J-S43036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

OLUBAYA MUDADA MENSAH RANGER

                           Appellant                   No. 147 WDA 2017


             Appeal from the Judgment of Sentence January 6, 2017
                  In the Court of Common Pleas of Blair County
              Criminal Division at No(s): CP-07-CR-0002382-2015

BEFORE: STABILE, SOLANO, and FITZGERALD* JJ.

MEMORANDUM BY FITZGERALD, J.:           FILED: July 20, 2017

        Appellant, Olubaya Mudada Mensah Ranger, appeals from a judgment

of sentence of six to twelve months’ imprisonment for knowing and

intentional possession of a controlled substance.1 Appellant argues that the

trial court erred by denying his motion to suppress baggies of cocaine

removed from his pants pocket during a warrantless search. We conclude

that Appellant was subject to a valid investigative detention, and that the

seizure of the cocaine was proper under the plain feel doctrine. Accordingly,

we affirm.

        On October 22, 2015, police officers arrested Appellant and charged

him with drug-related offenses. On April 14, 2016, the court held a hearing



*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(16).
J-S43036-17


relating to Appellant’s motion to suppress. In an opinion and order dated

May 2, 2016, the suppression court denied Appellant’s motion to suppress.

     The suppression court entered the following findings of fact:

        1. Sergeant Christopher Moser has been employed by the
        Altoona Police Department since March 1, 2015. Prior to
        being employed with the Altoona Police Department[,] he
        was employed by the Williamsburg and Tyrone Borough
        Police Departments.

        2. Sergeant Moser was assigned to the Blair County Drug
        Task Force after completing his probationary period with
        the Altoona Police Department and also during his
        employment with the Williamsburg Borough Police
        Department.

        3. Sergeant Moser has been involved in several hundred
        prosecutions of narcotics and hundreds of search warrants.

        4. Since March 2015, Sergeant Moser has been the officer
        in charge of the Altoona Police Department Narcotics and
        Vice Unit.

        5. In the summer of 2015, Sergeant Moser began an
        investigation of Henry Agnew.

        6. During the investigation of [Agnew], [o]fficers made
        three or four controlled purchases of narcotics from
        [Agnew].

        7. Sergeant Moser was aware that [Agnew] had a criminal
        history that involved assault convictions.

        8. Sergeant Moser utilized a confidential informant (“CI”)
        to set up a controlled purchase with expectation that the
        controlled purchase would occur on October 22, 2015.
        This was the same [CI] who had made previous controlled
        purchases from [Agnew] during the investigation.

        9. The intent of the officers involved was to make an
        arrest of [Agnew] after the controlled purchase on October
        22, 2015. This is commonly referred to as a “buy bust.”


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       The officers intended to purchase an eight ball of cocaine
       (1/8 of an ounce) for $250.00.

       10. The purchase of 1/8 ounce of cocaine from [Agnew]
       would be the largest amount of controlled substances
       purchased from [Agnew] during the investigation.

       11. [Because] the officers intended to conduct a “buy
       bust”, two or three different surveillance vehicles with two
       officers in each vehicle were utilized during the October
       22, 2015 buy bust. The Altoona Police Department also
       had a marked unit from Logan Township assisting.

       12. Once the [o]fficers began the investigation on October
       22, 2015, the [CI] indicated that [Agnew] wanted the [CI]
       to meet him at the Logan Towne Centre. In light of the
       fact that several businesses would be open for business,
       public safety was a concern for the officers.

       13. Sergeant Moser believes that weapons are always a
       concern in conducting a “buy bust” operation with a
       suspected narcotics dealer.

       14. [Because] the controlled purchase was expected to
       occur at the Logan Towne Center, officers were given
       assignments in and around Logan Towne Centre. The
       normal procedures of searching the [CI]’s person and his
       vehicle occurred and the [CI] was provided buy money.
       He was also followed to the Logan Towne Centre area.

       15.     When arriving at Logan Towne Centre, the [CI]
       initially parked in the area of Dick’s Sporting Goods.
       Officers took surveillance locations around this area so
       they were able to view the [CI]. Sergeant Moser parked
       close to the Verizon Store which was north of the location
       where the [CI] parked.

       16. At his surveillance location, Sergeant Moser received a
       text from the [CI] stating that he was to meet [Agnew] at
       the Verizon Store. Sergeant Moser witnessed [Agnew]
       walking toward the Verizon Store. Sergeant Moser also
       witnessed the [CI] exit his vehicle and meet [Agnew].




                                  -3-
J-S43036-17


        17. Sergeant Moser witnessed an exchange occur between
        the [CI] and [Agnew] and the [CI] returned to his vehicle.
        [Agnew] then walked towards the area of Panera Bread.2

        18. The [CI] informed Sergeant Moser that [Agnew] told
        the [CI] that he had to go meet his “dude” to get the
        cocaine. The [CI] told Sergeant Moser that he was waiting
        for him to return.

        19. Eventually, [Agnew] came back into view of the
        officers after being in the area of Panera Bread. The
        officers then observed the [CI] pick up [Agnew] and drive
        around.

        20. The officers followed the vehicle . . . . After the vehicle
        . . . drove behind the Logan Towne Centre complex, the
        [CI] stopped and [Agnew] exited the vehicle at Panera
        Bread. The [CI] then contacted Sergeant Moser.

        21.   Sergeant Moser [instructed] the [CI] to park at
        Boscovs and Corporal Plummer would get in the vehicle
        with him. Sergeant Moser also observed [Agnew enter]
        Panera Bread.

        22. Sergeant Moser was informed that the [CI] received
        the eight ball of cocaine from [Agnew].

        23. Pennsylvania Attorney General Agent Thomas Brandt
        conducted surveillance from inside the Panera Bread store.

        24. Agent Brandt maintained consistent phone contact
        with Sergeant Moser and informed him that [Agnew] was
        with a black male and white female.

        25. Based on the observations made by Sergeant Moser
        and the actions of [Agnew] as well as the surveillance
        conducted by Agent Brandt, Sergeant Moser believed that
        the male individual with [Agnew] in the Panera Bread store
        was [Agnew]’s source for his cocaine.

2
  There was no testimony during the suppression hearing that any officer
saw Agnew enter Panera Bread at this time. Sergeant Moser testified that
“we lost [Agnew] in the area of Panera Bread.” N.T., 4/14/16, at 28.



                                     -4-
J-S43036-17



       26. Once [Agnew] exited the Panera Bread store, officers
       took him into custody and arrested him for the delivery
       charge.

       27. Officers also detained [Appellant] and a female Rachel
       Gray. Agent Brandt had notified the officers that the
       individuals were leaving the Panera Bread prior to officers
       taking the individuals into detention.

       28. When [Agnew] was taken into custody by the officers
       and searched incident to arrest he was found to have
       $50.00 of buy money on his person.

       29. Altoona Police Department Officer Dan Vasil was the
       individual who made contact with [Appellant] after the
       officers approached the three individuals.

       30. Patrolman Vasil has worked for the Altoona Police
       Department for seven years.

       31. Patrolman Vasil was part of the arrest team and was
       also assigned to conduct transport. The three individuals,
       [Agnew], [Appellant] and [Gray,] entered a red Dodge
       Charger after exiting Panera Bread.          Patrolman Vasil
       parked his cruiser in a position near the driver’s side rear.

       32.      As Patrolman Vasil approached the Charger,
       [Appellant] opened the door and moved as if he was going
       to exit the Charger.

       33. At that point, Patrolman Vasil and Patrolman Hanelly
       ordered [Appellant] to continue exiting and to place his
       hands on his head. Patrolman Vasil physically attempted
       to move [Appellant’s] hands up [but] when [Appellant] got
       close to where Patrolman Vasil wanted his hands to be,
       [Appellant] began to tense his arms as though he was
       going to pull away. These actions caused Patrolman Vasil
       to believe that [Appellant] was going to fight or run.

       34. As a result of [Appellant’s] actions, Patrolman Vasil
       placed him in handcuffs. While Officer Vasil was placing
       him into handcuffs, Patrolman Crist read [Appellant] his
       Miranda warnings.


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J-S43036-17



         35. After placing [Appellant] in handcuffs, Patrolman Vasil
         began to pat down [Appellant’s] clothing for weapons.
         Patrolman Vasil removed a cell phone from [Appellant’s]
         front sweatshirt pocket. This cell phone later was found to
         contain a bag of cocaine.3

         36. When Patrolman Vasil was patting down [Appellant’s]
         left front jeans pocket, he recognized that the pocket
         contained knotted bags containing a powdery substance
         that he believed to be cocaine. Patrolman Vasil removed
         the bags and found them to be apparent powdered cocaine
         of an approximate eight ball size. There were nine bags
         total. After locating the cocaine, Patrolman Vasil also
         found $200.00 in [Appellant’s] right front pocket.

         37. Patrolman Vasil indicated that there [were]
         approximately five officers in or around the area of
         [Appellant] during his interaction with [Appellant].

Suppression Ct. Op., 5/2/16, at 2-7.

      The suppression court found the testimony of Sergeant Moser and

Patrolman Vasil “credible in all respects.”   Id. at 9. The court declined to

suppress the cocaine recovered by Patrolman Vasil because (1) Appellant’s

stop was an investigative detention instead of a custodial arrest, (2)

Appellant’s   pat   down   was   constitutional,   and   (3)   Patrolman   Vasil

“immediately recognized” the contraband. Id. at 11.




3
   The suppression hearing transcript does not establish whether the
discovery of the bag of cocaine in the cell phone occurred before or after
Patrolman Vasil searched Appellant’s pants pocket. In any event, Appellant
does not argue that the seizure of the cell phone, or the discovery of the bag
of cocaine therein, tainted the subsequent frisk of his pants pocket or
seizure of the bags of cocaine from his pocket.



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J-S43036-17


      On September 9, 2016, the case proceeded to a non-jury trial before a

different judge than the judge who presided over suppression proceedings.

The trial court found Appellant guilty of one count of possession of a

controlled substance.     On January 6, 2017, the court imposed sentence.

Appellant timely appealed, and both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant raises three issues in this appeal:

         I. Whether the suppression court erred and/or abused its
         discretion when it denied Appellant’s motion to suppress
         when it found that the Appellant was in an “investigative
         detention” and not a “custodial detention” and when it
         further allowed inadmissible hearsay [into] the suppression
         hearing and relied on said inadmissible hearsay as
         substantive fact to support its denial of Appellant’s motion
         to suppress?

         II. Whether the suppression court erred and/or abused its
         discretion when it determined that Appellant’s suppression
         [motion] be denied when it found that Officer Vasil’s
         search of [Appellant] was a legal search?

         III. Whether the trial court erred and/or abused its
         discretion when it did not overrule the suppression court’s
         ruling?

Appellant’s Brief at 4.

      In essence, Appellant raises three arguments: (1) the suppression

court erroneously admitted hearsay during the suppression hearing; (2)

Appellant’s stop was a custodial detention instead of an investigative

detention, but the police officers lacked probable cause to conduct a

custodial detention; and (3) even if the stop was an investigative detention,



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Patrolman Vasil’s search was invalid under the plain feel doctrine, because

he did not immediately recognize the items on Appellant’s person as

contraband. We examine each of these issues below.

      When     the    defendant   files   a   motion   to   suppress,   “it   is   the

Commonwealth’s burden to prove, by a preponderance of the evidence, that

the challenged evidence was not obtained in violation of the defendant’s

rights.”   Commonwealth v. Wallace, 42 A.3d 1040, 1047-48 (Pa. 2012)

(citations omitted). When this Court addresses a challenge to the denial of a

suppression motion,

           [we are] limited to determining whether the suppression
           court’s factual findings are supported by the record and
           whether the legal conclusions drawn from those facts are
           correct. Because the Commonwealth prevailed before the
           suppression court, we may consider only the evidence of
           the Commonwealth and so much of the evidence for the
           defense as remains uncontradicted when read in the
           context of the record as a whole. Where the suppression
           court’s factual findings are supported by the record, [the
           appellate court is] bound by [those] findings and may
           reverse only if the court’s legal conclusions are erroneous.
           Where . . . the appeal of the determination of the
           suppression court turns on allegations of legal error, the
           suppression court’s legal conclusions are not binding on an
           appellate court, whose duty it is to determine if the
           suppression court properly applied the law to the facts.
           Thus, the conclusions of the courts below are subject to [ ]
           plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526–27 (Pa. Super. 2015)

(citation omitted).     When reviewing the suppression court’s rulings, we

consider only the suppression record. See In re L.J., 79 A.3d 1073, 1085

(Pa. 2013) (“it is inappropriate to consider trial evidence as a matter of


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J-S43036-17


course, because it is simply not part of the suppression record, absent a

finding that such evidence was unavailable during the suppression hearing”).

      Moreover,

         the admissibility of evidence rests within the sound
         discretion of the trial court, whose decision we will not
         disturb absent a showing that its discretion has been
         abused. Discretion is abused when the course pursued [by
         the trial court] represents not merely an error of
         judgment, but where the judgment is manifestly
         unreasonable or where the law is not applied or where the
         record shows that the action is a result of partiality,
         prejudice, bias, or ill will.

Commonwealth v. Dargan, 897 A.2d 496, 500 (Pa. Super. 2006)

(citations and quotation marks omitted).

      Appellant contends that the suppression court erred in denying his

motion to suppress on the basis of inadmissible hearsay, namely statements

by the CI to the police officers during the “buy bust” operation about what

Agnew said to the CI. We conclude that these statements were not hearsay,

because they were not admitted for their truth but to explain the police

officers’ course of conduct.

      Hearsay is “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.” Pa.R.E. 801(c). “An out of court statement offered not for

its truth but to explain the witness’s course of conduct is not hearsay.” See

Commonwealth v. Rega, 933 A.2d 997, 1017 (Pa. 2007) (trooper’s

testimony that on morning following murder, codefendant had told trooper



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J-S43036-17


that he and defendant dropped defendant’s daughters off at defendant’s

mother’s home before leaving together, was not inadmissible hearsay, where

Commonwealth      introduced   testimony      to   explain   reason   for   further

investigating codefendant and defendant); Commonwealth v. Sneed, 526

A.2d 749, 754 (Pa. 1987) (police officer’s testimony describing radio call that

prompted his trip to crime scene was not hearsay because it was introduced

solely to explain why he went to scene); Commonwealth v. Estepp, 17

A.3d 939, 945 (Pa. Super. 2011) (police officer’s testimony regarding

statements by confidential informant admissible to explain officer’s course of

conduct in investigating drug sales); Dargan, 897 A.2d at 500, 502

(officer’s testimony as to out-of-court statements made to him by

confidential informant, consisting of report that heroin could be purchased

from defendant, description of defendant and his automobile, his address,

and name of his girlfriend, admissible for purpose of explaining officer’s acts

in connection with his investigation).

      Here, the CI sent multiple text messages to police officers during the

buy bust operation concerning the location of his meeting with Agnew as

well as Agnew’s statement that he had to meet his “dude” to obtain the

cocaine. These text messages were admissible to explain the police officers’

course of conduct in tracking the CI’s and Agnew’s whereabouts and




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J-S43036-17


ultimately stopping Agnew, Appellant and Gray outside of Panera Bread.

Thus, no relief is due.4

      In his second issue, Appellant argues that the suppression court erred

by determining that the police officers subjected him to an investigative

detention instead of a custodial detention. Appellant insists that the officers

conducted a custodial detention for which probable cause did not exist. The

suppression court held that the officers conducted an investigative detention

and reasoned, in the alternative, that probable cause existed for a custodial

detention.   While the court did not explicitly address whether the officers

had reasonable suspicion to conduct an investigative detention, it implicitly

determined that they had reasonable suspicion by concluding that they

satisfied the steeper burden of probable cause.

      We uphold the suppression court’s decision but for slightly different

reasons—specifically, the officers had reasonable suspicion to conduct an

investigative detention. See Commonwealth v. Judge, 916 A.2d 511, 517

n.11 (Pa. 2007) (“this Court may affirm on any ground”) (citation omitted).

         Fourth Amendment jurisprudence has led to the
         development of three categories of interactions between
         citizens and the police. The first of these is a “mere
         encounter” (or request for information) which need not be

4
  Appellant points out that the trial court, unlike the suppression court, held
that the CI’s statements were inadmissible hearsay. Nevertheless, “the
record of the suppression hearing is intended to be the complete record for
suppression issues . . . .” L.J., 79 A.3d at 1084. Having reviewed the
suppression record, we think the suppression court’s decision was a proper
exercise of its discretion.



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J-S43036-17


         supported by any level of suspicion, but carries no official
         compulsion to stop or to respond. See Florida v. Royer,
         460 U.S. 491 (1983); Florida v. Bostick, 501 U.S. 429,
         (1991). The second, an “investigative detention[,]” must
         be supported by a reasonable suspicion; it subjects a
         suspect to a stop and a period of detention, but does not
         involve such coercive conditions as to constitute the
         functional equivalent of an arrest. See Berkemer v.
         McCarty, 468 U.S. 420 (1984); Terry v. Ohio, 392 U.S. 1
         (1968). Finally, an arrest or “custodial detention” must be
         supported by probable cause. See Dunaway v. New
         York, 442 U.S. 200 (1979); Commonwealth v.
         Rodriguez, 614 A.2d 1378 ([Pa.] 1992).

Commonwealth v. Ellis, 662 A.2d 1043, 1047–48 (Pa. 1995) (footnote

and parallel citations omitted).

         Reasonable suspicion is a less stringent standard than
         probable cause necessary to effectuate a warrantless
         arrest, and depends on the information possessed by
         police and its degree of reliability in the totality of the
         circumstances. In order to justify the seizure, a police
         officer must be able to point to specific and articulable
         facts leading him to suspect criminal activity is afoot. In
         assessing the totality of the circumstances, courts must
         also afford due weight to the specific, reasonable
         inferences drawn from the facts in light of the officer’s
         experience and acknowledge that innocent facts, when
         considered collectively, may permit the investigative
         detention.

                                    ***

         The determination of whether an officer had reasonable
         suspicion that criminality was afoot so as to justify an
         investigatory detention is an objective one, which must be
         considered in light of the totality of the circumstances. It
         is the duty of the suppression court to independently
         evaluate whether, under the particular facts of a case, an
         objectively reasonable police officer would have reasonably
         suspected criminal activity was afoot.




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J-S43036-17


Commonwealth v. Holmes, 14 A.3d 89, 95, 96 (Pa. 2011) (internal

citations, quotations, and emphasis omitted).

     A wide variety of circumstances may give rise to reasonable suspicion

to conduct an investigative detention for a suspected drug sale. See, e.g.,

Commonwealth v. Thompson, 93 A.3d 478, 485-86 (Pa. Super. 2014)

(police officer had reasonable suspicion to believe that defendant was

engaged in drug-related crime, where officer engaged in surveillance of

convenience   store   after   concerned   citizens   complained   of   suspected

narcotics activity near store, officer observed defendant signal to driver in

another vehicle in store parking lot and then leave the lot, officer followed

defendant to nearby location at which defendant approached and entered

vehicle that appeared to be waiting for him, and officer observed defendant

receive cash from passengers in vehicle, exit vehicle and retrieve        plastic

baggie from hiding place next to nearby fence, and toss baggie into vehicle);

Commonwealth v. Clemens, 66 A.3d 373, 380 (Pa. Super. 2013) (police

officer had reasonable suspicion necessary to detain defendant after

suspected drug transaction; officer who had significant experience in

investigating drug offenses witnessed defendant engage in hand-to-hand

narcotics transaction with another individual in high-crime area, and, when

defendant made eye contact with officer after transaction, he fled and was

next seen sitting on porch of home to which he had no connection).




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J-S43036-17


      In addition, information provided by a tipster can help establish

reasonable suspicion for an investigative detention.   See Commonwealth

v. Ranson, 103 A.3d 73, 78-79 (Pa. Super. 2014) (tip from nightclub patron

while police officer was working security detail at club in high-crime area,

identifying defendant and stating that he was carrying firearm, was

legitimate factor upon which officer could rely in determining that reasonable

suspicion existed to stop defendant even though officer did not know

informant’s name; officer had seen tipster on regular basis because he was

patron at club every weekend, officer had opportunity to observe tipster’s

demeanor and assess his credibility in light of his eighteen years of

experience as police officer, and tipster gave specific tip pointing out

defendant).

      Here, reasonable suspicion existed to stop Appellant outside of the

Panera Bread restaurant. Sergeant Moser, who had significant experience in

drug trafficking investigations, previously had used a reliable CI to make

controlled purchases of cocaine from Agnew.        Law enforcement officials

arranged a buy/bust in which the same CI would purchase cocaine from

Agnew, and Agnew would be arrested.             Multiple officers conducted

surveillance in the vicinity of the buy-bust. The CI was observed meeting

Agnew, who told the CI that he had to meet his “dude” to get the cocaine.

Agnew walked to the area of Panera Bread, where the officers briefly lost

sight of Agnew. The CI waited in his car for Agnew to return. Eventually,



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J-S43036-17


Agnew came back into view, the CI picked Agnew up, and they drove

around. The CI dropped off Agnew near Panera Bread, and the CI contacted

Sergeant Moser and reported that he had just purchased cocaine from

Agnew.   A law enforcement official observed Agnew inside Panera Bread

eating with a black male and a white female. Sergeant Moser believed the

male at Panera Bread was the “dude” who supplied cocaine to Agnew.

Agnew, the male and the female exited Panera Bread and entered a red

Dodge Charger, but Patrolman Vasil stopped the vehicle from leaving.

Collectively, the CI’s history of reliability, his report that Agnew needed to

see his “dude” to obtain cocaine followed by his walk near Panera Bread, the

controlled purchase of cocaine, Agnew’s entry into Panera Bread after the

controlled purchase, and Agnew’s meeting with a male and female inside

Panera Bread provided reasonable suspicion that the male (Appellant) was

the supplier of Agnew's cocaine.

      Further, the police officers only conducted an investigative detention,

which only required reasonable suspicion, instead of a custodial detention,

which would have required probable cause. “The key difference between an

investigative and a custodial [detention] is that the latter involves such

coercive conditions as to constitute the functional equivalent of an arrest.”

Commonwealth v. Pakacki, 901 A.2d 983, 987 (Pa. 2006) (citation and

internal quotation omitted). In determining whether an encounter with the

police is custodial, “[t]he standard . . . is an objective one, with due



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consideration given to the reasonable impression conveyed to the person

interrogated rather than the strictly subjective view of the troopers or the

person being seized,” and “must be determined with reference to the totality

of the circumstances.” Commonwealth v. Edmiston, 634 A.2d 1078,

1085–86 (Pa. 1993).

         The court considers the totality of the circumstances to
         determine if an encounter is investigatory or custodial, but
         the following factors are specifically considered: the basis
         for the detention; the duration; the location; whether the
         suspect was transported against his will, how far, and why;
         whether restraints were used; the show, threat or use of
         force; and the methods of investigation used to confirm or
         dispel suspicions.

Commonwealth v. Teeter, 961 A.2d 890, 899 (Pa. Super. 2008) (citation

omitted).

      The suppression court observed that the officers only subjected

Appellant to an investigative detention:

         The basis of the detention in this case was to further [the
         officers’] investigation of [Appellant] and for officer safety.
         It also occurred in a public location[,] further requiring the
         actions to be made for public safety purposes.             The
         suspect was not transported to that location but was at
         that location of his own free will. In addtion, the length of
         the detention was brief[,] and there was no evidence
         established at the evidentiary hearing . . . that there was
         any significant use of force.

Suppression Ct. Op. at 10-11. We agree with this reasoning.

      Appellant argues that the stop was a custodial detention because he

was placed in handcuffs, and because Sergeant Moser admitted during trial

that a “custodial detention” took place.       Appellant’s Brief at 16 (citing


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Reproduced Record at 109).       Neither argument has merit.     Handcuffing a

suspect for officer safety does not transform a stop into a custodial

detention. See Commonwealth v. Rosas, 875 A.2d 341, 348 (Pa. Super.

2005) (citations omitted). Here, handcuffing Appellant “was merely part and

parcel of ensuring the safe detaining of the individual[] during [a] lawful

Terry stop,” id., and did not constitute an arrest.        Moreover, Sergeant

Moser’s reference to a “custodial detention” during trial is of no moment. As

discussed above, the suppression hearing record is the complete record for

suppression issues, so trial testimony falls outside our scope of review on

this issue.   In any event, the determination of whether the stop was an

investigative detention or custodial detention is an objective inquiry,

Edmiston, 634 A.2d at 1085–86, that does not turn upon the subjective

viewpoint of a testifying police officer.

      Finally, Appellant argues that Patrolman Vasil’s search was invalid

under the plain feel doctrine, because he did not immediately recognize the

items in Appellant’s pocket as contraband. We disagree.

      Under the plain feel doctrine,

         a police officer may seize 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. [T]he 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


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J-S43036-17


        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.

Pakacki, 901 A.2d at 989 (citations omitted).     The plain feel exception is

satisfied when the officer feels both packaging material and drugs while

patting down the defendant's outer garments. In Commonwealth v.

Parker, 957 A.2d 311 (Pa. Super. 2008), the officer conducting the pat

down felt two plastic bags in the defendant's cargo pocket with some “hard,

rigid objects” that he believed were crack cocaine based on his training and

experience.     We upheld the seizure of the drugs because the officer

immediately identified the object he felt as contraband (packaged crack

cocaine) before reaching into the defendant's pocket and looking at its

contents.     Parker, 957 A.2d at 316.      Similarly, in Commonwealth v.

Bryant, 866 A.2d 1143 (Pa. Super. 2005), we upheld a search where the

officer conducting the pat down immediately recognized the object as

packaged drugs due to his experience in over 100 drug arrests and his

familiarity with the packaging and feel of packaged drugs.5     Bryant, 866

A.2d at 1147.


5
  Conversely, the plain feel exception is not satisfied when the officer only
feels a pill bottle, see Commonwealth v. Guillespie, 745 A.2d 654, 658
(Pa. Super. 2000), or only a zip-lock baggie, see Commonwealth v.
Stackfield, 651 A.2d 558, 562 (Pa. Super. 1994) (“[a] zip-lock baggie is not



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J-S43036-17


     Here,     the     suppression   court   determined   that    Patrolman   Vasil

immediately recognized the items in Appellant’s pocket as contraband. The

record supports this determination.          Patrolman Vasil placed his hand on

Appellant’s pocket and pressed “pretty hard.”         N.T., 4/14/16, at 56.     He

immediately felt plastic bags with tied corners and a powdery substance

inside them.     Id.     Based on his extensive experience performing such

searches, but without manipulating or moving these items around, he

immediately recognized that they were contraband.                Id. at 55-56, 61.

Accordingly, he lawfully removed these items from Appellant’s pocket.

     For these reasons, the trial court properly denied Appellant’s motion to

suppress.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/20/2017




per se contraband, although material contained in a zip-lock baggie may well
be”).




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