In the Interest of: T.W.; Apl: T.W.

[J-6-2021] [MO: Mundy, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

IN THE INTEREST OF: T.W., A MINOR : No. 22 EAP 2020

APPEAL OF : T.W. :

: Appeal from the Judgment of

: Superior Court entered on February

: 4, 2020 at No. 2390 EDA 2018

: affirming the Order entered on July

: 10, 2018 in the Court of Common

: Pleas of Philadelphia County,

: Juvenile Division, at No. CP-51-JV-

: 0001105-2018

:

: ARGUED: March 9, 2021

CONCURRING AND DISSENTING OPINION

JUSTICE DONOHUE DECIDED: October 20, 2021

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 (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 (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 (1979).

1 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 22. 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.

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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 (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 8

(emphases omitted), does not adequately account for Dunaway v. New York, 442 U.S.

200 (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 (citing Terry, 392 U.S. at 20). 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. The Dunaway Court further recognized that

“Terry departed from traditional Fourth Amendment analysis in two respects.” Dunaway,

442 U.S. at 209–10. The first was that Terry “defined a special category of Fourth

Amendment ‘seizures’ so substantially less intrusive than arrests” which called for a

2 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.

[J-6-2021] [MO: Mundy, J.] - 3

balancing test. Id. at 210. 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 8, 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

3 I do not agree that Commonwealth v. Revere, 888 A.2d 694 (Pa. 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.

[J-6-2021] [MO: Mundy, J.] - 4

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 8 (“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. 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 (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 16, 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., 79 A.3d 1073, 1086 (Pa. 2013). The record “is to be read in the light

most favorable to the prevailing party[.]” Commonwealth v. Cost, 224 A.3d 641, 650 (Pa.

[J-6-2021] [MO: Mundy, J.] - 5

2020). The Majority holds that the Commonwealth met its burden to establish a

“reasonable suspicion that the object is a weapon[,]” Majority Op. at 17, 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 18.

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

4 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 8

(quoting Terry, 392 U.S. at 29). 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 (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 (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. 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

[J-6-2021] [MO: Mundy, J.] - 6

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 (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

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.”).

5 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.

[J-6-2021] [MO: Mundy, J.] - 7

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, 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

[J-6-2021] [MO: Mundy, J.] - 8

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 21, 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

6 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

[J-6-2021] [MO: Mundy, J.] - 9

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 22. 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

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.”).

7 Justice Dougherty claims my concern is that prosecutors will elicit “less detailed”

testimony than that presented here. Concurring Op. at 24 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 24 (“[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

[J-6-2021] [MO: Mundy, J.] - 10

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 (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

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.”

8 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.

[J-6-2021] [MO: Mundy, J.] - 11

warrantless seizure would be justified by the same practical

considerations that inhere in the plain-view context.

Id. at 375–76.

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 18. 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 15–16. Indeed, the

Majority acknowledges that Dickerson’s “plain feel doctrine is an extremely narrow

doctrine[.]” Id. at 14. However, the Majority fails to recognize that the narrow applicability

of Dickerson favors T.W. Stated differently, the Majority expands the otherwise-narrow

9 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 (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.

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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.

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