Saylor first found that the officers were justified in searching Zhahir, in part because they observed him acting suspiciously in a high crime area and in a manner that was consistent with that of other narcotics suspects.
Turning to the frisk, Saylor noted that the purpose of a frisk is not to discover evidence, but to make sure a defendant is not concealing weapons. The plain-feel doctrine, adopted by the U.S. Supreme Court in the 1993 case Minnesota v. Dickerson, 508 U.S. 366, (1993), gives police the power to seize other types of contraband.
Under federal law, a plain-feel search and seizure is valid when an officer is lawfully in a position to detect the contraband, the incriminating nature of the contraband is immediately apparent from its physical impression and the officer had a lawful right of access to the object.
In his argument that the doctrine violated Article 1, Section 8 of the Pennsylvania Constitution, Zhahir claimed its adoption would “turn a narrow exception to the probable cause and warrant requirements into a facile excuse for further, more coercive intrusions into [citizens'] very bodies, … would be impossible to enforce, and would require courts to analyze increasingly arcane distinctions of fact without meaningful guidance.”
The justices considered the doctrine recently in Commonwealth v. Stevenson/R.A., PICS Case No. 00-0096 (Pa. Jan. 20, 2000) Nigro, J.; Castille, J., dissenting; Newman, J., concurring & dissenting (22 pages), in which the majority decided that an officer’s experience in drug enforcement alone cannot give him or her probable cause to seize items suspected to contain drugs after a plain-feel search.
And a few months earlier, the court decided in Commonwealth v. E.M./Hall, PICS Case No. 99-1919 (Pa. July 21, 1999) Nigro, J.; Castille & Newman, JJ., dissenting (26 pages), that an officer has to be able to explain what it was about a package that made it readily apparent he or she was feeling contraband in order for such a search to be valid.
However, those cases did not get to the question of the doctrine’s appropriateness under the state Constitution. Saylor said Justice Ralph Cappy previously set out the framework for that analysis in Stevenson.
Cappy called for an examination of the text of the relevant constitutional provision; the provision’s history, including under state caselaw; related caselaw from other jurisdictions; and policy considerations.
In Saylor’s application of those criteria, he compared the plain-feel doctrine with the plain-view doctrine, under which officers can seize contraband that is within their line of vision. The plain-view doctrine has been accepted in several jurisdictions, including Pennsylvania.
Jurisdictions outside the state have also adopted the plain-feel doctrine. In fact, Saylor said New York remains the only jurisdiction to have rejected the doctrine finding that the sense of touch is less reliable than the sense of sight, although that decision was made before Dickerson.
Saylor cited a passage from Connecticut’s high court in State v. Trine to help explain why Pennsylvania’s Supreme Court would accept the doctrine.
“We are persuaded that existing restrictions on the use of information obtained during a lawful patdown search adequately protect individual privacy interests. … In addition, the officer’s belief that the object is contraband must be objectively reasonable in light of all circumstances known at the time of the search,” the Trine court said.
Too Broad?
Zhahir argued the high court was too broadly lessening Terry‘s limitations by adopting the presumption that “guns follow drugs.” He stated that certain trial courts and the Superior Court have taken judicial notice that drug dealers are likely to be armed.
Saylor said there was no cause for that concern in Zhahir’s case because the officers were justified in frisking him. But the justice warned against lower courts taking the decision too far.
“Nevertheless, as a general policy consideration, taking judicial notice that all drug dealers may be armed as in and of itself a sufficient justification for a weapons frisk clashes with the totality standard, as well as the premise that the concern for the safety of the officer must arise from the facts and circumstances of the particular case,” Saylor said.
As for the seizure of contraband from Zhahir, Saylor said it was readily apparent to the officers that he was carrying contraband.
“In the present case, police were responding to a tip involving narcotics and observed behavior corroborative of the tip’s allegation. Furthermore, the frisk occurred in an area noted for drug activity and the officer felt what he immediately perceived as numerous (98) vials of cocaine, which was consistent with cocaine packaging he had encountered in previous narcotics cases,” Saylor wrote.
“Significantly, given the number and nature of the containers, their presence was not equally consistent with legitimate purposes.”
In his concurring opinion, Justice Russell Nigro said he agreed with the majority’s decision in theory, but not in practice.
Dickerson dictates that the incriminating nature of contraband must be readily apparent from its physical impression in order for a plain-feel seizure to be valid.
Nigro said the facts showed that one officer felt a large bundle of caps in Zhahir’s jacket pocket and then reached in and grabbed the vials.
“Unlike the majority, I can make no material distinction between the circumstances of this seizure and the ones this court found to exceed the scope of the plain feel doctrine in Stevenson/R.A.,” Nigro said.
“In both cases, the police merely felt material which may or may not be used for packaging controlled substances, which, as we held in Stevenson/R.A., is insufficient to meet the immediately apparent element of the plain feel doctrine.”
Reasonable Suspicion
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