J-A11020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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J-A11020-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/6/2016




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