Com. v. Morrow, D. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID MORROW
Appellant No. 20 EDA 2015
Appeal from the Order December 16, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): MC-51-CR-0007023-2014
BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED JUNE 06, 2016
Appellant, David Morrow, appeals from the December 16, 2014 order,
denying his petition for a writ of certiorari, after the Municipal Court of
Philadelphia found him guilty of one count of intentional possession of a
controlled substance1 and sentenced him to three years’ probation. After
careful review, we affirm.
The trial court summarized the relevant factual and procedural history
of this case as follows.
On March 6, 2014 at approximately 1:30 a.m.,
Officer [Joseph] Sperry was on routine patrol in his
marked patrol vehicle in the area of the 1100 block
of West Cumberland Street in the City of
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
35 P.S. § 780-113(a)(16).
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Philadelphia. The officer observed a vehicle, in which
Appellant was the passenger, with an obscured
license plate due to a tinted cover. As he
approached the vehicle, Officer Sperry smelled a
strong odor of marijuana emanating from the
vehicle. As he collected the driver’s information, he
observed Appellant reach into his left coat pocket.
The officer instructed Appellant to keep his hands
where the officer could see them and not to reach
into his pocket. Despite this command, Appellant
again reached for his left side pocket, at which time
Officer Sperry decided to remove Appellant from the
vehicle for his safety to conduct a frisk. He walked
behind the rear of the vehicle to approach Appellant
and maintained visual contact. While he was
removing Appellant from the vehicle, Appellant
reached for his left side pocket a third time, at which
time his fingertips went into his pocket. Officer
Sperry conducted a frisk and felt, with open hands
and his palm what he described as a plastic baggie
containing one solid object; the object felt hard and
larger than a tic-tac or M&M. He believed the item
was consistent with narcotics and narcotics
packaging. He formed this belief because of his
seven and a half years of experience recovering
narcotics, as well as Appellant’s furtive movements,
the odor of an additional type of drug, and
Appellant’s failure to follow his directives. The officer
removed this item from Appellant’s jacket. He
recovered a sandwich bag with an off-white chunky
substance smaller than a golf ball size which turned
out to be crack cocaine.
Trial Court Opinion, 7/31/15, at 1-2.
On March 6, 2014, Appellant was arraigned in the municipal court on
the above-mentioned offense. On June 4, 2014, Appellant orally argued a
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suppression motion.2 After hearing Officer Sperry’s testimony, the municipal
court denied the motion. Immediately afterwards, the Commonwealth
moved for all of Officer’s Sperry’s relevant non-hearsay testimony, along
with the relevant property receipt showing 2.115 grams of crack cocaine be
considered as its case in-chief. The Commonwealth rested, Appellant
presented no evidence, and neither side presented argument to the
municipal court. The municipal court found Appellant guilty of intentional
possession of a controlled substance and immediately imposed a sentence of
three years’ probation.
On July 1, 2014, Appellant filed a petition for a writ of certiorari in the
trial court. Therein, Appellant argued that his Fourth Amendment rights
were violated insofar that Officer Sperry lacked probable cause to search his
pockets and the plain feel doctrine did not apply. Appellant’s Certiorari
Petition, 7/1/14, at ¶¶ 6-9. After reviewing the record, on December 16,
2014, the trial court entered an order denying Appellant’s petition for a writ
of certiorari. On December 23, 2014, Appellant filed a timely notice of
appeal.3
On appeal, Appellant raises the following issue for our review.
____________________________________________
2
Pennsylvania Rule of Criminal Procedure 1005(A) explicitly authorizes oral
suppression motions in municipal court cases. Pa.R.Crim.P. 1005(A).
3
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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Was not [A]ppellant searched without probable
cause and in violation of the plain feel exception to
the warrant requirement where, during a frisk, an
officer felt in [A]ppellant’s pocket a plastic baggie
and a “solid object” described merely as being larger
than a tic-tac or M&M, items whose incriminating
nature was not immediately apparent?
Appellant’s Brief at 3.
Here, Appellant argues that the criminal nature of the contents of his
pocket was not “immediately apparent.” Appellant’s Brief at 8-9. The
Commonwealth counters that under the totality of the circumstances, Officer
Sperry’s belief as to the incriminating nature of what he felt in the
Appellant’s pocket was objectively reasonable. Commonwealth’s Brief at 6.
We begin by noting our well-settled standard of review.
In addressing a challenge to a trial court’s
denial of a suppression motion, we are limited to
determining whether the factual findings are
supported by the record and whether the legal
conclusions drawn from those facts are correct.
Since the Commonwealth prevailed in the
suppression court, we may consider only the
evidence of the Commonwealth and so much of the
evidence for the defense as it remains
uncontradicted when read in the context of the
record as a whole. Where the record supports the
factual findings of the trial court, we are bound by
those facts and may reverse only if the legal
conclusions drawn therefrom are in error.
Commonwealth v. Scarborough, 89 A.3d 679, 683 (Pa. Super. 2014)
(citation omitted), appeal denied, 102 A.3d 985 (Pa. 2014). As Appellant
was seeking a writ of certiorari, the trial court was limited to a review of the
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municipal court record. See generally Commonwealth v. Beaufort, 112
A.3d 1267, 1269 (Pa. Super. 2015).
The Fourth Amendment of the Federal
Constitution provides, “[t]he right of the
people to be secure in their persons, houses,
papers, and effects, against unreasonable
searches and seizures, shall not be violated ….”
U.S. Const. amend. IV. Likewise, Article I,
Section 8 of the Pennsylvania Constitution
states, “[t]he people shall be secure in their
persons, houses, papers and possessions from
unreasonable searches and seizures ….” Pa.
Const. Art. I, § 8.
Commonwealth v. Carter, 105 A.3d 765, 768 (Pa.
Super. 2014) (en banc), appeal denied, 117 A.3d
295 (Pa. 2015).
Commonwealth v. Williams, 125 A.3d 425, 432 (Pa. Super. 2015).
Warrantless searches are per se unreasonable unless they fall into one of the
delineated exceptions to the warrant requirement. Commonwealth v.
Dunnavant, 63 A.3d 1252, 1257 (Pa. Super. 2013), aff’d by equally divided
court, 107 A.3d 29 (Pa. 2014). One such exception is the plain feel
exception, first enunciated by the Supreme Court in Minnesota v.
Dickerson, 508 U.S. 366 (1993). Our Supreme Court held in
Commonwealth v. Zhahir, 751 A.2d 1153 (Pa. 2000) that Dickerson was
consistent with Article I, Section 8 of the Pennsylvania Constitution. Id. at
1163. Our Supreme Court has explained the plain-feel doctrine in the
following terms.
[T]he Dickerson Court adopted the so-called plain
feel doctrine and held that a police officer may seize
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non-threatening contraband detected through the
officer’s sense of touch during a Terry frisk if the
officer is lawfully in a position to detect the presence
of contraband, the incriminating nature of the
contraband is immediately apparent from its tactile
impression and the officer has a lawful right of
access to the object. As Dickerson makes clear, the
plain feel doctrine is only applicable where the officer
conducting the frisk feels an object whose mass or
contour makes its criminal character immediately
apparent. Immediately apparent means that the
officer readily perceives, without further exploration
or searching, that what he is feeling is contraband.
If, after feeling the object, the officer lacks probable
cause to believe that the object is contraband
without conducting some further search, the
immediately apparent requirement has not been met
and the plain feel doctrine cannot justify the seizure
of the object.
Commonwealth v. Stevenson, 744 A.2d 1261, 1265 (Pa. 2000).
In this case, Officer Sperry testified that he stopped the vehicle in
which Appellant was a passenger for having a tinted license plate cover.
N.T., 6/4/14, at 8. Upon approaching the vehicle, Officer Sperry detected “a
strong odor of marijuana emanating from the vehicle.” Id. Officer Sperry
observed Appellant stick his hand in his left coat pocket three times, despite
being commanded not to do so. Id. at 8-9. Upon ordering Appellant out of
the vehicle and conducting a frisk, Officer Sperry “[felt] an object that [he]
believe[d] … was consistent with narcotics packaging.” Id. at 9. The item
was “larger than a tic-tac … and a M&M.” Id. at 13-14. Officer Sperry
testified that he had over seven years of experience on the police force, and
had been involved with detecting narcotics packaging “anywhere [from] fifty
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to sixty times.” Id. at 11. Officer Sperry testified that he did not have to
grab the contents of Appellant’s pocket, he “was able to tell by the palm of
[his] hand.” Id. at 18.
Instantly, the trial court concluded that Appellant’s suppression motion
was properly denied for the following reasons.
Here, the recovery of crack cocaine from
Appellant was constitutionally sound. Officer Sperry
did not physically manipulate the package of crack
cocaine, but felt with an open palm what he instantly
believed to be contraband. Even if he was not
completely sure that the hard object was cocaine,
the “immediately apparent” requirement does not
demand that an officer have absolute certainty;
rather he need only form an objectively reasonable
belief in light of the facts and circumstances.
Considering the totality of the circumstances and
Officer Sperry’s seven years of experience and
knowledge that this type of baggie is commonly used
for narcotics packaging, the incriminating nature of
the item was immediately apparent to him. … [In
t]he instant case … Officer Sperry did not feel only
cardboard or other containers that would have
required a second search, but felt the crack cocaine
itself and was able to recognize its mass and
contour. Therefore, Officer Sperry properly seized
the contraband from Appellant when, bolstered by
Appellant’s furtive movements, lack of compliance
with his directives, and the smell of drugs emanating
from the car, he immediately recognized the object
as narcotics.
Trial Court Opinion, 7/31/15, at 3-4.
After careful review of the certified record, we conclude Appellant is
not entitled to relief. Appellant emphasizes that Officer Sperry used the
phrase “narcotics packaging.” Appellant’s Brief at 14-15. We agree with
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Appellant that had Officer Sperry only testified that he felt a sandwich
baggie which in his experience usually contained narcotics, this would not
satisfy the plain feel exception to the warrant requirement. See
Commonwealth v. Stevenson, 744 A.2d 1261, 1266 (Pa. 2000) (stating,
“the plain feel doctrine is not met when an officer conducting a Terry frisk
merely feels and recognizes by touch an object that could be used to hold
either legal or illegal substances, even when the officer has previously seen
others use that object to carry or ingest drugs[]”); Commonwealth v.
Guillespie, 745 A.2d 654, 658 (Pa. Super. 2000) (concluding that the plain
feel exception did not apply where the officer only felt pill bottles in the
defendant’s pocket and did not immediately seize the item when felt);
Commonwealth v. Stackfield, 651 A.2d 558, 562 (Pa. Super. 1994)
(stating, “[a] zip-lock baggie is not per se contraband … [and s]ight unseen,
the contents of the baggies that the officer felt in appellant’s pants pockets
could as easily have contained the remains of appellant’s lunch as
contraband[]”).
However, we look at the totality of the circumstances, not just Officer
Sperry’s word choice in isolation. See Commonwealth v. Griffin, 116 A.3d
1139, 1143 (Pa. Super. 2015) (stating, “[a]n officer’s subjective belief that
an item is contraband is not sufficient unless it is objectively reasonable in
light of the facts and circumstances that attended the frisk[]”) (citation
omitted). Here, Officer Sperry, who has experience in narcotics detection,
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observed Appellant consistently make furtive movements, reaching into the
pocket in question, despite being told not to, after Appellant was ordered to
step out of a vehicle, from which, Officer Sperry smelled a strong odor of
marijuana. N.T., 6/4/14, at 8-9. Further, Officer Sperry did more than just
use the term “narcotics packaging,” he described the contours of the object
as “larger than a tic-tac … and a M&M.” Id. at 13-14. In our view, when
combined with Officer Sperry’s feeling of the object’s contour, this made his
belief “objectively reasonable,” so as to satisfy the immediate apparent
requirement of the plain feel exception. Griffin, supra.Appellant cites to several plain feel doctrine cases, none of which alter
our conclusion here. In Commonwealth v. Mesa, 683 A.2d 643 (Pa.
Super. 1996), we concluded an officer exceeded the scope of the plain feel
doctrine because the officer “stated that he made no observations of the
bulge until he reached into appellant’s pocket and pulled out what was in
there.” Id. at 648 (internal quotation marks and brackets omitted). In In
the Interest of S.D., 633 A.2d 172 (Pa. Super. 1993), we held that an
officer exceeded the scope of his pat-down when he reached into the
juvenile’s pockets after a pat-down and retrieved cocaine vials. Id. at 176.
We concluded that the officer “was told that the suspects were carrying
weapons and drugs, he never indicated what it was he perceived he had
felt.” Id. In Commonwealth v. Thompson, 939 A.2d 371 (Pa. Super.
2007), we held that an officer’s affidavit that he “felt and removed a digital
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scale, commonly used by actors engaged in the unlawful dealing of
controlled substances, and felt and removed a large sum of U.S. Currency[]”
was insufficient because the Commonwealth produced “no evidence
whatsoever of the size, shape, or hardness of the objects removed.” Id. at
377-378. Finally, in Commonwealth v. E.M., 735 A.2d 654 (Pa. 1999), our
Supreme Court concluded that officers did not comply with the plain feel
doctrine where they “offered no testimony indicating what it was about the
mass or contour of this soft bulge which would support a finding that the
feeling of the bulge made it immediately apparent to him that the bulge was
contraband.” Id. at 663. As we have explained above, in this case the
record contains testimony concerning the mass felt by Officer Sperry, and
when combined with the other circumstances we have enumerated, this
satisfied the plain feel doctrine. Therefore, in light of all of these
considerations, Appellant’s Fourth Amendment rights were not violated by
the scope of Officer Sperry’s frisk. See Williams, supra.
Based on the foregoing, we conclude the trial court correctly denied
Appellant’s petition for a writ of certiorari. See Scarborough, supra.Accordingly, the trial court’s December 16, 2014 order is affirmed.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2016
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