Commonwealth v. Chamberlain
| Decision Date | 03 August 1984 |
| Parties | COMMONWEALTH of Pennsylvania v. Kenneth CHAMBERLAIN, Appellant. |
| Court | Pennsylvania Superior Court |
Submitted March 5, 1984. [Copyrighted Material Omitted]
Elaine DeMasse, Asst. Public Defender Philadelphia, for appellant.
Jane C. Greenspan, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.
Before ROWLEY, POPOVICH and CERCONE, JJ.
After a non-jury trial in the Court of Common Pleas of Philadelphia County, appellant, Kenneth Chamberlain, was convicted of knowing and intentional possession of a controlled substance. Post-trial motions were denied after which appellant was sentenced to four to eight months in the County Jail. This appeal followed.
The findings of fact upon which the lower court judge relied and which are supported by the record are as follows: On November 20, 1981 at approximately 1:05 a.m., the arresting officers observed an automobile being driven with multiple Motor Vehicle Code violations. [1] The car pulled over upon request, and, as the officers approached the car, they noticed the driver attempting to conceal a black handgun. At this time, the driver and his passenger, appellant herein, were ordered to exit the car. The driver was searched for weapons, and the officer found a manilla envelope which contained a small amount of "green weed" in the driver's pocket. The appellant was then searched by the officers. Manilla envelopes similar to the one removed from the driver were removed from the outside pocket of appellant's jacket. The police opened the packets and found that they contained what appeared to be controlled substances.
Appellant contends on appeal that the trial court erred in denying his motion to suppress the contents of those manilla envelopes as the drugs found therein were the fruits of an unlawful search by police officers. We affirm.
Our function on review of an order denying a motion to suppress is to determine whether the factual findings of the lower court are supported by the record. In making this determination, we consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense, as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error. Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982).
In the instant case, we hold that appellant was initially subjected to a Terry v. Ohio [2] "stop and frisk" and was not placed in full custodial arrest until after the drugs had been seized from him. See Commonwealth v. Collini, 264 Pa.Super. 36, 398 A.2d 1044 (1979). However, according to the testimony, after satisfying himself that appellant carried no weapons, the officer returned to the pocket which contained the drugs and proceeded to remove and inspect the contents of the manilla envelopes found therein. [3] It was the latter action on the part of the police officer, taken after the search for weapons was concluded, which underlies appellant's primary claim of error. Our review must necessarily be comprised of a two-stage inquiry: (1) whether, in view of the circumstances, the initial "stop and frisk" of appellant was justified under the Terry standard, and (2) whether the contents of appellant's pocket were lawfully seized after the officers were satisfied that appellant was not armed.
The United States Supreme Court has recognized that investigative detentions involving suspects in vehicles are especially fraught with danger to police officers. In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), the Court held that police may order persons out of an automobile during a stop for a traffic violation and may frisk those persons for weapons if there is a "reasonable belief" that they are armed and dangerous. That decision rested in part on the "inordinate risk confronting an officer as he approaches a person seated in an automobile." ID. 434 U.S. AT 110, 98 S.CT. AT 333 [4] . The Terry "stop and frisk" rule from which the Mimms rule derives deals with the permissibility of a frisk incident to an investigative stop based on less than probable cause to arrest. The issue is whether "a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Terry v. Ohio, supra, 392 U.S. at 27, 88 S.Ct. at 1883. Since the officer need not have been absolutely certain that the individual was armed, the driver's action in attempting to conceal the handgun justified the police officer's apprehension of danger.
Admittedly, the frisk of appellant was based solely on the driver's action in concealing the handgun and the officer's resulting perception of danger. In his work Search and Seizure: A Treatise on the Fourth Amendment, Section 9.4, p. 119, the noted commentator, Wayne R. LaFave, states:
"Yet another situation in which there may exist grounds for a frisk is when the policeman and a citizen are brought into contact as a consequence of the officer acting to arrest a companion of that person."
Commonwealth v. Hook, 313 Pa.Super. 1, 459 A.2d 379 (1983) dealt with such a situation. Appellant therein was detained because a police officer noticed a lump protruding from his companion's sweater. Although the court held that appellant had been arrested and not merely stopped and that probable cause was lacking, it noted that it would have been permissible for the officers to detain appellant for an investigatory stop and to conduct a limited search for weapons. (See also Dissent by Popovich, J.).
Accord, U.S. v. Poms, 484 F.2d 919 (4th Cir.1973), U.S. v. Del Toro, 464 F.2d 520 (2d Cir.1972), Lewis v. U.S., 399 A.2d 559 (D.C.App.1979), U.S. v. Tharpe, 536 F.2d 1098 (5th Cir.1976).
Assuming, as we do, that the initial stop and frisk was justified, we further hold that the seizure of the contents of appellant's pockets was lawful, and suppression is not indicated.
The manilla envelopes were observable in appellant's bulging pocket; however, according to the testimony, the drugs themselves were not visible until after the envelopes were extracted from the pocket. [5] The "plain view" doctrine [6] may be employed only if we accept the hypothesis that the manilla envelopes were so linked with the carrying of drugs that the officers' view of the envelopes was tantamount to a view of the drugs themselves. One of the arresting officers contended that, in his experience, manilla envelopes are most often used to conceal drugs. [7] The officers, therefore, predicated their seizure on the driver's coincidental possession of "green weed" in a similar manilla envelope along with the fact that manilla envelopes are commonly used for drug packaging.
Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (plurality opinion) is dispositive. It involved a routine stop of an automobile at a driver's license checkpoint. As he was situated alongside the driver's window, the officer shined his flashlight into the car and saw respondent therein withdraw his right hand from his right pants pocket. He noted respondent holding an opaque, green party balloon, knotted about 1/2 inch from the tip. The officer reached into the car and picked up the balloon, and noticed a powdery substance within the tied-off portion. The plurality rejected the implication that an "unduly high degree of certainty as to the incriminatory character of evidence is necessary for an application of the 'plain view' doctrine." Id. 103 S.Ct. at 1542. They noted
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Com. v. Chamberlain
...480 A.2d 1209 332 Pa.Super. 108 COMMONWEALTH of Pennsylvania v. Kenneth CHAMBERLAIN, Appellant. Superior Court of Pennsylvania. Submitted March 5, 1984. Filed Aug. 3, 1984. Page 1211 [332 Pa.Super. 111] Elaine DeMasse, Asst. Public Defender, Philadelphia, for appellant. Jane C. Greenspan, A......