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
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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
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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
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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.
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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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