Commonwealth v. Spears , 743 A.2d 512 ( 1999 )

CIRILLO, President Judge Emeritus:

¶ 1 Calvin Spears appeals from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County. We reverse and remand for a new trial.

¶ 2 On September 23, 1994, at approximately 3:22 a.m., Philadelphia Police Officer Kenneth Hermes was in his patrol car which was parked on the 700 Block of West Huntingdon Avenue in Philadelphia. While parked at that location, Officer Hermes observed several people gathering on the corner of Ninth Street and Hun-tingdon Avenue. Officer Hermes began surveillance of the area using his binoculars. While conducting surveillance on the area, Officer Hermes noticed a Buiek station wagon parked on the northwest corner of Ninth and Huntingdon. He observed, further, that people would walk up to the station wagon and hand money to the driver of the vehicle through the passenger side window. The driver of the vehicle would then pass what Officer Hermes believed to be narcotics, back to the person who handed over the money. Officer Hermes observed this type of transaction on three occasions that morning.

¶ 3 After witnessing the third transaction, Officer Hermes drove toward the corner with his overhead lights on. At that time, the Buick station wagon accelerated westbound on Huntingdon Avenue at a high rate of speed. The car turned onto Germantown Avenue at which time it came to an abrupt stop in the parking lane. As Officer Hermes began to exit his vehicle, Spears exited the driver’s side of the station wagon. Officer Hermes ordered Spears to turn around and then conducted a pat-down search to ensure his safety. During the pat-down search for weapons, Officer Hermes felt a “plastic and hard” substance in the pocket of Spears’ shirt. After manipulating the contents of Spears’ pocket, Officer Hermes determined the substance to be crack cocaine and, therefore, attempted to take Spears into custody by handcuffing him. This attempt, however, was unsuccessful, as Spears flung his arm up and began to flee from the officer. Officer Hermes, accompanied by two other officers, pursued Spears. The officers apprehended him following a brief struggle.

¶ 4 After Spears was handcuffed, Officer Hermes retrieved from his pocket what was later determined to be crack cocaine. He also retrieved $52.00 in U.S. currency from Spears’ person.¹ Spears was arrested and charged with possession with the intent to deliver a controlled substance (PWID) and criminal conspiracy.

¶ 5 On June 15, 1998, the trial court denied Spears’ motion to suppress physical evidence, and on June 24, 1998, a jury convicted Spears of PWID and criminal conspiracy. The trial court imposed a sentence of three to six years of imprisonment for the PWID conviction and six years’ consecutive probation for the conviction of criminal conspiracy. Post-trial motions were filed and denied. This appeal followed.

¶ 6 On appeal, Spears raises the following issues for this court’s consideration:

1. Did the lower court err when it failed to grant the appellant’s motion to suppress physical evidence?

2. Did the lower court err in failing to bar the prosecution from impeaching the appellant with a conviction for drug possession, in violation of the crimen falsi rules?

3. Did the lower court err when it exercised its discretion in exceeding the sentencing guidelines?

¶ 7 In his first issue, Spears challenges the constitutionality of the stop and frisk. He claims that the trial court erred by allowing into evidence the physical items taken from Spears’ person. We agree.

¶ 8 Initially, we note our standard of review of the denial of a suppression motion. When reviewing an order denying a motion to suppress evidence, we must determine whether the factual findings of the trial court are supported by the evidence of record. Commonwealth v. Jackson, 451 Pa.Super. 129, 678 A.2d 798, 800 (1996). In making this determination, this court may only consider the evidence of the Commonwealth’s vritnesses, and so much of the evidence for the defendant, as fairly read in the context of the record as a whole, as remains uncontradicted. Id. Additionally, it is exclusively within the province of the trial court to determine the credibility of the witnesses and the weight to be accorded their testimony. Commonwealth v. Fitzpatrick, 446 Pa.Super. 87, 666 A.2d 323, 325 (1995). If the evidence supports the findings of the trial court, we are bound by such findings and may reverse only if the legal conclusions drawn therefrom are erroneous. Id.

¶ 9 In the first part of our analysis, we must focus on whether Officer Hermes had the reasonable suspicion necessary to subject Spears to an investigatory stop and frisk. We find that he did.

¶ 10 Recently, in Commonwealth v. E.M., 558 Pa. 16, 735 A.2d 654 (1999), our supreme court revisited and summarized the jurisprudence surrounding the “investigatory stop and frisk.” In that case the court stated:

It is well established 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. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Lewis, 535 Pa. 501, 509, 636 A.2d 619, 623 (1994). An investigatory stop subjects a person to a stop for a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. Commonwealth v. Ellis, 541 Pa. 285, 294, 662 A.2d 1043, 1047 (1995). Such an investigatory stop is justified only if the detaining officer can point to specific and artic-ulable facts which, in conjunction with rational inferences derived from those facts, give rise to a reasonable suspicion of criminal activity and therefore warrant the intrusion. Commonwealth v. Murray, 460 Pa. 53, 61, 331 A.2d 414, 418 (1975).

E.M. at 659.

¶ 11 The E.M. court further stated that a pat-down of a suspect’s outer garments is justified during a valid investigatory stop if the officer “observes unusual and suspicious conduct which leads him to reasonably believe that the suspect may be armed and dangerous.” E.M. at 659 (citing Terry, 392 U.S. at 24, 88 S.Ct. 1868 and Interest of S.J., 551 Pa. 637, 713 A.2d 45, 48 (1998)) (other citations omitted). Moreover, a frisk is only justified if the officer can “point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

¶ 12 In the present case, Officer Hermes, an eight-year veteran of the police force with three years of experience with the Narcotic Strike Force, viewed what he believed to be a drug transaction taking place between appellant and several others. Through his binoculars, he witnessed people walking up to Spear’s car, handing money through the passenger side window and receiving in return what Hermes thought to be drugs. When Officer Hermes approached the scene with his overhead lights on, Spears fled in his station wagon, finally stopping after the ensuing chase. Moreover, this all took place at approximately three o’clock in the morning in an area known for the sale of narcotics.

¶ 13 Under the totality of the circumstances, we find , that Officer Hermes was justified in believing that criminal activity was afoot and was, therefore, justified in conducting an investigatory stop. E.M., supra. Moreover, we also find that the circumstances were sufficiently dangerous to warrant a pat-down frisk for weapons. See Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969) (officer may conduct frisk of suspect’s outer clothing for weapons if he reasonably concludes that the person with whom he is dealing may be armed and dangerous); Terry, 392 U.S. at 27, 88 S.Ct. 1868 (pat-down search is justified if “a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.”). See also Commonwealth v. Patterson, 405 Pa.Super. 17, 591 A.2d 1075 (1991) (taking judicial notice that drug dealers are likely to be armed and dangerous).

¶ 14 Having found that an investigative stop and a protective frisk were justified, we must now determine whether the frisk was properly conducted. In Terry, the United States Supreme court clearly held that a frisk effectuated for the safety of an officer must be strictly “limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.” Terry, 392 U.S. at 26, 88 S.Ct. 1868.

¶ 15 In recent years, the United States Supreme Court and the appellate courts of this Commonwealth have analogized the warrantless seizure of contraband in plain view to the warrantless seizure of contraband discovered thorough a police officer’s sense of touch. Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); Commonwealth v. Johnson, 429 Pa.Super. 158, 631 A.2d 1335 (1993). This is now known as the “plain feel” exception to the warrant requirement. In Dickerson, the Supreme Court held:

If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain view context.

Dickerson, 508 U.S. at 374, 113 S.Ct. 2130.

¶ 16 This court followed the Dickerson rationale in Johnson, supra. In Johnson, the appellee was the subject of a pat-down search by police. During the pat-down search, the officer “did a squeeze of [the appellee’s] entire body,” squeezing appel-lee’s clothes. When he squeezed the crotch area of the appellee’s clothing, he felt a “crunchy” substance. It was immediately apparent to the officer, based upon the minimally intrusive tactile impression and his years of experience, that the crunchy material was some type of controlled substance. In accordance with the jurisprudence set forth by the Supreme Court in Dickerson, this court held that no Fourth Amendment violation occurred because there was no need for the officer to “manipulate or alter” the object in any way and the identity of the contraband was “immediately apparent” through only a “minimally intrusive and constitutionally permissive pat-down.” Johnson at 1336. See also Commonwealth v. Dorsey, 439 Pa.Super. 494, 654 A.2d 1086 (1995) (holding that police officer was justified in seizing contraband where it was “immediately apparent” through a tactile impression during a Terry frisk that the object was indeed contraband).

¶ 17 Instantly, Officer Hermes testified at the suppression hearing that in order to conduct a Terry frisk for weapons, he instructed Spears to “turn around and place his hands on the vehicle” so that he could perform a pat-down search for weapons. In describing how he conducted the search, Officer Hermes testified on direct examination that “[m]y hands initially [were] flat, feeling for weapons, and at the point I felt the items in the pocket I squeezed them slightly to see the consistency.” Officer Hermes further testified that during this pat-down search, he felt a “plastic and hard substance” in Spears’ shirt pocket. Once he felt this object, however, he “moved” it inside of Spear’s shirt pocket. The following is an excerpt from the suppression-hearing transcript:

Q. One other thing. You have indicated today when you felt this item you[ ] moved it, you twisted it, right?

A. I moved it, that is correct.

Q. You moved it inside of his shirt, right?

A. That is correct.

¶ 18 This manipulation is precisely the type of contact proscribed by our court in Johnson and the United States Supreme Court in Dickerson. The record makes it clear that the contents of Spears’s pocket were not “immediately apparent” to the officer while performing the pat-down search. The officer was only able to determine the nature of the substance after he returned to the pocket to “squeeze” and manipulate the object in order to determine its identity. Clearly, this conduct was more intrusive than that which took place in Johnson, as the facts in Johnson indicate the officer there was immediately able to determine, without further manipulation, that the substance was indeed contraband. Johnson, supra.

¶ 19 We, therefore, find that the physical evidence seized in this case should have been suppressed, as the search conducted by Officer Hermes exceeded the “lawful bounds” set by the United States Supreme Court in Terry. Dickerson, supra; Johnson, supra.

¶ 20 Judgment of sentence reversed. Case remanded for a new trial in accordance with the dictates of this memorandum.² Jurisdiction relinquished.

¶ 21 JOYCE, J., files a Dissenting Opinion.

1 . There was a person situated in the passenger seat of Spears' vehicle. This person remained in the vehicle throughout the entire incident. Police recovered $675.00 in U.S. currency from his person.

2 . We need not evaluate Spears' final two claims as we are required to reverse his judgment of sentence under the foregoing constitutional analysis.