# Commonwealth v. Graham > Superior Court of Pennsylvania · October 22, 1996 · 454 Pa. Super. 169 URL: https://www.frixlaw.com/law-library/cases/9751707 ## Case - **Full name:** COMMONWEALTH of Pennsylvania v. Durrell GRAHAM, Appellant - **Court:** Superior Court of Pennsylvania - **Decided:** October 22, 1996 - **Citations:** 454 Pa. Super. 169; 685 A.2d 132; 1996 Pa. Super. LEXIS 3528 - **Precedential status:** Published - **Opinion:** Dissent by Elliott - **Judges:** McEwen, Elliott, Olszewski - **Cited by:** 13 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Reversed on other grounds by Commonwealth v. Graham, 554 Pa. 472 (1998). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9751707 ## Opinion text FORD ELLIOTT, Judge, dissenting. I must respectfully dissent. While I might otherwise agree with the majority’s analysis of the “automatic companion rule,” I do not believe that it has anything to do with this case. Officer Dawley testified that his reason for the Terry frisk of appellant was his observance of a bulge in appellant’s front pocket which caused him to fear for his safety. Under the facts of this case, I agree that the officer was justified in conducting a pat down. The automatic companion rule, which requires no articulable suspicion, was not relied upon by the Commonwealth and has not been raised as an issue in this case. I would defer the majority’s determination that the automatic companion rule is contrary to both the United States and Pennsylvania Constitutions to another day when the issue is presented by the parties and fully briefed on appeal. Nevertheless, I do not believe the record supports the facts as relied on by the majority to uphold the search of appellant. *183 While I agree with the majority that policeman Dawley could permissibly conduct a Terry frisk of appellant, I disagree with the majority’s further conclusion that, “having been authorized to conduct a “pat-down” search of appellant, Officer Dawley was lawfully in a position to observe the exposed contents of Graham’s back pocket.” Majority opinion at 180. I can find no support in the record or in the findings made by the trial court that the Life Savers Holes container in appellant’s back pocket was exposed or visible to the police officer. Rather, the record indicates that Officer Dawley first patted appellant’s back pocket and felt what he believed to be a Life Savers Holes vial. Dawley then shined his flashlight down into appellant’s pocket to confirm his suspicion. The testimony quoted by the majority is entirely inconclusive on this point: [OFFICER DAWLEY:] I continued to pat [appellant], I went around to the rear of him and I patted his back pockets. In his right rear pocket I felt what I believed to be a Lifesavers Holes bottle. [DISTRICT ATTORNEY:] And at that point what did you do? [OFFICER DAWLEY:] At that point I shined my flashlight down to his pocket, observed the Lifesavers Holes bottle with rocks of crack cocaine. [DISTRICT ATTORNEY:] Were you able to see the rocks of crack cocaine? [OFFICER DAWLEY:] Yes. Notes of testimony, 6/26/95 at 8. This simply does not support an inference that the container was exposed above the pocket’s rim without requiring the officer to look into the pocket. However, just fourteen lines of testimony later, the district attorney asked another question that made the actual situation clear: *184 Notes of testimony, 6/26/95 at 9 (emphasis added). Officer Dawley made no effort to correct the district attorney to the effect that the vial was visible eutside of the pocket. Rather, it seems obvious that thé officer agreed with the district attorney’s characterization of events. *183 [DISTRICT ATTORNEY:] All right. When you looked into the pants pocket and you saw the vial and you also saw the crack cocaine, was there any question in your mind that that was crack cocaine? *184 [OFFICER DAWLEY:] No. Furthermore, the Commonwealth continued to maintain this conceptualization of the situation in its closing argument: [DISTRICT ATTORNEY:] As he [Officer Dawley] moves on and as he asked Mr. Graham [appellant] the first question, do you have any — or is that money in your pants pocket, he simply is confirming the fact that there is no weapon there, and he continues the pat down avoiding that area, obviously, the pants pocket. He already knows what’s in there. Then he touches the back pocket and he feels something, and then he tells the Court honestly that it felt like a crack vial or felt like a Lifesavers Holes vial. He didn’t come in here and tell you, ‘Hey, I thought that was a gun so I pulled it out.’ What he told you was what he honestly believed took place. And when he does that, he doesn’t pull it out, he doesn’t conduct a search, he doesn’t go to the next level with Mr. Graham, he stops right there and then he simply flashes his flashlight into the pocket. At that point in time, again, there is no search because he’s able to see the drugs in plain view, and that doctrine establishes the right for this officer then to place Mr. Graham under arrest. And once he places Mr. Graham under arrest, then he can conduct the search incident to arrest. That’s why everything that Officer Dawley did here was absolutely proper, and that’s why we’re suggesting to the Court that there should be no suppression of this evidence. Notes of testimony, 6/26/95 at 15-16. The Commonwealth repeats this characterization in its brief on appeal. See Commonwealth brief at 5. In its argument on *185 appeal, the Commonwealth also recites the plain feel doctrine and contends that some conjunction of that doctrine together with the plain view doctrine justifies Officer Dawley’s conduct vis-a-vis appellant. Similarly, the trial court’s recitation of the plain feel doctrine in its opinion, pursuant to Pa. R.A.P.1925, 42 Pa.C.S.A., also signals the trial court’s agreement with this characterization of the facts. Thus, if in ruling that the contraband was in plain view, the majority means to characterize the facts such that the Life Savers Holes container protruded above the pocket of appellant, such a characterization is belied by the record. Cf. Commonwealth v. Allen, 452 Pa.Super. 200 , 681 A.2d 778 (1996) (Plain view doctrine justified seizure of cocaine filled baggie seen by police officer inside flared opening of suspect’s sweatshirt. However, unlike the instant case, no affirmative actions were taken by police to bring the contraband into their view. Here, by contrast, Officer Dawley first felt the object in question and then shone his flashlight and trained his vision down into appellant’s pocket.). Officer Dawley was not justified in shining his flashlight down into appellant’s pocket to aid his viewing of the contents. We have previously ruled on many occasions that the use of a flashlight to illuminate that which is obscured by darkness but which otherwise would be in plain view does not defeat that doctrine. The majority recites Commonwealth v. Burton, 292 Pa.Super. 73 , 436 A.2d 1010 (1981), as one example. Burton is, indeed, typical of this line of cases which commonly involve a police officer shining his flashlight into a vehicle and thereby illuminating weapons or drugs in plain view either on the seat, the floor, or protruding from under a seat. The police officer merely illuminates that which would have been in “plain view” during daylight hours. However, I perceive a difference instantly, which may be demonstrated by way of an automobile analogy. Assuming the existence of reasonable suspicion that an automobile driver may be someone who is wanted for arrest, a *186 police officer would be justified in stopping the car and asking the operator to exit the vehicle. For his own safety, the officer could also justifiably shine his flashlight into the interi- or of the car. If the beam revealed weapons or drugs in plain ■view on the seat or the floor, the officer would be justified in seizing same and arresting the driver. However, I do not believe that the officer could justifiably crouch down and shine his flashlight under the seat of the car. If the flashlight illuminated weapons or drugs under the seat, this would amount to a search and could not constitute plain view detection. Similarly, in the instant case, had Officer Dawley’s flashlight revealed that appellant was visibly clutching the Life Savers Holes container in his hand or that it was visibly protruding from his back pocket, I would have no reservation about invoking the plain view doctrine to justify its seizure. Where, however, the police officer must shine his flashlight down into the suspect’s back pocket and only then is contraband revealed, then I must find that the situation has ripened into a full-scale search and is not a case of mere plain view. I see little difference between inspecting the contents of a suspect’s rear pants pocket by inserting the beam of a flashlight than by inserting the police officer’s hand. If the seizure of the contraband cannot be justified on the basis of plain view, the question remains whether it is supported under the companion plain feel doctrine. 1 Officer Dawley testified that when he patted down appellant’s back pocket, he felt what he believed to be a Life Savers Holes container. This is not an object that is immediately apparent as contraband. Furthermore, even if Officer Dawley had *187 testified that his experience with drug law enforcement gave him the knowledge that such a container was commonly used to package drugs, that would still not be sufficient to justify any further search and seizure. In Commonwealth v. Stackfield, 438 Pa.Super. 88 , 651 A.2d 558 (1994), a police officer testified that when he patted down the appellant he felt a plastic baggie which he knew from experience was commonly used to package drugs. The court ruled that the subsequent search and seizure under the plain feel doctrine was not justified because a plastic baggie itself is not immediately apparent as contraband and could just as likely have contained the remains of appellant’s lunch instead of drugs. Similarly, the Life Saves Holes container at issue could just as likely have contained candy instead of drugs. Under Stackfield , the subsequent search of appellant cannot be justified by the plain feel doctrine. In conclusion, if the majority is ruling that the drug evidence at issue was properly not suppressed because the Life Savers Holes container was exposed in plain view above the pocket line of appellant’s rear pants pocket, then I believe it is a misstatement of the facts. On the other hand, if the majority is ruling that the container was not visible above the pocket line, but was exposed to Officer Dawley’s plain view when he shone his flashlight down into appellant’s pocket and that this “plain view” justified the subsequent seizure, I believe it is misstatement of the law. In either event, I respectfully dissent. . The plain feel doctrine is an adjunct of the plain view doctrine and was first enunciated in Minnesota v. Dickerson, 508 U.S. 366 , 113 S.Ct. 2130 , 124 L.Ed.2d 334 (1993): 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 warrantless seizure would be justified by the same practical considerations that inhere in the plain view context. Minnesota v. Dickerson, 508 U.S. at 375-76 , 113 S.Ct. at 2136-37 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9751707. Public record. Not legal advice.