Opinion

Com. v. Herlth, J.

  • 2025 Pa. Super. 73
Court
Superior Court of Pennsylvania
Filed
Mar 24, 2025
Status
Published
On the bench
Bowes
Cited by
1 cases
Authority
More cited than 46.7%

The opinion

J-A23033-24 2025 PA Super 73

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JAMES LEE HERLTH :

:

Appellant : No. 183 MDA 2024

Appeal from the Judgment of Sentence Entered December 7, 2023

In the Court of Common Pleas of York County Criminal Division at No(s):

CP-67-CR-0005812-2022

BEFORE: BOWES, J., OLSON, J., and STABILE, J.

DISSENTING OPINION BY BOWES, J.: FILED: MARCH 24, 2025

In my view, Pennsylvania State Trooper Dylan Adams did not execute

an unconstitutional search by shining his flashlight into a shoebox’s one-inch

manufacturer’s hole and observing capsules filled with drugs because the

contraband was in plain view. Accordingly, I would uphold the trial court’s

order denying suppression and affirm Appellant’s judgment of sentence. I

therefore respectfully dissent.

The Majority aptly recounts the factual background of this matter, so I

need not do so at length. It suffices to reiterate that during the incident in

question, Trooper Adams was lawfully at Appellant’s residence aiding

emergency medical personnel who were responding to Appellant’s overdose.

While standing in the living room immediately near Appellant, the trooper

observed a shoebox less than a foot away and which contained on the side a

ventilation hole. Without taking any steps to move or otherwise manipulate

J-A23033-24

the box, he shined his flashlight into the hole, wherein he could distinctly see

a transparent baggy containing white “scramble capsules,” which are

transparent capsules containing a mixture of drugs. Trooper Adams testified

that upon viewing the baggie’s contents, he was “100 percent confident” that

they were scramble capsules based on his training and experience. See N.T.

Hearing, 3/16/23, at 8. He therefore opened the shoebox and seized the

baggie, as well as other incriminating items contained within the box, without

first obtaining a warrant. After being charged with a single count of possession

with intent to distribute, Appellant filed a motion to suppress, which the trial

court denied. Appellant was subsequently convicted of that crime.

Appellant’s sole contention on appeal is that the court erred in denying

his suppression motion. My esteemed colleagues cogently and accurately

recite the applicable legal principles relevant to this issue. Therefore, I only

briefly restate the most salient points:

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 [the evidence offered by the

Commonwealth and] so much of the evidence for the defense as

remains uncontradicted when read in the context of the

suppression record as a whole.

Interest of T.W., 261 A.3d 409, 416 (Pa. 2021) (citation omitted).

Further, “[t]he Fourth Amendment to the United States Constitution,

incorporated to the states by and through the Fourteenth Amendment to the

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United States Constitution, and Article I, [§] 8 of the Pennsylvania Constitution

protect citizens from ‘unreasonable searches and seizures.’” Id. “Generally,

for a search or seizure to be reasonable under the Fourth Amendment and

Article I, [§] 8, police officers must first 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.” Id. (cleaned up).

One such exception is the plain-view doctrine.1 See Commonwealth

v. Bumbarger, 231 A.3d 10, 19-20 (Pa.Super. 2020) (“The plain view

doctrine provides that evidence in plain view of the police can be seized

without a warrant.” (citation omitted)). Specifically, the exception permits

“the warrantless seizure of an object when: (1) an officer views the object

from a lawful vantage point; (2) it is immediately apparent to him that the

object is incriminating; and (3) the officer has a lawful right of access to the

object.” Id. at 20 (citation omitted).

Based on this standard as articulated, I would determine that Trooper

Adams’s actions satisfied all three criteria. There is no doubt, as the Majority

acknowledges, that the trooper was in a lawful vantage point at the time of

the seizure since he was aiding emergency personnel in Appellant’s living room

in response to an overdose and was engaged in a community caretaking

____________________________________________

1 Before discussing this exception, the Majority initially determines that

Appellant held a reasonable expectation of privacy regarding the items

contained within the shoebox. See Majority Opinion at 4-5. I agree as to this

point.

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function. See Majority Opinion at 9. The second prong was met because,

upon looking into the shoebox hole with the flashlight, the trooper immediately

ascertained that the scramble capsules were illegal contraband. Finally, by

observing the capsules without having previously taken any action to

improperly manipulate or otherwise “search” by feel the box in which they

were stored, coupled with their obviously incriminating nature, Trooper Adams

had a lawful right to access them.

As the Commonwealth contends, I believe that this matter falls in line

with the historical cases establishing that officers may use a flashlight to

illuminate incriminating evidence when they are in a legal vantage point, so

long as they do not otherwise exceed the constraints of their authority. See,

e.g., Texas v. Brown, 460 U.S. 730, 740 (1983) (finding that an officer’s

conduct of shining a flashlight into a stopped car and changing his position to

get a better view of certain angles inside the car did not violate the Fourth

Amendment); Commonwealth v. Jones, 978 A.2d 1000, 1005 (Pa.Super.

2009) (concluding that the plain view exception was met when “officers did

nothing more than illuminate activity, two individuals standing on the porch

of a suspected drug house, which they could already readily observe from a

lawful and non-intrusive vantage point”); Commonwealth v. Merkt, 600

A.2d 1297, 1299 (Pa.Super. 1992) (“Relevant case law on this issue clearly

shows the use of flashlights during the observation does not negate plain

visibility.”). From my review of this authority, it is apparent that use of a

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flashlight to illuminate an object is not, by itself, a “search” as that term is

used for constitutional purposes.

To the contrary, the Majority finds that the second prong under the plain

view doctrine was not met because the shoebox itself was not immediately

incriminating, and therefore the trooper lacked probable cause to search inside

of it with use of the flashlight. See Majority Opinion at 9-10. In the same

vein, it determines that the Commonwealth did not satisfy the third factor

because Trooper Adams lacked a lawful right of access to the scramble pills

inside the container. Id. at 10. In support of their position, my colleagues

primarily rely upon our High Court’s decision in Commonwealth v. Graham,

721 A.2d 1075 (Pa. 1998).

There, the officer in question performed a Terry frisk2 on Graham to

ascertain if he had weapons or contraband. The Graham Court summarized

that the officer “patted [Graham’s] back pockets and felt what he believed

was a Lifesavers Holes container. He shined a flashlight down into the pocket

and noticed a Lifesavers Holes container which appeared, and was later

determined to contain, 3.37 grams of crack cocaine.” Graham, 721 A.2d at

1076-77. On appeal, our High Court specifically found that the seizure was

unconstitutional because “shining a flashlight into [Graham]’s back pocket

____________________________________________

2 See Terry v. Ohio, 392 U.S. 1 (1968). This Court has stated that during

a Terry frisk, “a police officer may conduct a limited pat-down search of an

individual’s outer clothing in an attempt to discover the presence of weapons

which may be used to endanger the safety of police or others.”

Commonwealth v. Wilson, 927 A.2d 279, 285 (Pa.Super. 2007).

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extended the search beyond that authorized by Terry[.]” Id. at 80. The

Court also stated that the facts of that case were dissimilar to other scenarios

wherein police used flashlights to aid in seeing objects in plain view because

“the Lifesavers Holes container was not an exposed object.” Id.

I do not find Graham to be dispositive. As indicated, that matter

involved a distinct scenario wherein the officer began performing a limited

Terry pat search for weapons. After recognizing by feel that the container in

Graham’s pocket was not a weapon, the purpose of the frisk was completed,

and the search should have ended. However, the officer manipulated

Graham’s back pocket as part of the frisk while also illuminating its contents

with a flashlight. Hence, the officer was conducting a search which went well

beyond the need to detect weapons for officer safety.

The instant matter does not implicate Terry in any capacity, as Trooper

Adams did not conduct a frisk for weapons or perform any tactile search.

There was no testimony that he repositioned the box before utilizing his

flashlight, ascertained suspicion concerning the presence of any drug or drug

paraphernalia based on feel, or otherwise caused the capsules to be “exposed”

based on his conduct. Rather, as stated above, he satisfied the three elements

of the plain-view doctrine articulated in Bumbarger by merely peering into a

hole from a legal vantage point with the aid of his flashlight, without

performing any search beforehand or contemporaneously. See, e.g.,

Commonwealth v. Lehman, 402 A.2d 539, 541 (Pa.Super. 1979) (holding

that regardless of an officer’s intention, if he is in a lawful vantage point, he

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is permitted to use a flashlight “to bring into plain view what was hidden by

the darkness”).

This distinction is further highlighted by our Supreme Court’s decision

of Interest of T.W., which also entailed a Terry pat. In that case, a police

officer performed a frisk on a juvenile and felt a hard object in the juvenile’s

left pocket. The officer could not initially identify the object by feel, but feared

that it could be a weapon, so he seized it and identified it as a glass medication

bottle prescribed to another individual. See Interest of T.W., 261 A.3d at

414. In considering whether suppression of that evidence was proper, our

Supreme Court reaffirmed the settled proposition that items detected during

a Terry frisk could be removed in only two circumstances: the officer has

reasonable suspicion that the object is a weapon, or “it is immediately

apparent that the object is illegal contraband.” Id. at 422.

Importantly, the Interest of T.W. Court distinguished its facts from

Graham, attributing to Graham the legal proposition that it “was

unreasonable for the police officers in [that and a similar case] 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.” Id. at 423. In other

words, our High Court in Interest of T.W. recognized that Graham was a

case involving the boundaries of Terry and the “plain feel” doctrine. Thus,

although the Court in Graham did discuss and address plain view, the holding

was nevertheless informed by the fact that the officers exceeded the limits of

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a Terry pat in conjunction with the use of a flashlight. Here, however, since

Trooper Adams did not remove or seize the capsules following a frisk, I find

that Graham is inapposite.3

In sum, when Trooper Adams was performing a community caretaking

function, he was not required to avert his gaze from incriminating evidence

that could be seen from his legal vantage point. Further, the fact that the

capsules were visible through the hole placed them within the purview of plain

view because the container did not conceal those particular contents from

visibility, and he did not need to perform a “search” prior to discovering them.

For the reasons above, I conclude that the trial court did not err in

denying Appellant’s motion to suppress and would therefore affirm the

judgment of sentence.

____________________________________________

3 I am likewise not persuaded by the Majority’s reliance on Commonwealth

v. Norris, 446 A.2d 246 (Pa. 1982), which is plainly distinguishable. There,

the officers in question securely arrested a defendant in his apartment and

determined that there was no one else present to endanger them after a brief

sweep. Nonetheless, they lifted a mattress in a bedroom and seized a firearm

found thereunder without a warrant. Like Graham, Norris involved physical

manipulation of the object obscuring the contraband, the effect of which

placed the object into plain view.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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