The opinion of the court was delivered by: Savage, J.
The defendant Derrick Williams, who is charged with possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), has moved to suppress two packs of cocaine a police officer seized from inside his gym shorts while searching him during a traffic stop. He contends that the search exceeded the bounds of a permissible Terry search. The government counters that the search was a valid stop and frisk supported by the officer's reasonable suspicion of danger. It argues that the search was limited to finding weapons and that the officer "recognized the bulge" in the defendant's shorts as contraband only when he felt it during a protective pat-down of the defendant.
Based upon an evaluation of the testimony and the credibility of the witness, we find that the officer searched Williams for drugs; and, before he felt the bulge, the officer did not believe that it was a weapon. We further find that the officer's search for drugs was not based upon a reasonable suspicion that the defendant had committed or was committing a crime, or may have been armed and dangerous. Therefore, because the search was not a legitimate pat-down Terry search for weapons, we shall grant the motion to dismiss.
Philadelphia Policeman Christopher Culver's involvement with the defendant began early in the day of August 2, 2011 when he received a telephone call from an agent with the Drug Enforcement Agency. The agent requested Culver to conduct a traffic stop of the defendant, whom he had under surveillance and who had a prior drug trafficking conviction. The agent gave Culver the defendant's location and heading in a black Audi.
Subsequently, Culver received information from the agent that the defendant had been seen entering and exiting 6531 North 17th Street, Philadelphia and was traveling in a 2005 gold Nissan. Culver eventually saw the defendant driving on Broad Street and followed him to the area of 19th and Cumberland Streets, a neighborhood that is known for drug trafficking.
While the defendant was in that area, Culver did not observe where he went or what he did. When the defendant reappeared twenty minutes later, Culver resumed following his vehicle. After seeing the defendant change lanes several times without using his turn signal and using a cell phone while operating the vehicle, Culver decided to stop the defendant's vehicle. At Broad and Louden Streets, he signaled the defendant to stop by flashing his dome lights and sounding his horn. The defendant immediately pulled his vehicle over to the curb.
Culver and his partner approached the defendant's vehicle, Culver on the driver's side and his partner on the passenger's side. Culver requested the defendant's driver's license, registration and proof of insurance. The defendant already had his driver's license in his hand. Culver ordered the defendant out of the vehicle.
After the defendant, who was dressed in a t-shirt and silky gym pants, exited the car, Culver noticed a round softball-like bulge in his crotch area. While patting the defendant's crotch, Culver felt a hard object. When he squeezed it, he heard what sounded like paper or plastic and felt it crumble. He then reached into the defendant's shorts and retrieved two bags containing an off-white, chunky substance. He then placed the defendant under arrest and proceeded to search the interior of his car.
The analysis starts with the traffic stop. If it was valid, the inquiry turns to the legitimacy of the search. If the search was justified, we then must determine whether its scope exceeded the limits of a permissible Terry search.
The police may stop a vehicle after observing a traffic violation, and they may do so even though they may have another reason for the stop. See Whren v. United States, 517 U.S. 806, 818 (1996). In other words, the officer's motivation for conducting the stop is irrelevant. Thus, having seen Williams violate the Pennsylvania Motor Vehicle Code, 75 Pa. C. S. § 3334, and a City of Philadelphia ordinance, Phila. Code § 12-1132(3), Culver's stopping Williams was justified.
Once the police stop a vehicle, the stop may "last no longer than is necessary to effectuate the purpose of the stop," and the police may exercise only "the least intrusive means reasonably available." Florida v. Royer, 460 U.S. 491, 500 (1983). They may order the driver out of the car. United States v. Bonner, 363 F.3d 213, 216 (3d Cir. 2004) (citing Mimms, 434 U.S. at 110-11). At that point, if the officer has a reasonable suspicion that the occupant might be armed and dangerous, he may conduct a protective pat-down search for weapons. Terry v. Ohio, 392 U.S. 1, 27 (1968). The purpose of the limited search is to determine the presence of weapons, not contraband. Id. at 29-30. As Terry instructed, "a protective search --- permitted without a warrant and on the basis of reasonable suspicion less than probable cause --- must be strictly 'limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby'." Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (quoting Terry, 392 U.S. at 26). When the protective search goes beyond a search for weapons, it ceases to be a valid Terry search. Id. at 373.
The Third Circuit has emphasized that "a Terry search cannot purposely be used to discover contraband, but it is permissible that contraband be confiscated if spontaneously discovered during a properly executed Terry search." United States v. Yamba, 506 F.3d 251, 259 (3d Cir. 2007). In other words, the search must have as its goal the protection of the officers and those nearby. If it is a search for weapons and not for contraband, contraband discovered during the limited ...