COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Baker
Argued at Richmond, Virginia
STACY LAMONT HAYES, S/K/A
STACEY HAYES
OPINION BY
v. Record No. 3025-97-2 JUDGE LARRY G. ELDER
MAY 11, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Oliver A. Pollard, Jr., Judge
Daniel W. Hall, Assistant Public Defender,
for appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Stacey Hayes (appellant) appeals from his bench trial
conviction for possession of cocaine and forged United States
currency. On appeal, he contends the trial court erroneously
(1) denied his motion to suppress the cocaine, altered U.S.
banknote, and his statements, (2) admitted the certificate of
analysis into evidence in the absence of a sufficient showing of
chain of custody and (3) held the evidence, in the absence of
the certificate of analysis, was sufficient to support
appellant’s conviction for possession of cocaine. For the
reasons that follow, we hold the trial court erred in denying
the motion to suppress, and we reverse appellant’s convictions. 1
1
Because we hold that the cocaine was improperly seized, we
do not reach the issues of the admissibility of the certificate
of analysis or the sufficiency of the evidence.
I.
FACTS
On October 31, 1996, at about 3:45 p.m., Officer R.D.
Lowery of the Petersburg Police Department participated in the
execution of a search warrant for a residence at 125 McKeever
Street in Petersburg, which was described as the right half of a
duplex. The warrant described the items to be seized as
“cocaine, books, money, records, scales, any other paraphernalia
used and/or distribution of cocaine in the support and sale of
cocaine.” Lowery confirmed that the target of the search was
“[c]ocaine inside the residence.” The warrant did not “identify
the name of any [specific] person to be searched” and did not
“mention . . . that any persons [in general] [were] to be
searched.”
The accompanying affidavit indicated that an informant made
a controlled purchase of cocaine “from the subjects at [the]
residence” and that cocaine was “still present” when the
informant left the residence. The affidavit did not indicate
when the purchase was made, and it did not describe any of the
people present except to say that “one [was] the resident.” 2
Lowery did not know who owned the residence.
2
On appeal, appellant does not challenge the sufficiency of
the warrant or affidavit to support the search of the residence
itself.
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When Lowery arrived at the residence with the entry team,
appellant was sitting on the porch of the duplex on a couch
located directly beside the entrance to number 125 and beneath
its front window. Lowery described the porch as running the
length of the front of the duplex with a set of steps on either
end. Lowery did not know appellant and did not know, other than
by appellant’s presence, whether appellant had any connection to
the residence to be searched.
Lowery “ordered appellant to the ground at gunpoint . . .
[and] handcuffed him for safety reasons” until the rest of the
entry team could secure the inside of the residence. Lowery had
observed appellant as Lowery exited the police van and
approached the porch and had not seen appellant engage in any
suspicious behavior. Lowery testified, “It’s pretty much
standard policy when we go into a residence here in the City
everybody goes down, everybody gets cuffed and patted down just
for weapons for safety reasons.” Lowery further explained that
“when you’re dealing with a search warrant . . . , especially
with narcotics, you always have the possibility of guns.”
After Lowery handcuffed appellant, he watched the window as
the entry team went in and began to secure the inside of the
residence. The entry team consisted of “approximately 10 or 11”
police officers, with Officer Lowery stationed at the front
door, “somebody on the back door,” and the rest of the officers
inside to secure the premises and conduct the search. The
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officers found three people inside the residence. Lowery
testified that he did not know for sure when the residence was
“secure,” but that with “[t]hat many [officers] on the inside,”
he was “pretty sure it was secure” and did not wait for
confirmation before he stood appellant up and advised that “[he]
was going to pat [appellant] down for weapons.”
Regarding the pat-down, Lowery first testified, “I hit an
item, once. I squeezed it once and I come off of it, it was in
my mind to be cocaine. I asked [appellant] what it was, he made
no statement.” In clarifying the circumstances surrounding his
discovery, Lowery testified that while patting appellant’s shirt
pocket with an open palm, he felt “a lump” and “suspected
[appellant] had something in his pocket.” Lowery explained
further, “I felt something in his pocket, [and] to verify what
it was, to make sure I wasn’t missing anything, I squeezed it
once and I came right off of it.” Lowery then said, “I came off
of it because I knew what it was. It was pretty obvious [that
it was cocaine].” Lowery then retrieved the item, which he
described as “nine zips of crack cocaine.” Lowery did not
testify that he believed the lump could have been a weapon
before he squeezed it, and he never clearly testified that he
believed the lump to be cocaine before he squeezed it.
Upon finding the suspected cocaine, Lowery advised
appellant he was under arrest and Mirandized him. Appellant
said, “it was for personal use, it was for himself, he wasn’t
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selling it.” In a search incident to arrest, Lowery found a
pager and $11, including a dollar bill which someone had altered
to look like a five-dollar bill by taping photocopied corners of
a five dollar bill onto the four corners of the dollar bill.
Appellant moved to suppress on the ground that the frisk
violated the Fourth Amendment. Appellant contended that the
warrant, which was silent regarding the right to search people
on the premises, did not authorize Lowery to frisk him and that
Lowery had no reasonable, articulable suspicion that he was
armed and dangerous in order to justify a frisk. Appellant also
contended that even if the frisk for weapons was appropriate,
Lowery had no basis for believing he had found a weapon when he
felt the lump in appellant’s pocket and, therefore, was not
permitted to manipulate the item to determine what it was.
The trial court said it did not “have any problem” with the
“plain feel” seizure of the cocaine, stating that “[t]he officer
is trained in this sort of thing, when he feels it and he’s
pretty sure what it is, and he squeezed it to confirm it, he had
sufficient cause to make that.” However, it stated expressly,
“I’m not making a finding at this point” and gave the parties an
opportunity to file memoranda on those issues.
At the time scheduled for sentencing, the court stated:
I’m going to overrule the motion [to
suppress because] although the [appellant]
was not in the house that was scheduled to
be searched, he was on the couch on the
front porch. He could easily have been a
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lookout for the people inside. And
therefore there’s a threat of a danger that
did exist and is sufficient to establish
probable cause for a search. . . .
Further[,] danger existed and the probable
cause existed because the magistrate had
issued the search warrant.
II.
ANALYSIS
At a hearing on a defendant’s motion to suppress, the
Commonwealth has the burden of proving that a warrantless search
or seizure did not violate the defendant’s Fourth Amendment
rights. See Simmons v. Commonwealth, 238 Va. 200, 204, 380
S.E.2d 656, 659 (1989); Alexander v. Commonwealth, 19 Va. App.
671, 674, 454 S.E.2d 39, 41 (1995). On appeal, we view the
evidence in the light most favorable to the prevailing party,
granting to it all reasonable inferences fairly deducible
therefrom. See Commonwealth v. Grimstead, 12 Va. App. 1066,
1067, 407 S.E.2d 47, 48 (1991). “[W]e are bound by the trial
court’s findings of historical fact unless ‘plainly wrong’ or
without evidence to support them[,] and we give due weight to
the inferences drawn from those facts by resident judges and
local law enforcement officers.” McGee v. Commonwealth, 25 Va.
App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing
Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657,
1659, 134 L. Ed. 2d 911 (1996)). However, we review de novo the
trial court’s application of defined legal standards such as
probable cause and reasonable suspicion to the particular facts
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of the case. See Shears v. Commonwealth, 23 Va. App. 394, 398,
477 S.E.2d 309, 311 (1996); see also Ornelas, 517 U.S. at 699,
116 S. Ct. at 1659.
Appellant contends Officer Lowery’s detention and search of
his person pursuant to the authority of the search warrant for
the duplex was unreasonable under the United States and Virginia
Constitutions. The Commonwealth argues that the detention was
justified as a frisk for safety reasons and that appellant’s
presence on the porch of the residence for which other officers
were executing a search warrant for narcotics provided
reasonable suspicion that appellant was engaged in criminal
activity. The trial court ruled that the probable cause which
provided the basis for issuance of the warrant to search the
premises for narcotics and the associated “threat of . . .
danger” provided “probable cause for a search” of appellant.
For the reasons that follow, we hold that the search was
unlawful under the facts of this case.
A.
PROBABLE CAUSE TO SEARCH APPELLANT’S PERSON
We hold first that neither the issuance of the search
warrant nor the risk of danger to the officers during its
execution provided Officer Lowery with probable cause to conduct
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a full search of appellant under the facts of this case. 3 We are
unaware of any controlling precedent which provides that a
warrant to search only a specified private residence, and not
the people found therein, for narcotics automatically carries
with it the blanket authority to conduct full searches of those
people present either for narcotics or weapons. 4 Furthermore, we
3
Had the evidence proven that the search of the residence
yielded cocaine and that the police fully searched appellant
only afterward, the discovery may have been proper as a search
incident to arrest for possession of the contraband found on the
premises, regardless of whether the presence of the contraband
found on the premises would have been sufficient to support a
conviction for its possession. See Michigan v. Summers, 452
U.S. 692, 695 & n.3, 101 S. Ct. 2587, 2590 & n.3, 69 L. Ed. 2d
340 (1981). In appellant’s case, the Commonwealth did not
advance the argument that the search was valid as incident to
arrest based on narcotics found in the residence. Further, when
appellant attempted to elicit testimony from Officer Lowery
regarding what was found in the search of the residence, the
trial court ruled that this evidence was irrelevant.
4
The United States Supreme Court has expressly avoided such
a question. See Summers, 452 U.S. at 695, 705, 101 S. Ct. at
2590, 2595 (holding “that a warrant to search for contraband
founded on probable cause implicitly carries with it the limited
authority to detain the occupants of the premises while a proper
search is conducted” based in part on fact that “execution of a
search warrant for narcotics is the kind of transaction that may
give rise to sudden violence or frantic efforts to conceal or
destroy evidence” but expressly avoiding “question whether a
search warrant for [private] premises includes the right to
search persons found there” (footnote omitted)); Williams v.
Commonwealth, 4 Va. App. 53, 59, 67, 354 S.E.2d 79, 82, 87
(1987) (holding, based on language in Summers regarding
connection between narcotics and violence, that officers had
reasonable suspicion that Williams was armed and dangerous
necessary to justify weapons frisk based on warrant to search
Williams’ residence for narcotics and accompanying affidavit
containing specific information that Williams himself was
engaged in distributing narcotics from the place to be
searched).
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conclude that such a holding would be contrary to existing
constitutional precedent. 5
The Fourth Amendment to the United States Constitution
provides as follows:
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.
See also Va. Const. art. 1, § 10. Based on these provisions,
the United States Supreme Court stated in Ybarra v. Illinois,
444 U.S. 85, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979), that “a
warrant to search a place cannot normally be construed to
authorize a search of each individual in that place.” Id. at 92
n.4, 100 S. Ct. at 342 n.4 (expressly not considering
“situations where the warrant itself authorizes the search of
unnamed persons in a place and is supported by probable cause to
believe that persons who will be in the place at the time of the
5
In a slightly different context, the United States Supreme
Court recently has reaffirmed the “unique, significantly
heightened protection afforded against searches of one’s
person.” See Wyoming v. Houghton, 67 U.S.L.W. 4225, 4227 (U.S.
Apr. 5, 1999) (holding that officers, who stopped driver for
traffic infraction and received admission that he possessed
syringe in plain view for purpose of taking drugs, were allowed,
based on probable cause to believe drugs were in the car, to
search containers in car, even one allegedly belonging to
passenger, but reaffirming holding in United States v. Di Re,
332 U.S. 581, 68 S. Ct. 222, 92 L. Ed. 210 (1948), “that
probable cause to search a car did not justify a body search of
a passenger”).
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search will be in possession of illegal drugs”). Compare Morton
v. Commonwealth, 16 Va. App. 946, 434 S.E.2d 890 (1993)
(upholding conviction of person searched under warrant for
apartment where warrant authorized search of “all persons
present” and was supported by affidavit regarding drug
transactions from reliable informant, apartment manager, and
police surveillance establishing presence of cocaine, convicted
drug dealers and known fugitives in apartment).
Although Ybarra involved a search warrant for a public bar
rather than a private residence, we nevertheless find the
Court’s holding in Ybarra instructive. The Court further
observed in Ybarra that “a person’s mere propinquity to others
independently suspected of criminal activity does not, without
more, give rise to probable cause to search that person.”
Ybarra, 444 U.S. at 85, 100 S. Ct. at 338.
Where the standard is probable cause, a
search or seizure of a person must be
supported by probable cause particularized
with respect to that person. This
requirement cannot be undercut or avoided by
simply pointing to the fact that
coincidentally there exists probable cause
to search or seize another or to search the
premises where the person may happen to be.
Id. at 91, 100 S. Ct. at 342 (emphasis added). Although one’s
presence at a private residence in which drugs have been sold
provides a stronger nexus between the person and the premises
than does presence in a public bar in which drugs have been
sold, see 2 Wayne R. LaFave, Search and Seizure § 4.9(e), at
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633-34 (3d ed. 1996), we do not believe that such a nexus is
sufficient, without more, to provide probable cause for personal
searches of those present in the absence of a prior judicial
determination of probable cause for the search of the people as
well as the premises. Cf. Wyoming v. Houghton, 67 U.S.L.W.
4225, 4227 (U.S. Apr. 5, 1999) (recognizing that “a car
passenger . . . will often be engaged in a common enterprise
with the driver, and have the same interest in concealing the
fruits or the evidence of their wrongdoing” such that officers
with probable cause to search a vehicle may search containers
therein, even those allegedly belonging to a passenger, which
are capable of concealing the items sought, but nevertheless may
not conduct body search of passenger).
“As a general rule, ‘subject only to a few specifically
established and well-delineated exceptions,’ warrantless
searches are presumptively unreasonable” under the Fourth
Amendment. Farmer v. Commonwealth, 21 Va. App. 111, 115, 462
S.E.2d 564, 565 (1995) (quoting Horton v. California, 496 U.S.
128, 133 & n.4, 110 S. Ct. 2301, 2306 & n.4, 110 L. Ed. 2d 112
(1990)). The most commonly used exception for searching a
person without a search warrant is that the search was conducted
incident to a lawful custodial arrest, which, of course, must be
based on probable cause to believe the individual arrested has
committed a crime. See United States v. Robinson, 414 U.S. 218,
235-36, 94 S. Ct. 467, 477, 38 L. Ed. 2d 427 (1973); see also 2
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LaFave, supra, § 4.5(e), at 543-44 (noting that “[i]f there is
probable cause to believe that a certain individual has on his
person the evidence, fruits, or instrumentalities of crime, it
would be an unusual case in which there was not also probable
cause to believe that this individual was a participant in the
criminal activity under investigation” such that “the more usual
procedure is simply to arrest that person and then search him
incident to arrest” rather than first obtaining a search warrant
for his person). Other exigent “circumstances that will justify
a warrantless search include danger to the officer 6 [and] . . .
the risk of loss or destruction of evidence.” Helms v.
Commonwealth, 10 Va. App. 368, 371, 392 S.E.2d 496, 487 (1990)
(footnote added).
In determining whether Officer Lowery had probable cause to
believe that one of these exceptions existed, thereby justifying
a full search of appellant, we are guided by the holding of this
Court in Helms, 10 Va. App. 368, 392 S.E.2d 496. In Helms, we
held, under similar facts, that officers executing a search
warrant for a private residence lacked probable cause to search
6
We refer here only to danger sufficient to provide probable
cause for a full search and not to the lower standard of
reasonable suspicion for a weapons frisk under Terry v. Ohio,
392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
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a container 7 found during a weapons frisk of a person present at
the residence. See id. In that case, a confidential informant
told police that PCP was being sold at a particular house and
made a controlled purchase of PCP from that address. See id. at
369, 392 S.E.2d at 496. The officers then obtained a warrant
which authorized a search of the premises for PCP, but neither
Helms nor anyone else was described in the search warrant or
supporting affidavit. See id. at 369, 372 & n.1, 392 S.E.2d at
496, 498 & n.1.
When police arrived to execute the search warrant and
encountered Helms a few feet inside the front door, “[h]e did
not act suspicious and was cooperative when confronted, ordered
to lie down and submit to a personal search.” Id. at 369, 392
S.E.2d at 496. The search yielded a film canister, a small pipe
and some keys. See id. The officer seized the items and,
suspecting the canister contained PCP or some other illegal
drug, he opened the canister and found that it contained what he
believed, based on his experience, to be parsley laced with PCP.
See id. at 369-70, 392 S.E.2d at 496-97.
Helms conceded on appeal that safety reasons justified a
frisk of his person and even the removal of the items from his
pocket, but contended that the officer, who admitted he knew the
7
A “search within small containers, such as wallets,
cigarette boxes and the like, which are found in or about [an
individual’s] clothing” is “deemed to be [a search] ‘of a
person.’” 2 LaFave, supra, § 5.5, at 170.
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canister did not contain a weapon, lacked probable cause to
arrest Helms or to examine the canister’s contents without a
search warrant. See id.; see also id. at 373, 392 S.E.2d at
498-99 (Coleman, J., dissenting) (agreeing that Helms conceded
legality of frisk for weapons and “agree[ing] with the majority
that the question [on appeal] is whether probable cause existed
under these circumstances for [officer] reasonably and
objectively to believe that the film canister contained PCP or
some illicit drug”).
We agreed and reversed Helms’ conviction. 8 We held that
none of the exceptions to the warrant requirement--“danger to
the officer, search incident to a lawful arrest, or the risk of
loss or destruction of evidence”--was present in Helms’ case.
See 10 Va. App. at 371, 392 S.E.2d at 497. We emphasized that
“[Helms] cooperated totally, offering no resistance” and that,
“[e]xcept for being on the premises, there [was] no showing of
8
In so doing, we distinguished Harris v. Commonwealth, 9 Va.
App. 355, 388 S.E.2d 280 (1990), in which we had held that
officers conducting a vehicle stop had probable cause to conduct
a warrantless search of a film canister found in a suspect’s
pocket based on the specific testimony of an officer that
“during ‘his experience as a police officer he had, on numerous
occasions seen film canisters used to transport controlled
substances.’” Helms, 10 Va. App. at 371-72, 392 S.E.2d at 498
(emphasis omitted). However, Harris was subsequently reversed
on appeal to the Virginia Supreme Court, which held that even
the facts in Harris were insufficient to provide probable cause
for a search of the canister. See Harris V. Commonwealth, 241
Va. 146, 400 S.E.2d 191 (1991). In reversing Harris, the
Virginia Supreme Court noted that “law-abiding citizens, on a
daily basis, also use film canisters to store film, which is a
legitimate use.” Id. at 154, 400 S.E.2d at 196.
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[Helms’] association with any person who was the object of the
police investigation, nor was any person named or described in
the search warrant.” Id. at 372, 392 S.E.2d at 498. Under
those facts, we held that the record “disclose[d] no legally
cognizable reason for the warrantless search of the film
canister” and that the trial court erred in denying the motion
to suppress. Id.
In appellant’s case, as in Helms, the search warrant was
for a private residence in which narcotics were being sold, but
neither the warrant nor the accompanying affidavit named or
described a person or people to be searched during the search of
the premises. Further, here as in Helms, Officer Lowery did not
know who appellant was, and no evidence other than appellant’s
mere presence on the porch linked him to the premises. Finally,
here as in Helms, appellant was cooperative and engaged in no
suspicious or furtive behavior giving rise to the belief that he
might be attempting to conceal contraband sought in the warrant
or reaching for a weapon with which to challenge the officers.
Therefore, here as in Helms, the officers lacked the probable
cause necessary to conduct a full search of appellant. See
generally 2 LaFave, supra, § 4.9(c) (discussing factors involved
in determining whether person not arrested or described in a
premises search warrant may be searched for items described in
warrant and noting that “the requisite probable cause is most
likely to be deemed present if the person lives at the place
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searched, was implicated by the search warrant affidavit in the
crimes under investigation, had engaged in suspicious or
incriminating conduct, or was found in immediate proximity to
contraband in open view” (footnotes omitted)).
B.
DETENTION AND FRISK FOR WEAPONS
In the absence of probable cause to search appellant
incident to execution of the search warrant for the premises,
the Commonwealth argues that Officer Lowery’s actions
constituted a justifiable detention and frisk for weapons. “[A]
warrant for contraband founded on probable cause implicitly
carries with it the limited authority to detain the occupants of
the premises while a proper search is conducted.” Michigan v.
Summers, 452 U.S. 692, 705, 101 S. Ct. 2587, 2595, 69 L. Ed. 2d
340 (1981) (involving warrant to search private residence). We
assume without deciding that, pursuant to execution of the
search warrant for the premises, Officer Lowery was entitled to
conclude that appellant was an occupant subject to detention and
to frisk appellant for weapons. Despite these assumptions, we
nevertheless conclude that Lowery’s actions exceeded the
permissible scope of such a frisk.
The United States Supreme Court has recognized that
principles which permit an officer to seize contraband found in
plain view under certain circumstances also may permit an
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officer to seize contraband detected by the sense of touch
during a weapons frisk:
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 inhere in the plain view
context.
Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S. Ct. 2130,
2137, 124 L. Ed. 2d 334 (1993) (emphasis added). The Court has
made clear, however, that where the character of the item
detected is not immediately apparent and the officer makes “no
claim that he suspected [the] object to be a weapon,” he may not
investigate further. See id. at 377-78, 113 S. Ct. at 2138-39.
The officer may not engage in “squeezing,” “sliding” or
“otherwise manipulating” the item once he has concluded it is
not a weapon because such “exploration . . . [is] unrelated to
‘[t]he sole justification of the search [under Terry:] . . . the
protection of the police officer and others nearby.’” Id. at
378, 113 S. Ct. at 2138-39 (quoting Terry v. Ohio, 392 U.S. 1,
29, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889 (1968)); see id. at
378, 113 S. Ct. at 2139 (analogizing to plain view case of
Arizona v. Hicks, 480 U.S. 321, 107 S. Ct. 1149, 94 L. Ed. 2d
347 (1987), in which Court held stolen stereo not properly
seized under plain view doctrine because officers had to move
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stereo to see serial numbers which allowed them to conclude item
was stolen).
Here, viewing the facts in the light most favorable to the
Commonwealth, the prevailing party below, Officer Lowery
testified that while patting appellant’s shirt pocket with an
open palm, he felt “a lump” and “suspected [appellant] had
something in his pocket.” (Emphasis added). Lowery did not
testify that he believed the item to be a weapon nor did he
testify that the character of the lump was immediately apparent
to him after patting it with an open hand. Rather, he testified
that he “squeezed” the lump and “came off of it because [he]
knew what it was” after squeezing it. Because the evidence does
not support a finding that the character of the item was
immediately apparent to Lowery during the permissible scope of
the frisk, he was not permitted to investigate further. 9
Therefore, even viewing the evidence in the light most favorable
9
Although the trial court denied that it was making any
findings on this issue during the hearing on the motion to
suppress, it observed that “[t]he officer is trained in this
sort of thing, when he feels it and he’s pretty sure what it is,
and he squeezes it to confirm it, he had sufficient cause to
make that.” Assuming without deciding that these statements
constituted findings of fact by the trial court, they are both
unsupported by the evidence and insufficient under the plain
feel doctrine to permit the seizure. First, on a factual level,
Officer Lowery never testified that he was “pretty sure” what
the item was before he squeezed it. When the prosecutor tried
to clarify this point, asking, “When you felt the lump, Officer,
did you suspect anything at that point?” Lowery responded
merely, “I suspected he had something in his pocket.” (Emphasis
added). Second, even assuming Lowery was “pretty sure” the lump
was cocaine when he first felt it, he had to squeeze the lump to
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to the Commonwealth, we are unable to conclude that the
Commonwealth carried its burden of proving the frisk and
resulting seizure of the cocaine under the plain feel doctrine
did not violate appellant’s rights. Accordingly, we hold that
the trial court erred in failing to exclude the cocaine.
Because Officer Lowery’s discovery of the cocaine led to
his arrest of appellant and the incident search revealing the
altered one-dollar bill which provided the basis for appellant’s
conviction for possession of forged United States currency, both
of appellant’s convictions must be reversed.
Reversed.
confirm its identity, which does not translate into the legal
conclusion that its “identity [was] immediately apparent” before
the squeeze.
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