COM. v. GRAHAME, 39 EAP 2009 (Pa. 11-17-2010)

7 A.3d 810

No. 39 EAP 2009.Supreme Court of Pennsylvania, Eastern District.Submitted: March 25, 2010.
Decided: November 17, 2010.

Appeal from the Order of the Superior Court at No. 3288 EDA 2006 dated April 18, 2008 affirming the Judgment of Sentence of the Court of Common Pleas of Philadelphia County dated November 9, 2006 at No. CP-51-0511061-2006.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN JJ.

OPINION
MADAME JUSTICE ORIE MELVIN.

The issue presented on appeal is whether the Superior Court correctly determined that a police officer had reasonable suspicion to conduct a warrantless search of a woman’s handbag for safety reasons based solely on the fact that the owner of the handbag was located inside a residence where another individual had been selling illicit drugs. For the reasons that follow, we hold that the Superior Court erred in adopting a “guns follow drugs” presumption in order to justify a protective search for weapons pursuant to Terry v. Ohio, 392 U.S. 1 (1968). Accordingly, we reverse the order in question.

On November 13, 2005, a drug task force composed of Philadelphia police officers used a confidential informant to make a controlled purchase of crack cocaine from D.W., a male juvenile who was dealing drugs from a house at 126 North Salford Street. As officers watched from an undisclosed location, the informant walked up to the front of the

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residence, and D.W. emerged from the house. Following a brief conversation, the informant handed D.W. pre-recorded currency in exchange for two red-tinted packets of crack cocaine. Once the transaction was completed, D.W. re-entered the home, and the informant transported the drugs to a police officer who was waiting nearby.

The task force maintained surveillance on the house and arrested D.W. when he exited the structure approximately ten minutes later. After D.W. had been taken into custody, every officer in the unit approached the home to investigate further.[1] Officer Renee Russell knocked on the front door, spoke briefly with the young man who greeted her, and asked to speak to D.W.’s guardian. D.W.’s mother, Virginia, came to the door and was informed that D.W. had just sold drugs from the house. Officer Russell asked Virginia to sign a consent form permitting a search of the residence, and Virginia complied.

Upon entering the home, Officer Russell observed Appellant, Lekeyia Grahame, sitting on the living room couch with a black purse at her feet. Officer Russell asked Appellant if the purse belonged to her, and she responded in the affirmative. Without asking any additional questions, Officer Russell proceeded to open the purse and search the interior, finding a small baggie of marijuana, a container of unused plastic packets commonly used as packaging for illegal drugs, a pay stub listing 126 North Salford Street as Appellant’s address, a key to the residence, and a brown bag containing $900 in cash. Appellant was arrested and charged with various drug offenses.

Appellant filed a motion to suppress the evidence seized from her purse, and an evidentiary hearing was conducted. Officer Russell testified that she searched the purse because she feared it might contain a firearm, stating “the drugs was [sic] coming out of the property[.] The boy had drugs on him and drugs and guns go hand-in-hand.” N.T.

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Suppression Hearing, 9/29/06, at 13. The suppression court concluded that police were justified in searching the purse for weapons because they had observed drug activity at the house. T he motion was denied, and Appellant was convicted of possession of a controlled substance and possession of drug paraphernalia at a bench trial. She then filed a direct appeal arguing that Virginia lacked authority to consent to a search of the house and that the search of her purse violated the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution.[2]

A divided three-judge panel of the Superior Court affirmed the judgment of sentence in a published opinion. With respect to the first issue, the majority found that police did not need a warrant to search 126 North Salford Street for drugs because Virginia had apparent authority to consent to a search of the residence. In support, the majority noted that Virginia answered the front door, identified herself as D.W.’s mother, signed a consent form, and invited Officer Russell inside the house.[3] See Commonwealth v. Grahame, 947 A.2d 762, 765 (Pa. Super. 2008). Applying the totality-of-the-circumstances test endorsed in Commonwealthv. Strader, 931 A.2d 630, 635 (Pa. 2007), the Superior Court concluded that the facts available to Officer Russell during the encounter would lead a reasonable person to believe that Virginia had authority over the premises.

The majority also upheld the search of Appellant’s purse, reasoning as follows:

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[Appellant] had a large bag, easily capable of holding a gun. Also, a few minutes prior to the search [D.W.] emerged from the house after selling drugs to a confidential informant. D rugs and guns frequently go hand in hand. T he officer had a right to conduct a minimally intrusive search for weapons in order to protect herself. [D.W.] could have easily dropped a gun in the large bag on the way out of the house. This is akin to a Terry stop, except instead of patting down someone’s body to check in pockets, the officer opened and checked a woman’s handbag in her immediate control.

Grahame, 947 A.2d at 764 (footnote omitted). In so holding, it likened the case to Commonwealth v. Davidson, 566 A.2d 897 (Pa. Super. 1989), where the Superior Court held that police had reasonable suspicion to search a purse for weapons following a traffic stop because the bag was unusually heavy, the driver of the vehicle had been arrested on drug trafficking charges, and the female passenger who owned the purse reached for the bag after a police officer had asked her to refrain from touching it.

Judge Kelly authored a dissenting opinion wherein he asserted that third-party consent to search a residence does not extend to a visitor’s personal belongings and that the warrantless search of Appellant’s handbag was invalid under Terry v. Ohio, supra, and its progeny because Officer Russell did not observe any behavior that would lead a reasonably prudent person to conclude that Appellant was armed and dangerous. In reaching that conclusion, Judge Kelly commented that the case was factually similar to Ybarra v. Illinois, 444 U.S. 85 (1979), where the United States Supreme Court held that an individual’s mere proximity to suspected criminals is insufficient to justify a warrantless search for weapons, even when police are lawfully on the premises to conduct a narcotics investigation. As there were no additional reasons to conduct a warrantless search of Appellant’s purse aside from Officer Russell’s belief that guns tend to be found in close proximity to drugs, Judge Kelly concluded that the majority’s analysis was flawed and that the contraband seized by Officer Russell should have been suppressed.

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Appellant filed a petition for allowance of appeal, and we granted review limited to the issue of whether the Superior Court erred in finding that Officer Russell had reasonable suspicion to search Appellant’s purse for weapons under Terry v. Ohio, supra, based upon a “guns follow drugs” presumption. In reviewing the propriety of a suppression ruling, we are bound by the suppression court’s factual findings if they are supported by the record. Commonwealth v. Galvin, 985 A.2d 783, 795 (Pa. 2009). The suppression court’s conclusions of law, however, are subject to de novo review and can be reversed if they are erroneous. Id. W hen the defendant is bringing the appeal, “we consider only the evidence of the prosecution, and so much of the evidence for the defense which remains uncontradicted when fairly read in the context of the entire record.” Id.

There are no disputed factual issues in this case because Officer Russell was the sole witness at the suppression hearing, and the defense accepted her version of the incident. Thus, we need only address the Superior Court’s determination that Officer Russell was justified in searching Appellant’s handbag for weapons in this scenario. Appellant contends that the ruling in question ignores our pronouncement inCommonwealth v. Zhahir, 751 A.2d 1153, 1162 (Pa. 2000), that Pennsylvania courts should not employ a “guns follow drugs” presumption to uphold protective searches conducted during drug investigations because reasonable suspicion is evaluated under the totality of the circumstances. She also maintains that when the evidence is subjected to the totality standard, the search of her handbag cannot pass constitutional muster because Officer Russell did not observe any unusual behavior that would lead a reasonable person to conclude that Appellant was armed and dangerous. Surprisingly, the Commonwealth has changed its position on the legality of the search, and it now concedes that the

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contraband recovered from the handbag should have been suppressed.[4]
Nevertheless, we will conduct an independent analysis to resolve the apparent conflict with Zhahir and to clarify our position on the use of the “guns follow drugs” presumption in this context.

The United States Supreme Court addressed the constitutionality of protective searches in Terry v. Ohio, supra. Recognizing that “American criminals have a long tradition of armed violence,” the Court departed from traditional notions of Fourth Amendment jurisprudence and held that a law enforcement officer who approaches a citizen in the course of an investigation may conduct a pat-down search for weapons if the officer reasonably believes that the person is “armed and presently dangerous to the officer or to others.” Id. at 23-24. In adopting the reasonable suspicion standard, which enables police to stop and frisk suspects without probable cause, the Supreme Court stressed that a protective search cannot be premised on a good-faith belief that a threat of armed resistance existed; the arresting officer must be able to point to specific facts which support an objectively reasonable determination that the suspect was armed and dangerous. Id. a t 21-22. This indispensable requirement protects citizens from governmental overreaching because the officer’s conduct, viewed in light of the attendant circumstances, must withstand judicial scrutiny in order for a search or seizure to be upheld.[5] Id. at 21.

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Eleven years after Terry was decided, the Supreme Court grantedcertiorari in Ybarra v. Illinois, supra, to assess the constitutionality of an Illinois statute that authorized police officers to detain and search anyone present during the execution of a search warrant in order to detect concealed weapons and prevent the destruction of evidence sought in the warrant. The controversy arose after police obtained a warrant to search a tavern and its bartender based on information that the bartender often kept large quantities of heroin inside the establishment, presumably for sale to bar patrons. W hen investigators arrived to execute the warrant, they promptly frisked every individual on the premises for weapons. As an officer conducted a pat-down search of patron Ventura Ybarra, he felt a cigarette pack in Ybarra’s pants pocket that contained several small objects. The officer subsequently retrieved the cigarette pack, inspected the interior, and discovered six packets of heroin. Ybarra was arrested and convicted of heroin possession after a judge refused to suppress the drugs on Fourth Amendment grounds.

The United States Supreme Court reviewed the case and concluded that the heroin was the fruit of an illegal search. In reversing the judgment, the Court rejected the state’s contention that the initial pat-down search was justified under Terry, reasoning that police cannot frisk an individual merely because he happens to be present when investigators enter a building to execute a drug-related search warrant. The Court stated:

The initial frisk of Ybarra was simply not supported by a reasonable belief that he was armed and presently dangerous, a belief which this Court has invariably held must form the predicate to a patdown of a person for weapons. Adams v. Williams,

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407 U.S. 143, 146; Terry v. Ohio, supra, at 21-24, 27. When the police entered the Aurora Tap Tavern on March 1, 1976, the lighting was sufficient for them to observe the customers. Upon seeing Ybarra, they neither recognized him as a person with a criminal history nor had any particular reason to believe that he might be inclined to assault them. Moreover, as Police Agent Johnson later testified, Ybarra, whose hands were empty, gave no indication of possessing a weapon, made no gestures or other actions indicative of an intent to commit an assault, and acted generally in a manner that was not threatening. A t the suppression hearing, the most Agent Johnson could point to was that Ybarra was wearing a 3/4-length lumber jacket, clothing which the State admits could be expected on almost any tavern patron in Illinois in early March. In short, the State is unable to articulate any specific fact that would have justified a police officer at the scene in even suspecting that Ybarra was armed and dangerous.
The Terry case created an exception to the requirement of probable cause, an exception whose “narrow scope” this Court “has been careful to maintain.” Under that doctrine a law enforcement officer, for his own protection and safety, may conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted. See, e.g., Adams v. Williams, supra (at night, in high-crime district, lone police officer approached person believed by officer to possess gun and narcotics). Nothing in Terry can be understood to allow a generalized “cursory search for weapons” or, indeed, any search whatever for anything but weapons. The “narrow scope” of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place.

Id. at 92-94 (footnotes omitted).

Thus, notwithstanding Ybarra’s proximity to the target of a narcotics investigation, the Supreme Court invalidated the search and reaffirmed that police cannot frisk an individual for weapons unless the officer observes suspicious behavior or has prior knowledge of the individual’s criminal propensities. In Michigan v. Long, 463 U.S. 1032

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(1983), the Court explained that this rule applies not only to pat-down searches of the human body but to any search conducted pursuant to Terry. [6] Consistent with that position, the Long Court held that police can search the passenger compartment of an automobile for weapons during a roadside encounter “as long as they possess an articulable and objectionably reasonable belief that the suspect is potentially dangerous.” Id. at 1051.

These cases instruct that a protective search cannot be justified underTerry unless the officer can articulate facts that establish an individualized, objective basis for perceiving a threat of armed violence. In developing this precedent, the Supreme Court has made it abundantly clear that an individual’s location, standing alone, does not provide sufficient grounds for a Terry search. Ybarra, supra; see alsoMaryland v. Buie, 494 U.S. 325, 334 n. 2 (1990) (“Even in high crime areas, where the possibility that any given individual is armed is significant, Terry requires individualized, reasonable suspicion before a frisk for weapons can be conducted.”). Furthermore, as we observed inCommonwealth v. Zhahir, supra, courts cannot abandon the totality-of-the-circumstances test and rely exclusively upon the preconceived notion that certain types of criminals regularly carry weapons.

The defendant in Zhahir was arrested on drug charges after a lawful pat-down search of his person led to the discovery of ninety-eight vials of crack cocaine. His motion to suppress the cocaine was denied, and he was convicted on all counts. The Superior Court found that the cocaine was properly seized under the plain feel doctrine, which had not yet been adopted in Pennsylvania, and we granted review.[7] T he defendant urged us to

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reject the plain feel doctrine on the basis that some courts had rendered decisions indicating that they were predisposed to uphold protective searches of drug suspects. Specifically, the defendant complained that judges had begun to take judicial notice that drug traffickers are frequently armed, thereby diminishing the protections afforded by Terryv. Ohio. The Zhahir Court condemned that practice, stating that “as a general policy consideration, taking judicial notice that all drug dealers may be armed as in and of itself a sufficient justification for a weapons frisk clashes with the totality [of the circumstances] standard, as well as the premise that the concern for the safety of the officer must arise from the facts and circumstances of the particular case.” Id.
at 1162.

Zhahir is illustrative of our longstanding adherence to the principles derived from Terry and its progeny. Pennsylvania courts have always followed Terry regardless of whether the appellant’s claim was predicated on the Fourth Amendment or Article I, Section 8 of the Pennsylvania Constitution.[8] See Commonwealth v. Chase, 960 A.2d 108, 117 (Pa. 2008). As a result, we have repeatedly declined to lessen the restrictions on protective searches despite claims that drug investigations often unearth weapons. See Commonwealth v. Rodriguez, 614 A.2d 1378, 1383 (Pa. 1992) (refusing to lower the reasonable suspicion standard to help police fight the “war on drugs”); cf.Commonwealth v. Lovette, 450 A.2d 975, 980 (Pa. 1982) (advocating scrupulous adherence to Terry and

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denouncing unnecessary police conduct that “increased the intrusiveness of the encounter”). We see no reason to deviate from this precedent in the case at bar.

By her own admission, Officer Russell conducted a protective search of Appellant’s purse based on a generalization that firearms are commonly found in close proximity to illegal drugs. N o one from the task force knew if Appellant had a criminal record, and there was no indication that D.W. and Appellant were involved in a common enterprise. Indeed, the police witnessed a single drug transaction, and it occurred outside of Appellant’s presence. Furthermore, upon entering the house, Officer Russell did not detect any unusual behavior or furtive movements on Appellant’s part nor did she observe a suspicious bulge in Appellant’s purse. Since the Commonwealth failed to elicit any facts that supported an objectively reasonable belief that Appellant was armed and dangerous, the Superior Court’s decision cannot be sustained.[9] See Commonwealth v.Reece, 263 A.2d 463, 466 (Pa. 1970) (police officer lacked reasonable suspicion to search defendant for weapons because officer did not possess any background information on defendant, and defendant’s conduct did not convey threat of danger to officer).

For the reasons stated herein, we find that the courts below erred in concluding that Officer Russell had reasonable suspicion to conduct a protective search of Appellant’s handbag pursuant to Terry. As notedsupra, 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. Thus, consistent with Ybarra, the contraband discovered in Appellant’s handbag should have been suppressed.

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The order of the Superior Court is reversed.

Mr. Chief Justice Castille and Messrs. Justice Saylor and Baer join the opinion.

Mr. Justice Eakin files a concurring opinion in which Mr. Justice McCaffery joins.

Madame Justice Todd files a concurring opinion.

MADAME JUSTICE TODD.

CONCURRING OPINION
I concur in the result reached by the Majority and support its rejection of a “guns follow drugs” presumption to justify a protective search for weapons. I write separately, however, to express my disagreement with certain foundational aspects of the Majority Opinion.

Initially, I note that the Majority sets forth an incomplete recitation of the investigative stop standard as articulated by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968) and its progeny. Specifically, the Majority offers that the United States Supreme Court inTerry held that “a law enforcement officer who approaches a citizen in the course of an investigation may conduct a pat-down search for weapons if the officer reasonably believes that the person is `armed and presently dangerous to the officer or to others.'” Majority Opinion at 6 (quoting Terry, 392 U.S. at 23-24). This rendition of the Terry
standard, however, is incomplete, as the investigatory stop must initially be lawful before a

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pat-down search for weapons may be conducted. As more fully developed by the high Court, “[t]he Court [in Terry] upheld `stop and frisk’ as constitutionally permissible if two conditions are met. First, the investigatory stop must be lawful. That requirement is met in an on-the-street encounter, Terry determined, when 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 stopped is armed and dangerous.” Arizona v. Johnson, 129 S.Ct. 781, 784 (2009).

Furthermore, I believe the Majority’s articulation of the standard morphs from a standard that echoes Terry, to one that is at best imprecise, and arguably incorrect. Compare Majority Opinion at 6 (“arresting officer must be able to point to specific facts which support an objectively reasonable determination that the suspect was armed and dangerous”) with Majority Opinion at 8 (“police cannot frisk an individual for weapons unless the officer observes suspicious behavior or has prior knowledge of the individual’s criminal propensities.”).

Most importantly, while the Majority properly offers that “the arresting officer must be able to point to specific facts which support an objectively reasonable determination that the suspect was armed and dangerous,” Majority Opinion at 6 (quoting Terry, 392 U.S. at 21-22), and that “a protective search cannot be justified under Terry unless the officer can articulate facts that establish an individualized, objective basis for perceiving a threat of armed violence,” Majority Opinion at 9, in analyzing whether a stop and frisk under Terry was justified, the Majority looks to factors that are wholly divorced from its previously-stated standards.

Specifically, the Majority observes that no one “from the task force knew if Appellant had a criminal record,” Majority Opinion at 11, a factor that, without more, such as a criminal history of violence, is unrelated to an individualized basis for perceiving a threat of being armed and dangerous. Similarly, the Majority states as a permissible consideration

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that “there was no indication that D.W. and Appellant were involved in a common enterprise,” Majority Opinion at 11, again, a factor irrelevant to the issue of whether the individual was potentially violent. Finally, the Majority opines that Appellant’s presence “during the drug transaction or D.W.’s subsequent arrest” were factors that could inform the question of whether one was potentially threatening to a police officer’s safety. Majority Opinion at 11 n. 9. Curiously, these factors set forth by the Majority all share a strong likeness to the “guns follow drugs” presumption that the Majority properly rejects. Contrary to the Majority, I would limit the analysis under Terry t o those factors which are indicative of whether a police officer reasonably believes an individual is armed and presently dangerous.

For these reasons, I concur in the result reached by the Majority.

MR. JUSTICE EAKIN.

CONCURRING OPINION
I concur with the majority’s holding that the Commonwealth did not articulate reasonable suspicion, justifying a search of Appellant’s purse. I write separately as I believe the proper disposition would have been to grant the appeal, vacate the Superior Court’s order, and remand for a new trial.

As noted by the majority, the Commonwealth changed its position and now concedes “on the particular facts of this case, [Appellant’s] suppression motion should have been granted.” Brief for Appellee, at 2. The Commonwealth acknowledges:

[Appellant] was not a party to any drug transaction; she was not present when the drugs were sold or when the drug seller was arrested outside the residence, and may well have been unaware of any criminal activity; the police did not have a search warrant; they were not faced with exigent circumstances of any kind; the record fails to show that the officer who searched [Appellant’s] pocketbook had any relevant prior experience; and the officer did not refer to anything about [Appellant’s] appearance, movements or conduct that raised a safety concern. Under the totality of the circumstances, the suppression hearing transcript fails to show that the search was valid.

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Id., at 5.

As the Commonwealth’s current position renders the issue moot, there is no need to delve into the detailed “guns follow drugs” analysis. The frequency with which weapons appear in the drug trade may be a factor in determining if there is justification for a Terry search, but it is of course not the only factor in a “totality of the circumstances” analysis. In this way, it is akin to the “high crime area” analysis — presence in a high crime area alone is not sufficient to allow a search or seizure, but when combined with other factors, could establish either reasonable suspicion or probable cause. See Commonwealth v. Thompson, 985 A.2d 928, 936 (Pa. 2009) (defendant’s transaction on street in high crime area at night, coupled with officer’s experience involving similar drug-related transactions, provided probable cause for search and seizure); In the Interest of D.M., 781 A.2d 1161, 1164 (Pa. 2001) (“[U]nprovoked flight in a high crime area is sufficient to create a reasonable suspicion to justify a Terry stop under the Fourth Amendment.”).

Accordingly, I agree with the majority that the Superior Court’s order needs to be reversed; however, it is unnecessary to use a moot case as a vehicle to discuss the so-called “guns follow drugs” factor, [1] and an order granting, vacating, and remanding would have been more appropriate.

Mr. Justice McCaffery joins this opinion.

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