S.D., In Interest of

Page 172

633 A.2d 172

429 Pa.Super. 576

In the Interest of S.D.

Appeal of S.D.

Superior Court of Pennsylvania.

Submitted June 7, 1993.

Filed Nov. 5, 1993.

John W. Packel, Owen W. Larrabee Asst. Public Defenders, Philadelphia, for appellant.

Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., participating party.

Before OLSZEWSKI, KELLY and JOHNSON, JJ.

OLSZEWSKI, Judge:

On October 31, 1992, at 5:25 a.m., Police Officer Jose Acevedo spoke to a pedestrian who claimed there were two armed black men with drugs around the corner. Approximately fifty feet from where he received this information, Officer Acevedo observed appellant S.D. standing with another man. No one else was in the vicinity. Since Acevedo had been told they were armed, he immediately performed a "pat-down" search during which he felt a large hard object in S.D.'s pocket. He then removed a clear plastic bag containing 50 plastic vials of crack cocaine. N.T. 12/8/92 at 5-10, 21. S.D. was arrested and charged with possession of a controlled substance with intent to deliver and simple possession. S.D. filed a motion to suppress the cocaine which was heard before the Honorable Sheldon C. Jelin. The motion was denied and S.D. was tried and adjudicated delinquent. This timely appeal from the adjudication of delinquency followed.

S.D.'s sole contention on appeal is that the trial court erred in denying his motion to suppress the fifty vials of crack cocaine. On appeal from a motion to suppress, we only review whether the record supports the trial court's factual findings and whether the trial court's legal conclusions drawn from the facts are in error. Commonwealth v. Merkt, 411 Pa.Super. 127, 600 A.2d 1297 (1992); Commonwealth v. Medley, 531 Pa. 279, 282, 612 A.2d 430, 432 (1992). In this case, we must determine the validity of the trial court's legal conclusion that Officer Acevedo had reasonable suspicion to stop and frisk S.D. As this Court has stated,

[p]ursuant to the landmark decision of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a police officer may temporarily detain a person if he observes unusual conduct which leads him to reasonably conclude, in light of his experience, that criminal activity may be afoot.

Commonwealth v. Patterson, 405 Pa.Super. 17, 20, 591 A.2d 1075 (1991). The reasonable suspicion necessary to justify a Terry stop is less stringent than probable cause, but the detaining officer must have more than a hunch as the basis for his stop. Id. "Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability." Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990).

Guided by this standard, our review of the record reveals that the trial court was presented with sufficient evidence to justify both the initial investigatory stop of S.D. and an immediate frisk. At the outset, we note that a police officer need not personally observe the illegal or suspicious conduct which lead him or her to believe that criminal activity is afoot and that a person is armed and dangerous. Commonwealth v. Jackson, 359 Pa.Super. 433, 519 A.2d 427 (1986). Under such circumstances, we must consider "the specificity of the description of the suspect in conjunction with how well the suspect fits the given description, the proximity of the crime to the sighting of the suspect, the time and place of the confrontation, and the nature of the offense reported to have been committed." Id. at 438, 519 A.2d at 430; Commonwealth v. Whelton, 319 Pa.Super. 42, 465 A.2d 1043 (1983). Viewing these factors under the totality of the circumstances, Terry, supra, we find that the informant gave sufficiently reliable information to justify the stop.

Officer Acevedo acted pursuant to a tip from a concerned citizen who claimed to have witnessed the fact that S.D. and another man were armed and possessed illegal narcotics. ¹ Although the informant only described the suspects as two black males, S.D. and the other man were the only people in the general vicinity. Moreover, the men were standing exactly where the informant said they would be standing, approximately fifty feet away. N.T. 12/8/92 at 6, 10. In certain situations even a very limited description may justify an investigatory search. See Commonwealth v. Chase, 394 Pa.Super. 168, 575 A.2d 574 (1990) (general description corroborated by suspect's presence at "precise location" indicated); Commonwealth v. White, 358 Pa.Super. 120, 516 A.2d 1211 (1986).

We must also take into consideration that the area where these events took place was an area of high drug incidence and that the encounter took place at 5:25 in the morning. See Jackson, 359 Pa.Super. at 439, 519 A.2d at 431 ("the time and place of an encounter may indicate that a person, conspicuous through their solitary presence at a late hour or desolate location, may be the object of a search"); Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985), cert. denied, 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985) (sufficient cause to stop arising out of defendant's location in an alley in the early hours of a snowy morning when streets were empty). The time and place of the encounter in this case provided an independent basis for the officer to act on the informant's tip. See Patterson 405 Pa.Super. at 21, 591 A.2d at 1078 (combination of the neighbors' reports and suspicious heavy foot traffic during early morning hours in dark alley of suspected "crack house" sufficiently justified Terry stop); Commonwealth v. Williams, 298 Pa.Super. 466, 471, 444 A.2d 1278, 1280 (1982) ("officer may obtain sufficient information from an informant ... that, when coupled with the circumstances, gives rise to a reasonable suspicion that the appellant is presently involved in criminal activity").

Having legally stopped S.D. for investigation, Officer Acevedo was justified in performing an immediate pat-down search for his protection. To justify a frisk incident to an investigatory stop, the officer must point to "specific and articulable facts indicating the person they intend to frisk may be armed and dangerous; otherwise, the talismanic use of the phrase 'for our own protection' becomes meaningless." Patterson, 405 Pa.Super. at 21, 591 A.2d at 1078. An investigatory stop is permissible under this standard when the officer has reason to believe "that the person they intend to frisk may be armed." Jackson 359 Pa.Super. at 439, 519 A.2d at 431; see also Commonwealth v. Capers, 340 Pa.Super. 136, 489 A.2d 879 (1985) (search justified when suspect is reported to possess or has used a weapon). Here, the frisk was justified since the officer was informed by an alleged eyewitness that the suspects were armed. Alternatively, the frisk was justified on the basis that the officer reasonably believed that the suspects were dealing drugs. In fact, this Court adopted a new rule in Patterson, stating that "[t]oday we additionally join the growing number of courts who have taken judicial notice of the fact that drug dealers are likely to be armed and dangerous." Id. 405 Pa.Super. at 22, 591 A.2d at 1078.

Finally, we turn to S.D.'s contention that Officer Acevedo exceeded the scope of a permissible pat-down search when he retrieved the cocaine vials from his pocket. The scope of a Terry search is very limited since its sole justification "is the protection of the police officer and others nearby, ... it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of a police officer." Commonwealth v. Canning, 402 Pa.Super. 438, 440, 587 A.2d 330, 331 (1991) (citing Terry v. Ohio, supra ). Under the law of this Commonwealth, a more intrusive search of a suspect's person following a protective pat-down search would only be justified under a Terry analysis where the officer reasonably believed he had felt what appeared to be a weapon. See In Interest of Dixon, 356 Pa.Super. 105, 514 A.2d 165 (1986) (scope of Terry search exceeded where there was no evidence officer reasonably believed suspect was armed and dangerous and where heart-shaped charm discovered during search could not reasonably be mistaken for a weapon); Canning, supra (assuming officer had probable cause to frisk suspect, search was not confined to items which could have reasonably appeared to be weapons where items retrieved from suspect's pocket included two small plastic bags containing white powder and marijuana leaves); Commonwealth v. Marconi, 408 Pa.Super. 601, 597 A.2d 616 (1991), alloc. denied 531 Pa. 638, 611 A.2d 711 (1992) (scope exceeded where pliable plastic packet containing aspirin or button-sized amount of cocaine retrieved).

Recently, however, the Supreme Court of the United States adopted the "plain feel" exception to the warrant requirement, holding that a police officer may seize non-threatening contraband detected through the sense of touch during a protective pat-down search. Minnesota v. Dickerson, 508 U.S. 366, ----, 113 S.Ct. 2130, 2132, 124 L.Ed.2d 334 (1993). Such action is permissible, the Court concluded, so long as the search stays within the bounds marked by Terry. Under the plain view doctrine, the seizure of contraband which is left in open view and observed by a police officer from a lawful vantage point neither invades a legitimate expectation of privacy nor constitutes a "search" within the meaning of the Fourth Amendment. Id.; Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (plurality opinion); Illinois v. Andreas, 463 U.S. 765, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983); South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). The Court reasoned that the plain view doctrine:

has an obvious application by analogy to cases in which an officer discovers contraband through the sense of touch during an otherwise lawful...