Commonwealth v. Fink

OLSZEWSKI, Judge,

concurring and dissenting.

I most readily join my learned colleagues in their disposal of many of the issues presented in this matter. Nevertheless, as I believe that Officer Whiteman’s seizure of the marijuana pipe was wholly appropriate, I must respectfully dissent. It is settled that officers are justified in seizing non-threatening contraband detected through “Plain feel” during a weapons frisk if “the incriminating nature of the contraband [is] immediately apparent.” Interest of B.C., 453 Pa.Super. 294, 305 , 683 A.2d 919, 925 (1996)(emphasis original). Instantly, the trial court concluded that the incriminating nature of the marijuana pipe was, in fact, immediately apparent to the lawman. There is ample record evidence to support this conclusion, and I see no basis for reversing the suppression motion.

At the suppression hearing, Officer White-man described the circumstances surrounding the pipe’s seizure as follows:

Q. And in patting [Fink] down[,] did you come across any items that were suspicious to you?

A. In the exterior jacket pocket a hard item that I felt within that pocket that I believed to be a pipe too small in size to be a tobacco pipe which I believed through my experience to be a piece of drug para- *452 phemalia. It was of the size and texture of what I’ve come to recognize as a marijuana pipe.

Q. Could you estimate, approximately, how many times you had seen and touched what you’ve described as a marijuana pipe?

A. Hundreds.

Q. And you’ve indicated that this felt the same size and texture from the feel as a marijuana pipe; is that correct?

A. That’s correct. They are of varying size, but it was, in my mind, that type of implement.

Q. I believe you indicated you did not believe because of the size that it was a normal tobacco pipe; is that correct?

A. That’s correct.

Q. Could you explain to the Court what you mean by that or why you didn’t believe it would have been a normal smoking pipe as opposed to a drug pipe?

A. A pipe that is sold commercially for tobacco is usually a long-stemmed pipe approximately four and a half, five inches or maybe even longer in length, and it, you know, carries with it certain characteristics. It will have a flat-ended stem and it will have the middle cylinder that just weren’t present in this implement that I felt.

R.R. at 28a-29a.

Officer Whiteman elaborated further during Fink’s trial:

Q. During the course of that pat down, was your attention drawn to anything?

A. I felt what I recognized as a pipe in one of the outer jacket pockets.

Q. Were you able to determine from the pat down what type of pipe it might be?

A. It was a pipe that I believed to be a pot pipe.

Q. And could you explain to the Court why you believed it was a pot pipe?

A. Pot pipes are usually sized in such a manner that it’s easily concealable, usually no greater than the size of a fist, where a more traditional pipe, a gentleman’s pipe, a tobacco pipe is a longer stemmed item, it’s more decorative usually, and it just takes up a greater amount of space, five or six inches to four and a half to five inches. It’s very distinguishable between the two. [A] pot pipe is usually anywhere from two to three inches long. As I said it’s no bigger usually than your fist.

Q. At the particular moment you were feeling for this pipe, what was it that made you think that Mr. Fink was going to smoke marijuana with it as opposed to smoking something else?

A. Only what I have is experience. The fact that it fits everything that I’ve learned, I[’ve] noticed, I’ve seen on the streets. I haven’t seen many people, I haven’t seen any people use that sort of pipe for the ingestion of anything except a controlled substance.

R.R. at 72a, 78a.

From Officer’s Whiteman’s testimony, I believe that there is no question that he was justified in seizing Fink’s marijuana pipe. As the majority correctly notes, “an officer must recognize an item as contraband before he can seize it.” Memorandum at 451 n. 4 (citing Commonwealth v. Phillips, 225 Pa.Super. 126 , 310 A.2d 290 (1973)). Instantly, the lawman clearly recognized, and was justified in so doing, the pipe in Fink’s pocket as drug paraphernalia. The majority concludes:

Not only do we find Officer Whiteman’s testimony to be lacking the requisite certainty of the incriminating nature of the object, we find it questionable that he was able to feel the precise “texture” and the refined shape of this object thru appellant’s clothing to such a degree that it was “immediately apparent” to him that what he felt was a pipe, let alone a pipe used to smoke marijuana.

Memorandum at 451.

First, I would note that the trial court found Officer Whiteman to be a very credible witness. See, R.R. at 61a-62a. Further, I have no doubt that the lawman’s testimony established his certainty as to the incriminating nature of the pipe. His testimony clearly explains the differences rendered Fink’s pipe consistent with the one to be used in smoking marijuana. The majority finds that *453 the protector of the peace was not justified in seizing the pipe because “the nature of the pipe was not necessarily illegal.” Memorandum at 8. This analysis is faulty. Under the majority’s approach, all drug paraphernalia is immune from the plain feel doctrine. Water-bongs, bowls and syringes can all be used for legal purposes. Nevertheless, due to their frequency of use in the drug trade, I have no trouble finding that their incriminating nature may be readily apparent during a pat-down search. The same principle applies instantly. The lawman testified that he had never seen anyone use this type of pipe for smoking anything but narcotics. Moreover, he also stated that he has come across these pipes hundreds of times for drug use. Based upon this experience, I would conclude that Officer Whiteman properly seized the marijuana pipe.