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A police officer wasn’t justified in frisking someone just because the suspect was present at a place police had a warrant to search for drugs, a unanimous Pennsylvania Superior Court panel has ruled. “The [Pennsylvania Supreme] Court determined that the presumption that guns follow drugs is an ‘overbroad generalization’ and cannot support a justified belief that an individual under investigation is armed and presently dangerous,” Judge James R. Cavanaugh wrote for the court in In the Interest of J.V., PICS Case No. 00-2151 (Pa. Super. Nov. 1, 2000). “To the extent our highest court’s reasoned analyses may be dicta, we find the reasoning persuasive and on the same principles enumerated therein reject the commonwealth’s request to create a bright line rule to allow a Terry frisk on all people merely present during the execution of a drug warrant.” Judges Zoran Popovich and Peter Paul Olszewski joined Cavanaugh in the opinion. Juvenile defendant J.V. was asleep on the couch when police entered a house in McKeesport, Allegheny County, Pa., with a search warrant. The opinion, however, states in a footnote that the trial court found the search warrant to be defective without specifying why. Upon entering the house, police woke J.V. up, and an officer conducted a weapons pat-down. The officer found crack cocaine hidden in the juvenile’s sock and arrested him. The Allegheny County Court of Common Pleas would not suppress the evidence, and J.V. was ultimately found to be delinquent and committed to a detention center. J.V. appealed to the Superior Court, arguing that the search was unconstitutional. The panel noted that the state Supreme Court ruled recently in Commonwealth v. Zhahir PICS Case No. 00-0943 (Pa. May 19, 2000) that “when reviewing an officer’s decision to conduct such a search, the right to be free from unreasonable search and seizures must be balanced against the right of an officer to be secure in his personal safety and to prevent harm to others.” The Fourth Amendment to the U.S. Constitution and Article 1, Section 8 of the state constitution allow police to stop and briefly detain an individual if reasonable suspicion exists that criminal activity may be afoot. The court said facts in the J.V. case were undisputed: the police were present in the house because of a defective warrant; J.V. was sleeping when police arrived and did not pose a threat; the officer did a pat-down search for safety reasons; and drugs were found and seized. Cavanaugh said the issue was whether police executing a search warrant could constitutionally pat down anyone present at the location for the warrant. Citing 1979 and 1980 state and U.S. Supreme Court case law, the middle appeals court said such a search would not be constitutional. However, the court noted, the commonwealth did not rebut the case law on the subject, but rather asked the panel to create an exception to the law concerning warrants for drugs. “Its supporting basis is that the drug environment is a lot more violent today than 20 years ago,” Cavanaugh wrote. “Over this period, the commonwealth contends that drugs and guns have become co-existent. It is argued that the increased danger to police officers executing drug warrants supports a finding that police have a right to perform a Terry frisk for weapons upon all those present at the residence.” But, the court said, the state supreme court, in adopting the plain-feel doctrine in Pennsylvania in Zhahir, also shot down the theory that “guns follow drugs” and held that such a principle was an “overbroad generalization.” The J.V. court, therefore, concluded that the search was unconstitutional. “In conclusion, since the search warrant in the instant dispute did not authorize the search of appellant and appellant gave no consent to the search, the officer needed a reasonable belief that appellant was armed and dangerous to perform a Terry frisk for weapons,” Cavanaugh wrote. Since the reason for the pat-down was merely J.V.’s presence, the court said the evidence should have been suppressed as the fruits of an illegal search. The court remanded the case for a new trial.

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