Commonwealth v. Thompson
2007 PA Super 372, ___A.2d___
Decided: Dec 10, 2007
The Commonwealth failed to prove that contraband seized in a pat-down had the mass and contour that would make its criminal character immediately apparent. The Superior Court suppressed the evidence.
Detective Kurtz alerted Officer Fones that a man named Thompson was driving in the Borough of Carlisle on a suspended license. Fones, a 23 year veteran and an expert in the field of drug trafficking, was familiar with Thompson and his vehicle from a previous arrest. Fones testified that at 7:20 p.m. he identified the vehicle and initiated a traffic stop. As Officer Fones proceeded to the vehicle, Thompson began to exit the vehicle. Fones instructed him to return to the vehicle and provide his license and registration. Thompson handed over the registration but he stated he left his wallet at home.
Officer Fones informed Thompson that he was going to issue him with a citation for driving with a suspended license. Fones instructed Thompson to turn the vehicle off and wait until he returned with the ticket. After the citation was issued to Thompson, Fones informed him that their business had concluded.
Fones continued to ask questions at the conclusion of the traffic stop. He asked Thompson if he had any drugs or weapons in the car and if he could search the car. Officer Fones testified that after he asked him if he could search the car Thompson's demeanor changed.
Thompson next reached into the pocket of his sweatshirt and Fones asked him to place his hands in plain view. Thompson then started to put the keys in the ignition and Fones advised him that he could not drive away from the scene. Thompson once again put his hand in his pocket and Fones drew his revolver, thinking that Thompson was reaching for a gun. He was ordered out of the vehicle and patted down by Detective Kurtz who had arrived at the scene. The pat down produced digital scales and more that $900 in cash. Thompson was handcuffed and placed in the police car. A search warrant was requested and contraband was recovered during a canine search of the vehicle.
The trial court denied Thompson's motion to suppress the evidence and sentenced him to 7 to 15 years imprisonment. Thompson appealed arguing that the trial court erred when it refused to suppress evidence obtained as a result of a second detention after completion of a traffic stop.
The Court found that the initial stop was permissible based on the knowledge that Thompson was driving on a suspended license. The investigative stop and the Terry frisk were justified because of Thompson's nervous behavior and attempt to drive away.
The Court concluded that the seized scales and money as well as the later canine search and the search warrant were all fruits of an improper search. The Court reasoned that the plain feel doctrine only justified seizing items found in a pat-down search that are immediately apparent, by their shape and size to be of criminal character. The Commonwealth provided no evidence from Detective Kurtz, who executed the pat-down. Without this evidence the contraband had to be suppressed, as there was no showing that their character was apparent from the pat-down. The sentence was vacated and remanded for further proceedings.