its reliability. In addition, Zhahir maintains that his mere presence in the vicinity two and one-half hours later and his innocent behavior in dropping and retrieving an item in a Chinese restaurant did not provide sufficient corroboration to support reasonable suspicion.

Where, as here, the source of the information given to the officers is unknown, the range of details provided and the prediction of future behavior are particularly significant, as is corroboration by independent police work. See White, 496 U.S. at 332, 110 S.Ct. at 2417. While verification of predictive information constitutes one avenue of obtaining the necessary corroboration of information from a source of unknown reliability, see id., the necessary corroboration may also be supplied by circumstances that are independent of the tip, for example, observation of suspicious conduct on the part of the suspect. See Allen, 555 Pa. at 529, 725 A.2d at 741. See generally United States v. Roberson, 90 F.3d 75, 80 (3 rd Cir.1996)(noting that in the context of an anonymous tip, the absence of predictive information would not necessarily invalidate it as a consideration in the totality of the circumstances, if, after corroborating readily observable facts, police had observed unusual or suspicious conduct on the suspect's part). In this regard, the time, street location, and the movements and manners of the parties bear upon the totality assessment, see Commonwealth v. Lawson, 454 Pa. 23, 28, 309 A.2d 391, 394 (1973), as does an officer's experience. See Commonwealth v. Banks, 540 Pa. 453, 455, 658 A.2d 752, 753 (1995).

In the present case, while the information provided by the police captain did not include a range of details or indicate future behavior and was not acted upon immediately, Officers Singletary and Corely did confirm the location and description of the suspect. More important, the officers observed suspicious and furtive behavior (Zhahir's retreat and abandonment upon observation of police, surveillance of the street upon the officers' passing, and subsequent retrieval of the discarded item) that, in their experience, was consistent with the behavior exhibited by others dealing in narcotics.² Such suspicious conduct in an area associated with criminal activity provided independent corroboration of the essential allegation of the information and, thus, suggested that criminality may have been afoot. See Illinois v. Wardlow, ___ U.S. ___, ___, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000) (explaining that an area of expected criminal activity is a relevant contextual consideration, as is nervous or evasive behavior, in determining reasonable suspicion). Of additional consequence, Officer Singletary was confronted with an individual whose actions appeared to be consistent with retrieval of a weapon from his pocket. In light of the totality of this information, the officers were justified in conducting an investigative detention.

Zhahir further questions the propriety of Officer Singletary's physical seizure of his hand and pocket, asserting that such action impermissibly exceeded the bounds of a Terry frisk, since the officer did not first ask any questions to dispel any suspicions or conduct a traditional patdown search. Officer Singletary, however, testified that he grabbed Zhahir's hand to ensure that he was not reaching for a gun, which testimony was credited by the suppression court. We will therefore consider the officer's actions within the framework of a traditional weapons frisk.

Review of an officer's decision to frisk for weapons requires balancing two legitimate interests: that of the citizen to be free from unreasonable searches and seizures; and that of the officer to be secure in his personal safety and to prevent harm to others. See Dunaway v. New York, 442 U.S. 200, 209, 99 S.Ct. 2248, 2255, 60 L.Ed.2d 824 (1979). To conduct a limited search for concealed weapons, an officer must possess a justified belief that the individual, whose suspicious behavior he is investigating at close range, is armed and presently dangerous to the officer or to others. Terr...