S.J., In Interest of

Page 45

713 A.2d 45

551 Pa. 637

In the Interest of S.J.

Appeal of S.J.

Supreme Court of Pennsylvania.

Argued Oct. 16, 1996.

Decided May 19, 1998.

John W. Packel, Linda A. Peyton, Philadelphia, for S.J.

Catherine Marshall, Hugh J. Burns, Jr., Philadelphia, for the Com.

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

NIGRO, Justice.

This is an appeal from an order of the Superior Court which affirmed the trial court's denial of Appellant's motion to suppress evidence. For the reasons which follow, we reverse.

In reviewing a suppression court's ruling, we are bound by those factual findings of the suppression court which are supported by the record. Commonwealth v. Slaton, 530 Pa. 207, 208, 608 A.2d 5, 5 (1992); Commonwealth v. James, 506 Pa. 526, 533, 486 A.2d 376, 379 (1985); Commonwealth v. Lark, 505 Pa. 126, 129, 477 A.2d 857, 859 (1984).

In the instant case, the trial court made the following findings of fact. At approximately 6:40 p.m. on March 29, 1994, while on routine patrol in a high crime area, Officer Michael Kelly noticed a group of twelve males standing on a street corner. As he passed the street corner, Officer Kelly detected the odor of marijuana. He then drove around the block to get a closer look and observed several members of the group smoking marijuana. After exiting his patrol car and approaching the group, the group began to disband and Officer Kelly noticed that Appellant was trying to "worm himself to the front of the [group] so he wouldn't be noticed...." N.T. June 21, 1994, at 10. The group then dispersed and Officer Kelly stopped Appellant as he attempted to depart.

Detecting a strong odor of marijuana on Appellant, Officer Kelly brought Appellant back to the patrol car and patted down the outside of his clothes. During the pat-down, Officer Kelly felt a hard chunky substance which he immediately knew to be cocaine. ¹ Officer Kelly then reached into Appellant's pocket and removed thirty-six plastic bags filled with crack cocaine.

On June 21, 1994, the trial court denied Appellant's motion to suppress the physical evidence. The trial court subsequently adjudicated Appellant delinquent on the charge of knowing and intentional possession of a controlled substance ² and placed him on intensive drug and alcohol probation. On August 14, 1995, the Superior Court issued a Memorandum Opinion affirming the trial court's order.

Appellant then filed a Petition for Allowance of Appeal with this Court. We granted allocatur to determine: (1) whether the initial stop and subsequent frisk were justified; and (2) if the stop and frisk were lawful whether the seizure of cocaine from Appellant's pocket during the frisk was permissible under Article I, Section 8 of the Pennsylvania Constitution.

In order to reach the issue of the frisk, we must preliminarily address the nature of the stop and whether Officer Kelly actually subjected Appellant to a custodial, rather than an investigative, detention. ³ Appellant contends that he was subjected to a custodial rather then an investigative detention and that Officer Kelly lacked the requisite probable cause to support such a detention. ⁴ Appellant claims that he was subjected to a custodial detention because Officer Kelly transported him from the location of the stop to his police cruiser prior to patting him down.

The factors typically considered in determining whether a detention is investigative or custodial are:

the basis for the detention (the crime suspected and the grounds for suspicion); the duration of the detention; the location of the detention (public or private); whether the suspect was transported against his will (how far, why); the method of detention; the show, threat or use of force; and, the investigative methods used to confirm or dispel suspicions.

Commonwealth v. Gommer, 445 Pa.Super. 571, 581, 665 A.2d 1269, 1274 (1995) (citations omitted), appeal denied, 546 Pa. 676, 686 A.2d 1308 (1996).

Instantly, there is no evidence that Appellant was transported without his consent or that he was subjected to a lengthy detention. Further, although Appellant asserts that Officer Kelly's cruiser was located "some distance away," Pet.'s Br. at 13, he points to no evidence of record which would indicate that the cruiser was located an appreciable distance from the location of the initial stop. Under these circumstances, we find that Officer Kelly's conduct was not sufficiently coercive to elevate the detention from investigative to custodial in nature. See Ellis; Gommer.

The focus of the analysis is thus whether the investigatory stop of Appellant was justified. It is well-settled that a police officer may conduct a brief investigatory stop of an individual if the officer observes unusual conduct which leads him to reasonably conclude, in light of his experience, that criminal activity may be afoot. Commonwealth v. Melendez, 544 Pa. 323, 676 A.2d 226 (1996); Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Appellant argues that Officer Kelly lacked the requisite reasonable suspicion to justify the investigatory stop because he was unable to specifically identify Appellant as one of the individuals he saw smoking marijuana. We disagree.

Under the circumstances of this case, Officer Kelly reasonably concluded that criminal activity was afoot. During the course of his patrol of a high crime area in which he had previously made six arrests involving drug-related activity, Officer Kelly detected the odor of marijuana in the vicinity of a group of men standing on a street corner. Upon closer inspection, Officer Kelly observed members of the group smoking marijuana. When Officer Kelly approached, Appellant attempted to hide among the other members of the group. Although Officer Kelly could not state with certainty whether Appellant was one of the individuals smoking marijuana, Officer Kelly's actual observance of illegal activity among Appellant's companions, combined with Appellant's suspicious behavior and Officer Kelly's knowledge that this was a high crime area known for drug activity, provided him with the requisite reasonable suspicion to conduct an investigatory stop of Appellant. See Melendez, Berrios, Terry.

Having concluded that the investigatory stop was proper, we now turn to the issue of whether the subsequent frisk was justified. Appellant argues that even if the investigatory stop was justified, Officer Kelly lacked the requisite reasonable suspicion to justify the subsequent protective frisk. We find Appellant's argument persuasive.

If, during the course of a valid investigatory stop, an officer observes unusual and suspicious conduct on the part of the suspect which leads him to reasonably believe that the suspect may be armed and dangerous, the officer may conduct a pat-down of the suspect's outer garments for weapons. See Melendez, 544 Pa. at 329 n. 5, 676 A.2d at 228 n. 5 (1996); Berrios, 437 Pa. at 341, 263 A.2d at 343 (1970); Terry, 392 U.S. at 27, 88 S.Ct. 1868 (1968).

The record herein is devoid of any evidence indicating that Officer Kelly had reason to believe Appellant was armed and dangerous. There was no testimony that Appellant's clothing had any unusual bulges or any testimony that Appellant made any furtive movements giving rise to Officer Kelly's suspicions that Appellant was armed and dangerous. The Officer's statement that he patted Appellant down for his own safety does not rise to the level of particularized or reasonable suspicion that the Appellant was armed and dangerous. The absence of any specific, articulable facts establishing that Appellant was armed and dangerous renders the frisk unlawful. ⁵

Having determined that the pat-down search of Appellant was unjustified, that finding is dispositive of this case and we need not address whether the cocaine found in Appellant's pocket during the frisk was valid under Article I, Section 8, of the Pennsylvania Constitution. The order of the Superior Court is reversed and the case is remanded with the direction to grant Appellant's motion to suppress.

CAPPY, J., files a concurring and dissenting opinion.

CASTILLE, J., files a dissenting opinion in which NEWMAN, J., joins.

CAPPY, Justice, concurring and dissenting.

Although I agree with the majority in reversing the decision of the Superior Court, I reach that result by a different path. First, I do not agree that the officer's decision to frisk appellant violated the parameters of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Second, as I find the frisk was permissible, I would go on to reach the question of whether the "plain feel" doctrine as enunciated in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), is consistent with the privacy interests provided to the citizens of this Commonwealth under Article I, Section 8 of the Pennsylvania Constitution; this question I would answer in the affirmative. Thus, there is a need to reach the third question: was the seizure which occurred herein violative of the "plain feel" doctrine. As I would find the seizure here did violate the "plain feel" doctrine enunciated in Dickerson, I, too, would reverse the decision of the Superior Court.

Beginning with my first point of departure from the analysis of the majority, I find the frisk of appellant was supported by sufficient reasonable suspicion so as to comply with the requirements of Terry. Unlike the majority I read Terry, and the line of Pennsylvania cases following the rationale set forth therein, to permit a stop and frisk unless the officer's actions can be seen as clearly unreasonable under the circumstances known to the officer at the time of the stop. As the Terry court recognized, the interaction occurring between an officer on the beat and a citizen in a typical stop and frisk situation requires the officer to make a swift on-the-spot...