In re JV

• Decision Date: 01 November 2000
• Citation: 762 A.2d 376
• Parties: In the Interest of J.V. Appeal of J.V.
• Court: Pennsylvania Superior Court

762 A.2d 376

In the Interest of J.V.

Appeal of J.V.

Superior Court of Pennsylvania.

Submitted August 7, 2000.

Filed November 1, 2000.

Mitchell A. Kaufman, Public Defender, Pittsburgh, for appellant.

Robert A. Willig, Asst. Dist. Atty., Pittsburgh, for Commonwealth, appellee.

BEFORE: CAVANAUGH, POPOVICH and OLSZEWSKI, JJ.

CAVANAUGH, J.:

¶ 1 This appeal is taken from the order of the trial court which adjudicated appellant delinquent. The issue before this court is whether, pursuant to the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution, the trial court properly denied appellant's motion to suppress physical evidence obtained pursuant to a protective pat-down. Because we find that the police lacked a reasonable belief that the appellant was armed and dangerous to justify the pat-down, we reverse and remand for a new trial.

The facts as gleaned from the record are as follows:

¶ 2 On November 12, 1998, at approximately 7:35 a.m., six police officers entered a two-story house in the city of McKeesport, Allegheny County, to execute a search warrant for drugs. West Homestead police officer Randal Schirra was the last officer to enter the home and it was his duty to secure the living room area on the first floor.

¶ 3 Appellant was present in the house and asleep on a couch in the living room. Another individual, Q.B., was on another couch on the other side of the living room. Appellant was neither a resident of the house nor the target of the search warrant. Appellant did not appear to be dangerous and was not a threat but Officer Schirra awakened the appellant and ordered him to stand so he could perform a weapons pat-down for officer safety.

¶ 4 Officer Schirra frisked appellant from the shoulders down. Schirra felt a pager and a wad of money but did not retrieve them. When Schirra reached appellant's left sock, he testified that he "felt three hard chunky objects in [appellant's] sock and [he] felt the plastic bag, it was a hard chalky substance, which based on [his] training and experience [he] knew to be crack cocaine." Officer Schirra reached into the sock and removed two individually wrapped baggies of crack cocaine and a brown paper bag containing a baggie of crack cocaine¹. The drugs were seized and appellant placed under arrest.

¶ 5 On November 16, 1998, a juvenile petition charged appellant under incident one as follows:

Violation of the Controlled Substance, Drug, Device and Cosmetic Act, Act 64 [Section 13(a)30]F (Possession with Intent to Deliver Crack/Cocaine)

Violation of the Controlled Substance, Drug, Device and Cosmetic Act, Act 64 [Section 13(a)16]M (Possession of Crack/Cocaine).

¶ 6 Also on November 16, 1998, Master Ronda Winnecor held a detention hearing pursuant to the petition above. Finding it in the best interest of the child and the community, the master had appellant detained at Shuman Detention Center.

¶ 7 On November 30, 1998, appellant was released from detention and placed on electric home monitor (EHM) in the custody of his father and the petition was continued until January 14, 1999. Pursuant to his release, appellant was to check with the school base probation officer daily and have no contact with co-defendant². On January 14, 1999, the petition was continued until February 23, 1999.

¶ 8 On February 23, 1999, appellant appeared before the Honorable Cheryl Allen Craig, J., for a delinquency hearing. Appellant was represented by Todd Hollis, Esq. who raised an oral suppression motion during the hearing. Because the search was predicated solely on appellant being present, counsel argued that police had no justification to pat-down appellant and that all baggies of crack cocaine subsequently retrieved from appellant's sock were fruits of an illegal search. Appellant did not contest that a total of 12.99 grams of crack/cocaine was found on his person or that he possessed the crack/cocaine with an intent to deliver. The court heard testimony and continued the case to review the law concerning the suppression issue and allow both appellant's counsel and the Commonwealth an opportunity to brief the issues.

¶ 9 On March 4, 1999, the court resumed the delinquency hearing and denied appellant's motion to suppress the evidence. Thereafter, the court adjudicated appellant delinquent pursuant to incident one of the petition and suspended disposition for 20 days. On March 25, 1999, appellant was committed to the Summit Detention Center as of March 9, 1999; his detention to be reviewed in six months³. On April 5, 1999, a notice of appeal was filed. On June 28, 1999, appellant filed a Concise Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P.1925(b) and order of the court. On January 20, 2000, the trial court issued its opinion addressing the matters complained of on appeal and affirming its decision. This appeal followed.

¶ 10 Appellant raises the following issue, verbatim, for our review:

POLICE SEARCH OF J.V., A MINOR, WHO WAS FOUND SLEEPING ON THE COUCH IN A HOUSE WHERE A SEARCH WARRANT WAS BEING EXECUTED WAS UNCONSTITUTIONAL WHERE THERE WAS NO BASIS TO CONDUCT A TERRY SEARCH AND, IN THE ALTERNATIVE, THE SEARCH CONDUCTED OF J.V. EXCEEDED THE SCOPE OF A PERMISSIBLE SEARCH FOR WEAPONS.

¶ 11 In reviewing an order entered by a suppression court, we are governed by the following standards:

We must first ascertain whether the record supports the factual findings of the suppression court, and then determine the reasonableness of the inferences and legal conclusions drawn therefrom. Commonwealth v. Burnside, 425 Pa.Super. 425, 625 A.2d 678 (1993). In reviewing the denial of a motion to suppress evidence, "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." Commonwealth v. Reddix, 355 Pa.Super. 514, 513 A.2d 1041 (1986). When the evidence supports the suppression court's findings of fact on a motion to suppress, this Court may reverse only when the legal conclusions drawn from those facts are erroneous. Commonwealth v. Quiles, 422 Pa.Super. 153, 619 A.2d 291 (1993) (en banc).

However, we are bound by the trial court's findings of fact only to the extent that they are supported by the record. Commonwealth v. Martinez, 403 Pa.Super. 125, 588 A.2d 513 (1991).

Commonwealth v. Long, 455 Pa.Super. 337, 688 A.2d 198, 199-200 (1996) (citing Commonwealth v. Wilson, 440 Pa.Super. 269, 655 A.2d 557 (1995)).

¶ 12 Neither the Pennsylvania nor United States Constitution prohibits warrantless searches but rather protects people from unreasonable searches and seizures. PA. CONST. art. I § 8; U.S. CONST. amend. IV. For purposes of the Fourth Amendment, a "search" is an examination of an individual's house, building or person for the purpose of discovering contraband or some evidence of guilt to be used in the prosecution of a criminal action. Commonwealth v. Gibson, 536 Pa. 123, 638 A.2d 203, 205 (1994).

¶ 13 Here, the officer conducted a search for weapons called a pat-down or a Terry frisk. When reviewing an officer's decision to conduct such a search, the right to be free from unreasonable search and seizures must be balanced against the right of an officer to be secure in his personal safety and to prevent harm to others. Commonwealth v. Zhahir, 561 Pa. 545, 751 A.2d 1153, 1158 (2000). Our jurisprudence finds that the interests of officer safety justify a Terry frisk when the standards below are satisfied.

¶ 14 The Fourth Amendment to the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution allow the police to stop and briefly detain individuals whenever they have reasonable suspicion, based on specific and articulable facts, that criminal activity may be afoot. Commonwealth v. Melendez, 544 Pa. 323, 676 A.2d 226, 228 (1996) (citing Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276, 279-280 (1969)) (interpreting Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). In addition, if the police reasonably believe that a suspect legally detained may be armed and dangerous, then they are permitted to conduct a limited pat-down search of the suspect's outer clothing for weapons to ensure their safety. Ybarra v. Illinois, 444 U.S. 85, 92-93, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Allen, 555 Pa. 522, 725 A.2d 737, 740 (1999)). To assess whether a reasonable belief existed, consideration is given to the specific reasonable inferences which the officer can draw from the facts in the light of his experience but no consideration is given to his unparticularized suspicions or hunches. Zhahir, 751 A.2d at 1158 (citing Terry, supra, at 27, 88 S.Ct. 1868).

¶ 15 Here, the parties are in substantial agreement to all pertinent facts which are as follows: the search of appellant occurred inside the residence of another where appellant was an overnight guest; police were present in the house pursuant to a defective warrant⁴ which authorized a search of the residence; appellant was sleeping when the police entered the residence to be searched; appellant did not pose a threat to police upon their entrance or at anytime during the execution of the warrant; appellant did not raise his arms or act suspiciously; appellant cooperated with all police orders and instructions; appellant was lawfully detained during the search of the premises; that the police officer, to ensure his safety, frisked appellant for weapons simply because appellant was on the premises; and, the drugs were detected and subsequently seized pursuant to this pat-down⁵. However, appellant contends the suppression court's legal conclusion that a Terry frisk was justified is erroneous. In sum, the issue is whether police executing a search warrant for drugs at a residence may perform a pat-down for...