In the Interest of S.J.

CAPPY, Justice,

concurring and dissenting.

Although I agree with the majority in reversing the decision of the Superior Court, I reach that result by a different path. First, I do not agree that the officer’s decision to frisk appellant violated the parameters of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Second, as I find the frisk was permissible, I would go on to reach the question of *645whether the “plain feel” doctrine as enunciated in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), is consistent with the privacy interests provided to the citizens of this Commonwealth under Article I, Section 8 of the Pennsylvania Constitution; this question I would answer in the affirmative. Thus, there is a need to reach the third question: was the seizure which occurred herein violative of the “plain feel” doctrine. As I would find the seizure here did violate the “plain feel” doctrine enunciated in Dickerson, I, too, would reverse the decision of the Superior Court.

Beginning with my first point of departure from the analysis of the majority, I find the frisk of appellant was supported by sufficient reasonable suspicion so as to comply with the requirements of Terry. Unlike the majority I read Terry, and the line of Pennsylvania cases following the rationale set forth therein, to permit a stop and frisk unless the officer’s actions can be seen as clearly unreasonable under the circumstances known to the officer at the time of the stop. As the Terry court recognized, the interaction occurring between an officer on the beat and a citizen in a typical stop and frisk situation requires the officer to make a swift on-the-spot decision assessing the potential nature of criminal activity, the conduct of the suspect, the potential danger to others in the area and, of course, the potential danger to the officer. Given the immediacy of the situation, I do not read Terry to require the officer to specify that the suspect was possibly reaching for a weapon, or that the officer observed a bulge. Rather, I read Terry to require that the officer set forth reasonable suspicion to support the decision to frisk. Reasonable suspicion is more than a hunch but less than probable cause. Terry, 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed.2d at 905. Based upon my reading of the facts in this case, as found by the trial court, this officer set forth sufficient particular information to satisfy the reasonable suspicion requirement of Terry.

The officer, working alone, approached a large group of young men whom he knew by his own observation to be under the influence of marijuana; thus, the suspicion of criminal activity taking place was affirmatively established. The en*646counter took place in a high crime area and the appellant was acting in a furtive manner attempting to evade the officer’s attention. Under these circumstances I would find that the officer’s assessment of the situation — he was alone, there was a large group of males under the influence of marijuana, and the appellant was behaving in a suspicious, manner as if he had something to hide — provided sufficient reasonable suspicion to justify the frisk of appellant for the safety of the officer.1

*647As the Court in Terry stated in setting forth the standard by which all such encounters are to be measured: “[I]n making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate?” Terry 392 U.S. at 21-22, 88 S.Ct. at 1879, 20 L.Ed.2d at 906. Based upon the facts available to this officer at the time, I would conclude that the action taken was appropriate. As I cannot agree with the majority that the officer here violated Terry, I am compelled to dissent from this portion of the majority opinion.

Given my departure from this holding of the majority, I would then go on to reach the question of whether the “plain feel” doctrine is cognizable under the Pennsylvania Constitution. In Minnesota v. Dickerson, the United States Supreme Court held that the “plain feel” doctrine was a logical and reasonable convergence of a Terry pat-down and the plain view doctrine of Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). The Court in Dickerson reasoned as follows:

If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that were in the plain-view context.

Id. 508 U.S. at 375-76, 113 S.Ct. at 2137, 124 L.Ed.2d at 346.

The question presented to this court is whether the rationale of Dickerson is compatible with the law of search and seizure unique to Pennsylvania. As this Court recognized in Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991), the Pennsylvania Constitution can provide an additional level of protection for the citizens of this Commonwealth beyond the minimum set forth in the United States Constitution. In analyzing specific claims for greater protection under the Pennsylvania Constitution, this court has adopted a four-prong *648analysis to aid in this undertaking. These four prongs are: (1) the text of the Pennsylvania Constitutional provision; (2) the history of the provision as revealed through case law; (3) related case law from other states and; (4) policy considerations unique to Pennsylvania. Edmunds, 526 Pa. at 390, 586 A.2d at 895.

As this court has acknowledged in previous cases reviewing Article I, Section 8, the language of this provision is similar to the language of the Fourth Amendment to the United States Constitution.2 The similarity in phraseology of these two provisions is not conclusive as to their distinct interpretations. Thus, it is necessary to move on to a consideration of Pennsylvania case law interpreting Article I, Section 8 as it relates to the specific questions presented in the instant case. At issue here is whether Pennsylvania law, with its historical emphasis upon individual privacy, is compatible with the rationale of Dickerson, which superficially implies a broader sweep to the traditional Terry encounter than this court has previously condoned.

Our analysis here must begin with Terry and its application under Pennsylvania law. Pennsylvania embraced the stop and frisk concept of Terry in Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969). Consistently therefrom this court has steadfastly followed the requirements of Terry and approved police encounters of that nature where the officer making the stop has been able to point to specific and articulable facts which would lead a reasonably prudent person in that position to suspect criminal activity was afoot and that the suspect may *649be armed and dangerous. Commonwealth v. Melendez, 544 Pa. 323, 676 A.2d 226 (1996); Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970).3

Pennsylvania courts have refused to expand Terry to permit any greater infringement upon personal privacy beyond the stop and frisk. In Commonwealth v. Rodriquez, 532 Pa. 62, 614 A.2d 1378 (1992), this Court rejected the Commonwealth’s efforts to expand Terry to embrace a new level of police citizen interaction termed justifiable detention. The Commonwealth strenuously argued that this expanded opportunity for the police to detain citizens beyond the time necessary to perform a stop and frisk would greatly enhance the ability of the police to investigate crime without requiring a full-blown arrest. Recognizing the public right to deter criminal activity and balancing that right against the individual right to be free of police interference absent reasonable suspicion or probable cause, this court refused to expand Terry.

Appellant here urges the court to follow the philosophy of Rodriquez and reject Dickerson as another attempt to expand Terry in a manner inconsistent with the privacy rights of individuals, so jealously guarded under Pennsylvania law. I find appellant’s fears unjustified in this instance. The rationale of Dickerson does not support any greater intrusion into the personal privacy of an individual than already tolerated by our endorsement of Terry. Once an officer has legitimately seized an individual for the purpose of investigating possible criminal activity and, where warranted, commenced a pat down of that individual for protective purposes, the scope of the encounter has been delineated. Whether during that investigative pat down the officer feels a gun, knife, set of brass knuckles, outline of probable stolen jewelry, or similarly identifiable contraband, the level of interference with the individual will not be altered. A pat down is only that, a pat down of the individual’s outer garments. Thus, I can find no *650precedent in Pennsylvania law which would militate against an application of Terry within the parameters of the “plain feel” doctrine.

As the Dickerson Court recognized “plain feel” merges the concepts of Terry with the concepts embodied in the plain view doctrine. The plain view doctrine has long been a recognized legal concept. As the United States Supreme Court held in Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968):

It has long been settled that objects falling in the plain view are subject to seizure and may be introduced in evidence. Ker v. California, 374 U.S. 23, 42-43, 83 S.Ct. 1623 [1634-35], 10 L.Ed.2d 726, 743 (1963); United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927); Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924).

As the Harris Court acknowledged, when an officer is lawfully in a position to view an item, the incriminating nature of which is immediately apparent, the officer may legitimately seize the item. Id., 390 U.S. at 236, 88 S.Ct. at 994, 19 L.Ed.2d at 1069 (1968). The plain -view doctrine does not interfere with the protections against unwarranted searches and seizures provided by the Fourth Amendment. Id. As in the case of Terry, Pennsylvania has without alteration embraced and adhered to the logic of the plain view doctrine. See Commonwealth v. Jackson, 461 Pa. 632, 337 A.2d 582 (1975). No particular privacy interests unique to Article I, Section 8 of our Constitution dictate a divergent path from the concept of plain view.

As the Dickerson Court recognized the convergence of Terry with the principles of plain view logically results in acceptance of the “plain feel” doctrine. Given the history of our case law in Pennsylvania, which has always followed Terry and Harris, there is no basis in our precedents to reject Dickerson.

Looking next to the consideration of this question by our sister states, we find almost unanimous adoption of Dickerson. As we have previously stated, it is not the numerical weight of states which we consider in our analysis, but rather, the *651rationale within their opinions on a given issue. Commonwealth v. Matos, 543 Pa. 449, 672 A.2d 769 (1996).

Only New York State has rejected the “plain feel” doctrine, and that was in.a decision handed down prior to the decision of the United States Supreme Court in Dickerson. In People v. Diaz, 81 N.Y.2d 106, 595 N.Y.S.2d 940, 612 N.E.2d 298 (1993), the court found the sense of touch to be less reliable than the sense of sight. Therefore, the Diaz court opined that given the disparity in sensory ability “plain feel” was not a logical extension of plain view. The Diaz court also considered the potential for abuse which could be created by allowing police to pretextually expand weapons searches as a hunt for other contraband as a reason for rejecting the “plain feel” doctrine.

Other states considering “plain feel” have found the concerns articulated by the Diaz court legitimate, but not preclusive to adopting “plain feel.” Generally the following states have embraced “plain feel” by accepting the plain view analogy and deciding on a case-by-case basis for pat downs which exceeded the legitimate scope of a Terry stop and frisk. See Allen v. State, 689 So.2d 212 (Ala.Crim.App.1995); State v. Millan, 185 Ariz. 398, 916 P.2d 1114 (1995); Dickerson v. State, 51 Ark.App. 64, 909 S.W.2d 653 (1995); People v. Dickey, 21 Cal.App.4th 952, 27 Cal.Rptr.2d 44 (1994); State v. Gubitosi, 43 Conn.App. 448, 683 A.2d 419 (1996); Hicks v. State, 631 A.2d 6 (Del.1993); Dickerson v. United States, 677 A.2d 509 (D.C.1996); Jones v. State, 648 So.2d 669 (Fla.1995); Seaman v. State, 214 Ga.App. 878, 449 S.E.2d 526 (1994); People v. Mitchell, 165 Ill.2d 211, 209 Ill.Dec. 41, 650 N.E.2d 1014 (1995); Stone v. Indiana, 671 N.E.2d 499 (Ind.App.1996); State v. Wonders, 23 Kan.App.2d 287, 929 P.2d 792 (1996); Commonwealth v. Crowder, 884 S.W.2d 649 (Ky.1994); State v. Matthews, 654 So.2d 868 (La.App.1995); State v. Smith, 345 Md. 460, 693 A.2d 749 (1997); People v. Champion, 452 Mich. 92, 549 N.W.2d 849 (1996); State v. Rushing, 935 S.W.2d 30 (Mo.1996); State v. Chitty, 5 Neb.App. 412, 559 N.W.2d 511 (1997); State v. Benjamin, 124 N.C.App. 734, 478 S.E.2d 651 (1996); State v. Woods, 113 Ohio App.3d 240, 680 N.E.2d 729 *652(1996); State v. Abrams, 322 S.C. 286, 471 S.E.2d 716 (1996); State v. Buchanan, 178 Wis.2d 441, 504 N.W.2d 400 (1993).

Having reviewed the opinions of our sister states on the issue of “plain feel,” I believe the concerns raised by the New York minority position are insufficient to preclude Pennsylvania from following the lead of the United States Supreme Court and the majority of our sister states. I would agree with the majority of jurisdictions that any potential abuses of the “plain feel” doctrine can be addressed by the courts on a case-by-case basis.

Turning finally to policy considerations unique to Pennsylvania, I find none which preclude our adoption of the “plain feel” doctrine. The major areas of concern the “plain feel” doctrine brings to the fore are potential abuses by officers on the street, and, the limitations of the sense of touch. I note that these very concerns were advanced by the appellants in Terry. Just as the United States Supreme Court stated then, I would find here that the potential for abuse is outweighed by the very real danger officers face on the streets every day. As to the limitations of the sense of touch, that question begs a factual answer best dealt with on a case-by-case basis. See Terry, 392 U.S. at 25-26, 88 S.Ct. at 1882, 20 L.Ed.2d at 908-09.

As Pennsylvania has long embraced the plain view concept and the necessity of Terry pat downs when premised upon reasonable suspicion of criminal activity, I find no policy reasons that would preclude adoption of the “plain feel” doctrine, which simply unites plain view and Terry. I .would find Pennsylvania possesses no particular policy interest that would be interfered with by embracing the “plain feel” doctrine.

Having expressed my reasons for following the decision in Dickerson, I now turn to an application of the “plain feel” doctrine to the instant case. Based upon the testimony of the officer at the suppression hearing I would find that the search as conducted exceeded the scope of a permissible pat down. The officer specifically testified that he knew the hard object *653was not a weapon but after squeezing it he was certain it was crack cocaine. Manipulation of any object detected during a pat down, once the officer is satisfied that the object is not a weapon, is unacceptable. To permit such poking, squeezing and prodding, would violate the limits of the pat down and allow the officer to increase the scope of the search without legal justification. The officer’s actions in the instant case are identical to the actions of the officer in Dickerson. As the Dickerson court noted:

[T]he officer determined that the lump was contraband only after “squeezing, sliding and otherwise manipulating the contents of the defendant’s pocket” — a pocket which the officer already knew contained no weapon.... Although the officer was lawfully in a position to feel the lump in respondent’s pocket, because Terry entitled him to place his hands upon respondent’s jacket, the court below determined that the incriminating character of the object was not immediately apparent to him. Rather, the officer determined that the item was contraband only after conducting a further search, one not authorized by Terry or by any other exception to the warrant requirement. Because this further search of respondent’s pocket was constitutionally invalid, the seizure of the cocaine that followed is likewise unconstitutional.

Id., 508 U.S. at 378-79, 113 S.Ct. at 2138-39, 124 L.Ed.2d at 347-48.

Given the facts of the instant case and their striking similarity to the facts of Dickerson, I would find that the officer here violated the parameters of a Terry frisk in manipulating the object in appellant’s pocket once he ascertained that the object was not a weapon. Thus, although I would endorse Dickerson under Pennsylvania law, in applying that law to this case I would find that the scope of the “plain feel” doctrine was violated and for that reason reverse the decision of the Superi- or Court.

Accordingly, for the reasons set forth herein, I dissent from the opinion of the majority, but concur in the decision to *654reverse the Superior Court, although I reach that result on other grounds.

. I note that the Superior Court in addressing the frisk question presented on these facts relied upon their previous decisions in Commonwealth v. Patterson, 405 Pa.Super. 17, 591 A.2d 1075 (1991) and Commonwealth v. Johnson, 429 Pa.Super. 158, 631 A.2d 1335 (1993). In those cases, and their progeny, the Superior Court has created a special exception to Terry for stop and frisk situations involving drug activity. The Superior Court has taken judicial notice of the fact that drug dealers are likely to be armed and dangerous. From that premise the Superior Court then concluded that once an officer has a reasonable belief that drugs are involved, he may frisk for weapons without further articulating a reason for the frisk.

I would reject this judicial creation by the Superior Court and overrule Patterson and its progeny. The standards enunciated in Terry provide a sufficient basis to protect police officers in their battle against, criminal activity. Where an officer can articulate a reasonable basis for the frisk it is permitted. To carve out an exception to this requirement for all drug cases would completely dissipate the protection for our citizens to be free of unwarranted searches which necessarily factors into the Terry analysis. Balancing the privacy rights of our citizens against the need for the police to be free of the limitations of Terry when investigating possible criminal activity of a drug related nature, I believe that the balance tips in favor of privacy.

I further note that the United States Supreme Court in Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997), rejected a per se exception to the knock and announce requirement of the Fourth Amendment for cases involving the execution of warrants in drug related investigations. The Court there stated:

[the] difficulty with permitting a criminal-category exception to the knock-and-announce requirement is that the reasons for creating an exception in one category can, relatively easily, be applied to - others. Armed bank robbers, for example, are, by definition, likely to have weapons, and the fruits of their crime may be destroyed without too much difficulty. If a per se exception were allowed for each category of criminal investigation that included a considerable-albeit hypothetical-risk of danger to officers or destruction of evidence, the knock- and-announce element of the Fourth Amendment’s reasonableness requirement would be meaningless. .

Id. 520 U.S. at -, 117 S.Ct. at 1421, 137 L.Ed.2d at 624. Although not directly on point as the Richards case dealt with execution of a warrant and this case deals with a Terry frisk, I find the rationale of the United States Supreme Court eminently persuasive.

. The Fourth Amendment of the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article I, Section 8 of the Pennsylvania Constitution provides:

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

. I note that the majority cites Berrios and Melendez in support of its conclusion that a pat down can only occur where the officer finds reasonable suspicion that the suspect was armed. Melendez and Berrios, however, only dealt with the officer's initial decision to stop the suspect.