plain feel doctrine in Pennsylvania

2022Courts in Pennsylvania have addressed the issue whether an unknown, small, hard object felt in a plastic “container” during a Terry frisk is immediately apparent as drugs, when thought to be consistent with the packaging of drugs, Stevenson, supra, at 1267 (officer felt small, hard object wrapped in plastic and determined it was crack cocaine only after conducting further search — squeezing and manipulating the object — and its seizure was not justified by the plain feel doctrine); compare Zhahir, supra, at 1163 (defendant had 91 pieces of crack cocaine inside two bags, which obviously would h

2022See Stevenson, 744 A.2d at 1265 (“If, after feeling the object, the officer lacks probable cause to believe that the object is contraband without conducting some further search, the immediately-apparent requirement has not been met, and the plain feel doctrine cannot justify the seizure of the object.”).

2024Nevertheless, under the plain feel doctrine, an officer may seize non-threatening contraband detected through the officer’s sense of touch during a Terry frisk if the officer is lawfully in a position to detect the presence of contraband, the incriminating nature of the contraband is immediately apparent from its tactile impression[,] and the officer -7- J-A01013-24 has a lawful right of access to the object. [Minnesota v.] Dickerson, 508 U.S. 366 [,] 373-75 [(1993).] As Dickerson makes clear, the plain feel doctrine is only applicable where the officer conducting the frisk feels an object who

2024In Dickerson, the United States Supreme Court applied the plain feel doctrine and found the seizure of the contraband was unconstitutional. 508 U.S. at 379 .

2020If, after feeling the object, the officer lacks probable cause to believe that the object is contraband without conducting some further search, the immediately apparent requirement has not been met and the plain feel doctrine cannot justify the seizure of the object. - 23 - J-A28012-19 Commonwealth v. Pakacki, 587 Pa. 511, 521 , 901 A.2d 983, 989 (2006) (citation and quotation omitted).

2020If, after feeling the object, the officer lacks probable cause to believe that the object is contraband without conducting some further search, the immediately apparent requirement has not been met and the plain feel doctrine cannot justify the seizure of the object. - 23 - J-A28012-19 Commonwealth v. Pakacki, 587 Pa. 511, 521 , 901 A.2d 983, 989 (2006) (citation and quotation omitted).

2022Courts in Pennsylvania have addressed the issue whether an unknown, small, hard object felt in a plastic “container” during a Terry frisk is immediately apparent as drugs, when thought to be consistent with the packaging of drugs, Stevenson, supra, at 1267 (officer felt small, hard object wrapped in plastic and determined it was crack cocaine only after conducting further search — squeezing and manipulating the object — and its seizure was not justified by the plain feel doctrine); compare Zhahir, supra, at 1163 (defendant had 91 pieces of crack cocaine inside two bags, which obviously would h

2021This Court formally adopted the plain feel doctrine as consistent with Article I, Section 8 of the Pennsylvania Constitution in Commonwealth v. Zhahir, 751 A.2d 1153, 1163 (Pa. 2000).

2021Seeing that Officer Grant did not determine during the frisk that the unknown object was not a weapon, the present case [J-6-2021] - 18 is unlike Commonwealth v. Graham, 721 A.2d 1075, 1079-80 (Pa. 1998) (plurality) and Commonwealth v. E.M., 735 A.2d 654, 660-62 (Pa. 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.

2014The plain feel doctrine is “an extremely narrow exception to the warrant requirement.” Commonwealth v. Graham, 721 A.2d 1075, 1081 (Pa. 1998) citing Minnesota v. Dickerson, 508 U.S. at 375, 113 S.Ct. at 2137.

2018Additionally, officers may seize nonthreatening contraband “if it is discovered in compliance with the plain feel doctrine[.]” Id.

2018“If, after feeling the object, the officer lacks probable cause to believe that the object is contraband without conducting some further search, the immediately apparent requirement has not been met and the plain feel doctrine cannot justify the seizure of the object.” Thompson, 939 A.2d at 376 ; see also Commonwealth v. Zahir, 751 A.2d 1153, 1163 (Pa. 2000) (noting that an officer’s subjective belief that an item is contraband is not sufficient unless it is objectively reasonable in light of the facts and circumstances that attended the frisk).

2021Seeing that Officer Grant did not determine during the frisk that the unknown object was not a weapon, the present case [J-6-2021] - 18 is unlike Commonwealth v. Graham, 721 A.2d 1075, 1079-80 (Pa. 1998) (plurality) and Commonwealth v. E.M., 735 A.2d 654, 660-62 (Pa. 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.

2018See Commonwealth v. E.M., 735 A.2d 654, 663 (Pa. 1999) (holding that testimony from officer that the bulge in defendant’s pocket “may have been contraband” did not meet the “immediately apparent” standard necessary to seize the object pursuant to the plain feel doctrine as the officer “offered no testimony indicating what it was about the mass or contour of this soft bulge which would support a finding that the feeling of the bulge made it immediately apparent to him that the bulge was contraband,” or state what type of contraband was in the pocket); Commonwealth v. Stevenson, 744 A.2d 1261, 1

2020Here, Officer Gross provided no basis for his belief that the mass and contour of the bundles made it immediately apparent that they contained heroin.2 See Commonwealth v. Wilson, 927 A.2d 279, 287 (Pa. Super. 2007) (recognizing that the plain feel doctrine exists as an exception to allow for the seizure of “non-threatening contraband” when the officer feels an object “whose mass or contour makes its criminal character immediately ____________________________________________ 2 Further, Officer Gross testified that there were two separate bundles of heroin, on top of each other, and each held t

2017Under the plain feel doctrine, “a police officer may seize non- threatening contraband detected through the officer’s sense of touch during a Terry frisk if the officer is lawfully in a position to detect the presence of contraband, the incriminating nature of the contraband is immediately apparent from its tactile impression and the officer has a lawful right of access to the object.” Commonwealth v. Wilson, 927 A.2d 279, 287 (Pa. Super. 2007).

2016In Commonwealth v. Mesa, 683 A.2d 643 (Pa. Super. 1996), we concluded an officer exceeded the scope of the plain feel doctrine because the officer “stated that he made no observations of the bulge until he reached into appellant’s pocket and pulled out what was in there.” Id. at 648 (internal quotation marks and brackets omitted).

2016In Commonwealth v. Mesa, 683 A.2d 643 (Pa. Super. 1996), we concluded an officer exceeded the scope of the plain feel doctrine because the officer “stated that he made no observations of the bulge until he reached into appellant’s pocket and pulled out what was in there.” Id. at 648 (internal quotation marks and brackets omitted).

2021In Stackfield, this Court held that feeling a zip-lock baggie without feeling its contents does not meet the immediately-apparent test of the plain feel doctrine. 651 A.2d at 562 .

2018See Stevenson, 744 A.2d at 1268 (stating that officer’s testimony that the cardboard he felt in the defendant’s pocket was contraband as he had previously seen drugs packaged in cardboard does not meet the immediately apparent requirement); id. (noting that “[t]he mere fact that an officer has seen others use an object to package drugs, however, does not mean that once the officer feels that object during a pat-down search of a different individual, he automatically acquires probable cause to seize the object under the plain feel doctrine as something that is ‘immediately apparent’ as contraba

2020We disagree with Appellant’s assertion. “[I]f an 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.” Minnesota v. Dickerson, 508 U.S. 366, 367 (1993); see also Parker, 957 A.2d at 315 (“If it becomes clear to the police officer during the pat-down that the suspect does not have any weapons on his person, the plain feel doctrine exists as an exception to allow for the seizure of non-threateni

2020But see Commonwealth v. Parker, 957 A.2d 311, 316 (Pa. Super. 2008) (upholding the application of the plain feel doctrine where an officer conducting the pat-down search felt two plastic bags in the defendant’s cargo pocket, with some “hard, rigid objects,” which he believed were crack cocaine, based on his training and experience).

2026See id.; see also Commonwealth v. Fink, 700 A.2d 447, 451 (Pa. Super. 1997) (officer was authorized to perform a “pat down” of a suspect but exceeded the scope of consent to the “pat down” by seizing a marijuana pipe and other paraphernalia from the suspect’s pockets when those objects were not “immediately apparent” to the officer they were contraband); Mesa, 683 A.2d at 647-48 (concluding an officer was permitted to perform a “pat down” search for weapons, but exceeded his authority when he felt a bulge that he believed could be contraband, pulled it out, and discovered folded money and a pa

2000In Commonwealth v. Fink, a case which examined the immediately apparent requirement of the plain feel doctrine, the arresting officer testified that during a pat-down search of the defendant he felt an object resembling “a regular smoking pipe without the stem.” 700 A.2d 447, 450 (Pa.Super.1997), appeal denied, 552 Pa. 694 , 716 A.2d 1247 (1998).

2018See Stevenson, 744 A.2d at 1268 (stating that officer’s testimony that the cardboard he felt in the defendant’s pocket was contraband as he had previously seen drugs packaged in cardboard does not meet the immediately apparent requirement); id. (noting that “[t]he mere fact that an officer has seen others use an object to package drugs, however, does not mean that once the officer feels that object during a pat-down search of a different individual, he automatically acquires probable cause to seize the object under the plain feel doctrine as something that is ‘immediately apparent’ as contraba

2018See Stevenson, 744 A.2d at 1268 (stating that officer’s testimony that the cardboard he felt in the defendant’s pocket was contraband as he had previously seen drugs packaged in cardboard does not meet the immediately apparent requirement); id. (noting that “[t]he mere fact that an officer has seen others use an object to package drugs, however, does not mean that once the officer feels that object during a pat-down search of a different individual, he automatically acquires probable cause to seize the object under the plain feel doctrine as something that is ‘immediately apparent’ as contraba

2017Similarly, in Commonwealth v. Bryant, 866 A.2d 1143 (Pa. Super. 2005), we upheld a search where the officer conducting the pat down immediately recognized the object as packaged drugs due to his experience in over 100 drug arrests and his familiarity with the packaging and feel of packaged drugs.5 Bryant, 866 A.2d at 1147 . 5 Conversely, the plain feel exception is not satisfied when the officer only feels a pill bottle, see Commonwealth v. Guillespie, 745 A.2d 654, 658 (Pa. Super. 2000), or only a zip-lock baggie, see Commonwealth v. Stackfield, 651 A.2d 558, 562 (Pa. Super. 1994) (“[a] zip-l

2016See Commonwealth v. Stevenson, 744 A.2d 1261, 1266 (Pa. 2000) (stating, “the plain feel doctrine is not met when an officer conducting a Terry frisk merely feels and recognizes by touch an object that could be used to hold either legal or illegal substances, even when the officer has previously seen others use that object to carry or ingest drugs[]”); Commonwealth v. Guillespie, 745 A.2d 654, 658 (Pa. Super. 2000) (concluding that the plain feel exception did not apply where the officer only felt pill bottles in the defendant’s pocket and did not immediately seize the item when felt); Commonwe

2015Notably, the immediately apparent determination “is essentially coextensive with a probable cause inquiry, ‘taking into account the totality of the circumstances surrounding the frisk, including, inter alia, the nature of the object, its location, the conduct of the suspect, the officer’s experience, and the reason for the stop.’” In re C.C., 780 A.2d 696, 699 (Pa. Super. 2001) (citation omitted), appeal denied, 792 A.2d 1251 (Pa. 2001).. -9- J-A30023-14 Here, we conclude that the trial court did not err in finding that Officer Cowdery properly seized the baggies pursuant to the plain feel doc

2015See Stevenson, supra at 1265 ; In re C.C., supra. Based on the foregoing, we conclude that the trial court properly denied Appellant’s motion to suppress.

2024On March 28, 2023, Corbin filed a pro so “Motion for Recognition,” asking the trial court to accept his Rule 1925(b) statement, which the court granted on April 4, 2023. 5 Terry v. Ohio, 392 U.S. 1 (1968). -4- J-A01013-24 not immediately detectable based upon its tactile impression, in violation of the plain feel doctrine? 2.

2024On March 28, 2023, Corbin filed a pro so “Motion for Recognition,” asking the trial court to accept his Rule 1925(b) statement, which the court granted on April 4, 2023. 5 Terry v. Ohio, 392 U.S. 1 (1968). -4- J-A01013-24 not immediately detectable based upon its tactile impression, in violation of the plain feel doctrine? 2.

2022Courts in Pennsylvania have addressed the issue whether an unknown, small, hard object felt in a plastic “container” during a Terry frisk is immediately apparent as drugs, when thought to be consistent with the packaging of drugs, Stevenson, supra, at 1267 (officer felt small, hard object wrapped in plastic and determined it was crack cocaine only after conducting further search — squeezing and manipulating the object — and its seizure was not justified by the plain feel doctrine); compare Zhahir, supra, at 1163 (defendant had 91 pieces of crack cocaine inside two bags, which obviously would h

2017Similarly, in Commonwealth v. Bryant, 866 A.2d 1143 (Pa. Super. 2005), we upheld a search where the officer conducting the pat down immediately recognized the object as packaged drugs due to his experience in over 100 drug arrests and his familiarity with the packaging and feel of packaged drugs.5 Bryant, 866 A.2d at 1147 . 5 Conversely, the plain feel exception is not satisfied when the officer only feels a pill bottle, see Commonwealth v. Guillespie, 745 A.2d 654, 658 (Pa. Super. 2000), or only a zip-lock baggie, see Commonwealth v. Stackfield, 651 A.2d 558, 562 (Pa. Super. 1994) (“[a] zip-l

2021Taylor, 771 A.2d at 1269 n.4.

2007See Taylor, 771 A.2d at 1269 n. 4 (stating that since the officer testified that the object in the appellant’s pocket felt like a weapon, and not contraband, the validity of the search depends on a Terry analysis rather than the plain feel doctrine). ¶ 17 Pursuant to the plain view doctrine, the warrantless seizure of a piece of evidence is justified when (1) the officer is at a lawful vantage-point, (2) the incriminating character of the object is immediately apparent, and (3) the officer has a lawful right of access to the object.

2017The officer in Griffin testified that he had discovered contraband on the defendant via the plain feel doctrine, whereas a video of the incident “clearly depict[ed] the officer repeatedly manipulating [the] appellant's pocket.” Id. at 1143 (emphasis added).

2017In light of that evidence, we stated, “this is one of those rare cases where a dash cam video, which was -6- J-S53008-17 made a part of the certified record, can contradict a trial court's factual finding often based on its credibility determinations.” Id.

2000Id. at 1108-09 (internal quotations omitted) (citations omitted); accord Commonwealth v. Crowder, 884 S.W.2d 649, 652 (Ky.1994)(eoncluding that limited application of the plain feel doctrine does not violate Section 10 of the Kentucky Constitution).

2000Id. at 1108-09 (internal quotations omitted) (citations omitted); accord Commonwealth v. Crowder, 884 S.W.2d 649, 652 (Ky. 1994)(concluding that limited application of the plain feel doctrine does not violate Section 10 of the Kentucky Constitution).

2000See People v. Diaz, 81 N.Y.2d 106 , 595 N.Y.S.2d 940 , 612 N.E.2d 298, 302 (1993). 7 In reaching its conclusion, the Diaz court reasoned that the sense of touch is less reliable than the sense of sight, and that allowing police to expand weapons searches in the hunt for other contraband fosters potential abuses.

2000See People v. Diaz, 81 N.Y.2d 106 , 595 N.Y.S.2d 940 , 612 N.E.2d 298, 302 (1993). 7 In reaching its conclusion, the Diaz court reasoned that the sense of touch is less reliable than the sense of sight, and that allowing police to expand weapons searches in the hunt for other contraband fosters potential abuses.

2000Earlier this year this Court applied Dickerson in Commonwealth v. E.M. 558 Pa. 16 , 735 A.2d 654 (1999), reiterating that, in order for the plain feel doctrine to apply, the criminal nature of the object must be “immediately apparent” to the officer conducting the frisk.

2000In addition, Zhahir maintains that the adoption of plain feel “would turn a narrow exception to the probable cause and warrant requirements into a facile excuse for further, more coercive intrusions into citizen’s (sic) very bodies[,] ... would be impossible to enforce, and would require courts to analyze increasingly arcane distinctions of fact without meaningful guidance.” Although in recent cases decided under the Fourth Amendment, this Court recognized the plain feel doctrine and addressed its parameters, see Commonwealth v. E.M., 558 Pa. 16, 32 , 735 A.2d 654, 663 (1999); Commonwealth v.

2024See Appellant’s Brief, at 13-15, citing Terry, supra and Wong Sun v. United States, 371 U.S. 471 (1965).

2024See Appellant’s Brief, at 13-15, citing Terry, supra and Wong Sun v. United States, 371 U.S. 471 (1965).

2022See e.g., Spears, 743 A.2d 512 (finding no probable cause to satisfy plain feel doctrine where officer felt a “plastic and hard substance” during a pat-down and further investigation was needed to identify it as crack cocaine).