Mere Encounter • Consent • Plain Feel Doctrine • Suppression

Commonwealth v. Rodriguez, PICS Case No. 14-0183 (C.P. Lehigh Dec. 20, 2013) Steinberg, J. (8 pages).

Police were justified in seizing contraband under the plain feel doctrine where its incriminating nature was immediately apparent. Suppression denied.

Police were patrolling an area where a rash of burglaries had occurred. An officer in plainclothes and an unmarked vehicle observed defendant loitering and acting suspiciously, e.g., walking backwards, peering down allies, and appearing “hyper-vigilant.” He alerted other officers, who pulled their patrol vehicle alongside defendant and “chit-chat[ted]” with him.

Both officers remained in their vehicle until defendant provided information inconsistent with the plainclothes officer’s observations. Specifically, defendant claimed to have been elsewhere when police observed him loitering on the street. One officer exited the vehicle and told the defendant about the discrepancy. He asked defendant to consent to a pat-down, during which, the officer felt something “squishy,” “cellophane” with individual “nubs,” and recovered 14 bags of marijuana and 15 bags of cocaine. Defendant was arrested and charged with possession with intent to deliver and related crimes. He moved to suppress the evidence. The court denied the motion.

Police had every right to approach and speak with defendant on a public street without that conversation being considered a seizure. It was an encounter without any demonstrable force. The presence of two officers did not change the character of the interaction, particularly since only one officer spoke with defendant. Defendant was alerted to the reason for the officers’ presence, but was never treated as a suspect in the robberies. No weapons were displayed, nor were lights and sirens used as the officers exited their vehicle. No handcuffs or restraint were used, and the tone of the officer was conversational.

Although the tenor of the interaction changed when defendant provided a version of his activities inconsistent with what police observed, defendant was not detained, but was asked to consent to a pat-down. Under the totality of the circumstances, the pat-down search was voluntary. Defendant’s reaction to the police request was unequivocal and without hesitation. He raised his hands and said “that’s fine.” Although defendant was not told he had the right to refuse consent, the failure to do so is only one factor in evaluating the validity of consent.

The plain feel doctrine also permitted police to seize the non-threatening contraband. Police may properly seize non-threatening contraband detected through the sense of touch during a protective frisk for weapons, provided they are lawfully in a position to detect the presence of contraband, the incriminating nature of the contraband is “immediately apparent,” and police have a lawful right of access to the object. Here, the officer was lawfully in a position to detect the drugs and immediately recognized what was in defendant’s pocket. The officer, who had conducted numerous pat-downs, was confident from the items “tactile impression” that drugs would be retrieved. His decision to seize the contraband was objectively reasonable.