NO. 2560 OCTOBER TERM, 1978, Appeal from the Judgment of Sentence Imposed on the 25th day of September, 1978, Court of Common Pleas of Lehigh County in Criminal Case Number 1527 of 1977
Carol K. McGinley, Assistant Public Defender, Allentown, for appellant.
William H. Platt, District Attorney, Allentown, for Commonwealth, appellee.
Spaeth, Stranahan and Sugerman,*fn* JJ.
[ 305 Pa. Super. Page 389]
In the instant appeal from judgment of sentence imposed for possession of a controlled substance following a bench trial, Appellant contends that the contraband was seized in the course of an unlawful warrantless search of his person and should have thus been suppressed. We disagree and therefore affirm.
Our function on review of an order denying a motion to suppress is to determine whether the factual findings of the lower court are supported by the record. In making this determination, we are to consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn
[ 305 Pa. Super. Page 390]
therefrom are in error. Commonwealth v. Jackson, 497 Pa. 591, 595, 442 A.2d 1098, 1100 (1982) (quoting from Commonwealth v. Johnson, 467 Pa. 146, 151-52, 354 A.2d 886, 889 (1976)); Commonwealth v. Horner, 497 Pa. 565, 573, 442 A.2d 682, 685-86 (same); Commonwealth v. DeCaro, 298 Pa. Super. 32, 46, 444 A.2d 160, 167 (1982); Commonwealth v. Nash, 292 Pa. Super. 79, 83, 436 A.2d 1014, 1016 (1981).
In light of these principles, it appears that the facts underlying Appellant's contention, as developed at the suppression hearing below, are virtually uncontested and simply stated. On October 5, 1977, at approximately 10:30 a.m., Sergeant William Norton of the Salisbury Police Department, Lehigh County, Pennsylvania, while on duty, was walking through a wooded area in a public park in the Township, endeavoring to locate two truant juveniles he had reason to believe were in the park. As he proceeded, Sergeant Norton observed the juveniles, both of whom were known to him, seated upon a log in the company of Appellant who was unknown to him.
As Sergeant Norton approached the log, he detected the strong odor of burning marijuana. Although he observed no smoke and saw none of the three smoking, the odor intensified as Norton neared the trio. When he reached the log, Sergeant Norton asked Appellant for identification. As Appellant arose to comply with the request, Sergeant Norton observed what appeared to him to be the end of a pipe stem protruding approximately one-half inch from a pocket of Appellant's jacket.
Sergeant Norton, a 14-year veteran of the Allentown and Salisbury Township Police Departments, was particularly experienced in dealing with marijuana and implements and paraphernalia used to smoke the substance.*fn1
Sergeant Norton testified that the pipe stem he observed was not the usual flat or pinched stem found on the ordinary smoking pipe but was, rather, rounded in shape and appeared to be metallic. Norton also testified that in his
[ 305 Pa. Super. Page 391]
experience, pipes fitted with such stems were commonly used to smoke marijuana and not ordinary tobacco.
Upon observing the pipe stem, Sergeant Norton grasped it and withdrew the pipe from Appellant's jacket pocket. Norton, having earlier observed a "bulge" under Appellant's jacket, commenced a "pat down" search of Appellant and at the same time, advised Appellant that he was under arrest for possession of marijuana. Norton continued the pat down search and in the area where he had earlier observed the bulge, under Appellant's outer jacket, Norton found a bag with a strap securing it over Appellant's shoulder. Sergeant Norton confiscated the bag, immediately opened it and discovered 350 grams of marijuana inside. Later, upon analysis, the pipe was found to contain marijuana residue.
Pretrial, Appellant moved to suppress the pipe and marijuana, and following a hearing, the suppression judge refused to suppress the same, concluding that both were seized pursuant to a lawful search based upon probable cause. Both the pipe and the marijuana found in the shoulder bag were introduced in evidence at Appellant's trial.
Ruling upon the same issues as raised in Appellant's post trial motions, the Court en banc concluded that the odor of burning marijuana, in combination with the protruding pipe stem, provided probable cause to arrest Appellant without a warrant. The court en banc also concluded that the marijuana found in the shoulder bag was the product of a search incident to a lawful arrest. Opinion of the Court En Banc at 2.
It is clear that a police officer may in appropriate circumstances stop and question a person for investigatory purposes when he observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889, 911 (1968); Commonwealth v. Dennis, 289 Pa. Super. 305, 310, 433 A.2d 79, 81 (1981); Commonwealth v. Galadyna, 248 Pa. Super. 226, 232, 375 A.2d 69, 72 (1977). It is equally clear, however, that once
[ 305 Pa. Super. Page 392]
such person is restrained by physical force or show of authority,*fn2 the protections afforded by the Fourth Amendment to the Constitution of United States are implicated, Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980); United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), reh. den. 448 U.S. 908, 100 S.Ct. 3051, 65 L.Ed.2d 1138 (1980), and such person may not be searched without a warrant unless the police officer observes such unusual conduct on the part of the person searched that he may reasonably conclude that criminal activity may be afoot, and that the person with whom he is dealing is armed and dangerous, Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 617 (1972) (quoting Terry v. Ohio, supra 392 U.S. at 24, 88 S.Ct. at 1881, 20 L.Ed.2d at 908); Commonwealth v. Mears, 283 Pa. Super. 416, 418, 424 A.2d 533, 534 (1981) (collects cases), or the police officer has probable cause to arrest such person, Commonwealth v. Jones, 474 Pa. 364, 370, 378 A.2d 835, 839 (1977) (quoting Commonwealth v. Berrios, 437 Pa. 338, 340, 263 A.2d 342, 343 (1970)); Commonwealth v. Hunt, 280 Pa. Super. 205, 212, 421 A.2d 684, 687 (1980); Commonwealth v. Stewart, 257 Pa. Super. 334, 339, 390 A.2d 1264, 1267 (1978).
Addressing the first of these exceptions, it is settled that a generalized suspicion or good faith on the part of a police officer that the subject of his focus is armed will not justify a search of the person; rather, the officer must be able "to point to particular facts from which he reasonably inferred that the individual was armed and dangerous". United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 1903, 20 L.Ed.2d 917, 935 (1968); Commonwealth v. Berrios, supra 437 Pa. at 341, 263 A.2d at 343; Commonwealth v. Prengle, 293 Pa. Super. 64, 67, 437 A.2d 992, 994-95 (1981); Commonwealth v. Williams, 287 Pa. Super. 19, 23-4,
[ 305 Pa. Super. Page 393429]
A.2d 698, 702 (1981); Commonwealth v. Pegram, 450 Pa. 590, 301 A.2d 695 (1973).
At bar, Sergeant Norton testified on cross examination:
Q. Now, Officer Norton, when you came up to Mr. Trenge, were you in fear, apprehension or harm from Mr. Trenge?
A. I'm sorry, I fail to understand.
Q. Well, were you afraid that Mr. Trenge was going to attack you at any time?
A. He made no motion of that, no.
Q. Did you feel he was armed and dangerous?
Q. Well, that's not my question. Based upon your contact with him, was it your impression that he was armed and dangerous?
A. He could have been, yes.
Q. He could have been. Again, that is not my question. My question is: Did you believe at that time that he was armed ...