In the Interest of S.D.

JOHNSON, Judge,

dissenting.

I agree with my distinguished colleague that Officer Jose Acevedo was justified in conducting both an investigatory stop and an immediate frisk of the juvenile in this case. I cannot agree that the Honorable Sheldon C. Jelin committed any error in denying the motion to suppress physical evidence. Nor can I agree that a police officer must volunteer and affirmatively state “what it was he perceived he had felt” in order to withstand a suppression motion in a juvenile court proceeding. Accordingly, I must dissent.

At the adjudication hearing before Judge Jelin, Officer Acevedo testified as follows:

Q. Okay. Can you tell the judge what happened?
A. Sure. Your Honor, on that date and time I was on routine patrol and I received information about two black males armed with guns and narcotics.
*589Q. Officer, where did you get that information from?
A. From a passerby on Germantown and Diamond.
Q. What did you do with the information that passerby had given you?
A. After receiving that information, Your Honor, I went— around the corner on Marshall Street around to the twenty-2100 block of Germantown. When I observed this defendant (indicating) and another defendant.
I patted — I stopped them for investigation, at which time I felt a bulge in the defendant’s right pants pocket, and I retrieved it and observed numerous crack vials, alleged narcotics, containing a white substance — white chunky substance sealed with blue caps.
And the other defendant was frisked for my safety also and was recovered a — .

Motion to Suppress/Adjudicatory Hearing Transcript (M.S./ A.H.T.) December 8,1992 at 6. At the conclusion of the direct examination of Officer Acevedo by the Assistant District Attorney on the motion to suppress, the following appears in the record:

MS. KRAUSE [ADA]: I have no further questions of this officer.
THE COURT: Cross-examination.
MS. ADAMS [Assistant Defender]: Just one moment. (Whereupon, Ms. Adams conferred with the defendant off the record.)
MS. ADAMS: I don’t have any questions, Your Honor. THE COURT: Thank you. You may step down.
(Witness excused.)

Id. at 11.

In the suppression portion of this adjudication proceeding, the juvenile did not testify. S. Blake Adams, Assistant Defender, did not cross-examine Officer Acevedo and did not challenge the veracity or reliability of his testimony at any point in the proceedings. Officer Acevedo’s testimony that he felt a bulge in the juvenile’s right pants pocket, following his *590receiving information about two males armed with guns and narcotics is uncontested.

In adult criminal proceedings involving the denial of a motion to suppress, we must determine whether the factual findings mandated by Pa.R.Crim.P. 323(i) are supported by the record. Commonwealth v. Medley, 531 Pa. 279, 284, 612 A.2d 430, 432 (1992); Commonwealth v. Sanchez, 416 Pa.Super. 160, 166-67, 610 A.2d 1020, 1023 (1992), appeal denied, 533 Pa. 624, 620 A.2d 490 (1993). When the evidence supports the factual findings, we are bound by such findings; we may reverse only if the legal conclusions drawn therefrom are erroneous. Id. The Rules of Criminal Procedure do not apply to juvenile proceedings unless otherwise specifically provided. Pa.R.Crim.P. 1(a). Nevertheless, this Court has considered, without informed discussion of the point, the denial of a pre-hearing suppression motion in a juvenile proceeding. See, e.g., In Interest of A.P., 421 Pa.Super. 141, 617 A.2d 764 (1992), pet. for allow, of appeal 8 E.Alloc.Dckt. 93 (January 6, 1993).

At the conclusion of the presentation of the Commonwealth’s evidence on the pre-hearing suppression motion, Judge Jelin found that Officer Acevedo had both probable cause and reasonable suspicion to act in the manner in which he acted. M.S./A.H.T. at 15. In his Opinion filed February 16, 1993, Judge Jelin wrote, at page 4:

While patting down the defendant, Officer Acevedo felt a bulge in the defendant’s right pocket ... and retrieved 50 vials containing a white chunky substance. At that point in time, Officer Acevedo had “sufficient facts ... to warrant a prudent man in the belief that the person seized ha[d] committed, [was] committing or [was] about to commit a crime” and therefore, had probable cause to arrest the defendant. Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1989) [1969].

Judge Olszewski, after reviewing these facts and conclusions, states for the majority on this appeal:

*591Officer Acevedo testified at the suppression hearing that he “felt a bulge in [S.D.’s] right pants pocket” during the pat-down search. N.T. 12/8/92 at 6. He then stated he retrieved a bag containing numerous crack cocaine vials. Although Officer Acevedo was told that the suspects were carrying weapons and drugs, he never indicated what it was he perceived he had felt. Without such evidence, we cannot sustain the trial court’s conclusion that Officer Acevedo reached into S.D.’s pocket on the basis that he feared he had felt a weapon.

Majority Opinion at 176. I cannot agree with this conclusion.

The majority does not cite to any specific authority for its assertion that an affirmative statement as to the arresting officer’s “perception” is a necessary element in sustaining a denial of a suppression motion. The question before us is the legitimacy of the suppression court’s inference arising from the uncontradicted evidence that Officer Acevedo felt a bulge in the suspect’s pocket while searching for weapons. The majority, by imposing a requirement concerning the officer’s statement as to his perception or belief, removes from the suppression court its ability and authority to infer and draw conclusions where no contradictory statement is offered.

This case was submitted to our panel without oral argument. The novel position taken by my distinguished colleague, Judge Olszewski, is advanced in the Brief for Appellant, at the end thereof, with citations to Commonwealth v. Marconi, 408 Pa.Super. 601, 597 A.2d 616 (1991), appeal denied, 531 Pa. 638, 611 A.2d 711 (1992) and, by way of footnote, to Commonwealth v. Canning, 402 Pa.Super. 438, 587 A.2d 330 (1991) and In the Interest of Dixon, 356 Pa.Super. 105, 514 A.2d 165 (1986). I find none of these cases apposite.

In none of the three cases cited by the Defender Association was the arresting officer informed that the suspect would be either armed or dangerous. In Marconi, a plain clothes officer approached the occupants of a vehicle parked in a school parking lot at 7:15 P.M. in daylight to determine *592whether either of the occupants, who had exchanged front seats, was intoxicated and why they had parked next to a school. The officer recognized both occupants as persons with whom he had prior contact in responding to domestic disputes. The trial court found as a fact that the officer had felt no weapons prior to reaching into the defendant’s rear pocket and removing two plastic bags. Marconi 408 Pa.Super. at 605-606, 597 A.2d at 618. The Defender Association cites Marconi for the principle that when items felt during a pat-down cannot be considered weapons, further retrieval cannot be legally condoned. I find nothing in the transcript of testimony in the case before us to compel a conclusion that Officer Acevedo had not, or could not, consider the bulge in S.D.’s pocket a weapon.

By the same token, in Canning, a stranger, without shirt, shoes and socks, had been pacing back and forth on a front porch in a residential area of Philadelphia. He appeared intoxicated and confused; he stated he was looking for his car. There, we found that the search and seizure of two packets from the defendant’s pants pocket could not be justified under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), because the officer did not articulate any specific facts to justify a reasonable belief that the person might be armed and dangerous nor did the officer confine his search to items that may have reasonably appeared to be weapons. Canning 402 Pa.Super. at 441, 587 A.2d at 331.

Finally, in In the Interest of Dixon, this Court concluded that the arresting officer may have reasonably believed that criminal activity was afoot, but the record contained no evidence to support any reasonable belief by the officer that the suspect was “armed and dangerous”. Dixon, 356 Pa.Super. at 108, 514 A.2d at 167.

In none of the cases cited by the Defender Association is there any suggestion that the “perception” of the arresting officer as to his thoughts while conducting a weapons search is controlling when reviewing the validity of a Terry search. In none of those cases is the suppression court’s authority to draw legal conclusions from uncontradicted facts in dispute. I *593find no abuse of discretion on the part of Judge Jelin in concluding that Officer Acevedo had reasonable grounds for removing a bulge from a suspect’s right pants pocket during a Terry stop and search, where the officer had information from which he could justifiably believe that the suspect was armed and dangerous.

Both of my colleagues assert that under the standard announced in Minnesota v. Dickerson, 508 U.S. ——, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), S.D.’s rights were violated by the seizure. I strongly disagree. Neither the appellant, S.D., nor the Commonwealth have had any opportunity to either brief or argue the points asserted in the lead opinion. This case was submitted to our panel without oral argument, presumably in the belief that it would be decided under well-established, existing legal principles.

Dickerson is inapposite on this submitted appeal, as the facts in Dickerson clearly demonstrate. That case is of no value in deciding whether Judge Jelin erred in the juvenile adjudication now before us. In Dickerson, the accused began walking toward a marked squad car in which two police officers were patrolling. Dickerson made eye contact with one of the officers, abruptly halted, began walking in the opposite direction, and turned and entered an alley. The officers ordered Dickerson to stop and submit to a Terry, pat-down search. The search revealed no weapons. Thereafter, the officer conducting the patdown felt a small lump in the front pocket of Dickerson’s nylon jacket.

After a jury trial and guilty verdict, Dickerson appealed to the Minnesota Court of Appeals which reversed the conviction, concluding both that (1) the seizure violated Terry v. Ohio principles and (2) a “plain feel” exception to the warrant requirement of the Fourth Amendment was not indicated. On further appeal, the Supreme Court of Minnesota affirmed the order reversing the judgment of conviction. It held that, even if a “plain feel” exception was to be recognized, the record in Dickerson’s case established that the officer who searched Dickerson did not immediately recognize the lump in Dickerson’s pocket as cocaine. The Minnesota Supreme Court ex*594pressly found that the officer determined that the lump was contraband only after squeezing, sliding, and otherwise manipulating the contents of the pocket, which the officer already knew contained no weapon.

In stark contrast, Judge Jelin was presented with uncontested facts that the police officer who searched S.D. had a justifiable belief that S.D. was armed and dangerous at the very moment the search began. My colleagues conclude that the removal, in the midst of a Terry search, of a bulging article from the front right pants pocket of a suspect believed to be armed offends constitutional principles. Dickerson does not support that conclusion, nor does any other case with which I am familiar.

I find no error in Judge Jelin’s disposition of this case. I would affirm the disposition order of December 8, 1992, which placed S.D. on intensive drug/alcohol probation. I must therefore respectfully dissent.