Com. v. Wells, B. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRETT RAMON WELLS :
:
Appellant : No. 708 WDA 2019
Appeal from the Judgment of Sentence Entered April 8, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0008186-2018
BEFORE: SHOGAN, J., McLAUGHLIN, J., and MUSMANNO, J.
DISSENTING STATEMENT BY MUSMANNO, J.: FILED OCTOBER 23, 2020
Although the Majority correctly describes the “plain feel” doctrine, I
respectfully disagree as to its application in the instant case.
Nonthreatening contraband may be seized if it is discovered in
compliance with the plain feel doctrine. Commonwealth v. Thompson, 939
A.2d 371, 376 (Pa. Super. 2007).
[The United States Supreme Court in Minnesota v. Dickerson,
508 U.S. 366 (1993),] held that a police officer may seize
nonthreatening contraband detected through the officer’s sense of
touch during a Terry[1] 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
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1 See Terry v. Ohio, 392 U.S. 1 (1968).
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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) (footnote
and emphasis added, most citations omitted). Importantly, “[a] zip-lock
baggie is not per se contraband, although material contained in a zip-lock
baggie may well be[.]” Commonwealth v. Stackfield, 651 A.2d 558, 562
(Pa. Super. 1994).
At the suppression hearing, McKeesport Police Officer James Gross
(“Officer Gross”) testified regarding his training and experience conducting
narcotics interdiction. See N.T., 2/26/19, at 4-5. Officer Gross described his
discovery of the narcotics on Wells, during a pat-down search for weapons, as
follows:
Q. [The Commonwealth:] And did you conduct a pat down for
weapons … ?
A. [Officer Gross:] Yes.
Q. Did you locate any weapons on [Wells]?
A. No.
Q. Did you notice anything during the pat down, however?
A. Yes.
Q. What was that?
A. A package of narcotics in his right watch pocket of his pants.
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Q. Was that during the pat down for weapons?
A. Yes.
Q. Was that while the pat down was going on?
A. Yes.
Q. Could you describe for the [c]ourt how it was that you came
to notice that?
A. I felt his right watch pocket and immediately felt packaged
heroin, two bundles of heroin wrapped with rubber bands.
Q. And –
A. Approximately 21 bags.
Q. As you were - -
A. Two separate quantities in one pocket.
Q. As you were doing this pat down, officer, was it immediately
apparent to you that this was some kind of contraband?
A. Yes, from my training and experience, yes.
Q. Did you have to do any further squeezing or prodding of the
item?
A. No. I immediately detained him.
Q. Did you retrieve the item out of his pocket?
A. Yes, after he was handcuffed and detained, I removed it.
Q. And you were able to identify the item that you did feel?
A. Yes, it was, as I said, 21, glassine stamp bags of heroin in two
separate quantities, one of ten and one of eleven, and they both
had rubber bands around the bundles.
Id. at 11-12.
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On cross-examination, Officer Gross confirmed that Wells was wearing
denim at the time of the pat-down search. Id. at 30. Officer Gross further
confirmed that the contraband was located in Wells’s watch pocket, and thus
inside of the regular front pocket of Wells’s pants. Id. at 33. Officer Gross
explained that he felt “[t]wo individual glassine bundles of heroin wrapped in
rubber bands.” Id. at 32. Officer Gross stated, “I felt what I determined to
be a rubber band and packaged heroin two times in his pocket. They were on
top of each other.” Id. However, as to the basis for his conclusion that the
bags contained heroin, Officer Gross stated only that, “[w]hen you make
enough heroin-related arrests, you know what it feels like.” Id.
The “immediately apparent” standard is not met merely by feeling
packaging material for drugs or zip-lock baggies in the defendant’s pocket
during a frisk. Commonwealth v. Stackfield, 651 A.2d 558, 562 (Pa. Super.
1994). Here, Officer Gross provided no basis for his belief that the mass and
contour of the bundles made it immediately apparent that they contained
heroin.2 See Commonwealth v. Wilson, 927 A.2d 279, 287 (Pa. Super.
2007) (recognizing that the plain feel doctrine exists as an exception to allow
for the seizure of “non-threatening contraband” when the officer feels an
object “whose mass or contour makes its criminal character immediately
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2 Further, Officer Gross testified that there were two separate bundles of
heroin, on top of each other, and each held together with a rubber band. It
strains credulity that Officer Gross was able to discern the contents of the
glassine bags within the bundles.
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apparent.”). But see Commonwealth v. Parker, 957 A.2d 311, 316 (Pa.
Super. 2008) (upholding the application of the plain feel doctrine where an
officer conducting the pat-down search felt two plastic bags in the defendant’s
cargo pocket, with some “hard, rigid objects,” which he believed were crack
cocaine, based on his training and experience). Sight unseen, the contents of
the baggies felt in Wells’s pants pocket could as easily have contained non-
contraband. Thus, the evidence does not support a finding that the criminal
nature of the contents of the bundles in Wells’s pocket was “immediately
apparent.” See Stevenson, 744 A.2d at 1265. On this basis, I would reverse
the denial of Wells’s suppression Motion.
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