Appeal from the Order of the Court of Common Pleas, Criminal Division, of Lehigh County at Nos. 559-562 of 1975. No. 1466 October Term, 1975.
Richard J. Orloski, Asst. Dist. Atty., Allentown, for appellant.
Victor F. Cavacini, Allentown, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion in which Hoffman, J., joins.
[ 243 Pa. Super. Page 81]
Once again we are asked to rule on the propriety of a confrontation between a police officer and an individual which resulted in the seizure of incriminating evidence. On January 9, 1975 at approximately 4:45 a.m. the Allentown Police Department received a call reporting a burglary. Officers Steckel and Boyer were assigned to investigate the crime. Failing to find any suspects at the scene of the burglary, the officers decided to surveil the immediate neighborhood in their paddy wagon.
[ 243 Pa. Super. Page 82]
Approximately six blocks from the site, the officers came upon two young men. Both were known to the police as being on probation for burglary. As the police approached, one of them ran but the other, Ritchee Houser, appellee in this case, remained. Officer Boyer, who confronted appellee, testified at the suppression hearing that he observed a bulge in appellee's jacket pocket in the shape of a handgun. Fearing for his safety, Officer Boyer asked appellee what was in his pocket. According to Officer Boyer, "he [appellee] didn't give me an answer and I wasn't going to let him go into his pocket and pull out whatever it was to tell me -- you know, to show me so I just stuck my hand in his pocket." Notes of Testimony of the Suppression Hearing at 22. In the pocket Officer Boyer found $20.28 in change, the amount allegedly taken in the burglary. Appellee was arrested and charged with the crime. Prior to trial, appellee challenged the seizure of the money claiming that it was the result of an illegal search. The court below agreed and suppressed the evidence. Accordingly, the Commonwealth has appealed.
The lower court held that Officer Boyer lacked the probable cause to make a valid arrest of appellee, but found that he did have the right under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) to conduct an investigative detention of appellee with a protective search of his person for weapons. However, according to the lower court, the protective search should have been limited to a casual pat-down of the suspect and Officer Boyer exceeded the scope of the Terry frisk by immediately inserting his hand into appellee's pocket.
We find that Officer Boyer acted reasonably under the circumstances and reverse the order of the court below suppressing the evidence discovered by his search. While it is true that where probable cause to arrest is absent, a search of a suspect must be limited to
[ 243 Pa. Super. Page 83]
one of protection for the officer, it does not follow that a police officer must perform a useless pat-down of an individual when his senses have already disclosed that a weapon may be possessed at a certain place on the suspect's person. We have been unable to find any authority that requires a pat-down when an apparent weapon has already been discovered. On the other hand, there is authority that indicates that a police officer may search directly for the weapon when he has reason to believe that it is on a certain part of the individual's body.
The court below relied extensively on Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). Sibron, however, is not on point because in that case there was no testimony that the police officer feared for his safety and searched the suspect's pockets for his self-protection. Nevertheless, there is dicta in Sibron which indicates that a protective search must be limited in ...