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advising testifying police officers in Terry cases to "provide as much detail as possible" and advising prosecutors to "be cognizant that specificity is, where available, beneficial both at the motion stage and on appeal"
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No. 22 EAP 2020
10-20-2021
In the INTEREST OF: T.W., a Minor Appeal of: T.W.
Victor Edward Rauch, Aaron Joshua Marcus, Defender Association of Philadelphia, Philadelphia, for Appellant T.W. Lawrence Jonathan Goode, Daniel Peter Casullo, III, Anthony V. Pomeranz, Philadelphia District Attorney's Office, Philadelphia, for Appellee Commonwealth of Pennsylvania. David Rudovsky, Kairys, Rudovsky, Messing, Feinberg & Lin, LLP, Philadelphia, Peter E. Kratsa, West Chester, for Appellant Amicus Curiae PACDL. Lisa Ann Swift, Lackawanna County District Attorney's Office, Scranton, Michael F. J. Piecuch, Snyder County District Attorney's Office, Middleburg, for Appellee Amicus Curiae Pennsylvania District Attorneys Association.
Victor Edward Rauch, Aaron Joshua Marcus, Defender Association of Philadelphia, Philadelphia, for Appellant T.W.
Lawrence Jonathan Goode, Daniel Peter Casullo, III, Anthony V. Pomeranz, Philadelphia District Attorney's Office, Philadelphia, for Appellee Commonwealth of Pennsylvania.
David Rudovsky, Kairys, Rudovsky, Messing, Feinberg & Lin, LLP, Philadelphia, Peter E. Kratsa, West Chester, for Appellant Amicus Curiae PACDL.
Lisa Ann Swift, Lackawanna County District Attorney's Office, Scranton, Michael F. J. Piecuch, Snyder County District Attorney's Office, Middleburg, for Appellee Amicus Curiae Pennsylvania District Attorneys Association.
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
OPINION
JUSTICE MUNDY In this appeal by allowance, Appellant, T.W., a minor, appeals from the February 4, 2020 order of the Superior Court of Pennsylvania, which affirmed the July 10, 2018 order of the Court of Common Pleas of Philadelphia County denying a motion made by Appellant to suppress physical evidence and adjudicating Appellant delinquent for unlawful possession of a controlled substance. As will be discussed more fully below, Appellant's arrest for unlawful possession of a controlled substance arose from a vehicle stop and a subsequent Terry frisk. Upon frisking Appellant, a police officer of the Philadelphia Police Department felt a hard object in Appellant's left pants pocket. Fearing that the unknown object could be a weapon, the officer reached into Appellant's pocket and removed the object. Appellant was arrested for possessing the object and a subsequent search incident to arrest led to the discovery of a controlled substance on Appellant's person. Before trial, Appellant made a motion to suppress the physical evidence recovered from his person, arguing that the police officer exceeded the scope of a permissible Terry frisk by reaching into Appellant's pocket and removing an object during the frisk.
Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
We granted review in this matter to address the standards by which a police officer may remove an object from within a suspect's clothing during a Terry frisk. We previously addressed this issue in Commonwealth v. Taylor , 565 Pa. 140, 771 A.2d 1261 (2001) (plurality). Our review in that case resulted in a plurality decision whereby the opinion announcing the judgment of the Court held that a police officer conducting a lawful Terry frisk may remove an object from within a suspect's clothing if the officer has reasonable suspicion to believe that the object is a weapon. Id. at 1269. In light of the fact that Taylor did not produce a majority opinion, we reexamine the issue anew.
I. Factual Background and Procedural History
The salient facts of this case are not in dispute. During the early morning hours of June 19, 2015, Officers Grant and Heeney of the Philadelphia Police Department observed two vehicles making illegal u-turns. The officers pursued both vehicles, which were ignoring multiple traffic signals and traveling through the streets of Philadelphia at a high rate of speed. One of the vehicles eventually crashed, and the two individuals occupying the vehicle fled on foot. The officers, also on foot, pursued the two individuals but lost them during the chase. While pursuing the two fleeing individuals, the officers observed the second car they had been pursuing. The officers, still on foot, initiated a stop of that vehicle.
There were three individuals occupying the second vehicle: a driver, a front passenger, and Appellant, who was sitting in the rear. The officers asked all three individuals for identification, but Appellant was not able to produce identification. At that point, Officer Grant observed Appellant attempt to shield his body from the officers’ view and reach into his pockets. Officer Grant directed Appellant not to reach into his pockets and when Appellant did not comply with this direction, Officer Grant removed Appellant from the vehicle and conducted an open handed pat down of Appellant's outer clothing.
During the frisk, Officer Grant felt a hard object in Appellant's left pants pocket. Officer Grant was not able to identify the object by touch, but feared that the object could be a weapon. Based on his experience as a police officer, Officer Grant knew the area in which the vehicle was stopped to be a high-crime area. Additionally, Officer Grant had personal experience with recovering weapons during traffic stops in that area. Officer Grant reached into Appellant's pants pocket and removed the object, which was a glass prescription medication bottle labeled "promethazine." The medication was prescribed to an individual other than Appellant. Officer Grant then placed Appellant under arrest and conducted a search incident to arrest. During the search, Officer Grant discovered a second pill bottle in Appellant's right pants pocket. The bottle contained two pills, which were identified as oxycodone. Thereafter, Appellant was charged with unlawful possession of a controlled substance for possessing the two oxycodone pills.
Section 13(a)(1) of The Controlled Substance, Drug, Device and Cosmetic Act prohibits the possession of a "controlled substance." Act of April 14, 1972, P.L. 233, as amended , 35 P.S. § 780-113(a)(1). Section 4(2)(i) of that Act defines the term "controlled substance" to include the drug oxycodone. 35 P.S. § 780-104(2)(i).
Appellant's case proceeded to a juvenile adjudication hearing, where Appellant made a motion to suppress the physical evidence recovered from his person by Officer Grant. Before the trial court, Appellant conceded that his removal from the vehicle and the subsequent frisk by Officer Grant were lawful. However, Appellant argued, in relevant part, that Officer Grant exceeded the scope of a permissible frisk by reaching into Appellant's left pants pocket and removing an object during the frisk.
Officer Grant was the sole witness to testify at the suppression hearing. He testified as to the facts summarized above. At the conclusion of the hearing, the trial court denied Appellant's motion to suppress physical evidence. The court then immediately moved into the trial phase of the proceeding. Based upon the record created during the hearing on Appellant's motion to suppress physical evidence, as well as additional exhibits entered by the Commonwealth during the trial phase, the trial court adjudicated Appellant delinquent for the unlawful possession of a controlled substance.
Following his adjudication of delinquency, Appellant filed a notice of appeal. The trial court ordered Appellant to file a statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), Pa.R.A.P. 1925(b). Therein, Appellant's sole complaint was that the trial court erred in denying his motion to suppress physical evidence. Appellant again argued that Officer Grant exceeded the scope of a permissible frisk by reaching into Appellant's pants pocket and removing an object during the frisk.
In support of its July 10, 2018 order adjudicating Appellant delinquent, the trial court issued an opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). After examining Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the trial court applied a reasonable suspicion standard to determine whether Officer Grant's belief that the object in Appellant's left pants pocket was a weapon was reasonable so as to justify him reaching into and removing the object from Appellant's pocket during the frisk. Examining the record created during the suppression hearing, the trial court concluded, based upon the totality of the circumstances, Officer Grant had a reasonable suspicion that the object in Appellant's left pants pocket was a weapon. The trial court based this conclusion on the following facts: Appellant was a passenger in a vehicle that was involved in a chase with police in a high crime area; Officer Grant had personal experience recovering weapons from traffic stops in the area in which the vehicle was stopped; Officers Grant and Heeney made the stop and on foot and without the benefit and protection of a police vehicle; Appellant attempted to hide his body from the officers’ view during the vehicle stop while reaching into his pockets; and Appellant did not comply with Officer Grant's direction for Appellant to stop reaching into his pockets. Trial Court Opinion at 4-5. As such, the trial court concluded Officer Grant did not exceed the scope of a permissible Terry frisk.
The appeal proceeded to the Superior Court, which affirmed. In re T.W. , No. 2390 EDA 2018, 2020 WL 551354 (Pa. Super. Feb. 4, 2020). Before the Superior Court, Appellant again conceded that his removal from the vehicle and the subsequent frisk by Officer Grant were lawful. Id. at *3. However, Appellant maintained that the trial court erred in denying his motion to suppress physical evidence because Officer Grant exceeded the scope of a permissible frisk by reaching into his left pants pocket and removing an object during the frisk. The Superior Court rejected this argument. Citing Taylor , the Superior Court, like the trial court, applied a reasonable suspicion standard to determine whether Officer Grant was justified in reaching into Appellant's left pants pocket during the frisk. Id. at *4.
Upon review of the record, the Superior Court agreed with the trial court that based upon a totality of the circumstances, Officer Grant had "a reasonable belief that what he felt in [A]ppellant's pocket was a weapon." Id. As such, the Superior Court concluded "Officer Grant did not exceed the scope of a permissible search by reaching into [A]ppellant's left pants pocket during an otherwise valid Terry pat-down." Id. In doing so, the Superior Court determined that the "plain feel doctrine," as set forth in Minnesota v. Dickerson , 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (holding that police officers may seize nonthreatening contraband detected during a lawful frisk if the incriminating nature of the contraband is immediately apparent by touch), did not apply in Appellant's case because Officer Grant removed the object from Appellant's left pants pocket under the reasonable suspicion that the object was a weapon rather than under the belief that the object was contraband. In the Int. of: T.W , 2020 WL 551354, at *4.
Appellant then initiated the instant appeal by the filing of a petition for allowance of appeal, which we granted to address the following issue: "Should this Court clarify the issue left unresolved by this Court's split decision in [ Taylor ] relating to the standard for when police may conduct an additional more intrusive search of a pocket following a pat-down for weapons?" In re T.W. , 237 A.3d 416 (Table) (Pa. 2020) (per curiam order).
II. Discussion
Preliminarily, before turning to the merits of this appeal, we set forth our standard of review, which is as follows:
An appellate court's standard of reviewing the denial of a suppression motion is limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Thus, our review of questions of law is de novo . Our scope of review is to consider only the evidence for the defense as remains uncontradicted when read in the context of the suppression record as a whole.
Commonwealth v. Shaffer , 653 Pa. 258, 209 A.3d 957, 968-69 (2019) (citations omitted). Where, as here, the issue on appeal relates solely to a suppression ruling, we examine "only the suppression hearing record" and exclude from consideration "evidence elicited at trial." Commonwealth v. Yandamuri , 639 Pa. 100, 159 A.3d 503, 516 (2017). With our standard of review in mind, we turn to the issue at hand.
This appeal concerns the contours of the protection against unreasonable searches and seizures set forth in the United States and Pennsylvania Constitutions. As such, we begin our review by recounting the law surrounding searches and seizures. The Fourth Amendment to the United States Constitution, incorporated to the states by and through the Fourteenth Amendment to the United States Constitution, and Article I, Section 8 of the Pennsylvania Constitution protect citizens from "unreasonable searches and seizures." The Fourth Amendment 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.
U.S. CONST. amend. IV. Similarly, Article I, Section 8 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.
PA. CONST. art. 1, § 8. Generally, for a search or seizure to be reasonable under the Fourth Amendment and Article I, Section 8, police officers must obtain a warrant before conducting the search or seizure. A search or seizure without a warrant "is presumptively unreasonable ... subject to a few specifically established, well-delineated exceptions." Commonwealth v. Chase , 599 Pa. 80, 960 A.2d 108, 113 (2008). The present appeal involves the investigatory detention exception, commonly referred to as the Terry stop and frisk in reference to the case in which the exception was recognized.
In Terry , a Cleveland police officer observed three men whom he believed were canvassing a store in preparation for committing a robbery. The officer approached the men and, fearing that they may be armed, frisked all three. The officer detected a pistol in the pockets of two of the men's overcoats and removed the pistols from inside those pockets. Before trial, the two men whom were discovered with weapons, sought to suppress the admission of the weapons.
In its review of the case, the United States Supreme Court examined "whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest." 392 U.S. at 15, 88 S.Ct. 1868. In doing so, the Court recognized the competing interests between an individual's Fourth Amendment right to be free from unreasonable searches and seizures and the government's interest in crime detection and prevention as well as the interest of protecting police officers and the public from armed and dangerous criminals. The Court struck a careful balance, holding that it is reasonable under the Fourth Amendment for police officers to briefly stop a suspect "where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot." Id. at 30, 88 S.Ct. 1868. The Court further held that it is reasonable under the Fourth Amendment for the brief stop to also include a frisk of the suspect's outer clothing where the police officer has reason to believe the suspect is "armed and dangerous." Id. The purpose of the frisk, the Court explained, is to dispel a reasonable fear that the stopped suspect possesses a weapon which could be used to harm a police officer or the public during the stop. Id. The term "weapon" was given a broad definition by the Court, which did not define the term to refer solely to guns or knives, but defined the term to include "guns, knives, clubs, or other hidden instruments." Id. at 29, 88 S.Ct. 1868. With respect to determining whether there is reasonable suspicion that a suspect is armed, the Supreme Court made clear that the applicable standard is an objective one. Id. at 21-22, 88 S.Ct. 1868. The Court wrote that police officers "need not be absolutely certain that the individual is armed" but rather the appropriate standard is "whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Id. at 27, 88 S.Ct. 1868.
Applying the foregoing standards to the officer's conduct, the United States Supreme Court concluded the scope of the search by the officer "presents no serious problem" as the officer "did not place his hands in their pockets or under the outer surface of their garments until he had felt weapons, and then he merely reached for and removed the guns." Id. at 29-30, 88 S.Ct. 1868.
To summarize, for a stop and frisk to be constitutionally sound, the following two conditions must be met:
First, the investigatory stop must be lawful. That requirement is met in an on-the street encounter ... where the police officer reasonably suspects that the person apprehended is committing or has committed a criminal offense. Second, to proceed from a stop to a frisk, the police officer must reasonably suspect that the person is armed and dangerous.
Arizona v. Johnson , 555 U.S. 323, 326-27, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009).
This Court recognized the exception set forth in Terry in Commonwealth v. Hicks , 434 Pa. 153, 253 A.2d 276 (1969) and, while "[t]he protection against unreasonable searches and seizures afforded by the Pennsylvania Constitution is broader than that under the federal constitution," "Pennsylvania has always followed Terry in stop and frisk cases." Commonwealth v. Jackson , 548 Pa. 484, 698 A.2d 571, 573 (1997) ; see also Commonwealth v. Brown , 606 Pa. 198, 996 A.2d 473, 476 (2010) (recognizing Terry "sets forth the reasonableness standard for Article I, [Section] 8 of the Pennsylvania Constitution.").
In the present appeal, Appellant concedes his removal from the vehicle and the subsequent frisk by Officer Grant were lawful. Appellant's Brief at 13; see also In re T.W. , 2020 WL 551354, at *3. However, Appellant contends Officer Grant exceeded the scope of a permissible frisk by reaching into Appellant's pants pocket and removing an object during the frisk. Therefore, we proceed to the issue of what standards govern when a police officer may remove an object from within a suspect's clothing during a Terry frisk.
We previously addressed the question presented in this appeal in the case of Taylor . Our review in that case resulted in a plurality decision. While plurality decisions are not binding, Taylor provides a helpful starting point to begin our analysis. In Taylor , police officers of the Duquesne Police Department executed a search warrant on a convenience store as part of a drug trafficking investigation. Two of the officers entered the basement of the building and encountered Taylor, who was receiving a haircut and wearing a black barber's apron. As the officers announced their presence, one of the officers, Officer Adams, observed Taylor moving his hands under the barber's apron. Officer Adams instructed Taylor not to move, but Taylor continued to move his hands under the apron. Fearing Taylor could be armed, Officer Adams removed the apron and frisked Taylor. During the frisk, Officer Adams felt a hard cylindrical object in Taylor's pocket that was approximately four inches long. He concluded "that the object was not a gun or a knife" but feared that the object could be "some type of weapon." Taylor , 771 A.2d at 1270. Officer Adams then reached into Taylor's pocket and removed the object, which was a plastic prescription bottle containing crack cocaine. Taylor was placed under arrest and charged with possession of a controlled substance with intent to deliver. Before trial, Taylor sought to suppress the physical evidence removed from his person.
Commonwealth v. Thompson , 604 Pa. 198, 985 A.2d 928, 937 (2009)
In our review of Taylor , we examined, among other things, the standards by which a police officer may reach into a suspect's clothing during a Terry frisk. The Honorable Justice Sandra Newman authored the opinion announcing the judgment of the Court. She began her analysis by examining Terry . Observing that under Terry a police officer may frisk a suspect if the officer has reasonable suspicion to believe that the suspect is armed and dangerous and that the purpose of the frisk is to search for weapons, Justice Newman concluded that a police officer may "reach into a suspect's pocket during a frisk" where the officer "feel[s] something that reasonably appears to be a weapon." Id. at 1269. Applying that holding to Taylor's case, Justice Newman concluded that, based upon a totality of the circumstances, Officer Adams had a reasonable suspicion that the object in Taylor's pocket was a weapon. Justice Newman explained her reasoning as follows:
Officer Adams had been involved in the investigation of the drug trafficking at the convenience store. ... Officer Adams ... found Taylor in the basement. Immediately after encountering police, Taylor reached for his pocket, despite being told not to move several
times. After observing Taylor fumble under the black barber's apron, Officer Adams touched Taylor's pocket. Officer Adams felt a hard, cylinder-type object. Because an officer need only be reasonably, and not absolutely, certain that an individual is armed in order to investigate for weapons, we conclude that Officer Adams was reasonable in suspecting that Taylor could be armed and dangerous. Therefore, Officer Adams justifiably reached into Taylor's pocket in order to protect his safety and the safety of others in the basement.
Id. at 1270. As such, Justice Newman concluded Officer Adams did not exceed the scope of a permissible Terry frisk by reaching into Taylor's pocket during the frisk. In doing so, Justice Newman determined the plain feel doctrine set forth in Dickerson was not applicable to the case because Officer Adams reached into Taylor's pocket under the reasonable suspicion that the object was a weapon rather than contraband. Id. at 1269 n.4.
The Honorable Justice Russell Nigro authored a concurring and dissenting opinion in Taylor . With respect to whether Officer Adams exceeded the scope of a lawful Terry frisk by reaching into Taylor's pocket during the frisk, Justice Nigro did not take issue with Justice Newman's conclusion that a reasonable suspicion standard applies to the retrieval of an object suspected to be a weapon. Instead, Justice Nigro wrote that once Officer Adams "patted Taylor's pocket and felt a cylinder object of approximately four inches in length ..., which he determined was neither a gun nor a knife, Officer Adams was not constitutionally justified in further searching Taylor's pocket and seizing the pill bottle." Id. at 1275 n.5.
Prior to Taylor , the Superior Court had similarly held that "a more intrusive search of a suspect's person following a protective pat-down search would only be justified under a Terry analysis where the officer reasonably believed he had felt what appeared to be a weapon." In Int. of S.D. , 429 Pa.Super. 576, 633 A.2d 172, 173 (1993) ; see also In Int. of Dixon , 356 Pa.Super. 105, 514 A.2d 165 (1986).
Likewise, federal courts have also determined that during a lawful Terry frisk a police officer may retrieve an object from within a suspect's clothing if the officer has reasonable suspicion that the object is a weapon. See, e.g., United States v. Houston , 920 F.3d 1168, 1173 (8th Cir. 2019) ; United States v. Richardson , 657 F.3d 521, 524 (7th Cir. 2011) ; United States v. Swann , 149 F.3d 271, 276 (4th Cir. 1998). In Swann , for example, a police officer, while investigating the theft of a wallet, stopped and frisked Swann. During the frisk, the officer felt a "hard and unusual" object in one of Swann's socks. Swann , 149 F.3d at 272. Not knowing what the object was, the officer removed the object, which turned out to be a stack of credit cards that had been stolen. Before trial, Swann sought to suppress the evidence on the grounds that the officer exceeded the scope of a permissible Terry frisk. In its review of the case, the United States Court of Appeals for the Fourth Circuit, citing the language in Terry that a police officer may frisk a suspect if the officer has reason to believe the suspect is armed and dangerous, concluded that the standard by which an officer may reach into a suspect's pocket to remove a suspected weapon is an objective one. Specifically, the court articulated the appropriate standard as: "would a reasonable officer in those circumstances have believed that the item would likely be a weapon." Id. at 275. Based on the facts of the case, the court determined the police officer had reasonable suspicion to believe the object in Swann's sock was a weapon and, therefore, the officer did not exceed the scope of a permissible Terry frisk by removing the object from Swann's sock.
In the present appeal, Appellant acknowledges the holding in Justice Newman's opinion in Taylor sets forth that a police officer may reach into a suspect's pocket and remove an object during a lawful Terry frisk if the officer has a reasonable suspicion that the object is a weapon. Appellant contends, however, that Justice Newman's holding was incorrect. According to Appellant, pursuant to the plain feel doctrine, as set forth in Dickerson , a police officer that detects an object in a suspect's pocket during a Terry frisk "may only reach in to seize the contents of [the suspect's] pockets if the pat down leads to probable cause to believe that the person is in possession of weapons or contraband." Appellant's Brief at 12. As such, Appellant asks this Court to clarify Taylor and make clear that pursuant to the plain feel doctrine, "[p]robable cause is required for any seizure extending beyond the pat down authorized by Terry ." Id. at 20.
Appellant's argument requires us to examine Dickerson . In Dickerson , the United States Supreme Court examined "whether police officers may seize nonthreatening contraband detected during a protective pat down search of the sort permitted by Terry ." 508 U.S. at 373, 113 S.Ct. 2130. Upon review, the Supreme Court equated the "tactile discoveries of contraband" during a Terry frisk with contraband left open for plain view, explaining that in seizing illegal contraband detected during a lawful Terry frisk "there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons." Id. at 375, 113 S.Ct. 2130. The Court ultimately held that police officers may seize contraband detected during a lawful frisk if the identity of the illegal contraband is "immediately apparent" upon touching the object. Id. However, if after conducting the Terry frisk, the police officer knows the detected object is not a weapon, the plain feel doctrine does not permit an officer to squeeze, slide, or otherwise manipulate the object in an attempt to identify the object for purposes of establishing probable cause. Id. at 378, 113 S.Ct. 2130.
This Court formally adopted the plain feel doctrine as consistent with Article I, Section 8 of the Pennsylvania Constitution in Commonwealth v. Zhahir , 561 Pa. 545, 751 A.2d 1153, 1163 (2000). However, this Court acknowledged the plain feel doctrine before Zhahir , and has long interpreted Dickerson as having limited applicability. It is well-established under our precedent that the plain feel doctrine is an extremely narrow doctrine and is "only applicable where the officer conducting the frisk feels an object whose mass or contour makes its criminal character immediately apparent." Commonwealth v. Stevenson , 560 Pa. 345, 744 A.2d 1261, 1265 (2000). Justice Newman recognized the limited applicability of the plain feel doctrine in Taylor , writing that plain feel doctrine did not apply in that case because Officer Adams retrieved the object from Taylor's pocket under the reasonable suspicion that the object was a weapon rather than nonthreatening contraband. Taylor , 771 A.2d at 1269 n.4. The Superior Court in the present matter likewise recognized the limited applicability of the plain feel doctrine explaining the doctrine did not apply in the present case on similar grounds as Justice Newman set forth in Taylor . In re T.W. , 2020 WL 551354, at *4.
Federal courts have also recognized the limited applicability of the plain feel doctrine. See, e.g. , United States v. Harris , 313 F.3d 1228, 1238 (10th Cir. 2002) ; Richardson , 657 F.3d at 524 ; Swann , 149 F.3d at 275. In Richardson , for example, a police officer frisked Richardson and "felt a hard object in" his right pants pocket. 657 F.3d at 522. Unsure of what the object was, the officer removed it. The object turned out to be a packet of cocaine. Richardson was charged with possession of cocaine with the intent to distribute. Before trial, Richardson sought to suppress the packet of cocaine. Citing Dickerson , Richardson argued that the frisk became "an impermissible exploratory search when [the police officer] removed the cocaine [ ] from Richardson's right pants pocket and inspected it." Id. at 523-524. The United States Court of Appeals for the Seventh Circuit rejected this argument, writing that Richardson's argument misapplied Dickerson . The court concluded that the rule set forth in Dickerson that a police officer may not go beyond a frisk unless immediately apparent illegal contraband is detected "does not apply until the officer concludes that the object at issue is not a weapon." Id. at 524. Since the officer was unsure whether the object was a weapon, the court concluded the applicable standard to measure whether the officer exceeded the scope of a permissible frisk was whether the officer had a reasonable suspicion that the object in Richardson's pocket was a weapon. Id.
Upon review of Terry and Dickerson , as well as decisions of courts of this Commonwealth and federal courts interpreting and applying those cases, it is clear that Terry and Dickerson set forth two distinct justifications and accompanying standards by which a police officer may remove an object from a suspect's clothing during a lawful Terry frisk.
The purpose of a Terry frisk is to dispel any fear that the stopped suspect is armed and dangerous. 392 U.S. at 30, 88 S.Ct. 1868. Considering that a police officer may frisk a suspect based upon a reasonable suspicion that the suspect is armed and dangerous, which does not require the officer to "be absolutely certain that the individual is armed" in order to conduct the frisk, id. at 27, 88 S.Ct. 1868, it would be illogical then for police officers to be limited to removing suspicious objects detected during the frisk based upon, as Appellant suggests, the heightened standard of probable cause that the object is a weapon. While it was apparent to the officer in Terry that what he felt in the overcoats of the two men was a pistol, it may not always be so obviously apparent to an officer conducting a Terry frisk that a detected object is a weapon. To interpret Terry as requiring the heightened standard of probable cause to remove an object believed to be a weapon would undercut the very purpose of a Terry frisk and would require police officers to allow suspicious objects to remain on a suspect's person during a stop, which could potentially be used to harm police officers or the general public. A Terry frisk then would do little to dispel a fear that the suspect is armed and dangerous. As we have previously observed "[o]ur constitutional safeguards" against unreasonable searches and seizures "do not require an officer to gamble with his life." Commonwealth v. Morris , 537 Pa. 417, 644 A.2d 721, 724 (1994).
In so concluding, we reject Appellant's argument that the plain feel doctrine sets forth a probable cause standard applicable to the removal of all objects during a Terry frisk. The plain feel doctrine allows police officers to remove immediately apparent illegal contraband from within a suspect's clothing during a lawful frisk. Dickerson , 508 U.S. at 375, 113 S.Ct. 2130. It is well-established in state and federal jurisprudence that Dickerson has limited applicability. The United States Supreme Court was clear in its holding in Dickerson that the plain feel doctrine applied only to the removal of illegal nonthreatening contraband detected during a lawful frisk. Id. If the Court had intended for Dickerson to set forth a standard applicable to the removal of all objects during a lawful frisk, it likely would have indicated as much instead of writing specifically in the limited context of illegal nonthreatening contraband.
Furthermore, to interpret Dickerson as setting forth a single standard applicable to the removal of all objects would seemingly put the plain feel doctrine in direct conflict with the purpose of a Terry frisk. Again, the purpose of a Terry frisk is to dispel any fear that the stopped suspect is armed and dangerous and could harm police officers or the general public during a stop. 392 U.S. at 30, 88 S.Ct. 1868. Dickerson on the other hand provides that police officers may seize immediately apparent illegal contraband detected during a lawful frisk. 508 U.S. at 375, 113 S.Ct. 2130. It may not be immediately apparent that the possession of a weapon, such as a firearm for example, is illegal contraband. A Terry frisk then would serve little purpose if police officers could only remove objects which they reasonably suspect to be a weapon if it was immediately apparent that possession of the weapon was illegal.
This leads us to hold as follows. If a police officer conducting a lawful Terry frisk detects an object within a suspect's clothing, assuming no other exception to the general warrant requirement applies, the officer may remove the object under one of two justifications. Pursuant to Terry , and consistent with Justice Newman's opinion in Taylor , a police officer may remove an object from within a suspect's clothing under the reasonable suspicion that the object is a weapon. If, however, during the frisk the police officer is able to determine that the object is not a weapon, pursuant to Dickerson , the officer may only remove the object if, by touch, it is immediately apparent that the object is illegal contraband.
Having determined the two standards by which a police officer may remove an object from within a suspect's clothing during a lawful Terry frisk, we turn to the facts of this case to determine whether Officer Grant exceeded the scope of a permissible Terry frisk by reaching into and removing an object from Appellant's left pants pocket during the frisk. We reiterate that our scope and standard of review when reviewing the denial of a motion to suppress limits us to determining whether the trial court's "factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct." Shaffer , 209 A.3d at 968-69. In doing so, we "do not simply comb through the record to find evidence favorable to a particular ruling. Rather, [we] look to the specific findings of fact made by the [trial] court." In re L.J. , 622 Pa. 126, 79 A.3d 1073, 1085 (2013).
Here, the trial court found:
[Appellant] was a passenger in a vehicle that was [ ] 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.
Trial Court Opinion at 4-5. Applying a reasonable suspicion standard to the question of whether Officer Grant exceeded the scope of a permissible Terry frisk, the trial court concluded, based upon the foregoing facts, "Officer Grant had a reasonable suspicion ... that [Appellant] may be armed and dangerous" and, therefore, Officer Grant was justified in removing the object from Appellant's left pants pocket. Id. at 5.
Before this Court, Appellant argues the plain feel doctrine applies to the present matter such that Officer Grant was required to have probable cause, rather than reasonable suspicion as the trial court concluded, to reach into and remove an object from Appellant's left pants pocket during the frisk. Again, under the plain feel doctrine, if a police officer determines an object detected during a lawful frisk is not a weapon, the officer may remove the object from within a suspect's clothing only if it is immediately apparent by touch that the object is illegal contraband. Dickerson , 508 U.S. at 375, 113 S.Ct. 2130. Here, there is no indication in the record that during the frisk of Appellant, Officer Grant concluded the object in Appellant's left pants pocket was not a weapon. Officer Grant candidly testified during the hearing on Appellant's motion to suppress physical evidence that at the time of the frisk he did not know what the object in Appellant's left pants pocket was but he feared the object could be a weapon. Seeing that Officer Grant did not determine during the frisk that the unknown object was not a weapon, the present case is unlike Commonwealth v. Graham , 554 Pa. 472, 721 A.2d 1075, 1079-80 (1998) (plurality) and Commonwealth v. E.M. , 558 Pa. 16, 735 A.2d 654, 660-62 (1999), wherein we held that it was unreasonable for the police officers in those cases to remove objects as part of a Terry frisk as the police officers determined during those frisks that the objects were not weapons and where the plain feel doctrine did not justify the removal of those objects. Therefore, we agree with the Superior Court that the plain feel doctrine does not apply in this case and, as the trial court and Superior Court did, we apply a reasonable suspicion standard to determine whether Officer Grant exceeded the scope of a permissible Terry frisk by reaching into and removing an object from within Appellant's left pants pocket during that frisk.
Appellant does not contest that the trial court's factual findings are supported by the record. However, Appellant does question whether the trial court's findings are sufficient to establish a reasonable suspicion that the object in Appellant's left pants pocket was a weapon. It is well-established that "[r]easonable suspicion is a less stringent standard than [the] probable cause necessary to effectuate a warrantless arrest, and depends on the information possessed by police and its degree of reliability in the totality of the circumstances." Brown , 996 A.2d at 477. In examining whether the totality of the circumstances provide an officer with reasonable suspicion, we "must [ ] afford due weight to the specific, reasonable inferences drawn from the facts in light of the officer's experience[,] and acknowledge that innocent facts, when considered collectively, may" give the officer reasonable suspicion. Id. Thus, we must examine the trial court's findings to determine whether they are sufficient, under an objective standard, to establish a reasonable suspicion that the object in Appellant's left pants pocket was a weapon.
Accepting the uncontested findings of the trial court, we agree that based upon a totality of the circumstances Officer Grant had a reasonable suspicion that the object in Appellant's left pants pocket was a weapon. This conclusion is not based entirely on the fact that Appellant possessed a hard object on his person. There are other factors to consider in determining whether Officer Grant possessed reasonable suspicion that the object in Appellant's pocket was a weapon. After all, a combination of factors, none of which alone would support a finding of reasonable suspicion, may be sufficient to support a finding of reasonable suspicion. Commonwealth v. Cook , 558 Pa. 50, 735 A.2d 673, 677 (1999).
The fact that Appellant was a passenger in a vehicle that was involved in a high speed chase with police at night and in a high crime area coupled with the fact that when vehicle was stopped Appellant attempted to shield his body from the view of Officers Grant and Heeney and reach into his pockets despite being told not to, would allow a reasonable prudent person to suspect that the object in Appellant's left pants pocket was a weapon. Again, Officer Grant was not required to be absolutely certain that the object in Appellant's pocket was a weapon, rather, under the applicable standard, he need only have reasonably suspected the object to be a weapon in order to conduct a search of the pocket. As such, we conclude Officer Grant did not exceed the scope of a permissible Terry frisk by reaching into and removing a suspected weapon from Appellant's left pants pocket during the frisk. III. Conclusion
Erratic or evasive driving is a factor that may be considered in determining whether there is reasonable suspicion that a suspect is armed and dangerous. In re O.J. , 958 A.2d 561, 565-66 (Pa. Super. 2008), see also United States v. Rice , 483 F.3d 1079, 1084-85 (10th Cir. 2007). Additionally, a vehicular stop, which occurs at night, "creates a heightened danger that an officer will not be able to view a suspect reaching for a weapon." In re O.J. , 958 A.2d at 566.
We acknowledge a suspect's mere presence in a high crime area is not sufficient by itself to support reasonable suspicion. See In re D.M. , 566 Pa. 445, 781 A.2d 1161, 1163-64 (2001) (citing Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) ). However, presence in a high crime area may be considered in examining the totality of the circumstances. Id.
A suspect's attempt to shield parts of his or her body or clothing from a police officer during a stop, an act sometimes referred to as "blading," "is an indication the suspect might be armed" and may be considered in determining whether there is reasonable suspicion that the suspect is armed and dangerous. Commonwealth v. Bozeman , 205 A.3d 1264, 1276 (Pa. Super. 2019) ; see also United States v. Coleman , 383 F. App'x 180, 181-82 (3d Cir. 2010).
A suspect's attempt to keep his or her hands inside a pocket or within clothing after being asked to remove them by a police officer during a stop may be considered in determining whether there is reasonable suspicion that a suspect is armed and dangerous. Commonwealth v. Scarborough , 89 A.3d 679, 684 (Pa. Super. 2014) ; see also United States v. Cornelius , 391 F.3d 965, 967-68 (8th Cir. 2004).
Justice Wecht writes in his Concurring and Dissenting Opinion that Officer Grant did not have a reasonable suspicion that the object in Appellant's left pants pocket was a weapon, in part, because the object "was more consistent with the many and sundry innocuous objects that people carry in their pockets." Concurring and Dissenting Opinion at 463 (Wecht, J.). However, the reasonable suspicion standard does not require a police officer to be absolutely certain that an object detected within a suspect's clothing is a weapon. Rather, as indicated above, courts look to the totality of the circumstances to determine whether reasonable suspicion exists. In Int. of A.A. , 649 Pa. 254, 195 A.3d 896, 904 (2018).
Justice Wecht, in his Concurring and Dissenting Opinion, concludes Officer Grant did exceed the scope of a permissible Terry frisk. Concurring and Dissenting Opinion at 463–64 (Wecht, J.). Justice Wecht arrives at this conclusion after examining, sua sponte , the question of "whether a police officer conducting a protective search must utilize the least intrusive means reasonably available to the officer" to detect the presence of weapons. Id. at 451. Despite the fact that this question was not raised by Appellant at any stage of this case, the responsive opinions suggest that we can consider the question because it is encompassed within the issue on which we granted review. Id. at 464–66 n.24 (Wecht, J.); Concurring and Dissenting Opinion at 439–40 n.1 (Donohue, J); Concurring Opinion at 428 n.3 (Dougherty, J.). To address the foregoing question, as the responsive opinions suggest, would require us to disregard our established rules on issue preservation.
Generally, for an issue to be reviewable by this Court, it must have been "preserved at all stages in the lower courts." Commonwealth v. Hays , 655 Pa. 690, 218 A.3d 1260, 1265 (2019). In examining whether an issue has been preserved for our review, we first look to the record to determine whether the issue was raised before the trial court, including in the statement of errors complained of on appeal if the trial court ordered such a statement be filed. See Pennsylvania Rule of Appellate Procedure 302(a), Pa.R.A.P. 302(a) ("Issues not raised in the trial court are waived and cannot be raised for the first time on appeal."); Pa.R.A.P. 1925(b)(4)(vii) ("Issues not included in the [s]tatement [of errors complained of on appeal] ... are waived"); see also Commonwealth v. Romberger , 474 Pa. 190, 378 A.2d 283, 286 (1977) (setting forth that the doctrine of waiver applies "even where the issue is of constitutional dimensions."). Upon review of the record, it is clear Appellant did not raise the question examined by the responsive opinions in his argument before the trial court or in his statement of errors complained of on appeal filed after the trial court's adjudication. In his statement of errors complained of on appeal, Appellant identified only a single issue for appellate review, which is: whether "[t]he [trial] court erred in denying [Appellant's] motion to suppress physical evidence, as the [Appellant] was searched and arrested without probable cause." Appellant's Statement of Errors Complained of on Appeal at 2. This issue cannot reasonably be read to include the question examined by the responsive opinions.
While we need not examine the record to determine if the foregoing question was preserved before the Superior Court because it is clear that the question was not raised before the trial court, we do so for completeness. In his brief to the Superior Court, Appellant identifies the "statement of the question involved" as follows: "Did not the [trial] court err in denying the motion to suppress physical evidence, insofar as appellant was arrested and searched without probable cause?" Appellant's Brief to the Superior Court at 3. This question cannot reasonably be read to include the question examined by the responsive opinions. Therefore, even if the question had been raised before the trial court, it still would not be preserved for our review because it was not raised before the Superior Court. See Pennsylvania Rule of Appellate Procedure 2116(a), Pa.R.A.P. 2116(a) ("No question will be considered unless it is fairly stated in the statement of questions involved or is fairly suggested thereby.").
The law is clear that "where the parties in a case fail to preserve an issue for appeal, an appellate court may not address the issue sua sponte ." Johnson v. Lansdale Borough , 637 Pa. 1, 146 A.3d 696, 709 (2016). Appellate courts must be mindful not to address issues which are not preserved for review as it "disturbs the process of orderly judicial decision-making by depriving the court of the benefit of counsel's advocacy ... and depriving the litigants the opportunity to brief and argue the issues." Id. Accordingly, in light of the fact that the question examined by the responsive opinions was not raised by Appellant at any stage in this case, we cannot, sua sponte , raise and address the question as it was not preserved for our review.
We granted review in this matter to examine the standards by which police officers may remove objects detected during a Terry stop and frisk from within a suspect's clothing. Upon review, for the reasons set forth above, we conclude that Terry and Dickerson set forth separate and distinct justifications and accompanying standards for removing objects from within a suspect's clothing during a lawful Terry frisk. As Justice Newman held in Taylor , we hold a police officer may remove an object from within a suspect's clothing during a Terry frisk if the officer has reasonable suspicion that the object is a weapon. If during the search, however, the officer determined the object is not a weapon, the officer may only remove the object if it is immediately apparent by touch the object is illegal contraband. In the present case, for the foregoing reasons, we conclude Officer Grant had a reasonable suspicion that the object in Appellant's left pants pocket was a weapon. Therefore, Officer Grant did not exceed the scope of a permissible Terry frisk by reaching into and removing an object from Appellant's pocket. Accordingly, we affirm the February 4, 2020 order of the Superior Court.
Chief Justice Baer and Justices Saylor and Dougherty join the opinion.
Justice Dougherty files a concurring opinion in which Justice Todd joins.
Justice Donohue files a concurring and dissenting opinion.
Justice Wecht files a concurring and dissenting opinion.
CONCURRING OPINION
JUSTICE DOUGHERTY
This case requires that we determine the applicable standard, under the Fourth Amendment to the United States Constitution, "for when police may conduct an additional more intrusive search of a pocket following a pat-down for weapons[.]" In the Interest of T.W., ––– Pa. ––––, 237 A.3d 416 (2020) (per curiam ). The answer to this question entails several parts. I join the majority's opinion in full because it correctly resolves the central issue of dispute between the parties and holds a police officer conducting a lawful Terry frisk may remove an object from within a suspect's clothing when there is reasonable suspicion that the object is a weapon. Majority Opinion at 422. I write separately to further elucidate my views on those related, outstanding issues the majority does not expressly resolve.
Terry v. United States , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
The Majority opines that the discussion of less intrusive means was not preserved for review. I agree with Justices Wecht and Dougherty that the issue is subsumed within our grant of allocatur. The basis for T.W.’s motion to suppress was that the Fourth Amendment demands suppression, and I fail to see how the Majority can conclude that the Fourth Amendment permitted Officer Grant to immediately seize the object without examining whether lesser steps were required. While T.W. argued that the standard is probable cause, the salient point is that a warrant (i.e., a showing of probable cause) would indeed be required unless some exception applied. We cannot hold that an exception to the warrant requirement applies without addressing the possibility of less intrusive acts.
Simultaneously, while I agree with Justice Wecht's conclusion that the Fourth Amendment requires an officer to employ the least intrusive means, I find that both Justices Dougherty and Wecht veer off course by discussing how the Fourth Amendment analysis would play out under hypothetical scenarios. For instance, Justice Dougherty posits that a frisk "occur[ring] in the winter" with the suspect "wearing bulky clothing" may make it difficult to do anything beyond a pat-down. Concurring Op. at 438. But that is not this case. We are deciding this case based on this record, and as explained elsewhere within this opinion I find that the Commonwealth failed to meet its burden.
Maj. Op. at 422.
I. Background
My colleagues discuss the facts at significant length, but I repeat them again here because there is strong disagreement as to how to apply the law to them.
On June 19, 2018, Officers Grant and Heeney were in uniform and on patrol in a marked police car near the 2200 block of North 20th Street in Philadelphia, Pennsylvania. At approximately 4:15 a.m., they observed two vehicles, a silver Toyota and a green Chevy, traveling northeast on Sedgley Avenue. The silver Toyota made a sharp illegal U-turn, and the green Chevy, which was following close behind, proceeded to do the same. As the officers started making the U-turn to initiate a stop of the vehicles, they observed that both vehicles began to travel at a high rate of speed. The officers activated their lights and sirens and followed the vehicles as they sped through the streets of Philadelphia, disregarding several red lights.
As the vehicles made a sharp left turn onto Dauphin Street, the Chevy crashed and the two men inside alighted and fled on foot. The officers exited their patrol car and gave chase, but soon lost sight of the men. The officers then came upon the silver Toyota at a red light at 20th Street and Susquehanna Avenue and, without the protection of their police car, effectuated a vehicle stop on foot. The officers found three people in the Toyota — a female driver, a female passenger, and appellant, who was sitting in the back seat on the driver's side. As Officer Grant instructed the three occupants to roll down the windows and produce identification, he observed appellant "blade his body and start to reach into his pockets." N.T. Suppression Hearing, 7/10/18 at 13. More specifically, appellant "turned his left shoulder away" from the officer as "[h]is hands were going into his pockets." Id. at 14.
Officer Grant repeatedly asked appellant to stop turning his body away from him and reaching into his pockets, but appellant refused to comply. Based on appellant's actions and the fact Officer Grant knew the location of the stop to be a high-crime area, Officer Grant was concerned appellant "could have had a weapon." Id. Indeed, Officer Grant testified that, just three days prior, five people were shot at the intersection where the Chevy crashed and, further, that he had recovered firearms during past traffic stops in the 22nd Police District — the same district where this stop occurred and where Officer Grant had been serving as a police officer for two years.
In light of these facts, Officer Grant opened the car door and asked appellant to step out of the vehicle for the purpose of conducting a safety frisk. Once appellant was outside, Officer Grant frisked him with an open-handed pat-down of his pants and felt a large, hard object in his front left pants pocket. Officer Grant could not affirmatively identify what the object was but was concerned based on his training, experience, and knowledge of "the recent spate of violent incidents in this area" that the large, hard object "was a weapon or firearm." In the Interest of T.W. , 2020 WL 551354, at *3 (Pa. Super. Feb. 4, 2020) (unpublished memorandum), citing N.T. Suppression Hearing, 7/10/18 at 17-19, 26. As a result, he reached into appellant's left pants pocket and removed the object, which he then discovered was actually a bottle labeled "Promethazine [.]" Id. Officer Grant placed appellant under arrest and, during a search incident to arrest, recovered an amber prescription pill bottle containing two Oxycodone pills from inside another one of appellant's pants pockets.
On cross examination, Officer Grant noted he could not recall the exact size of the object, but agreed it was approximately the size of a Nyquil bottle. In the Interest of T.W. , 2020 WL 551354 at *3, citing N.T. Suppression Hearing, 7/10/18 at 21. Justice Donohue states she does not suggest Officer Grant knew what the object was before he removed it, see Concurring and Dissenting Opinion at 444 n.7 (Donohue, J.), but I respectfully note her discussion of the record seemingly implies Officer Grant may have arrived at that conclusion prior to retrieving and examining it, see id. ("Officer Grant did in fact dispel a belief [appellant] was armed and dangerous if he determined that the item felt like a bottle of Nyquil"); id . at 446 ("Officer Grant agreed that the item he removed from [appellant]’s pocket was comparable to a Nyquil bottle.") (citation omitted). There is absolutely no evidence suggesting Officer Grant believed the large, hard object he felt during the pat-down was a "medicine bottle" prior to removing it from appellant's pocket. Rather, Officer Grant testified that although he could not determine what the object was, he could not rule out the possibility it was a weapon. See N.T. Suppression Hearing, 7/10/18 at 26.
Justice Dougherty's contention that I am making an "emphatic assertion" to the effect that reasonableness is not the touchstone of Fourth Amendment assessments misconstrues my position. Reasonableness is indeed central to every Fourth Amendment balancing analysis, but its role in those balancing analyses must be assessed not in the abstract but rather within the context of a Terry frisk. In the context of a Terry frisk, the Supreme Court has already conducted the balancing of the interests of the parties involved.
Id . at 414.
Appellant was charged with possession of a controlled substance. At a juvenile adjudication hearing, he moved to suppress the physical evidence Officer Grant had recovered from his person and, in order to meet its burden of establishing "that the challenged evidence was not obtained in violation of" appellant's rights, Pa.R.Crim.P. 581, the Commonwealth called Officer Grant, who testified to the facts detailed above. The juvenile court found Officer Grant credible and denied suppression. The court reasoned the officer "acted properly" because his actions were undertaken in an effort to protect the other passengers of the car as well as the officers on the scene. See N.T. Suppression Hearing, 7/10/18 at 33; id . at 36 (explaining that "[i]f there had been a weapon in [appellant]’s pocket[ ]" all "could have been in danger"). Appellant seemed to agree with this observation, though not with the constitutionality of the extent of the search ultimately conducted. See id . at 28-29 (conceding Officer Grant's decision to conduct a frisk in the first place demonstrated "prudent work" since "what [he] was trying to do was make sure that everybody was safe during the entirety of this stop").
II. Analysis
Like my colleagues in partial dissent, I see several interrelated facets to the issue upon which we granted review. The one primarily disputed by the parties is the simplest to resolve: what quantum of proof governs a Terry encounter as a general matter? The Court unanimously agrees the answer to this question is reasonable suspicion, not probable cause. But several questions remain, including: whether, to be reasonable, a more intrusive search of a suspect's pocket requires additional factual support beyond those factors supporting the initiation of the frisk; and whether an officer conducting such a search must use the least intrusive means available. Unlike the majority, I would not avoid confronting these issues.
The majority contends these subsidiary issues are waived or beyond the scope of the question on which we granted review. See Majority Opinion at 424–25 n.9. In my respectful view, however, they are adequately encompassed within the question presented.
I do not agree that Commonwealth v. Revere, 585 Pa. 262, 888 A.2d 694 (2005), establishes that a generic "reasonableness" inquiry governs for all Terry questions. That case involved officers ordering two individuals lawfully detained for an investigative detention to enter the backseat of a police vehicle. Revere claimed that the order and subsequent short transport transformed the seizure into an arrest requiring probable cause. This Court indeed determined that the police conduct must be assessed for reasonableness, but explicitly held that the presence of exigent circumstances, namely the fact that the officers feared their fellow officers needed immediate help based on their screaming, justified that result. Id . at 707.
Justice Dougherty does not argue that the potential presence of a weapon constituted an exigent circumstance because that would, of course, simply swallow the Terry exception. Additionally, Chief Justice Cappy filed a concurrence in Revere noting that the Court assumed the presence of exigent circumstances for purposes of appeal and cautioned that courts must determine if "the officers’ conduct was a reasonably necessary response to the exigent circumstances based upon the totality of the circumstances." Id . at 709 (Cappy, C.J., concurring). His opinion agreed that courts "should not engage in unrealistic second-guessing[,]" but also stated that "[c]onsideration of reasonably less intrusive alternatives should be part of the relevant inquiry[.]" Id . at n.2.
Id . at 421.
A. Terry and the Reasonable Suspicion Standard
The majority's opinion goes a long way in "clarify[ing] the issue left unresolved by this Court's split decision in Commonwealth v. Taylor, 565 Pa. 140, 771 A.2d 1261 (2001), relating to the standard for when police may conduct an additional more intrusive search of a pocket following a pat-down for weapons." In the Interest of T.W., ––– Pa. ––––, 237 A.3d 416 (2020). Most importantly, the majority correctly resolves that, "[p]ursuant to Terry ..., a police officer may remove an object from within a suspect's clothing under the reasonable suspicion that the object is a weapon." Majority Opinion at 422. However, as the positions forwarded by my colleagues in partial dissent prove, disagreement remains regarding how that standard should apply in practice. Thus, I would more clearly define precisely what is required under the standard.
The United States Supreme Court recently confirmed that reasonable suspicion has always been a "less demanding" standard that "can be established with information that is different in quantity or content than that required to establish probable cause." Kansas v. Glover , ––– U.S. ––––, 140 S.Ct. 1183, 1188, 206 L.Ed.2d 412 (2020), quoting Alabama v. White , 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). Although reasonable suspicion requires more than " ‘a mere ‘hunch,’ ’ " it is still "considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause." Id. at 1187, quoting Navarette v. California , 572 U.S. 393, 397, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014).
As the Glover Court explained, reasonable suspicion " ‘falls considerably short’ of 51% accuracy," id. at 1188, quoting United States v. Arvizu , 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), and " ‘depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act,’ " id. , quoting Navarette , 572 U.S. at 402, 134 S.Ct. 1683 (emphasis omitted). Accordingly, "[c]ourts ‘cannot reasonably demand scientific certainty ... where none exists[,]’ " and "must permit officers to make ‘commonsense judgments and inferences about human behavior.’ " Id. , quoting Illinois v. Wardlow , 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) ; see also Navarette , 572 U.S. at 403, 134 S.Ct. 1683 ("we have consistently recognized [ ] reasonable suspicion need not rule out the possibility of innocent conduct") (internal quotations and citation omitted). Of course, in making such judgments and drawing such inferences, officers must weigh the totality of the circumstances, including "the presence of additional facts [that] might dispel reasonable suspicion ." Glover , 140 S.Ct. at 1191, citing Terry , 392 U.S. at 28, 88 S.Ct. 1868 (emphasis added).
The word "dispel" is critical. Under Terry , if an officer observes something inconsistent with his or her belief the suspect is armed and dangerous such that it "might dispel reasonable suspicion[,]" the officer may not proceed with the Terry frisk. Glover , 140 S.Ct. at 1191, citing Terry , 392 U.S. at 28, 88 S.Ct. 1868 ; see also Minnesota v. Dickerson , 508 U.S. 366, 373, 378, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (if, during the Terry stop, the officer concludes the object is not a weapon, the frisk must cease). Viewed another way: If an officer has reasonable suspicion to conduct a Terry frisk, that reasonable suspicion remains unless and until the officer's belief that the object may be a weapon is negated. Thus, if the officer continues to believe the item may be a weapon , or cannot confirm it is not a weapon — and that belief is objectively reasonable based on the information known at the time — the officer has reasonable suspicion to proceed with a more invasive search to confirm its identity and protect him or herself and others. See Terry , 392 U.S. at 24, 88 S.Ct. 1868 (concluding officers have "the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm"); id. at 29, 88 S.Ct. 1868 (noting a search initiated to confirm whether an individual is armed and dangerous must be "confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer").
B. The Permissible Scope of a More Intrusive Search
Moreover, I would consider the permissible scope of the additional, more intrusive search that an officer may conduct when, following an initial pat-down, there remains a reasonable suspicion that the suspect may be armed and dangerous. The majority correctly permits an officer to directly search the area where the potentially dangerous item is believed to be following an inconclusive pat-down, but Justices Donohue and Wecht would impose a "least intrusive means" limitation. See Concurring and Dissenting Opinion at 439 (Donohue, J.) ("the Fourth Amendment demands that an officer use the least intrusive means to resolve any uncertainty"); Concurring and Dissenting Opinion at 453 (Wecht, J.) ("Generally ..., a police officer must employ the least intrusive means reasonably available to determine whether the suspect is armed."). However, the Fourth Amendment does not require their proposed limitation, and moreover, it is patently impractical to apply it in these circumstances.
First, I note that, notwithstanding Justice Donohue's emphatic assertion to the contrary, reasonableness is the touchstone of every Fourth Amendment assessment, including those arising in the Terry context. Although Justice Donohue correctly observes the Terry Court, in defining the contours of a protective frisk, carefully weighed the competing interests of law enforcement safety and individual liberty, the Court certainly did not expressly address what is reasonable or direct what is required when an officer identifies an object he or she cannot conclude is not a weapon; the issue was simply not before the Court. Yet, Terry does provide useful guidance here, by instructing the appropriate inquiry is "whether [the search] was reasonably related in scope to the circumstances which justified the interference[.]" Terry , 392 U.S. at 20, 88 S.Ct. 1868 (emphasis added). Central to this directive is an assessment of whether the officer's action — here, a more intrusive search following an initial, unilluminating pat-down — was objectively reasonable.
We have recognized as much in other Terry -related contexts. For example, in Commonwealth v. Revere, 585 Pa. 262, 888 A.2d 694 (2005), we considered whether police were justified in "transporting a suspect a short distance in the absence of probable cause during the course of an investigative detention pursuant to Terry [,]" where exigent circumstances were present. Revere , 888 A.2d at 696. In concluding the officers’ movement of the suspect was reasonable, we were "persuaded that a hard and fast rule that would equate placing a suspect in a police vehicle and transporting him with an arrest requiring probable cause, in all instances, would be an arbitrarily crabbed view of Terry [.]" Id . at 706. We specifically noted "the [High] Court has explained that the ‘central requirement’ and the ‘touchstone’ of the Fourth Amendment is reasonableness[,]" which is "measured in objective terms by examining the totality of the circumstances[,]" and "eschew[s] bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry." Id. at 707 (citations omitted). To this end, we recognized "[t]he overwhelming weight of Fourth Amendment authority supports a degree of flexibility in the conduct of Terry investigative detentions[.]" Id. at 703. Thus, we held "allowing courts to engage in a totality of the circumstances analysis which accounts for exigencies arising during an investigatory detention is a function of the underlying reasonableness that must exist to justify any Terry stop," and suppression was not warranted. Id. at 707. Revere demonstrates what should be obvious: courts must assess the reasonableness of every search based on the totality of the circumstances and an objective standard. We presently apply these principles to the unique situation before us, which involves an officer whose initial, limited frisk of a suspect's outer clothing for weapons failed to either confirm or dispel the officer's reasonable suspicion that the suspect was armed and dangerous. This task requires us to make an assessment of what was reasonable — a point with which Justice Wecht appears to agree. See, e.g. , Concurring and Dissenting Opinion at 463 (Wecht, J.) ("it would have been reasonable for Officer Grant briefly to manipulate the object from outside of [appellant]’s clothing") (emphasis added); id . at 467 ("We are called upon here to maintain a necessary equilibrium between the competing state and private interests. Doing so requires a refinement of the scope of the standard in light of the facts at hand.").
Justice Donohue correctly notes Revere is a case in which the reasonableness of the officers’ actions was dependent upon the presence of exigent circumstances. See Concurring and Dissenting Opinion at 441 n.3 (Donohue, J.). While it is true exigent circumstances are not involved here, Revere is still instructive on the central issue of reasonableness. This is so because, when tasked with assessing the validity of an officer's actions during a lawful Terry stop, this Court turned to Fourth Amendment reasonableness standards to make that determination and directed that was the proper analysis. See Revere , 888 A.2d at 707. Other cases of the United States Supreme Court have instructed the same. See , e.g. , United States v. Place , 462 U.S. 696, 703, 709 n.10, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (noting that, in applying Terry principles to a ninety-minute investigative detention of a suspect's luggage, courts must "balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion[,]" and concluding a hard-and-fast time limit for a permissible Terry stop is not advisable in that it would "undermine the equally important need to allow authorities to graduate their responses to the demands of any particular situation"). That the present case is not on all fours with Revere is thus of no moment; what matters for present purposes is that Revere demonstrates how reasonableness is always the lodestar of any Fourth Amendment analysis, even in Terry cases.
Moreover, contrary to Justice Donohue's contention, the High Court's decision in Dunaway v. New York , 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), does not dictate otherwise. In that case, the Court held only that application of a "balancing test" to "custodial interrogations" was inappropriate as, based on the particularities of the custodial interrogation environment, more than reasonable suspicion was required. Id. at 212, 99 S.Ct. 2248, 60 L.Ed.2d 824. Dunaway did not address whether, much less hold that, the narrow application of the Terry exception in other contexts prohibits courts from assessing the validity of an investigative detention based on Fourth Amendment reasonableness standards.
According to the Majority, in Terry "[t]he term ‘weapon’ was given a broad definition by the Court, which did not define the term to refer solely to guns or knives, but defined the term to include ‘guns, knives, clubs, or other hidden instruments.’ " Majority Op. at 417 (quoting Terry , 392 U.S. at 29, 88 S.Ct. 1868 ). The Majority truncates the actual quote. What Terry says is this: "The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer ." Terry, 392 U.S. at 29, 88 S.Ct. 1868 (emphasis added). The purpose of a Terry frisk "is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence[.]" Adams v. Williams , 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). In weighing officer safety versus individual privacy interests, the Terry Court observed that "every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives." Terry , 392 U.S. at 23–24, 88 S.Ct. 1868. In my view, the Terry Court's reference to "instrument" referred to the meaning of the word as a device designed for a particular use, that being a violent assault on the officers or nearby people. The Majority, in contrast, treats "objects" and "instruments" as synonyms.
I agree with the Supreme Court of Rhode Island that Terry is limited to "typical" or "obvious" weapons, a formulation that excludes medicine bottles. See State v. Black , 721 A.2d 826, 831 (R.I. 1998) ("Although an officer may not identify readily a hidden object's status upon his initial touching of the object through the suspect's clothing, the officer is entitled to ascertain the item's contour or mass to negate the presence of typical or obvious weapons.").
Property Receipt No. 3345946 contradicts Officer Grant's testimony that he pulled the bottle of oxycodone from T.W.’s right pants pocket. According to the property receipt, Officer Grant seized both the promethazine and the oxycodone from the left pocket of T.W.’s pants. See Commonwealth's Exhibit 1-C, Property Receipt No. 3345946.
But, Justice Wecht nevertheless faults the majority for "fail[ing] to limit the scope of the protective search to the least intrusive search reasonably available[,]" id. at 457, and allowing "the most intrusive aspect of a protective search" — reaching into a suspect's clothing — "when reasonable suspicion is at its nadir[,]" id. at 467. Justice Wecht would require the search "be proportional to the circumstances that induced it, escalating to a more intrusive search only when the circumstances reasonably warrant a more substantial intrusion." Id . at 453. In other words, "as the reasonable belief that the suspect is armed waxes, the permissible scope of the protective search broadens[.]" Id . at 457; see also id. at 459 ("[A]n officer must employ the least intrusive means reasonably available[,]" which requires "an officer to acquire additional facts during the pat-down before manipulating the object and to obtain further facts during that manipulation before reaching into the suspect's clothing.").
Thus, although Justice Wecht agrees "reasonable suspicion that a suspect is armed and dangerous exists until extinguished by facts that negate the reasonable possibility of a weapon[,]" id. at 460 n.15, he would nevertheless adopt a framework that injects into the Fourth Amendment analysis a newly-minted "continuum of increasing invasiveness" evaluation, which, he submits, "generally requires facts indicating the presence of a weapon beyond those facts that justified the initial pat-down." Id . at 455; see also id . at 457 ("The search must be proportional to the circumstances that induced it, escalating to a more intrusive search only as the circumstances confronting the investigating officer necessitate a more substantial intrusion."); id . at 460 ("court[s] must weigh the quantum and quality of the Commonwealth's evidence against the level of intrusion, mindful that greater intrusions generally call for stronger or more abundant evidence").
This so-called "continuum" appears to involve three phases: "(1) the protective frisk itself, (2) the manipulation of an object felt during the pat-down, and (3) the reach into the clothing." Id . at 455. According to this theory, for the search to proceed at each stage, the officer must possess reasonable suspicion and that level of suspicion must increase proportionally with the increasingly invasive nature of the search. Where an officer has conducted an open-handed pat-down and is unable to discern whether the object is or is not a weapon, Justice Wecht's newly-conceived second phase would require the officer to "briefly manipulat[e] the object from the outside of the individual's clothing in order to establish its tactile characteristics." Id. at 454. And, if that "manipulation reveals sufficient tangible qualities from which a reasonable officer would conclude that the object is a weapon, the officer may reach inside the suspect's clothing and remove the object." Id. at 458. It is at this stage, Justice Wecht posits, that reasonable suspicion should generally be at its "peak." Id.
This creative framework purportedly derives from Sibron v. New York , 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), the companion case to Terry , and Dickerson , which all members of this Court now agree does not control here. The former decision supposedly "confirms that concerns for officer safety cannot justify a greater intrusion into a constitutionally protected area than the circumstances warrant[,]" Concurring and Dissenting Opinion at 453 (Wecht, J.), while the latter, we are told, "does not prevent an officer from manipulating an object in all circumstances[,]" id . at 454. But these broad-stroke characterizations provide scant support for Justice Wecht's novel position.
More importantly, "[e]ven assuming there [was a means of searching] that would have been less intrusive, it does not follow that the search as conducted was unreasonable." City of Ontario v. Quon , 560 U.S. 746, 764, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010). Indeed, the United States Supreme Court has "repeatedly refused to declare that only the ‘least intrusive’ search practicable can be reasonable under the Fourth Amendment." Vernonia School Dist. 47J v. Acton , 515 U.S. 646, 663, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). The High Court has cautioned that "[t]he logic of such elaborate less-restrictive-alternative arguments" — like the elaborate "continuum" framework devised by Justice Wecht and embraced by Justice Donohue — "could raise insuperable barriers to the exercise of virtually all search-and-seizure powers." United States v. Martinez-Fuerte , 428 U.S. 543, 556 n.12, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976).
As the Court explained in United States v. Sharpe , 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985), which involved a twenty-minute Terry investigative detention, while "a ‘bright line’ rule would be desirable, in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria." Sharpe , 470 U.S. at 685, 105 S.Ct. 1568. The Sharpe Court instructed that courts should not indulge in unrealistic second-guessing because:
[a] creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished. But [t]he fact that the protection of the public might, in the abstract, have been accomplished by ‘less intrusive’ means does not, itself, render the search unreasonable. The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.
Id . at 686-87, 105 S.Ct. 1568 (internal citations and quotations omitted); see also Revere , 888 A.2d at 707 ("the High Court has emphasized that, ‘reasonableness under the Fourth Amendment does not require employing the least intrusive means’ ") (citation omitted). As such, it is not surprising that courts have, when warranted, "concluded that the means used to address [a particular] concern, while not the least intrusive possible, were still minimally intrusive given the practical difficulties in any other suggested approaches." Commonwealth v. Cas s, 551 Pa. 25, 709 A.2d 350, 356 (1998) (citation omitted).
I would reach a similar conclusion here and reject the proposition that the Fourth Amendment requires an officer to first manipulate a potentially threatening object through a suspect's clothing before removing it. Justice Wecht opines this additional step is needed to curtail unnecessary expansion of the protective search. Though I generally agree that reaching into a suspect's clothing and removing an object is comparatively more intrusive than a pat-down and, further, that police officers should attempt to pursue the least intrusive means reasonably necessary to effectuate a Terry stop, I ultimately disagree that the Fourth Amendment requires officers to "manipulate" a potentially dangerous weapon before they may lawfully remove it.
I do not arrive at this conclusion lightly. Protective searches are, as the Terry Court expressed, "a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment[.]" Terry , 392 U.S. at 17, 88 S.Ct. 1868. However, while Justice Wecht's approach might allow a less intrusive search before removing the object, in my view his proposed intermediate step is more useful in theory than it is workable in practice. Notably, although the manipulation of an object is relatively innocuous in the Dickerson context where officers are handling "non-threatening" contraband, requiring the manipulation of an object that might still be a weapon is problematic from both an officer and suspect/bystander safety perspective. This new element would require officers to move, squeeze, or otherwise handle a potentially dangerous weapon they cannot see and, in some cases, particularly where a suspect is wearing bulky clothing, cannot sufficiently feel in its entirety. While the manipulation of some weapons through clothing may not pose a threat, the same cannot be said of others. Officers can encounter a wide range of weapons, including, for example, firearms without trigger guards or with modified trigger pull weight, which could fire if handled improperly and cause grievous injury. A central consideration in Terry was protecting "the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him." Id. at 450. If an officer encounters a suspect who is potentially armed and dangerous, I would not require that officer to risk serious injury by possibly mishandling a weapon hidden from view. In short, although Justice Wecht's effort to devise a least-intrusive framework for the present situation was worthwhile, in my respectful opinion, the test he offers is impractical for police officers — who are not legal technicians pondering the situation with the benefit of hindsight and plenty of time — to execute safely.
Justice Wecht contends officers are "accustomed to performing [such] investigative measure[s]," and he suggests his manipulation requirement is consistent with current police practice. Concurring and Dissenting Opinion at 454 – –––– (Wecht, J.). In support, he notes the Philadelphia Police Department's manual of directives "instructs officers performing certain searches to proceed by ‘grabbing, squeezing[,] or sliding of hands over the remaining clothing to detect a weapon[.]’ " Id. at 455, quoting Phila. Police Dep't Directive 5.7 § 21(H)(1)(a). This argument is unpersuasive for several reasons. First, the language Justice Wecht selectively quotes derives from a definitional subsection of a policy pertaining to "Strip and Body Cavity Searches," which is not what we are dealing with here. Second, it is significant that the directive states only that an officer "can " use manipulation techniques, not that he must. Phila. Police Dep't Directive 5.7 § 21(H)(1)(a) (emphasis added). Finally, and in any event, it is worth noting this police directive — which, according to the website link provided by Justice Wecht, appears to have been last updated in 2016 — is not contained in the certified record, and thus we have no way of knowing for sure whether it is authentic or even current.
I omit from this calculus the facts unfavorable to the Commonwealth, which arguably contradicts the testimony. Primarily, Officer Grant did not dispute T.W.’s suggestion that the object was "two to three inches in height," instead saying, "I don't recall the exact size." N.T., 7/10/2018, at 21. Nonetheless, Officer Grant logged the item and sent it for testing, providing more details on that point. The lab report shows that this item was approximately ninety-eight grams, or about three and one-half ounces. It is hard to imagine that such an item felt "large."
Additionally, Officer Grant indicated that the basis for recovering the item may have been due to his training in narcotics. The prosecutor asked Officer Grant if he had personal experience making narcotics arrests, to which he said, "Yes." The prosecutor then asked, "And do you have any training with narcotics investigations?" The officer stated he did not, aside from the police academy training. Next, the prosecutor stated, "And did any of your training and experience (unintelligible) to your decision to take that out of his pocket?" He answered, "Yes." Id . at 17–18.
As the trial court later acknowledged, promethazine is not a controlled substance. Trial Court Opinion ("TCO"), 10/10/2018, at 3 n.1. The court explained that it initially found that the seized liquid was a controlled substance because no party objected to Officer Grant's testimony on that issue. The court noted that promethazine is commonly mixed with "limited amounts of codeine," which is a controlled substance. Id . Typically, the promethazine and codeine mixture is put into Sprite, along with Jolly Ranchers. See Lean (Drug) , Wikipedia, the Free Encyclopedia , http:// en.wikipedia.org/wiki/ Lean_(drug)#Names (last visited June 16, 2021). This recreational drug beverage, which was popularized by musicians from Houston, Texas, goes by several names: lean, purple drank, sizzurp, dirty Sprite, and Texas tea. Id . The drink is so deeply embedded in Houston's hip-hop scene that local artists developed a sub-genre of hip-hop inspired by it, called Chopped-N-Screwed, in which the musicians distort the music by slowing it down and skipping beats, thereby imitating the intoxicating effects of the mixture. See id .
Justice Wecht asserts this concern is "misplaced" because "[r]eaching into a suspect's clothing and grasping objects," which "officers regularly and safely" do, is "arguably more dangerous" than manipulating an object through an individual's clothing. Concurring and Dissenting Opinion at 454–55 n.9 (Wecht, J.). I respectfully but emphatically disagree. While it is true that reaching into a suspect's pocket and retrieving an item that could be a weapon is an inherently dangerous task, it is surely more dangerous to manipulate that object through clothing. When an officer squeezes, turns, moves, or otherwise handles an object through clothing, that officer does so without being able to affirmatively discern the object's material, which can be instructive, if not dispositive, in identifying what that object is. In contrast, an officer reaching into a suspect's pocket to touch the object in question can immediately perceive the object's material, including whether it has a grooved handle, metal slide, or other feature that would aid in identifying whether it is a weapon and its position. Placing one's hand on an object provides critical information often unavailable when attempting to manipulate a potentially dangerous weapon through bulky clothing or other clothing materials. For this reason, I strongly disagree that officers "undoubtedly have the capacity ... to manipulate objects briefly from outside suspects’ clothing without creating dangerous situations[,]" and I do not believe the Fourth Amendment imposes such a requirement on police officers attempting to neutralize potentially dangerous situations. Id. (emphasis added).
It is telling that instead of explaining how this object could have possibly been a weapon that posed a danger to the officers or others, the Majority largely relies on generic facts that justify the ability to conduct a pat-down at all, such as T.W.’s presence in a vehicle involved in a police chase, a high crime area, and T.W.’s attempt to shield his body from view while in the vehicle.
The Majority largely ignores everything that happened after T.W. was ordered to exit the vehicle. Nothing in the testimony indicates that T.W. was combative, uncooperative, or otherwise threatening after exiting the vehicle. While I agree that T.W.’s act of blading his body while inside the vehicle indicates danger, the officers did not draw their firearms. Nor did Officer Grant's partner appear to feel threatened, as the testimony indicates that he remained with the other two occupants. The Terry frisk focuses on weapons that could be used in a violent assault, see supra note 4, and the officers were in uniform. The Majority does not explain how the felt item posed a threat under these circumstances. See State v. Crook , 485 N.W.2d 726, 729–30 (Minn. Ct. App. 1992) ("It is also reasonable to conclude that a weapon such as a razor blade hidden in the cap would not present harm or danger to a police officer armed with a gun.").
Sibron addressed two cases that the Court had consolidated for argument. Sibron , 392 U.S. at 44, 88 S.Ct. 1889. The lead case involved Nelson Sibron, who was convicted of possessing heroin. See id . at 44-47, 88 S.Ct. 1889. The other case concerned John Francis Peters, who was subjected to a search incident to arrest based upon probable cause that Peters was planning to commit a robbery. See id . at 66-68, 88 S.Ct. 1889. Consequently, the Court's assessment of the search of Peters neither concerns the scope of a protective search nor informs the analysis here.
To summarize the relevant principles, a stop and frisk is constitutionally valid when the following conditions are met:
First, the investigatory stop must be lawful. That requirement is met in an on-the street encounter ... when the police officer reasonably suspects [ ] the person apprehended is committing or has committed a criminal offense. Second, to proceed from a stop to a frisk, the police officer must reasonably suspect that the person is armed or dangerous.
Arizona v. Johnson , 555 U.S. 323, 326-27, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009). The present appeal involves a third situation not yet addressed by the United States Supreme Court, i.e. , what may an officer do when a frisk of a suspect's outer clothing fails to confirm or dispel a reasonable belief that the felt object may be a weapon? I would resolve that issue by adding the following element to the above test: "Third, if, after a lawful Terry frisk, the facts available to the officer fail to confirm or dispel a reasonable belief that the felt object might be a weapon, the officer may remove the object from within the suspect's clothing." In my view, requiring more would be unreasonable and would needlessly jeopardize officer safety.
C. Application
Applying these principles to the facts of this case, I easily agree with the majority that suppression is unwarranted here. The suppression court reviewed the following facts to determine whether the officer had reasonable suspicion to remove the object from appellant's pocket: appellant was a passenger in a vehicle that fled from police in a high-crime area in the early morning hours; the officer had experience recovering weapons from traffic stops in the area where he and his partner stopped appellant; three days before this incident, five people were shot at the intersection where one of the fleeing cars crashed; the officers stopped appellant and the other two vehicle occupants on foot and did not have the protection of their patrol car; during the stop appellant was blading his body away from the officers and reached into his pockets; appellant continued to reach into his pockets even after the officer repeatedly directed him to stop; the officer conducted an open-handed pat-down and identified a hard, large object in appellant's left side pants pocket; and the officer could not determine what the object was from the pat-down alone, and feared it could be a weapon. Evaluating these facts under a reasonable suspicion standard, and in the light most favorable to the Commonwealth, there can be no doubt that Officer Grant did not exceed his constitutional authority by reaching into appellant's pocket and removing the potentially life-threatening object secreted inside.
Of course, Justice Wecht faults Officer Grant for failing to adhere to his newlyconcocted, multipart "continuum" framework. See Concurring and Dissenting Opinion at 463 (Wecht, J.) (Officer Grant was required "to take that less intrusive step [of manipulating the object] before reaching into [appellant]’s pocket"). Justice Wecht also blames the majority for relying exclusively upon what he characterizes as "the minimal, low-quality evidence that warranted the initiation of the protective search." Id . That evidence includes appellant's "suspicious movements and his noncompliance with Officer Grant's commands[,]" factors Justice Wecht deems "weak indicators of a weapon." Id .; see also id . at 461–62 (arguing, without citing any supporting authority, that although appellant's "movements were consistent with an attempt to conceal a weapon, they were equally, if not more, indicative of concealing nonthreatening contraband or an embarrassing item"). Justice Wecht also discounts the "reckless driving" by the drivers of the fleeing vehicles which "is not a crime inexorably associated with weapons." Id . at 461. As Justice Wecht sees it, when all of this other evidence is systematically eliminated from the reasonable suspicion calculus, all that remains is "the presence of a hard object[.]" Id . at 464; see also id. at 464 (contending the majority "has birthed the ‘hard object’ exception to the warrant requirement").
Justice Donohue takes an even dimmer view of the evidence. She perceives only "four key facts that ... support the [m]ajority's conclusion that Officer Grant reasonably suspected that the object he felt was a weapon[,]" including: "the object was (1) large, (2) hard, and (3) could have been a weapon or (4) firearm." Concurring and Dissenting Opinion at 443 – –––– (Donohue, J.). According to Justice Donohue, the majority relies on "generic facts ... such as [appellant]’s presence in a vehicle involved in a police chase, a high crime area, and [appellant]’s attempt to shield his body from view while in the vehicle." Id . at 444 n.6. Although Justice Donohue concedes appellant's "act of blading his body while inside the vehicle indicates danger," she nevertheless summarily dismisses it as irrelevant since "the officers did not draw their firearms." Id . Even with respect to those factors Justice Donohue would credit, such as Officer Grant's testimony the object he felt was "hard" and "large," she considers it to be "inherently subjective" and "meaningless[.]" Id . at 442–43 – ––––. Justice Donohue concludes the evidence fails to show "that an objectively reasonable police officer would suspect that the item was a weapon[,]" and she rechristens what Justice Wecht labels as the majority's "hard object" exception to the warrant requirement as the " ‘indeterminate object’ exception." Id . at 443–44.
Respectfully, my learned colleagues’ recounting of the evidence is abridged and selective. Keeping in mind that reasonable suspicion "falls considerably short of 51% accuracy," Glover , 140 S.Ct. at 1188 (internal quotations and citation omitted), the totality of the evidence of record, when viewed in the light most favorable to the Commonwealth, was more than enough to support Officer Grant's belief that appellant may have possessed a weapon.
Appellant was stopped shortly after 4:15 a.m., when it was still dark, and after the car in which he was a passenger drove away from the officers’ marked police car in an erratic, dangerous, and evasive manner. These factors support a finding of reasonable suspicion to believe appellant may have been armed and dangerous. See, e.g. , In re O.J. , 958 A.2d 561, 566 (Pa. Super. 2008) (where "vehicle stop occurred at night, which creates a heightened danger that an officer will not be able to view a suspect reaching for a weapon[,]" and the car "had been driving dangerously and initially refused to heed police efforts to stop ... [t]his evasive behavior supported [a reasonable fear that the defendant] may have been engaged in criminal behavior and in possession of a weapon ") (emphasis added). That this all occurred in a high-crime area in which the arresting officer had personal experience recovering weapons during traffic stops — and where the officer knew that, only three days earlier in the nearby area, five people were shot — is also a highly relevant consideration. See , e.g. , Illinois v. Wardlow , 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (while presence in a high-crime area, standing alone, is insufficient to establish reasonable suspicion, "officers are not required to ignore the relevant characteristics of a location[,]" and this factor is "among the relevant contextual considerations in a Terry analysis").
So too is the fact that appellant was blading his body away from the officers while reaching into his pockets, and his failure to abide by the officers’ commands to stop this naturally concerning, furtive movement. There is also, of course, Officer Grant's discovery during his initial frisk of a "large" and "hard" object in appellant's pocket that he testified he could not rule out was a weapon. See, e.g. , Taylor , 771 A.2d at 1270 (removing pill bottle from defendant's pocket lawful, as officer "testified that the object was hard and about four inches long" and thus "was reasonable in suspecting that [the defendant] could be armed").
The act of "blading" — a common term known to law enforcement — is generally understood as suspicious body posturing and has been held by some courts to bolster the factors amounting to adequate suspicion. See, e.g. , Commonwealth v. Karen K, 99 Mass.App.Ct. 216, 164 N.E.3d 933, 936 (2021) ("blading is a term of art that has been recognized and defined ... as hiding one side of the body from the other person's view.") (internal quotations and citation omitted). It is well known that blading is a technique used by people in possession of illegal items, including firearms, as a way to obscure the illegally possessed item from the view of police. See, e.g. , Commonwealth v. Bozeman , 205 A.3d 1264, 1276 (Pa. Super. 2019) (officer testifying that "when a suspect ‘blades’ his body away from [an] officer in such a way that conceals his waistband, it is an indication the suspect might be armed"); see also United States v. Coleman , 2010 WL 2254922, at *1 (3d Cir. June 7, 2010) (officer explaining that blading is a trait consistent with concealing weapons).
Justice Dougherty claims my concern is that prosecutors will elicit "less detailed" testimony than that presented here. Concurring Op. at 438–39 n.11 (emphasis omitted). My concern is with this testimony, which the Court finds satisfied the Commonwealth's burden despite it resting on nothing more than subjective terms like "hard" and "large." Compare id. at 439 ("[O]fficers should not rely on broad generalities, or assume certain ‘magic words’ will satisfy the reasonable suspicion standard."), with id . at n.11 ("[T]he totality of the circumstances here, including Officer Grant's identification of a large and hard object he believed might be a weapon, provided the requisite reasonable suspicion to proceed into appellant's pocket.").
Furthermore, contrary to Justice Dougherty's view, there was no failing on the part of defense counsel in this case because the defendant had no burden to provide objective parameters to Officer Grant's purely subjective testimony using "magic words" describing his tactile impressions leading to his subjective belief, post pat-down, that the object "could have been a weapon."
Brown concerned the "plain view" doctrine, not the scope of a Terry search per se . Brown , 460 U.S. at 735, 103 S.Ct. 1535.
As this full accounting of the evidence makes clear, the totality of the circumstances here includes far more than the bare fact that Officer Grant felt a "hard" or "indiscriminate" object. The only way to conclude otherwise is by improperly casting the facts in the light most favorable to appellant, or by improperly requiring a showing of more than reasonable suspicion, i.e. , by "demand[ing] scientific certainty ... where none exists" and forbidding officers from making "commonsense judgments and inferences about human behavior." Wardlow , 528 U.S. at 125, 120 S.Ct. 673. Respectfully, because my esteemed colleagues in partial dissent make both mistakes (as well as misconstrue applicable and binding Fourth Amendment precedent regarding "reasonableness" and "least intrusive means"), we properly reject their conclusion that suppression is warranted.
III. Recommendations
Notwithstanding the foregoing discussion, I take very seriously those concerns expressed by my colleagues regarding overzealous police searches. But, in my view, the objective reasonable suspicion standard provides safeguards that are fully realized when suppression courts fulfill their role in meaningfully evaluating the evidence presented to determine if reasonable suspicion existed throughout the Terry encounter. Accordingly, I write briefly now to emphasize the crucial role suppression courts play in making such determinations, as well as to make some recommendations for improving the process.
A hallmark of our justice system is the adversarial process, wherein the government's evidence is tested, and a court, sitting as the neutral arbiter, is tasked with weighing the evidence presented and reaching a conclusion consistent with the law. The court's role is not simply to accept the evidence presented, but to scrutinize whether the appropriate standards of proof and evidentiary requirements are met. When this critical role is not properly served, the adversarial process fails, and individual rights are jeopardized. To ensure the process works as it should, I believe courts ought to consider the following (non-exhaustive) list of factors in assessing whether a Terry frisk, and any evidence derived therefrom, conforms with Fourth Amendment protections.
Indeed, the U.S. Supreme Court recognized the critical role courts play in Terry , noting the "scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search and seizure in light of the particular circumstances." Terry , 392 U.S. at 21, 88 S.Ct. 1868.
Justice Dougherty would hold that until the officer dispels the presence of a weapon, a reasonable suspicion still exists. Of course, Officer Grant did in fact dispel a belief that T.W. was armed and dangerous if he determined that the item felt like a bottle of Nyquil, which is nonthreatening contraband and by definition not a weapon. If the testimony had established that point, then Terry has served its function of protecting officer safety and the authority to conduct a frisk has terminated. In fact, the underlying state court decision in Dickerson determined that "[t]here was never any possibility that the object in the defendant's pocket was a weapon, and there was no justification for grabbing it as a matter of self-protection because the defendant never made an aggressive move." State v. Dickerson , 481 N.W.2d 840, 845 (Minn. 1992). The same point is true here had Officer Grant actually recognized that the item was a medicine bottle.
I do not suggest that Officer Grant did in fact know or suspect what the item was; as I have explained the testimony is so limited that a reviewing court cannot conclude much of anything. My point is simply that the Majority and Justice Dougherty strip Dickerson of any meaning when they each determine that the Commonwealth has met its burden on this scant record.
As today's Majority aptly explains, the plain feel doctrine does not apply to this case because Officer Grant, unlike the officer in Dickerson , did not reach into T.W.’s pocket and seize the object under the belief that the object was contraband. See Maj. Op. at 421–22.
First, in assessing cases such as the one presented here, it is incumbent on suppression courts to meaningfully assess the totality of the circumstances surrounding a Terry stop to adequately determine what precipitated the stop and the officer's conclusion a frisk was proper. In doing so, courts should consider such factors as those that have always weighed into this analysis — the characteristics of the area in which the suspect was stopped, the officer's level of familiarity with that area, the officer's training and experience, the suspect's actions or movements before the stop, whether the officer acted alone and/or had the protection of a patrol vehicle, and what specific, articulable facts led the officer to believe criminal activity was afoot and the suspect was potentially armed and dangerous.
Because the reasonableness of the initial Terry stop is not at issue in this case, it is unnecessary to further examine the factors guiding this aspect of the analysis.
The objective nature of the Fourth Amendment inquiry means that an officer's subjective belief that an item is or is not a weapon is irrelevant. See Maryland v. Macon , 472 U.S. 463, 470–71, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985) ("Whether a Fourth Amendment violation has occurred turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time, and not on the officer's actual state of mind at the time the challenged action was taken.") (quotation marks and citation omitted). Thus, the Majority's holding will have wide application.
The Concurrence disagrees that external manipulation is a viable alternative. In the Concurrence's view, the requirement that officers manipulate an unknown object "is problematic from both an officer and suspect/bystander safety perspective." Concurring Op. at 433 (Dougherty, J.). Respectfully, this concern is misplaced. When officers reach into suspects’ clothing in order to seize objects, they also are required to "move, squeeze, or otherwise handle a potentially dangerous weapon they cannot see[.]" Id . Reaching into a suspect's clothing and grasping objects that could be "firearms without trigger guards or with modified trigger pull weight" also creates a risk of an officer "possibly mishandling a weapon hidden from view." Id . at 433–34. Yet police officers regularly and safely reach into suspects’ garments and seize potential weapons. If police officers are capable of safely performing the arguably more dangerous act of grasping and removing objects that they cannot see, they undoubtedly have the capacity as well to manipulate objects briefly from outside suspects’ clothing without creating dangerous situations.
In the Concurrence's view, the reach into the suspect's clothing is the safest option available to the officer because an "officer reaching into a suspect's pocket to touch the object in question can immediately perceive the object's material ... or other feature that would aid in identifying whether it is a weapon and its position." Id. at 434 n.6. I disagree. A police officer cannot acquire such features without first wriggling through the suspect's clothing, inevitably causing the object contained therein to move, and then grasping an unknown portion of the object. If an officer knows only that the object is hard and does not first manipulate the item, the officer could grasp a sharp blade, an unguarded trigger, or some other dangerous feature of the object. Conversely, if an officer manipulates the object before performing the blind reach into the suspect's clothing, the officer can acquire features of the object that can assist him in removing the object safely. For example, if an officer manipulates a hard object in a suspect's pocket and feels a pointed tip near the opening of the pocket or feels an L-shaped object, the officer can employ that additional information to reach into the suspect's pocket and grasp a portion of the object in a way that reduces the possibility of an injury. I fail to see how it is any safer for an officer blindly to reach into a pocket and squeeze an unknown portion of an unknown object than it is for an officer to manipulate an object gently from outside of the clothing, allowing him to reach into the suspect's clothing with more information than he would possess otherwise.
Second, a suppression court should assess any tactile impressions an officer provides with respect to the object felt during the open-handed pat-down that led that officer to believe the object could be a weapon. Here, as Justice Wecht aptly notes, helpful information may include the object's "size, density, material composition, shape, and location[.]" Concurring and Dissenting Opinion at 461 (Wecht, J.). Also relevant to the officer's assessment could be the suspect's body language or movements immediately preceding or during the Terry frisk.
Notably, there will be times when the level of tactile detail is lacking. For instance, if a frisk occurs in the winter and the suspect is wearing bulky clothing, such apparel may make it difficult to assess the particulars of an object's shape, size, or material through an open-handed pat-down. However, the absence of such information is not dispositive and does not automatically necessitate suppression. A suppression court's decision should not turn on the presence or absence of one fact or a particular detail, as there will be instances when such tactile impressions cannot be discerned. See Concurring and Dissenting Opinion at 460–61 (Wecht, J.). Where such information is lacking, the suppression court should assess whether that absence is reasonable given the circumstances.
Moreover, in evaluating the facts surrounding a given search, courts must consider the evidence by an objective standard, rather than deferring to the subjective assessment of the officer. In so doing, the court should examine the totality of the circumstances, and whether the tactile impressions and/or facts the officer observed were consistent with the conclusion the suspect may be armed and dangerous. See , e.g. , United States v. Albert , 579 F.3d 1188 (10th Cir. 2009) (concluding search for weapons was not permissible where the object felt was soft in nature); State v. Bitterman, 304 Minn. 481, 232 N.W.2d 91, 94 (1975) (because "weapons are not always of an easily discernible shape," it is not essential the officer feel the contours of the firearm to believe it may be a weapon); State v. Evans, 67 Ohio St.3d 405, 618 N.E.2d 162, 171 (1993) (where the officer felt "large bulk" and "knew it wasn't a gun," search was still proper as officer was "unable to conclude that the object was not a knife or other weapon"). Often the court's assessment can be aided by a comparison of what the officer felt and observed with what was ultimately recovered.
I further note that for courts to adequately assess whether reasonable suspicion existed and remained present, it is also incumbent on police officers to state the "specific and articulable" facts Terry requires, not just with respect to the events leading to the frisk or the surrounding environment, but also with respect to the object itself. Officers should provide as much detail as possible to convey why the object in question could be a weapon and why they could not rule out the possibility the object was a weapon without further inspection or removal of it from the suspect's clothing. To this end, officers should not rely on broad generalities, or assume certain "magic words" will satisfy the reasonable suspicion standard. Likewise, prosecutors presenting this evidence should be cognizant that specificity is, where available, beneficial both at the motion stage and on appeal. When courts sufficiently scrutinize the non-exhaustive list of factors detailed above, evaluate witness credibility, and assess the evidence presented by an objective reasonable suspicion standard, Fourth Amendment protections are adequately safeguarded. With these additional observations, I fully join the majority.
As Justice Wecht aptly notes, "[a] trial court's finding that the officer's suspicions were reasonable is more likely to survive appellate review when the record contains credible testimony accounting for more of those descriptive features." Concurring and Dissenting Opinion at 461 (Wecht, J.).
Justice Donohue predicts it is "unlikely that the Commonwealth will pay any attention to [this] advice" because prosecutors supposedly will "point to the facts of this case in future suppression hearings" as a basis for eliciting less detailed testimony from police officers. Concurring and Dissenting Opinion at 444 (Donohue, J.). This builds on one of the central themes of Justice Donohue's position, i.e. , that the "officer's candid testimony that he did not know what the object was but merely feared it ‘could be’ a weapon is plainly insufficient to establish that [appellant]’s rights were not violated." Id . at 442.
As explained at length, however, the totality of the circumstances here, including Officer Grant's identification of a large and hard object he believed might be a weapon, provided the requisite reasonable suspicion to proceed into appellant's pocket. To state the point differently, Officer Grant's testimony was alone sufficient as a matter of law to "prove[ ] to the satisfaction of the suppression court that the evidence was properly seized." In re L.J., 622 Pa. 126, 79 A.3d 1073, 1086 (2013). Those more pointed questions Justice Donohue believes the prosecutor should have asked beyond this in pursuit of additional "contextual comparison[,]" Concurring and Dissenting Opinion at 443 (Donohue, J.), while perhaps desirable, were simply not required. The Commonwealth met its burden of production and persuasion based solely on Officer Grant's testimony.
I strongly suspect that, in future cases, defense counsel will not be as complacent as counsel was in this case, but will instead seek to rebut the Commonwealth's burden by asking more probing questions along the lines of those identified by my learned colleague. While defense counsel is, of course, under no obligation to question a prosecution witness, doing so may well yield testimony that, objectively speaking, dispels an officer's otherwise reasonable belief that the defendant may have possessed a weapon. But, the fact such evidence was not elicited here (either by the prosecutor or defense counsel) does not mean the majority's ruling in this case somehow creates a per se rule that categorically eases the Commonwealth's burden at the suppression hearing.
Justice Todd joins this concurring opinion.
CONCURRING AND DISSENTING OPINION
JUSTICE DONOHUE
All members of the Court agree that an officer, following a lawful pat-down, is entitled to remove an object based on reasonable suspicion that the object is a weapon. We disagree on what the officer can do when the pat-down leaves him or her in a state of uncertainty as to whether the object is a weapon. I join the rationale of Justice Wecht's concurring and dissenting opinion, as I agree that the Fourth Amendment demands that an officer use the least intrusive means to resolve any uncertainty. Because Officer Grant skipped available alternatives and immediately proceeded to remove the object, T.W. is entitled to suppression as a matter of law. I write separately to express my view that the evidentiary record fails to support the Majority's conclusion that, after the initial frisk, the Commonwealth offered sufficient facts to establish that Officer Grant reasonably suspected the item was a weapon as contemplated by Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Thus, even if I were to agree that the Fourth Amendment always permits an officer to skip less intrusive intermediate steps, on these facts I find that the Commonwealth failed to meet its burden. Similarly, I would hold that the officer could not employ the intermediate steps discussed by Justice Wecht on this record.1 I.
Terry supplies the standard for reasonableness
"The Fourth Amendment is not, of course, a guarantee against all searches and seizures, but only against unreasonable searches and seizures." United States v. Sharpe , 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). In the normal Fourth Amendment dispute, "the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Delaware v. Prouse , 440 U.S. 648, 654, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).
This case flows from a particular Fourth Amendment issue: a Terry pat-down. We are therefore not deciding what is reasonable in the abstract but rather within the context of a Terry frisk, where the High Court has already conducted the balancing.2 Whereas Justice Dougherty appears to decide the question of reasonableness as if we write on a blank slate, I am mindful of the High Court's statement that "[t]he Terry case created an exception to the requirement of probable cause, an exception whose ‘narrow scope’ this Court ‘has been careful to maintain.’ " Ybarra v. Illinois , 444 U.S. 85, 93, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (citations omitted).
The claim that "reasonableness is the touchstone of every Fourth Amendment assessment, including those arising in the Terry context[,]" Concurring Op. at 429 (emphases omitted), does not adequately account for Dunaway v. New York , 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), and its recognition that "the [Terry ] Court treated the stop-and-frisk intrusion as a sui generis ‘rubric of police conduct[.]’ " Id . at 209, 99 S.Ct. 2248 (citing Terry , 392 U.S. at 20, 88 S.Ct. 1868 ). The Terry decision acknowledged that some police conduct, like the pat-down conducted here, "historically has not been, and as a practical matter could not be, subjected to the warrant procedure." Terry , 392 U.S. at 20, 88 S.Ct. 1868. The Dunaway Court further recognized that "Terry departed from traditional Fourth Amendment analysis in two respects." Dunaway , 442 U.S. at 209–10, 99 S.Ct. 2248. The first was that Terry "defined a special category of Fourth Amendment ‘seizures’ so substantially less intrusive than arrests" which called for a balancing test. Id . at 210, 99 S.Ct. 2248. The second departure was in applying that balancing test, which "led the Court to approve this narrowly defined less intrusive seizure on grounds less rigorous than probable cause, but only for the purpose of a pat-down for weapons." Id .
I therefore do not believe we are free to simply ask what is "reasonable" as if Terry did not exist.3 It is true that the Terry Court "did not expressly address what is reasonable or direct what is required when an officer identifies an object he or she cannot conclude is not a weapon[,]" Concurring Op. at 429–30 but this overlooks that the Terry Court decided only that a pat-down for weapons was authorized upon reasonable suspicion that the individual is armed and dangerous. The Terry Court easily could have said that an officer may grab any and all objects detected during that pat-down on the theory that anything "could be" a weapon. The fact that it did not squarely address that question does not justify ignoring its narrow scope nor does it justify reverting to general Fourth Amendment standards. The Terry balancing test logically applies both to what Terry clearly allows—a pat-down for weapons—and to whether an officer may go beyond what Terry allows within that very same encounter. Thus, Terry is authoritative, not merely useful. But see Concurring Op. at 430 ("Terry does provide useful guidance here[.]"). In Terry itself the officer "confined his search strictly to what was minimally necessary to learn whether the men were armed and to disarm them once he discovered the weapons." Terry , 392 U.S. at 30, 88 S.Ct. 1868. Here, Officer Grant did not do what was minimally necessary. Officer Grant's actions may be reasonable in the abstract, but not under Terry . See United States v. Sharpe , 470 U.S. 675, 691, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) ("To those who rank zealous law enforcement above all other values, it may be tempting to divorce Terry from its rationales and merge the two prongs of Terry into the single requirement that the police act reasonably under all the circumstances when they stop and investigate on less than probable cause.") (Marshall, J., concurring in judgment).
Accordingly, while I too would obviously not "needlessly jeopardize officer safety[,]" Concurring Op. at 434, I do not lightly approve an intrusion beyond what Terry allowed based on the mere fear that an object "could be" a weapon. As to that point, I now address how the Commonwealth failed to meet its burden.
II.
The Commonwealth failed to meet its burden
"[T]he Commonwealth carries the burden at suppression and satisfies that burden if it proves to the satisfaction of the suppression court that the evidence was properly seized." In re L.J., 622 Pa. 126, 79 A.3d 1073, 1086 (2013). The record "is to be read in the light most favorable to the prevailing party[.]" Commonwealth v. Cost, ––– Pa. ––––, 224 A.3d 641, 650 (2020). The Majority holds that the Commonwealth met its burden to establish a "reasonable suspicion that the object is a weapon[,]" Majority Op. at 422, even though "Officer Grant candidly testified during the hearing on Appellant's motion to suppress physical evidence that at the time of the frisk he did not know what the object in Appellant's left pants pocket was but he feared the object could be a weapon." Id . at 423.
The foregoing quotation encapsulates what I see as the fundamental flaw in the Commonwealth's case. The officer's candid testimony that he did not know what the object was but merely feared it "could be" a weapon is plainly insufficient to establish that T.W.’s rights were not violated. Contrary to the Majority's notion that reasonable suspicion exists so long as the officer cannot rule out that the item was not a weapon, the Commonwealth's burden logically encompasses an adequate explanation for why the officer reasonably suspected that what he felt could have been a weapon.4 We cannot accept rank speculation; an "officer must be able to articulate more than an inchoate and unparticularized suspicion or hunch of criminal activity." Illinois v. Wardlow , 528 U.S. 119, 123–24, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (quotation marks omitted). The Majority, unfortunately, bases its conclusion on nothing more than an unparticularized suspicion.
Reduced to its essence, I perceive four key facts that, when viewed in the light most favorable to the Commonwealth, support the Majority's conclusion that Officer Grant reasonably suspected that the object he felt was a weapon.5 First, upon conducting the pat-down, Officer Grant "felt a large object in [T.W.’s] left pants pocket." N.T., 7/10/2018, at 17. Next, the item "was large" and he "felt the need to take it out." Id . The judge interjected to ask if the item was "hard" or "soft," and the officer replied that it was "hard." Id . When the trial judge asked "[w]hat were your concerns?", Officer Grant stated that "it could have been a weapon. It could have been a firearm." Id . at 28. Thus: the object was (1) large, (2) hard, and (3) could have been a weapon or (4) firearm.
This testimony does not enable a reviewing court to conclude that an objectively reasonable police officer would suspect that the item was a weapon. The glaring flaw in this evidence is that the terms "hard" and "large" are inherently subjective and do not supply a non-speculative basis to conclude anything regarding the item. Both terms are meaningless unless compared to something, as almost anything is "hard" when compared to a pillow or "large" when compared to a paperclip. The terms standing alone tell a court nothing. Of course, contextual comparison evidence was readily available. The Commonwealth could have asked Officer Grant to describe the part of T.W.’s body from which the object was recovered. Was the item in a waist pocket or a cargo pocket closer to the knee? Was the item larger or smaller than T.W.’s thigh? How large was T.W.? Did the object cause a visual bulge? How big was the pocket itself? Were there any other objects in T.W.’s pockets? Did the object he felt occupy most of that pocket? Could he roughly estimate how big the object felt? Was it bigger or smaller than a pack of cigarettes? Was it harder than a pack of cigarettes? The record is completely devoid of any evidence illustrating the contours, mass, or size of the object other than the purely subjective terms "large" and "hard."
By way of comparison, in Commonwealth v. Stevenson, 560 Pa. 345, 744 A.2d 1261 (Pa. 2000), which was cited by T.W. during the hearing as a basis to suppress, this Court summarized the trooper's tactile impressions: "Trooper Oberdorf testified that upon patting down R.A., he felt what appeared to be a ‘cigarette or a cigar’ and a ‘similar object to a pill bottle’ in the liner of R.A.'s jacket." Id . at 1265. I see no reason why similar comparisons were not made here. Additionally, Officer Grant did not explain how the object could possibly have been a firearm based on what he felt. In fact, immediately after informing the trial court that the object could have been a firearm, he agreed that firearms "have a handle that bends around" in an "L-shape." N.T., 7/10/2018, at 27. Nothing in his testimony indicates that the object felt anything like that. Thus, Officer Grant ruled out the likelihood that the object he felt was a firearm.
Taken together, this testimony sheds little light on what Officer Grant felt beyond the subjective terms "hard" and "large." The Majority nonetheless accepts that the Commonwealth established reasonable suspicion that the item, which turned out to be a medicine bottle comparable to "a bottle of Nyquil," id . at 424, was a weapon. That conclusion rests on little more than crediting Officer Grant's subjective beliefs. Indeed, there is nothing in the Majority's analysis that suggests the outcome would be any different if Officer Grant had testified that he "felt a large, soft object" or a "small, hard object" or even just "an object." In each of those alternatives, the description conveys just as much (or little) information about what he felt. Thus, while Justice Wecht believes that the Majority creates a "hard object" exception, I believe its opinion goes further than that when read against the actual facts. It announces an "indeterminate object" exception.6
Justice Dougherty's concurrence implicitly recognizes these deficiencies and offers suggestions for what kind of facts should be presented for a court's consideration, including more detail about the tactile impressions. My learned colleague then notes circumstances that could pose obstacles, such as bulky clothing that "may make it difficult to assess the particulars of an object's shape, size, or material through an open-handed pat-down." Concurring Op. at 438. Of course, those problems do not appear in this case, as the encounter took place on a June day and nothing indicates that T.W. was wearing bulky clothing. Nor is it simply preferable to establish the necessary facts; it is mandatory. The Court's willingness to overlook this deficient record makes it unlikely that the Commonwealth will pay any attention to Justice Dougherty's advice. Why would they? If this Court blesses the scant testimony presented here by holding the Commonwealth satisfied its burden, prosecutors will doubtlessly point to the facts of this case in future suppression hearings.7 III.
The Majority effectively displaces Dickerson
Indeed, presenting more testimony might well have caused problems for the Commonwealth, as more facts regarding what Officer Grant felt may have indicated that he realized the object was likely to be a medicine bottle. If so, there was no possibility that the item was a weapon.8 At that point, the only basis to seize the item was pursuant to Minnesota v. Dickerson , 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), wherein the High Court held that the Fourth Amendment is not violated when an officer immediately seizes contraband detected during a pat-down under certain circumstances.
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.
Id . at 375–76, 113 S.Ct. 2130.
The corollary to this is that when it is not immediately apparent to the officer that an object is nonthreatening contraband, he or she cannot manipulate the object despite lingering suspicions that the item is contraband, and certainly cannot remove it. Thus, had Officer Grant's testimony indicated that what he felt was a medicine bottle, that would be nonthreatening contraband, and the Commonwealth would have to establish that it was "immediately apparent" the bottle was contraband to justify its seizure.
The Majority provides an easy way to avoid Dickerson ’s heightened "readily apparent" requirement. The officer must simply testify that "at the time of the frisk he did not know what the object ... was but he feared the object could be a weapon." Majority Op. at 423. With this simple statement, Dickerson does not apply.9 The Majority correctly recognizes that the "plain feel" doctrine independently authorizes a seizure of nonthreatening contraband, whereas Terry itself does not. Id . at 421–22. Indeed, the Majority acknowledges that Dickerson's "plain feel doctrine is an extremely narrow doctrine[.]" Id. at 420. However, the Majority fails to recognize that the narrow applicability of Dickerson favors T.W. Stated differently, the Majority expands the otherwise-narrow Dickerson exception by transforming Dickerson cases into Terry cases through a simple declaration that the object "could have" been a weapon.
In Stevenson , in one of the consolidated cases at issue in that appeal the trooper testified that the item he felt was similar to a pill bottle. We held that the objects could not be seized under Dickerson , because "although Trooper Oberdorf felt what he described as a cigar or cigarette and a pill bottle during his frisk of R.A., he did not plainly feel, as Dickerson requires, objects that were immediately apparent to him as contraband ." Stevenson , 744 A.2d at 1265. This case involves a quite similar item, as Officer Grant agreed that the item he removed from T.W.’s pocket was comparable to a Nyquil bottle. N.T., 7/10/2018, at 21. Apparently, the Stevenson result would have been different if the trooper had simply testified that he felt a "hard" and "large" object that could have been a weapon. See also Commonwealth v. Guillespie , 745 A.2d 654, 659 (Pa. Super. 2000) (concluding that "pill bottles were not ‘immediately apparent’ contraband"); Bailey v. State , 987 A.2d 72, 84–85 (Md. 2010) (holding that an officer could not seize what he recognized as a glass vial because "the incriminating nature of the object in the defendant's pocket was not immediately apparent upon his initial touch of the object in the pat-down").
Thus, the Court today creates a Dickerson loophole: the narrow exception to the warrant requirement preventing officers from immediately seizing nonthreatening contraband will not govern if the Commonwealth argues that whatever the officers felt could have been a weapon. The fact that the Majority accepts that this testimony could qualify the item as a weapon establishes the precedent that ensures almost anything else will, too.
For the foregoing reasons, I would reverse.
CONCURRING AND DISSENTING OPINION
JUSTICE WECHT
This case requires us to delineate the quantum of suspicion that a police officer initiating a protective search pursuant to Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), must possess before he expands the scope of that search from a pat-down to the more intrusive act of reaching inside a suspect's clothing. Terry did not specify whether an officer must have probable cause or, alternatively, only reasonable suspicion to believe that an object felt during a pat-down is a weapon before the officer reaches inside a suspect's clothing and removes that object. In resolving that open question, the Majority concludes that "a police officer may remove an object from within a suspect's clothing under the reasonable suspicion that the object is a weapon."1 On this broad and important holding, my views align with those of the Majority.
I part ways with the Majority in its application of the reasonable suspicion standard to this case. In my view, the Majority errs in concluding that Officer Nicholas Grant reasonably believed that the object in T.W.’s pocket was a weapon. The only additional information that Officer Grant acquired during the frisk—the lone fact that, according to the Majority, empowered him to reach inside T.W.’s clothing—was the presence of a "hard object,"2 without more. Disregarding the not insignificant likelihood that any given "hard object" might be a great many things other than a weapon, the Majority approves the intrusion because to do otherwise "would require police officers to allow suspicious objects to remain on a suspect's person during a stop, which could potentially be used to harm police officers or the general public."3
The Majority posits a false dilemma. When a pat-down reveals a hard object, the officer is not forced to choose only between (a) risking his (or others’) safety; and (b) reaching inside the suspect's clothing. A third choice is available. The police officer can discern whether the hard object is dangerous through a less invasive option: manipulating the object from outside the clothing. Terry , as further developed by its progeny, requires police officers to use the least intrusive means reasonably available during a protective search. Given the decidedly limited support for any belief that T.W. possessed a weapon here, prevailing Fourth Amendment law required Officer Grant to manipulate the unknown object before reaching into the interior of T.W.’s pocket.
By failing to require police officers to employ the least invasive method of searching for weapons, the Majority sanctions substantial intrusions upon persons whenever a police officer detects any object that conceivably or theoretically could present a danger, no matter how unlikely it is that the object presents a real and actual threat. To permit intrusion into a suspect's clothing on such scant indicia is to remove all meaningful limitation on the breadth of the protective search. The privacy interests secured by the Fourth Amendment require more than a vague hunch that an unidentified object might be a weapon in order to justify a warrantless search of a suspect's person. This is particularly so in light of the availability of external manipulation as an alternative.
I. Background
At approximately 4:15 a.m. on June 19, 2018, Officer Grant, a two-year veteran of the Philadelphia Police Department, and his partner, Officer Robert Heeney, were on routine patrol of the 2200 block of North 20th Street in Philadelphia when they observed two vehicles, a silver Toyota and a green Chevrolet, make the same illegal U-turn. When the officers attempted to follow in order to initiate simultaneous traffic stops, the vehicles accelerated and sped through several red lights. The Chevrolet struck several cars and crashed. Two men alighted from the vehicle and fled. The police officers exited their patrol car and chased the two men on foot. During that ultimately unsuccessful pursuit, Officers Grant and Heeney saw the Toyota stopped at a red light. Still on foot, the officers conducted a vehicle stop of the Toyota. Notes of Testimony ("N.T."), 7/10/2018, at 8-12.
Three people were inside the Toyota: a female driver, a female front-seat passenger, and seventeen-year-old T.W., who was sitting directly behind the driver. Upon approaching the vehicle, Officer Grant witnessed T.W. reach into his pockets while "blad[ing] his body"—i.e. , turning his left shoulder away from Officer Grant to block his view. Id. at 13-14. Officer Grant ordered T.W. to stop moving, but T.W. did not comply. Id. at 15-16. Concerned that T.W. "could have had a weapon [or] narcotics," Officer Grant directed T.W. to exit the vehicle. Id. at 14.
Once T.W. stepped out of the vehicle, Officer Grant conducted "an open-hand pat down" of the outside of T.W.’s clothing. Id . at 16. While patting down the left pocket of T.W.’s pants, Officer Grant felt a "[h]ard" object. Id . at 17. Unable to determine what the object was, Officer Grant reached into T.W.’s pocket and removed the object. Upon closer inspection, Officer Grant determined that the item was a medicine bottle labeled "Promethazine," which contained a liquid. Id . at 18. Officer Grant learned that the bottle was not prescribed to T.W., who was unable to produce identification. Id . Suspecting that promethazine was a controlled substance, Officer Grant arrested T.W. Officer Grant conducted a search incident to the arrest, during which he reached into T.W.’s right pants pocket and recovered a prescription pill bottle (also prescribed to a person other than T.W.) containing two white pills, later identified as oxycodone, a known controlled substance. Id. at 18-20. No weapon was retrieved. See id .
The Commonwealth filed a juvenile delinquency petition against T.W., charging him with possession of a controlled substance. T.W. moved to suppress the items of physical evidence recovered from his person as fruits of an unlawful search. The Court of Common Pleas conducted a suppression hearing, at which Officer Grant testified to the facts recited above. Other than recalling that the object in T.W.’s pocket was "large" and "hard," Officer Grant provided no additional description. Id . at 18. Nor did he state that he believed that the object was a weapon. Instead, several times throughout the hearing, Officer Grant testified candidly that he was unable to identify the object. See id . at 14 ("He could have had a weapon. He could have narcotics. I wasn't really sure. It's a high crime area."); id. at 17 ("I felt a large object in his left pants pocket.... I wasn't sure what it was. But it was large, so I felt the need to take it out."); id. at 26 ("I did not know what it was."). During cross-examination, Officer Grant could not remember the "exact size" of the bottle, though defense counsel, referencing the property receipt that Officer Grant filled out following the arrest, stated that it was a "seven-milligram bottle," approximately "two to three inches in height." Id. at 20-21 (referencing Commonwealth's Exhibit 1-C, Property Receipt No. 3345946).4 Officer Grant agreed that the bottle of promethazine was comparable "to a bottle of cough syrup," or "Nyquil"—and that its presence was the "sole reason" that he decided to reach inside to search T.W.’s front pants pocket. Id. at 21.
At the conclusion of the suppression hearing, the court rendered findings of fact and denied T.W.’s motion. The parties proceeded immediately to trial and incorporated the suppression testimony by reference. Contrary to Officer Grant's suspicion and the trial court's apparent factual finding at the suppression hearing, the Commonwealth, at trial, conceded that the bottle of promethazine did not contain any "commonly encountered controlled substance." Id. at 37 (citing Commonwealth's Exhibit 1-A, Seizure Analysis).5 In light of T.W.’s possession of oxycodone, however, the court adjudicated him delinquent and ordered that he be placed in a residential facility.
T.W. appealed. He argued, in relevant part, that the trial court erred in denying his suppression motion because Officer Grant exceeded the scope of a Terry search by reaching into his pocket without probable cause and removing the bottle of cough syrup.
In its Pa.R.A.P. 1925(a) opinion, the trial court recognized that the sole issue was whether Officer Grant exceeded the permissible scope of the Terry search by reaching into T.W.’s pocket. The court found that "[i]t was reasonable for Officer Grant to go into [T.W.’s] pockets to dispel a reasonable fear for his safety and the safety of others during the investigatory stop." TCO at 4. To justify its reasonableness determination, the court relied upon the same circumstances that it found adequate to support the initial pat-down, with the lone additional fact that Officer Grant felt a hard object. In particular, the court opined:
[T.W.] 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. [T.W.] did not comply with Officer Grant's order to stop hiding his body and reaching into his pockets. It was only after a limited the [sic ] search of the outside of [T.W.’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 [T.W.] may be armed and dangerous, and Officer Grant tailored his search to only that which was reasonably necessary for the discovery of weapons.
Id . at 4-5 (record citations omitted).
In other words, the trial court concluded that, because the pat-down was supported by a reasonable suspicion that T.W. possessed a weapon, and because the pat-down did not fully alleviate Officer Grant's suspicion, Officer Grant was justified in reaching into T.W.’s pocket and removing whatever he found in order to satisfy his general safety concerns. By that logic, the reasonable suspicion necessary for a "limited" protective frisk suffices as well to permit a police officer to reach inside any clothing provided that he feels any "hard" object, no matter how slight the probability that the object is a weapon. This rationale, which the Majority endorses wholeheartedly, eviscerates the limited exception to the warrant requirement engendered in Terry and developed further by its progeny. Because allowing such an expansion of the Terry exception swallows the warrant rule and facilitates overreach by law enforcement, I cannot join the Majority's opinion.
II. Terry and its Progeny
In light of the Majority's expansive gloss, a review of Terry is in order. That seminal case began when Detective Martin McFadden of the Cleveland, Ohio Police Department observed John Terry and Richard Chilton engaging in an "elaborately casual and oft-repeated reconnaissance of" a store, a circumstance that led the detective to conclude that the men were preparing to burglarize the establishment. Terry , 392 U.S. at 6, 88 S.Ct. 1868. Based upon his thirty years of investigating shoplifters and pickpockets, Detective McFadden suspected that the men could be carrying guns. Id. When he approached Terry and Chilton and asked for their names, they did not respond. Id . at 6-7, 88 S.Ct. 1868. Although he lacked probable cause to believe that Terry was carrying a firearm or planning to commit a crime, Detective McFadden "grabbed" Terry and "patt[ed] down the outside of his clothing." Id . at 7, 88 S.Ct. 1868. He "felt a pistol" in the pocket of Terry's overcoat and reached inside, but he could not remove the gun. Id . Consequently, Detective McFadden removed Terry's coat and proceeded to retrieve the pistol. He then frisked Chilton's outer clothing, discovered a revolver in Chilton's coat pocket, and seized it. Id .
Terry and Chilton were charged with possession of a concealed weapon. Id . at 6, 88 S.Ct. 1868. At a suppression hearing, Detective McFadden "testified that he only patted the men down to see whether they had weapons, and that he did not put his hands beneath the outer garments of either Terry or Chilton until he felt their guns." Id . at 7, 88 S.Ct. 1868. The men were convicted, and ultimately Terry appealed to the Supreme Court of the United States.
In addressing the legality of Detective McFadden's conduct, the Supreme Court balanced the competing governmental and individual interests at issue. On the one hand, the Court recognized that even a protective search is "a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment." Id. at 25, 88 S.Ct. 1868. Indeed, the Court characterized such an intrusion as an "annoying, frightening, and perhaps humiliating experience." Id . But the Court then explained that the individual's interest in personal security was opposed to "the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him." Id . at 23, 88 S.Ct. 1868. The Court held that the latter interest carried the day, stating, "it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties." Id . at 24, 88 S.Ct. 1868.
Given the weighty and pressing state interest in officer safety, the Terry Court determined that the traditional calculus of probable cause was ill-suited to the circumstances before it. Thus, the Court devised a new, lesser standard of proof, which permits a protective search when an officer has a reasonable suspicion, based upon "specific and articulable facts," that the detainee is "armed and dangerous." Id . at 21, 27, 88 S.Ct. 1868. When that standard of proof is satisfied, a "carefully limited search of the outer clothing of such persons ... is a reasonable search under the Fourth Amendment." Id . at 30-31, 88 S.Ct. 1868. The Court concluded that Detective McFadden's search of Terry satisfied those requirements. Id . at 31, 88 S.Ct. 1868. The Terry Court underscored that the scope of the search is just "as vital a part of the inquiry" as the issue of whether the search is warranted at all. Id. at 28, 88 S.Ct. 1868. But the Court declined to articulate the specific "limitations which the Fourth Amendment places upon a protective seizure and search for weapons," opining only that it must be "confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." Id . Rather than establish a bright-line rule, the Court concluded that the permissible scope of a protective search is context-dependent, and must "be developed in the concrete factual circumstances of individual cases." Id .
It is beyond cavil that Terry allows a police officer who possesses specific and articulable facts that a suspect is armed and dangerous to conduct a frisk of that person and to remove any objects that the officer identifies as weapons. And Terry provides unambiguously that, in assessing whether a reasonable suspicion exists, "it is imperative that the facts be judged against an objective standard." Id . at 21, 88 S.Ct. 1868. Thus, "the Fourth Amendment's concern with ‘reasonableness’ allows certain actions to be taken in certain circumstances, whatever the subjective intent" of the law enforcement officer. Whren v. United States , 517 U.S. 806, 814, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). As such, whether a police officer's conduct was unreasonable "turns on an objective assessment of [the officer's] actions in light of the facts and circumstances confronting him at the time." Scott v. United States , 436 U.S. 128, 136, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978). The officer's actual belief is legally irrelevant; courts must focus instead upon whether the circumstances that predicated the protective search would lead a reasonable and similarly-situated police officer to conclude that the suspect was armed and dangerous.
While certain aspects of Terry are clear, the High Court provided no meaningful guidance on two vital questions that persist in any protective search inquiry, making the task of defining the scope in some individual cases exceedingly difficult. First, the Terry Court did not articulate whether a police officer conducting a protective search must utilize the least intrusive means reasonably available to the officer. The Terry Court stated only that "Officer McFadden confined his search strictly to what was minimally necessary to learn whether the men were armed and to disarm them once he discovered the weapons." Terry , 392 U.S. at 30, 88 S.Ct. 1868. The Court expressed its broad objective of affording law enforcement "the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm." Id . at 24, 88 S.Ct. 1868.
Second, Terry does not establish the requisite level of suspicion that a police officer must possess in order to escalate a pat-down to a more intrusive search. The Terry Court emphasized that, after patting down the suspects, Detective McFadden "did not place his hands in their pockets or under the outer surface of their garments until he had felt weapons." Id . at 29-30, 88 S.Ct. 1868. Because Officer McFadden was certain that the object he felt was a weapon, it is fair to conclude from Terry that an investigating officer must definitively know that the object is a weapon before removing it from the suspect's person. But, as today's Majority observes, making certainty a prerequisite to further exploration also seems to conflict with Terry’ s broad concern for officer safety. In many encounters, a pat-down may not produce a sufficient tactile impression to allow determination of an object's character. For example, if a suspect is wearing bulky clothing, it might well be difficult to discern whether the object within is a weapon based upon an open-handed frisk alone.
The issue presented in today's case calls upon this Court to define the scope of a protective search, which in turn requires a serious examination of Terry ’s open questions. While Terry itself left the bounds of a protective search nebulous, decisions applying Terry provide some grounds for demarcation. In the companion case to Terry — Sibron v. New York , 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) —the Supreme Court offered some clarity on the first question that Terry left unanswered. There,6 Officer Anthony Martin ("Patrolman Martin") observed Nelson Sibron "in conversation with six or eight persons whom Patrolman Martin knew from past experience to be narcotics addicts." Id. at 45, 88 S.Ct. 1889. During Patrolman Martin's eight-hour surveillance of Sibron, "he did not overhear any of these conversations," nor did he "see anything pass between Sibron and any of the others." Id . Nevertheless, Patrolman Martin confronted Sibron and told him, "You know what I am after." Sibron then "mumbled something and reached into his pocket." Id . at 45, 88 S.Ct. 1889. Patrolman Martin simultaneously "thrust his hand into the same pocket" and removed several glassine envelopes containing heroin. Id . Sibron was arrested and ultimately convicted of a narcotics possession offense. Id . at 44, 88 S.Ct. 1889.
On appeal, the Supreme Court of the United States, noting that Patrolman Martin lacked probable cause to arrest Sibron, explained that the "seizure and search of Sibron might still have been justified at the outset if he had reasonable grounds to believe that Sibron was armed and dangerous." Id . at 63, 88 S.Ct. 1889. In concluding that Patrolman Martin lacked the requisite quantum of suspicion, the Court explained that, during the suppression hearing, the officer presented no "facts from which he [could have] reasonably inferred that [Sibron] was armed and dangerous." Id . at 64, 88 S.Ct. 1889.
But the Court did not stop there. The Court further held that, even assuming "that there were adequate grounds to search Sibron for weapons, the nature and scope of the search conducted by Patrolman Martin were so clearly unrelated to that justification as to render the heroin inadmissible." Id . at 65, 88 S.Ct. 1889. To that end, the Court explained:
The search for weapons approved in Terry consisted solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault. Only when he discovered such objects did the officer in Terry place his hands in the pockets of the men he searched. In this case, with no attempt at an initial limited exploration for arms , Patrolman Martin thrust his hand into Sibron's pocket and took from him envelopes of heroin.
Id . (emphasis added). Because nothing prevented Patrolman Martin from first frisking Sibron, the Court held that "[t]he search was not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception—the protection of the officer by disarming a potentially dangerous man." Id . Accordingly, the Court held that the search of Sibron was unlawful, and that the "heroin was unconstitutionally admitted in evidence against" him. Id . at 68.
Sibron confirms that concerns for officer safety cannot justify a greater intrusion into a constitutionally protected area than the circumstances warrant. Terry cited Sibron as a case that develops "the limitations which the Fourth Amendment places upon a protective seizure and search for weapons." See Terry, 392 U.S. at 29. Generally, in accord with Sibron , a police officer must employ the least intrusive means reasonably available to determine whether the suspect is armed. The "limited nature of the intrusion" is essential to the constitutional validity of a Terry stop and search. See United States v. Brignoni-Ponce , 422 U.S. 873, 880, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) ("Because of the limited nature of the intrusion , stops of this sort may be justified on facts that do not amount to the probable cause required for an arrest.") (emphasis added). The use of the least intrusive measures reasonably available is "the predicate" that permits searches "on suspicion short of probable cause." Florida v. Royer , 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality); id. ("The investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time."); see also United States v. Place , 462 U.S. 696, 703, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) ("When the nature and extent of the detention are minimally intrusive of the individual's Fourth Amendment interests, the opposing law enforcement interests can support a seizure based on less than probable cause.").
The search must be proportional to the circumstances that induced it, escalating to a more intrusive search only when the circumstances reasonably warrant a more substantial intrusion. Without that limitation, there is a "danger" that police "officers will enlarge a specific authorization, furnished by" safety concerns, "into the equivalent of a general warrant to rummage and seize at will." Texas v. Brown , 460 U.S. 730, 748, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (Stevens, J., concurring).7 Accordingly, "[i]f the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed." Minnesota v. Dickerson , 508 U.S. 366, 373, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) ; see also Commonwealth v. Stevenson, 560 Pa. 345, 744 A.2d 1261, 1264 (2000) (explaining that "a protective search must be strictly ‘limited to that which is necessary for the discovery of weapons’ ") (quoting Terry , 392 U.S. at 26, 88 S.Ct. 1868 ); Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975, 980 (1982) (encouraging strict adherence to Terry and disapproving unnecessary police conduct that "increased the intrusiveness of the encounter").
When conducting a safety search, does an officer have options that go beyond an open-handed pat-down of the exterior of the suspect's clothing but that fall short of reaching into the suspect's pocket? Does a police officer who detects an object during a frisk but who lacks a sufficient basis to determine that the object is a weapon face only a starkly binary choice: risk his safety or invade the suspect's person by reaching inside his clothing? Unlike the Majority and the Concurrence, I conclude that applicable precedents indeed provide a middle ground.
Dickerson is instructive. In that case, a police officer frisked a man after observing the man's seemingly evasive conduct upon departing "a building known for cocaine traffic." Dickerson , 508 U.S. at 369, 113 S.Ct. 2130. During the ensuing pat-down, the officer felt a small lump and determined that it was not a weapon. Id . Despite concluding that the object was not a weapon, the officer proceeded to manipulate the lump in order to determine whether it was cocaine.
On appeal, the Supreme Court held that, "if a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity [as contraband] immediately apparent, ... its warrantless seizure would be justified." Dickerson , 508 U.S. at 375-76, 113 S.Ct. 2130. That rule, which has been dubbed the "plain feel" doctrine,8 is what gives Dickerson its status as a landmark decision. Relevant for present purposes, the Court also held that the manipulation of an object constituted "a further search" that was not categorically within the scope of the initial, lawful frisk. Id . at 379, 113 S.Ct. 2130. The Court explained that, "[a]lthough the officer was lawfully in a position to feel the lump in [Dickerson's] pocket," the officer exceeded the scope of a Terry search by manipulating the object once he determined that it was not a weapon. Id . at 378-79, 113 S.Ct. 2130. After the officer concluded that the object was not a weapon, no further manipulation was permissible.
Dickerson does not prevent an officer from manipulating an object in all circumstances. The manipulation in Dickerson was unlawful only because the officer already had concluded that the object was non-threatening. Had the officer not yet negated the presence of a weapon, the manipulation, consistent with Terry , would be within "the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm." Terry , 392 U.S. at 24, 88 S.Ct. 1868 ; see also United States v. Mattarolo , 209 F.3d 1153, 1158 (9th Cir. 2000) (holding that, where an initial pat-down revealed a cylindrical object several inches long in a suspect's pocket, "a precautionary squeeze is well within the scope of Terry ").
A police officer is not faced with a binary choice when the frisk reveals an object that is not readily identifiable as a weapon. In such circumstances, the officer has a third option: briefly manipulating the object from the outside of the individual's clothing in order to establish its tactile characteristics. External manipulation is a reasonable and minimally intrusive investigative measure that protects the suspect's interest in personal security while maintaining officer safety. Police officers are accustomed to performing this investigative measure.9 Indeed, the Philadelphia Police Department's manual of directives provides the following instruction regarding a search incident to arrest: "The search can consist of ... the grabbing, squeezing or sliding of hands over the remaining clothing to detect a weapon or contraband." Phila. Police Department Directive 5.7 § 21(H)(1)(a).
https://www.phillypolice.com/assets/directives/D5.7-SearchWarrants.pdf (last visited Sept. 30, 2021). The Concurrence dismisses the Philadelphia Police Department's own procedures as pertaining to "Strip and Body Cavity Searches," as providing what officers "can" rather than "must" do, and as falling outside the certified record. See Concurring Op. at 433 – –––– n.5. These quibbles fail to dispel the manifest reality that external manipulation is available, practical, and in use on the street today.
Therefore, based upon the unique circumstances of a given case, a Terry search can encompass three permissible intrusions: (1) the protective frisk itself, (2) the manipulation of an object felt during the pat-down, and (3) the reach into the clothing. Those three means of searching a suspect lie on a continuum of increasing invasiveness. Dickerson provides that manipulation is a more intrusive act than simply patting the individual down and thus generally requires facts indicating the presence of a weapon beyond those facts that justified the initial pat-down. The intrusion into an individual's clothing in order to remove an object is more intrusive than frisking the person and also more intrusive than manipulating the object from the outside of the individual's clothing.
Generally, the police officer should commence the protective search through the least intrusive means reasonably available to him before that officer proceeds to a more intrusive search. Otherwise, the search would not be limited to what is necessary to accomplish its purpose under the circumstances. With this Fourth Amendment principle in mind, the question now becomes whether a set of circumstances sufficiently indicates the presence of a weapon such that a police officer can progress from a less intrusive search to a more intrusive one.
The sufficiency of the evidence supporting a given search or seizure is controlled by two broad, epistemic standards: reasonable suspicion and probable cause. Must a police officer have probable cause that an object which he feels during a frisk is a weapon before reaching inside the suspect's clothing, or is a mere reasonable suspicion enough? That question rests at the heart of this appeal. The United States Supreme Court has distinguished the two standards of proof as follows:
Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.
Alabama v. White , 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).
I agree with the Majority that a reasonable suspicion standard of proof controls throughout the duration of a Terry search. The High Court's decision in Adams v. Williams , 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), compels that conclusion. There, a police officer patrolling alone at 2:15 a.m. received an uncorroborated tip from a known and reliable informant that Robert Williams was sitting in a car with narcotics on his person and "a gun at his waist." Id. at 144-45, 92 S.Ct. 1921. The officer was within the high crime area where the informant told him that Williams was located, and the officer decided to investigate the tip. The officer approached the car and ordered Williams to step out of the vehicle. Williams refused and instead rolled down the window, placing the officer in a vulnerable position. Id . at 145, 92 S.Ct. 1921. Immediately thereafter, the officer reached through the window, placed his hand underneath the waistband of Williams’ pants, where the informant stated that the weapon would be hidden, and removed a revolver. Id . Under those circumstances, the Supreme Court held that the police officer's conduct was lawful. While emphasizing that the officer lacked probable cause that the suspect was armed, the Court held that "the policeman's action in reaching to the spot where the gun was thought to be hidden constituted a limited intrusion designed to insure his safety, and we conclude that it was reasonable." Id . at 148, 92 S.Ct. 1921 ; see id . at 146-47 (explaining the lack of probable cause).
Although the act of reaching underneath the suspect's clothing was more intrusive than a mere pat-down, the Williams Court did not require a showing of probable cause that the suspect had a gun concealed within his waistband. The reasonableness of the officer's conduct, based upon the facts within his ken, determined its lawfulness. Because Williams applied a reasonable belief standard to the most intrusive aspect of a Terry protective search, it is logical to conclude that a reasonable belief standard governs until the officer's safety concerns are alleviated. And, by extension, the propriety of each of the three intrusions that could occur during a Terry protective search—frisk, tactile manipulation, and reaching into clothing—are assessed under this lesser standard of proof.
As the Concurrence aptly explains, "if an officer has reasonable suspicion to conduct a Terry frisk, that reasonable suspicion remains unless and until the officer's belief that the object may be a weapon is negated." Concurring Op. at 429. This principle does not furnish unbridled discretion to expand the scope of a validly initiated protective search. The search must be proportional to the circumstances that induced it, escalating to a more intrusive search only as the circumstances confronting the investigating officer necessitate a more substantial intrusion. The need to increase the intrusiveness of the search hinges upon the occurrence of one of two distinct conditions. First, an officer may expand the scope from a less invasive protective search to a more invasive one when the officer apprehends specific and articulable facts that demonstrate a need for more intrusive conduct. Put simply, as the reasonable belief that the suspect is armed waxes, the permissible scope of the protective search broadens as well. Second, the officer may expand the scope if the less intrusive option either is impractical under the circumstances or fails to negate a material possibility that the suspect is armed. See United States v. Sharpe , 470 U.S. 675, 687, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) ("The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.").
The claim that additional facts can further fortify an officer's reasonable suspicion and thus authorize conduct that is more intrusive should not be viewed as controversial. If an officer conducts a pat-down and feels an object that shares characteristics with a weapon, the officer has acquired additional facts that create a stronger reasonable belief that the suspect is armed and dangerous than the officer possessed before performing the pat-down.
Both the Majority's and the Concurrence's reasonable suspicion analyses fail to limit the scope of the protective search to the least intrusive search reasonably available to the officer in light of the specific and articulable facts within the officer's knowledge. By contrast, the framework set forth below enforces the High Court's edicts, ensuring that the state and private interests implicated in a protective search maintain the balance that the Supreme Court struck in Terry .
III. A Framework for Defining the Scope of a Protective Search
Generally speaking, a police officer who reasonably believes that a lawfully stopped individual is armed and dangerous should commence the protective search with a pat-down. When the officer performs an open-handed pat-down, the severity of the trespass is at its nadir. Thus, the quality and quantity of evidence required to yield a reasonable belief that the individual is armed and dangerous at that point is comparably low. Accordingly, the United States Supreme Court has indicated that, while certain evidence is insufficiently reliable to justify an initial stop, that same evidence may allow an officer who lawfully stops an individual to frisk the suspect. Florida v. J.L. , 529 U.S. 266, 274, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (explaining that "the requirement that an anonymous tip bear standard indicia of reliability in order to justify a stop in no way diminishes a police officer's prerogative, in accord with Terry , to conduct a protective search of a person who has already been legitimately stopped").
Given the minimal intrusion involved in a protective frisk, this Court has upheld a pat-down following a lawful stop based upon specific and articulable facts that, while consistent with possession of a weapon, were equally susceptible to a litany of "innocent" explanations. Commonwealth v. Cook, 558 Pa. 50, 735 A.2d 673, 676 (1999). Thus, we have approved protective searches initiated based upon furtive movements, the nature of the suspected crime, and visual observations of bulges in the suspect's clothing. See Commonwealth v. Zhahir, 561 Pa. 545, 751 A.2d 1153, 1163 (2000) (explaining valid reasons to frisk a suspect).
If the open-handed pat-down supplies tactile impressions that would lead a reasonable officer under the same circumstances to conclude that the object is not a weapon, then Terry forbids further intrusion; the officer may neither manipulate the object nor reach inside the individual's pocket. See Dickerson , 508 U.S. at 378-79, 113 S.Ct. 2130. Thus, if the pat-down reveals the presence of an object that a reasonable officer would conclude is too soft, too small, or too irregularly shaped to be a typical weapon, the protective search, generally, must cease. See Commonwealth v. E.M ., 558 Pa. 16, 735 A.2d 654, 663 (1999) (holding that the detection of a soft object during a frisk required termination of the protective search); Commonwealth v. Wilson , 927 A.2d 279, 286 (Pa. Super. 2007) (holding that a reasonable person would not "conclude that the physical sensation of touching a round cluster of 12 tiny knotted plastic baggie corners—which contained a net weight of 1.743 grams of cocaine—could realistically produce the mental image or fear of a weapon").
Next, if, following the frisk, a reasonable officer would not yet negate the possibility that the object is a weapon, then the officer may manipulate the object from the outside of the suspect's clothing in order to identify additional palpable, tactile characteristics. In this interstice between a frisk and a reach into the suspect's clothing, the requisite strength of the specific and articulable facts indicating a weapon is at its midpoint, thus necessitating tangible characteristics that would inhibit a reasonable officer from concluding that the object is harmless. Compare United States v. Miles , 247 F.3d 1009, 1014 (9th Cir. 2001) (holding that an officer exceeded the permissible limits of a protective search by manipulating a box that "was no bigger than a large package of chewing gum and was one-half the size of a package of cigarettes"), with Mattarolo , 209 F.3d at 1158 (holding that a police officer who felt a cylindrical object several inches long in the defendant's pocket" acted within the scope of a Terry search by "pressing it between his thumb and forefinger in order to make sure" it was not a pocket knife). When the pat-down produces those kinds of articulable impressions, the officer may briefly "palpate the object" from the exterior of the clothing, going no further than is necessary to determine whether it is "a typical or obvious weapon." State v. Black , 721 A.2d 826, 831 (R.I. 1998).
Finally, if either the frisk or the subsequent manipulation reveals sufficient tangible qualities from which a reasonable officer would conclude that the object is a weapon, the officer may reach inside the suspect's clothing and remove the object. This is the most intrusive aspect of a protective search, generally demanding a demonstration of reasonable suspicion at its peak. A reasonable likelihood that the object is a weapon exists if it is hard, possesses spatial qualities of a typical weapon, and is located where one reasonably would carry such a weapon. Compare United States v. Swann, 149 F.3d 271, 276 (4th Cir. 1998) (holding that a police officer reasonably believed a "hard rectangular object" in the suspect's sock could have been a box cutter because of "[t]he location of the object, as well as its hard character and its shape.... A similarly shaped hard object in [the suspect's] pocket certainly would have raised no alarms, as there could be innumerable innocent explanations for it"), with United States v. Campa , 234 F.3d 733, 739 (1st Cir. 2000) (holding that removal of every "bulging" item detected during a pat-down was unlawful where the officer did not first "attempt to distinguish between" threatening and nonthreatening objects). Stated differently, a reasonable officer would not conclude that an object that shares qualities with countless nonthreatening items presents a danger.
In relying upon Swann to conclude that the reasonable suspicion standard applies, see Maj. Op. at 419, the Majority fails to recognize that the Court of Appeals found the location of the "hard rectangular object" to be essential to its finding of reasonable suspicion. Swann , 149 F.3d at 276. The Swann court underscored that "a similarly shaped hard object in [the suspect's] pocket certainly would have raised no alarms, as there could be innumerable innocent explanation s for it." Id. (emphasis added).
In applying this general framework, suppression courts must remain cognizant of several precepts underlying protective search jurisprudence. First, the Terry rule that an officer must employ the least intrusive means reasonably available generally requires an officer to acquire additional facts during the pat-down before manipulating the object and to obtain further facts during that manipulation before reaching into the suspect's clothing. Second, this general principle should not be viewed as a hard and fast line that requires police officers to gamble with their lives unnecessarily. "The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it." Sharpe , 470 U.S. at 687, 105 S.Ct. 1568. Hence, while the prosecution would be wise to substantiate or support each escalation of the search with discrete, articulable facts, a police officer's failure to proceed step-by-step in the moment does not, standing alone, compel suppression. In some cases, for example, the evidence that warrants the investigatory stop may, by itself, warrant immediate intrusion into the suspect's clothing. With greater frequency, the pat-down alone might suffice to demonstrate that the object likely is a weapon, thus allowing intrusion into the suspect's clothing without first manipulating the object. Relatedly, certain circumstances will demonstrate that requiring a pat-down or manipulation before reaching into a suspect's clothing presents an unreasonable danger. And there will be instances where manipulation of the object fails to produce sufficient tactile impressions to assure that the object is innocuous. In such cases, reaching into the suspect's clothing is the least invasive option reasonably available to the officer in light of the facts within his ken. Third, courts must scrutinize the type of potential weapons that a reasonable officer would conclude that the suspect possessed. In certain situations, a reasonable officer might conclude that, when a pat-down or manipulation reveals a small, thin, and hard object, the object is a weapon; a reasonable officer in different circumstances could conclude that those identical tactile impressions do not warrant the belief that the object poses a danger.
Cf. Williams , 407 U.S. 143, 92 S.Ct. 1921 (holding that the officer lawfully reached into the suspect's clothing without performing a pat-down where the suspect's failure to comply with the officer's command to exit the vehicle made it impossible for the officer to pat down the suspect without the officer placing himself in a more dangerous position); Sharpe , 470 U.S. at 686, 105 S.Ct. 1568 (explaining that the assessment of whether officers pursued the least intrusive means reasonably available considers "whether the police are acting in a swiftly developing situation").
The Concurrence reads the foregoing framework as "indulg[ing] in unrealistic second-guessing" because, in the Concurrence's view, police officers are incapable of safely manipulating objects through a suspect's clothing. See Concurring Op. at 432 – ––––. As explained supra , it is common practice for police officers to employ external manipulation during a search incident to arrest. The safety concerns hypothesized by the Concurrence are unfounded. If the circumstances of an individual case demonstrate that it would be either dangerous or futile for an officer to manipulate a potential weapon, the foregoing framework does not require an officer to employ that investigative measure. The framework ensures that the failure initially to manipulate the object warrants suppression only when the officer acted unreasonably in failing to take that step. Here, the record does not suggest that requiring Officer Grant to first manipulate the object would have been either futile or dangerous.
This nuance flows naturally from the Concurrence's cogent observation that the initial reasonable suspicion that a suspect is armed and dangerous exists until extinguished by facts that negate the reasonable possibility of a weapon.
Consider, by way of illustration, a Birmingham, U.K. police officer in the fictional world of the English television series "Peaky Blinders." The Peaky Blinders were members of an early-twentieth-century Birmingham criminal gang that concealed razor blades in the brims of their peaked hats. During violent confrontations with rival gangs or law enforcement, the Peaky Blinders would use their caps as weapons, slashing the eyes of their victims with the razor-blade-laden brims of their peaked caps (hence the titular name).
In this fictional scenario, the Birmingham police officer notices a man engaged in suspicious activity and lawfully conducts an investigative detention pursuant to Terry . The suspect has a distinctive Peaky Blinders’ haircut, he is standing near a known Peaky Blinders’ safe house, and he is wearing the gang's signature peaked cap. Reasonably believing the man might be armed, the officer pats down both the man and his hat. The officer feels a small, thin, and hard object in the cap. He removes the cap, looks inside, and notices a foil packet containing a thin layer of hash. Under these circumstances, the search of the hat was lawful, as it was substantially likely that the object in the hat was a razor blade.
Compare that hypothetical with the following scenario. In 2020, a Pittsburgh police officer observes a man wearing a peaked hat and engaging in suspicious activity. The officer conducts a valid Terry frisk and feels a small, hard object in the suspect's hat. The officer removes the cap, looks inside, and discovers a foil packet containing a thin layer of hash. But Pittsburgh does not have a gang akin to the Peaky Blinders. Consequently, the search of the hat would not be reasonable, but would instead be based upon rank speculation, rendering it beyond the scope of a lawful Terry search.
Fourth, it bears repeating that the suppression court's review of a claim that a police officer exceeded the scope of a protective search does not encompass the officer's subjective conclusion that the object was or was not a particular weapon. The court considers only whether an objectively reasonable officer confronting the same circumstances would remain suspicious that the item was a weapon capable of inflicting harm upon the officer or others nearby, and whether a reasonable officer would have employed a less intrusive investigative measure given the strength of that suspicion. The relevant circumstances are the tactile impressions, other developments that the officer perceived during the protective search, and the events that prompted that search. As in all cases, the facts known to the investigating officer, coupled with his training and experience, are critical.
Finally, the court must weigh the quantum and quality of the Commonwealth's evidence against the level of intrusion, mindful that greater intrusions generally call for stronger or more abundant evidence. In assessing the strength of the evidence, the suppression court should evaluate witness credibility and the reasonableness of the assumptions relied upon by the officer in concluding that the suspect was armed. The court must consider whether the witness testified as to the size, density, material composition, shape, and location of the object. A trial court's finding that the officer's suspicions were reasonable is more likely to survive appellate review when the record contains credible testimony accounting for more of those descriptive features.
For instance, whether the alleged tactile impressions are consistent with the object actually seized bears upon the officer's credibility, as does the officer's training and experience. See, e.g. , Wilson , 927 A.2d at 286 (finding that the officer's belief that an object was a weapon was unreasonable because it was "not supported by the physical facts and characteristics of the evidence that was actually seized").
IV. Application
Applying these principles to the circumstances of the present case yields the following assessment. In searching T.W. for weapons, Officer Grant was required to employ the least intrusive means reasonably available to him. If, and as, the circumstances amplified, or failed to negate, the likelihood that T.W. was armed and dangerous, the scope of the protective search expanded accordingly. Thus, the pertinent inquiry must weigh the facts that tended to show that T.W. possessed a weapon against those that countered that conclusion.
The facts that justified the initiation of the Terry stop and frisk, without more, did not support the more invasive protective search sanctioned by today's Majority. While the officers observed the vehicle driving erratically, reckless driving is not a crime inexorably associated with weapons. What weapon must we associate with reckless driving? Perhaps the Majority and the Concurrence favor an inference that any motor vehicle violation creates a probability that an individual is armed. Even if the law supported such an unsound inference, it surely would not support the additional inference that T.W. also was armed, as he was not operating the vehicle. Cf . Sibron , 392 U.S. at 64, 88 S.Ct. 1889 ("The suspect's mere act of talking with a number of known narcotics addicts over an eight-hour period no more gives rise to reasonable fear of life or limb on the part of the police officer than it justifies an arrest for committing a crime."); Ybarra v. Illinois , 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (holding that "a person's mere propinquity to others independently suspected of criminal activity" did not authorize a protective search).
For the view that reckless driving supports the inference that an individual is armed and dangerous, both the Majority and the Concurrence uncritically rely upon In re O.J. , 958 A.2d 561 (Pa. Super. 2008). There, the Superior Court held that a police officer reasonably believed that the suspect possessed a weapon because the "vehicular stop occurred at night," and the suspect "had been driving dangerously and initially refused to heed police efforts to stop his car." Id . at 566. The Majority and Concurrence would incorporate this non-binding holding into this Court's protective search jurisprudence despite the fact that the O.J. panel failed to articulate any support for the notion that erratic driving indicates that an individual is armed and dangerous. To make matters worse, the Majority and Concurrence would extend that unsupported inference to situations where the subject of the protective search was not the individual who was driving erratically. Our precedents do not ratify the supposition that one individual's dangerous acts can be attributed to another by mere association. In fact, this Court has expressly rejected such a proposition. Commonwealth v. Grahame, 607 Pa. 389, 7 A.3d 810, 817 (2010) (holding that "a police officer must have a particularized, objective basis for a protective search; an individual's mere proximity to others engaged in criminal activity is insufficient"). While we here construe the evidence in the light most favorable to the Commonwealth, that obligation does not include grasping at straws and adopting dubious rules of law that are inconsistent with well-established legal precepts.
T.W.’s mere presence in a high crime area at night is a weak and non-particularized indicator that he was armed and dangerous. To be sure, reduced visibility can heighten the potential for dangerousness, but the Earth's rotation on its axis sheds no particular light on the likelihood that any given individual is armed. And it surely would be misguided for this Court to hold that the protection against unlawful searches and seizures is reduced for those individuals who happen to live in, or simply pass through, a high-crime area. Even when considered together, (1) low visibility, (2) being a passenger in a car that drove in a dangerous manner, and (3) presence in a high-crime area, do not create a reasonable belief that a passenger may be carrying a weapon. Those circumstances in tandem provided constitutional authority to commence a protective search only because T.W. also was "blading" his body—the lone individualized fact suggesting that T.W. could be armed and dangerous. Although this additional fact could support a suggestion that T.W. might be armed, it could support a contrary suggestion as well. After all, while T.W.’s movements were consistent with an attempt to conceal a weapon, they were equally, if not more, indicative of concealing nonthreatening contraband or an embarrassing item.
The facts that justified the pat-down did not alone warrant any more intrusive search. That conclusion is obvious when the present circumstances are compared with those at issue in Williams , supra . There, a police officer, who "was alone early in the morning on car patrol duty in a high-crime area," reached into the suspect's clothing after observing the suspect's furtive movements. Williams , 407 U.S. at 144, 92 S.Ct. 1921. Although the officer did not first perform a pat-down, the Williams Court held that the more substantial intrusion was lawful at the outset because the officer was acting upon a reliable informant tip that the suspect possessed a gun. Id . at 147-49, 92 S.Ct. 1921. While both Officer Grant and the officer in Williams observed a suspect's furtive movements in a high-crime area at night, Officer Grant did not commence the protective search based upon similarly reliable, additional support for the belief that T.W. possessed a weapon. Thus, the lawfulness of Officer Grant's reaching into T.W.’s pocket turns upon whether the tactile impressions the officer gleaned from the frisk would have led a reasonable officer to conclude that the object was a weapon.
The palpable characteristics of record would not have led a reasonable officer to believe that the object in T.W.’s pocket was a weapon. Officer Grant testified that he felt a "large," "hard" object. The tactile features attested to by Officer Grant are not analogous to the informant tip in Williams , which carried enough evidentiary "value and reliability" that it was reasonable for the officer to reach into "the spot where the gun was thought to be hidden." Id . at 148-49, 92 S.Ct. 1921. People (including juveniles such as T.W.) carry countless objects in their pockets that are hard and yet pose no threat to anyone's safety. Officer Grant did not testify that the pat-down revealed the material composition, shape, or density of the object. While Officer Grant was not required to testify as to all those features with scientific certainty, he was required to offer something more than a vague assertion of a "large," "hard" object. Given that these were the only tangible qualities that Officer Grant could articulate, it is unsurprising that he repeatedly and candidly admitted at the suppression hearing that he did not know what the object was. N.T., 7/10/2018, at 14, 17, 26.
When frisking a random individual's pants, an officer might find a weapon. But he might just as likely find that the hard object he feels is a cellphone, a wallet, a key fob, a flask, an inhaler, an insulin pump, a bottle of hand sanitizer, a lighter, a hairbrush, a pack of cigarettes, a box of Tic Tacs, or a pedometer.
The reasonable belief that an object may or may not be a weapon is not a reasonable belief that the object is a weapon. The latter requires more than a trivial possibility; it requires that the totality of the circumstances causes a reasonable officer to conclude that the object likely was a weapon. Because Officer Grant detected only a tangible attribute that, under the circumstances, was more consistent with the many and sundry innocuous objects that people carry in their pockets, the possibility that the object was a weapon was small. Such a de minimis probability did not, without more, warrant an intrusion into T.W.’s pocket.
That said, the fact that the open-handed frisk revealed only a hard object did not require Officer Grant to terminate the search. When a pat-down reveals an object that shares characteristics with a weapon, a reasonable officer would not exclude the possibility that the object posed a realistic threat. Confronted with such circumstances, it would have been reasonable for Officer Grant briefly to manipulate the object from outside of T.W.’s clothing. Had the officer employed this less intrusive measure, he probably would have realized that the object was a bottle with a twist cap that posed no danger to him at all.
Officer Grant understood how to perform an external manipulation, as the Philadelphia Police Department's manual of directives instructs officers performing certain searches to proceed by "grabbing, squeezing or sliding of hands over the remaining clothing to detect a weapon." "[A]ll personnel[, including Officer Grant,] are required to have a working knowledge of [the manual's] contents." External manipulation is standard procedure that should not pose the safety concerns raised by the Concurrence. And nothing about the situation at hand demonstrates that employing such an investigative measure would have created a dangerous situation in fact. Therefore, Terry and its progeny required Officer Grant to take that less intrusive step before reaching into T.W.’s pocket. See Sharpe , 470 U.S. at 687, 105 S.Ct. 1568 (providing that an officer's failure to employ a less intrusive measure warrants suppression if "the police acted unreasonably in failing to recognize or to pursue it"). Because the officer failed to do so, he exceeded the scope of the Terry search.
Phila. Police Dep't Directive 5.7 § 21(H)(1)(a); see also id . § 21(H)(1)(c) (providing other instances where police officers are permitted to manipulate objects felt within a detainee's clothing).
Phila. Police Dep't , http://www.phillypolice.com/accountability/index.html.
I also doubt that Officer Grant needed to remove the object from T.W.’s pocket in order to confirm that it was not a gun, knife, club, or other weapon. As soon as Officer Grant reached into the pants pocket and felt the bottle, it should have been readily identifiable as, in fact, a bottle.
Today's Majority fails to acknowledge that Officer Grant could have manipulated the object before reaching into T.W.’s pocket. Utilizing the thinnest of evidence, the Majority instead endorses the utmost trespass upon the sanctity of one's person that a protective search implicates. In reaching the conclusion that a reasonable officer would believe the hard object presented a danger, the Majority relies exclusively upon the minimal, low-quality evidence that warranted the initiation of the protective search. See Maj. Op. at 423–24. As my colleagues recognize, the mere presence in a high-crime area is insufficient by itself to initiate even the minimally invasive pat-down. Id . at 424 n.5. The Majority nonetheless employs that non-particularized consideration to approve a far more intrusive search. T.W.’s suspicious movements and his noncompliance with Officer Grant's commands are the only particularized facts that the Majority cites. Those facts do not speak to the character of the object in T.W.’s pocket, and they are weak indicators of a weapon. For the Majority, the presence of a hard object will suffice, without more, to license a police officer to reach into a suspect's clothing during any validly initiated protective search. But that is no limitation at all. Most people carry some hard object on their persons. The Majority has birthed the "hard object" exception to the warrant requirement, effectively holding that the Fourth Amendment permits all searches into a suspect's clothing as long as the protective search was initiated lawfully and the officer feels something that might share a "hardness" quality with some theoretical weapon. Because most people carry some hard object or item with a single weapon-like quality, the Majority's approach ensures that, in Pennsylvania, Terry ’s limited exception effectively devours the Fourth Amendment's warrant rule.
While the Majority notes correctly that reasonable suspicion is a less demanding standard than probable cause, this does not mean that the standard of proof is without teeth. The present matter requires this Court to ensure that the search of T.W. was "confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." Terry , 392 U.S. at 28, 88 S.Ct. 1868. In defining the boundaries, Terry instructs courts to limit the search "strictly to what was minimally necessary to learn" whether the suspect was armed. Id. at 30, 88 S.Ct. 1868. The Majority's approach abandons our obligation to uphold those mandates. V. Conclusion
See Maj. Op. at 423.
The Majority contends that T.W. has not preserved for our review the issue of whether the scope of the protective search must be limited to the least intrusive means reasonably available to the officer. See Maj. Op. at 424–25 n.8. I respectfully disagree. In order to preserve an issue for this Court's review, the party seeking resolution of the question must have raised it in the trial court and in the intermediate appellate court. See Pa.R.A.P. 302(a) ("Issues not raised in the trial court are waived and cannot be raised for the first time on appeal."). Issues, not specific arguments, must be preserved for appeal, and all arguments clearly implicated by the issues are subject to our review. See HIKO Energy, LLC v. Pa. Pub. Util. Comm'n, 653 Pa. 1, 209 A.3d 246, 262 (2019) (explaining that arguments that "merely strengthen[ a] previously articulated argument with additional legal authority" are not waived); Arnold v. W.C.A.B. (Lacour Painting, Inc .), 110 A.3d 1063, 1071 (Pa. Cmwlth. 2015) ("Our courts permit a litigant to make new arguments on appeal in support of a preserved issue."); cf . Pa.R.A.P. 2116(a) (providing that a "statement will be deemed to include every subsidiary question fairly comprised therein ... or fairly suggested thereby"). In resolving the question presented and its logical components, we are not limited to the answers supplied by the parties. This Court possesses the "authority to sua sponte address arguments which are clearly implicated in the cases before us." Freed v. Geisinger Med. Ctr., 607 Pa. 225, 5 A.3d 212, 216 (2010). Occasionally, we are required to address issues squarely encompassed by the question presented in fulfilling "this Court's function and responsibility to consider the broader picture, including the impact of precedent beyond the facts of an individual case, and the interplay between established precedent in varying areas of the law." Id . at 215. Because the least intrusive means analysis is part and parcel of T.W.’s basic legal theory concerning the scope of the protective search, the Majority errs in finding waiver.
In both the trial court and the Superior Court, T.W. raised the issue of whether Officer Grant's reach into T.W.’s pocket exceeded the scope of a Terry protective search in light of the facts within the officer's ken. Before the trial court, T.W. "argued that Officer Grant exceeded the scope of a permissible [Terry ] search when he entered [T.W.’s] left pants pocket and removed what [T.W.] argues Officer Grant should have already realized was not [ ] a firearm." TCO at 4. In his Pa.R.A.P. 1925(b) statement, T.W. asserted that the trial court "erred in denying the defense motion to suppress physical evidence, as [T.W.] was searched and arrested without probable cause." As the Majority observes, T.W. presented a virtually identical issue in his brief to the Superior Court. Before both of the lower courts, T.W. claimed that Officer Grant exceeded the permissible scope of the search because Officer Grant lacked probable cause.
The lack of probable cause was mere support for T.W.’s fundamental contention that Officer Grant exceeded the scope of the Terry search in light of the facts known to him. See T.W.’s Brief to the Superior Court, 2390 EDA 2018, at 9 ("A frisk is limited to a flat-handed pat-down for weapons and does not permit a cursory search for evidence or anything other than a weapon."); id . at 7 (asserting that the officer exceeded the narrow scope of the Terry exception because "after patting him down, and feeling nothing consistent with a weapon, the officer[ ] searched his pocket"). Neither T.W. nor this Court are constrained by the specific argument that T.W. advanced in the lower courts in furtherance of the issue that he raised and preserved. It is T.W.’s fundamental legal issue, not his supporting argument, that provides the limit on our review. That issue asks whether Officer Grant exceeded the permissible scope of the protective search because the severity of the intrusion was not proportional to the facts within his knowledge.
An assessment of the permissible scope of a protective search must address the subsidiary issue of whether Officer Grant employed the least intrusive means of searching T.W. for weapons. Contrary to the Majority's view, a police officer's obligation to utilize the least intrusive investigative steps reasonably available is clear from Terry ’s admonition that the scope of the search be "confined ... strictly to what [i]s minimally necessary to learn whether [a suspect is] armed and to disarm [him] once" a weapon is discovered on his person that could be used to assault the officer. Terry , 392 U.S. at 30, 88 S.Ct. 1868 (emphasis added). That assessment necessarily encompasses the question of whether a police officer must provide a more detailed description of the object—at the very least something more than "hard"—in order to escalate immediately from a pat-down to pocket-picking, and whether a middle-ground tactic is available to the officer when a protective frisk fails to assuage his initial concerns given the subsequent discovery of some object that is not immediately identifiable as innocuous. In other words, the facts supporting the officer's suspicion and the investigative measures reasonably available to the officer are interconnected considerations, and both of them inform the assessment of whether the totality of the circumstances demonstrates that the search was "confined in scope to an intrusion reasonably designed to discover" a weapon. Id . at 28, 88 S.Ct. 1868.
As framed by T.W., the question presented to this Court encompasses the issue of whether Officer Grant exceeded the permissible scope of a protective search by failing to use the least intrusive means reasonable available given the facts within his knowledge. We granted review in order to "clarify the issue left unresolved by" our split decision in Commonwealth v. Taylor, 565 Pa. 140, 771 A.2d 1261 (2001) (plurality), regarding the standards that govern a police officer's authority to "conduct an additional more intrusive search of a pocket following a pat-down for weapons." In re T.W., ––– Pa. ––––, 237 A.3d 416 (2020) (per curiam ). As the competing opinions in Taylor demonstrate, the unsettled issue of the legality of the more invasive search of Taylor's pocket for weapons—i.e. , the scope of the Terry search—inextricably was bound up with the Court's assessment of the quantum of evidence needed to justify the investigating officer's suspicions that Taylor was armed and dangerous. See Taylor , 771 A.2d at 1265 (Opinion Announcing Judgment of Court) ("We granted [review] ... to consider whether the searches conducted in the basement were beyond the scope of the warrant ....") (emphasis added); 1269 (noting that "the scope of a Terry frisk is limited to that which is necessary for the discovery of weapons"); 1270 (opining that the officer who searched Taylor "did not exceed the scope of a proper Terry frisk," in contrast with the officer in Commonwealth v. Graham, 554 Pa. 472, 721 A.2d 1075 (1998), who unlawfully searched the appellant's pocket and seized a Lifesaver Holes bottle containing contraband); accord id. at 1275 n.5 (Nigro, J., concurring and dissenting) ("In my view, although Officer Adams may have had reasonable suspicion to frisk Taylor in order to insure that he was not armed, once Officer Adams patted Taylor's pocket and felt a cylinder object of approximately four inches in length and one and three-quarters in diameter, which he determined was neither a gun nor a knife, Officer Adams was not constitutionally justified in further searching Taylor's pocket and seizing the pill bottle." (citing Terry , 392 U.S. at 27, 88 S.Ct. 1868 ; E.M. , 735 A.2d at 660-61 )).
By its plain terms then, the broad question before us fairly subsumes consideration of the full ambit of a permissible Terry search in light of the known characteristics of a particular object found on a suspect's person. The question and its constituent inquiries have been preserved for our review. This Court's resolution of those questions is not limited to the answers suggested by the parties at either this stage of the litigation or the earlier stages. Our obligation to create legally sound precedent mandates an assessment of whether the facts within the officer's knowledge demonstrated that the scope of the protective search was "confined ... strictly to what [i]s minimally necessary to learn whether [a suspect is] armed." Terry , 392 U.S. at 30, 88 S.Ct. 1868.
Here, Officer Grant offered scant testimony about the "hard object" in T.W.’s pocket. He was equivocal at best when asked about his concerns, even suggesting that the object could have been narcotics. He failed to articulate sufficient facts demonstrating a reasonable fear that T.W. was armed, let alone "presently dangerous." Id. at 30, 88 S.Ct. 1868. On this bare-bones record, Officer Grant's decision to forego less invasive investigative measures, e.g. , external manipulation of the object, and to instead reach directly into T.W.’s pocket and remove the medicine bottle he felt therein exceeded the lawful scope of a protective search under the Fourth Amendment.
From time to time, suppression courts, in unintentional dereliction of their duty to scrutinize and where necessary check the government's power, stare at the accused's protection against unlawful searches and seizures with glazed eyes. It is perhaps tempting simply to defer to the facts and subjective conclusions provided in the police officer's testimony and, without thorough analysis, conclude that the testimony demonstrated the requisite level of suspicion. On review, appellate courts sometimes perpetuate that error, blindly accepting the lower courts’ reasonable suspicion determinations. Our precedents require that judges instead employ a heedful and principled analysis.
Perhaps as a natural consequence of police work and its frequent dangers, law enforcement officers may sometimes mistake innocuous circumstances as grave hazards. See United States v. Montero-Camargo , 208 F.3d 1122, 1143 (9th Cir. 2000) (en banc ) (Kozinski, J., concurring) ("Just as a man with a hammer sees every problem as a nail, so a man with a badge may see every corner of his beat as a high crime area."). The judiciary is not the police; it falls to our courts to exercise a healthy skepticism rather than a blind credulity when it considers these challenging circumstances. Otherwise, we would uniformly and reflexively elevate the undoubtedly salutary objectives of law enforcement over the individual security and privacy guaranteed by the Fourth Amendment, thereby relegating an indispensable protection among "the catalog of indispensable freedoms" to a "mere second-class right." Brinegar v. United States , 338 U.S. 160, 180, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (Jackson, J., dissenting). As Justice Robert Jackson observed,
Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at
any hour to unheralded search and seizure by the police.
But the right to be secure against searches and seizures is one of the most difficult to protect. Since the officers are themselves the chief invaders, there is no enforcement outside of court.
Id. at 180-81, 69 S.Ct. 1302. The judiciary's duty to enforce the protections of the Constitution is not limited only to the "more flagrant abuses." Id . at 181, 69 S.Ct. 1302. The competing interests that the Terry Court grappled with persist in every protective search case. No matter how banal these intrusions may appear to some, their dangers persist. The dangers of a protective search are realized when the amorphous reasonable suspicion standard becomes a hollow artifice used to preclude suppression.
We are called upon here to maintain a necessary equilibrium between the competing state and private interests. Doing so requires a refinement of the scope of the standard in light of the facts at hand. Through a careful analysis, which ensures that the Commonwealth demonstrated the officer employed the least intrusive means reasonably available, the court confirms that officer safety concerns do not become a license to rummage and seize at will. The Majority fails at this task. In the view of my learned colleagues, the most intrusive aspect of a protective search may occur when reasonable suspicion is at its nadir. In so holding, the Majority allows for a world in which virtually all persons subject to a frisk also are subject to a more intrusive search inside their clothing. This utterly dissolves the balance struck in Terry . See United States v. Askew , 529 F.3d 1119, 1126 (D.C. Cir. 2008) ("When the Supreme Court has weighed the interests relevant to determining whether a certain type of official conduct is reasonable under the Fourth Amendment, lower courts are not free to strike a new and different balance.").
I would toe the line drawn in Terry . Indeed, I think that we are bound to do so. That line leads me to conclude that Officer Grant exceeded the scope of the permissible search upon reaching inside T.W.’s pocket in circumstances where he instead possessed solely the authority to manipulate the object from outside of the clothing. The basic Fourth Amendment principle that more invasive searches require additional justification necessitates this conclusion. While I agree with the Majority that a reasonable suspicion standard, not probable cause, controls, I disagree that Officer Grant employed the least intrusive means reasonably available in light of the circumstances at hand. Therefore, the promethazine and derivative evidence should have been suppressed.