Standard for Police to Conduct More Intrusive Search Following Terry Frisk

In the Interest of T.W., a minor, 2020 WL 551354 (Pa. Super. 2020) (unreported), allocatur granted Aug. 4, 2020, appeal docket 22 EAP 2020

The Supreme Court granted allocatur in this case involving the standard for police to conduct a more intrusive search based on an officer’s belief that what he felt in appellant’s pocket during a Terry frisk was a weapon.

This case arises from an adjudication of delinquency of T.W., a juvenile, for unlawful possession of Oxycodone following juvenile court’s denial of T.W.’s motion to suppress evidence found during an officer’s search. Superior Court summarized the relevant facts as follows:

The record establishes that Officer Grant and his partner were on patrol in a high-crime area in the early morning hours of June 19, 2018, when they became involved in a high-speed chase with two vehicles; appellant was a passenger in one of these vehicles. Officer Grant testified that during the ensuing traffic stop, he became concerned that appellant may be in possession of a weapon after observing him “turn[ ] his left shoulder away from [the officers]” and “start to reach into his pockets.” Officer Grant testified that he ordered appellant to step out of the vehicle and conducted an “open-hand pat down” frisk after appellant repeatedly disregarded Officer Grant’s instruction to remove his hands from his pockets. Officer Grant noted that during the course of this safety frisk, he felt a “large” and “hard” object in appellant’s front left pants pocket. Officer Grant opined that although he did not immediately recognize what the object was during the pat-down, he was concerned, based upon his training and experience as a police officer and the recent spate of violent incidents in this area, that the object was a weapon or firearm. On cross-examination, Officer Grant testified that he could not recall the exact size of the object he felt but that it was comparable to the size of a bottle of Nyquil. Fearing for his safety, Officer Grant reached into appellant’s pocket and removed the object, which turned out to be a large glass bottle labeled “Promethazine” that was prescribed to an individual with a different name than the one appellant had provided. During a subsequent search of appellant’s person incident to arrest, Officer Grant recovered a second, smaller pill bottle from appellant’s right pants-pocket that contained two Oxycodone pills.

Slip op. at 6-7 (internal citations omitted). T.W. was subsequently charged with unlawful possession of a controlled substance. At his juvenile adjudication, T.W. made an oral motion to suppress the physical evidence recovered from Officer Grant’s search of his person. Following the hearing, the juvenile court denied T.W.’s suppression motion and adjudicated him delinquent of unlawful possession of a controlled substance. In denying T.W.’s suppression motion, the trial court concluded:

It was reasonable for Officer Grant to go into [appellant’s] pockets to dispel a reasonable fear for his safety and the safety of others during the investigatory stop. [Appellant] was a passenger in a vehicle that was just in a high[-]speed chase with police at 4:15 in the morning in a high[-]crime area where Officer Grant has a plethora of personal experience with weapons recovered from traffic stops. Moreover, the officers made the stop without the benefit of a police vehicle. [Appellant] did not comply with Officer Grant’s order to stop hiding his body and reaching into his pockets. It was only after a limited [ ] search of the outside of [appellant’s] clothes and feeling a hard object that was not readily identifiable that Officer Grant expanded his search to the inside of that particular pocket. Looking at the totality of the circumstances, Officer Grant had a reasonable suspicion, based on specific and articulable facts, that [appellant] may be armed and dangerous, and Officer Grant tailored his search to only that which was reasonably necessary for the discovery of weapons.

Slip op. at 7-8. T.W. appealed the denial of his suppression motion, arguing that Officer Grant exceeded the scope of a permissible search by reaching into T.W.’s left pants pocket and that the officer’s “fishing expedition into [his pocket] was impermissible” where the incriminating nature of “[t]he hard object that Officer Grant felt” was not “immediately apparent.” Slip op. at 6.

On appeal, Superior Court held that Officer Grant did not exceed the scope of a permissible search, concluding that: 

…Officer Grant articulated a reasonable belief that what he felt in appellant’s pocket was a weapon. See, e.g., Commonwealth v. Taylor, 771 A.2d 1261, 1269 (Pa. 2001) (holding that a police officer was justified in reaching into a defendant’s pocket during course of Terry frisk, where the defendant reached for his pocket despite being told not to move several times, and the officer felt a hard, cylinder-type object in the pocket, which he reasonably believed to be a weapon), cert. denied, 534 U.S. 994 (2001); but see Commonwealth v. Wilson, 927 A.2d 279, 285-286 (Pa.Super. 2007) (concluding that an officer’s search and seizure of drugs in defendant’s coat pocket exceeded lawful scope of Terry, where the officer’s testimony that he felt a “hard, large ball” failed to articulate any reasonable belief that the object he felt in defendant’s pocket appeared to be a weapon.).

Slip op. at 8.

The Supreme Court granted allocatur to determine the following issue, as stated by petitioner:

 Should this Court clarify the issue left unresolved by this Court’s split decision in Commonwealth v. Taylor, 771 A.2d 1262 (Pa. 2001) relating to the standard for when police may conduct an additional more intrusive search of a pocket following a pat-down for weapons?

For more information, contact Kevin McKeon or Dennis Whitaker.