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Pennsylvania police now have the blessing of the state Supreme Court to seize contraband they discover through their sense of touch during a lawful search. Six out of seven justices recently adopted the “plain feel doctrine.” According to the majority opinion, only one state in the country has rejected the doctrine. Writing a 16-page opinion for the majority in Commonwealth v. Zhahir, Justice Thomas Saylor said the doctrine was limited enough so as not to infringe on a defendant’s state Constitutional rights. “Because the existing requirements under Terry [ v. Ohio] serve to limit the scope and duration of the search, and because the plain-feel seizure applies solely to items immediately apparent as contraband, the privacy interests of the suspect are not further compromised by recognition of the plain feel doctrine,” Saylor said. Defendant Abdul Zhahir was stopped by two Philadelphia police officers 2 1/2 hours after they were given a tip from their captain that “a male in a green jacket and blue jeans” was selling drugs at 60th and Lansdowne streets. The officers saw Zhahir, wearing a green jacket and blue jeans, standing outside a store. Zhahir then walked into the store, dropped something onto the floor and walked back outside. After making a U-turn and coming back to the store, the officers saw Zhahir pick something up at the same spot where he had dropped an item earlier. The officers did not see either item. Getting out of their car, the officers approached Zhahir, who had a hand in his pocket. One officer allegedly grabbed the pocket and hand, spun Zhahir against a wall and pulled the hand out of his pocket. The officer thought he felt a number of vials in the pocket. When the officer removed Zhahir’s hand from his pocket, he also removed a bag containing 98 vials of crack cocaine. A Philadelphia County Common Pleas Court judge denied Zhahir’s motion to suppress, and he was sentenced to three to six years in prison. The Superior Court affirmed, finding that the circumstances of the stop coupled with the officer’s years of experience in investigating drug transactions justified a pat-down of Zhahir’s pocket and the seizure of the vials. Although Zhahir appealed in part on Terry stop issues — claiming that the police did not have reasonable suspicion to stop him — the justices limited allocatur to the issue of whether the lower courts erred in “justifying the police search pursuant to the plain touch doctrine.” PENNSYLVANIA CONSTITUTION Saylor first found that the officers were justified in searching Zhahir, in part because they observed him acting suspiciously in a high crime area and in a manner that was consistent with that of other narcotics suspects. Turning to the frisk, Saylor noted that the purpose of a frisk is not to discover evidence, but to make sure a defendant is not concealing weapons. The plain-feel doctrine, adopted by the U.S. Supreme Court in the 1993 case Minnesota v. Dickerson, gives police the power to seize other types of contraband. Under federal law, a plain-feel search and seizure is valid when an officer is lawfully in a position to detect the contraband, the incriminating nature of the contraband is immediately apparent from its physical impression and the officer had a lawful right of access to the object. In his argument that the doctrine violated Article 1, Section 8 of the Pennsylvania Constitution, Zhahir claimed its adoption would “turn a narrow exception to the probable cause and warrant requirements into a facile excuse for further, more coercive intrusions into [citizens'] very bodies … would be impossible to enforce, and would require courts to analyze increasingly arcane distinctions of fact without meaningful guidance.” The justices considered the doctrine very recently in Commonwealth v. Stevenson / R.A., in which the majority decided that an officer’s experience in drug enforcement alone cannot give him or her probable cause to seize items suspected to contain drugs after a plain-feel search. And a few months earlier, the court decided in Commonwealth v. E.M./Hall, that an officer has to be able to explain what it was about a package that made it readily apparent he or she was feeling contraband in order for such a search to be valid. However, those cases did not get to the question of the doctrine’s appropriateness under the state Constitution. Saylor said Justice Ralph Cappy previously set out the framework for that analysis in Stevenson. Cappy called for an examination of the text of the relevant constitutional provision; the provision’s history, including under state case law; related case law from other jurisdictions; and policy considerations. In Saylor’s application of those criteria, he compared the plain-feel doctrine with the plain-view doctrine, under which officers can seize contraband that is within their line of vision. The plain-view doctrine has been accepted in several jurisdictions, including Pennsylvania. Jurisdictions outside the state have also adopted the plain-feel doctrine. In fact, Saylor said New York remains the only jurisdiction to have rejected the doctrine finding that the sense of touch is less reliable than the sense of sight, although that decision was made before Dickerson. Saylor cited a passage from Connecticut’s high court in State v. Trine to help explain why Pennsylvania’s Supreme Court would accept the doctrine. “We are persuaded that existing restrictions on the use of information obtained during a lawful patdown search adequately protect individual privacy interests. … In addition, the officer’s belief that the object is contraband must be objectively reasonable in light of all circumstances known at the time of the search,” the Trine court said. TOO BROAD? Zhahir argued that the high court was too broadly lessening Terry’s limitations by adopting the presumption that “guns follow drugs.” He stated that certain trial courts and the Superior Court have taken judicial notice that drug dealers are likely to be armed. Saylor said there was no cause for that concern in Zhahir’s case because the officers were justified in frisking him. But the justice warned against lower courts taking the decision too far. “Nevertheless, as a general policy consideration, taking judicial notice that all drug dealers may be armed as in of itself a sufficient justification for a weapons frisk clashes with the totality standard, as well as the premise that the concern for the safety of the officer must arise from the facts and circumstances of the particular case,” Saylor said. As for the seizure of contraband from Zhahir, Saylor said it was readily apparent to the officers that he was carrying contraband. “In the present case, police were responding to a tip involving narcotics and observed behavior corroborative of the tip’s allegation. Furthermore, the frisk occurred in an area noted for drug activity and the officer felt what he immediately perceived as numerous (98) vials of cocaine, which was consistent with cocaine packaging he had encountered in previous narcotics cases,” Saylor wrote. “Significantly, given the number and nature of the containers, their presence was not equally consistent with legitimate purposes.” In his concurring opinion, Justice Russell Nigro said he agreed with the majority’s decision in theory, but not in practice. Dickerson dictates that the incriminating nature of contraband must be readily apparent from its physical impression in order for a plain-feel seizure to be valid. Nigro said the facts showed that one officer felt a large bundle of caps in Zhahir’s jacket pocket and then reached in and grabbed the vials. “Unlike the majority, I can make no material distinction between the circumstances of this seizure and the ones this court found to exceed the scope of the plain feel doctrine in Stevenson / R.A.,” Nigro said. “In both cases, the police merely felt material which may or may not be used for packaging controlled substances, which, as we held in Stevenson / R.A., is insufficient to meet the immediately apparent element of the plain feel doctrine.” REASONABLE SUSPICION Dissenting Justice Stephen Zappala had a bigger problem with the majority’s decision: He said the analysis should have stopped at the reasonable-suspicion standard. “The majority’s holding to the contrary is troubling as it may be interpreted as creating a separate legal standard applicable to citizens present in areas known for criminal activity,” he said. The officers stopped Zhahir on the basis of an anonymous tip received by their captain. The majority said the fact that he was in a high-crime area provided independent corroboration of the tip. Zappala was not so convinced corroboration existed. “The suspicious behavior cited by the majority is [Zhahir's] observation of the police and subsequent stopping and retrieving of an object in a Chinese restaurant located in a high crime area. Such conduct could only appear ‘suspicious’ if one accepts as true the unverified allegation that the actor is a drug dealer,” Zappala said. “The officers observed no activity that corroborated the anonymous information that [Zhahir] was selling drugs or that he may have been armed with an illegal weapon.”

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