COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Senior Judge Baker 

Argued at Richmond, Virginia 

STACY LAMONT HAYES, S/K/A 

 STACEY HAYES 

 OPINION BY 

v. Record No. 3025-97-2 JUDGE LARRY G. ELDER 

 MAY 11, 1999 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG 

Oliver A. Pollard, Jr., Judge 

Daniel W. Hall, Assistant Public Defender, 

for appellant. 

Steven A. Witmer, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 Stacey Hayes (appellant) appeals from his bench trial 

conviction for possession of cocaine and forged United States 

currency. On appeal, he contends the trial court erroneously 

(1) denied his motion to suppress the cocaine, altered U.S. 

banknote, and his statements, (2) admitted the certificate of 

analysis into evidence in the absence of a sufficient showing of 

chain of custody and (3) held the evidence, in the absence of 

the certificate of analysis, was sufficient to support 

appellant’s conviction for possession of cocaine. For the 

reasons that follow, we hold the trial court erred in denying 

the motion to suppress, and we reverse appellant’s convictions.1

 1

Because we hold that the cocaine was improperly seized, we 

do not reach the issues of the admissibility of the certificate 

of analysis or the sufficiency of the evidence. 
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I. 

FACTS 

 On October 31, 1996, at about 3:45 p.m., Officer R.D. 

Lowery of the Petersburg Police Department participated in the 

execution of a search warrant for a residence at 125 McKeever 

Street in Petersburg, which was described as the right half of a 

duplex. The warrant described the items to be seized as 

“cocaine, books, money, records, scales, any other paraphernalia 

used and/or distribution of cocaine in the support and sale of 

cocaine.” Lowery confirmed that the target of the search was 

“[c]ocaine inside the residence.” The warrant did not “identify 

the name of any [specific] person to be searched” and did not 

“mention . . . that any persons [in general] [were] to be 

searched.” 

 The accompanying affidavit indicated that an informant made 

a controlled purchase of cocaine “from the subjects at [the] 

residence” and that cocaine was “still present” when the 

informant left the residence. The affidavit did not indicate 

when the purchase was made, and it did not describe any of the 

people present except to say that “one [was] the resident.”2 

Lowery did not know who owned the residence. 

 2

On appeal, appellant does not challenge the sufficiency of 

the warrant or affidavit to support the search of the residence 

itself. 
 When Lowery arrived at the residence with the entry team, 

appellant was sitting on the porch of the duplex on a couch 

located directly beside the entrance to number 125 and beneath 

its front window. Lowery described the porch as running the 

length of the front of the duplex with a set of steps on either 

end. Lowery did not know appellant and did not know, other than 

by appellant’s presence, whether appellant had any connection to 

the residence to be searched. 

 Lowery “ordered appellant to the ground at gunpoint . . . 

[and] handcuffed him for safety reasons” until the rest of the 

entry team could secure the inside of the residence. Lowery had 

observed appellant as Lowery exited the police van and 

approached the porch and had not seen appellant engage in any 

suspicious behavior. Lowery testified, “It’s pretty much 

standard policy when we go into a residence here in the City 

everybody goes down, everybody gets cuffed and patted down just 

for weapons for safety reasons.” Lowery further explained that 

“when you’re dealing with a search warrant . . . , especially 

with narcotics, you always have the possibility of guns.” 

 After Lowery handcuffed appellant, he watched the window as 

the entry team went in and began to secure the inside of the 

residence. The entry team consisted of “approximately 10 or 11” 

police officers, with Officer Lowery stationed at the front 

door, “somebody on the back door,” and the rest of the officers 

inside to secure the premises and conduct the search. The 

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officers found three people inside the residence. Lowery 

testified that he did not know for sure when the residence was 

“secure,” but that with “[t]hat many [officers] on the inside,” 

he was “pretty sure it was secure” and did not wait for 

confirmation before he stood appellant up and advised that “[he] 

was going to pat [appellant] down for weapons.” 

 Regarding the pat-down, Lowery first testified, “I hit an 

item, once. I squeezed it once and I come off of it, it was in 

my mind to be cocaine. I asked [appellant] what it was, he made 

no statement.” In clarifying the circumstances surrounding his 

discovery, Lowery testified that while patting appellant’s shirt 

pocket with an open palm, he felt “a lump” and “suspected 

[appellant] had something in his pocket.” Lowery explained 

further, “I felt something in his pocket, [and] to verify what 

it was, to make sure I wasn’t missing anything, I squeezed it 

once and I came right off of it.” Lowery then said, “I came off 

of it because I knew what it was. It was pretty obvious [that 

it was cocaine].” Lowery then retrieved the item, which he 

described as “nine zips of crack cocaine.” Lowery did not 

testify that he believed the lump could have been a weapon 

before he squeezed it, and he never clearly testified that he 

believed the lump to be cocaine before he squeezed it. 

 Upon finding the suspected cocaine, Lowery advised 

appellant he was under arrest and Mirandized him. Appellant 

said, “it was for personal use, it was for himself, he wasn’t 

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selling it.” In a search incident to arrest, Lowery found a 

pager and $11, including a dollar bill which someone had altered 

to look like a five-dollar bill by taping photocopied corners of 

a five dollar bill onto the four corners of the dollar bill. 

 Appellant moved to suppress on the ground that the frisk 

violated the Fourth Amendment. Appellant contended that the 

warrant, which was silent regarding the right to search people 

on the premises, did not authorize Lowery to frisk him and that 

Lowery had no reasonable, articulable suspicion that he was 

armed and dangerous in order to justify a frisk. Appellant also 

contended that even if the frisk for weapons was appropriate, 

Lowery had no basis for believing he had found a weapon when he 

felt the lump in appellant’s pocket and, therefore, was not 

permitted to manipulate the item to determine what it was. 

 The trial court said it did not “have any problem” with the 

“plain feel” seizure of the cocaine, stating that “[t]he officer 

is trained in this sort of thing, when he feels it and he’s 

pretty sure what it is, and he squeezed it to confirm it, he had 

sufficient cause to make that.” However, it stated expressly, 

“I’m not making a finding at this point” and gave the parties an 

opportunity to file memoranda on those issues. 

 At the time scheduled for sentencing, the court stated: 

I’m going to overrule the motion [to 

suppress because] although the [appellant] 

was not in the house that was scheduled to 

be searched, he was on the couch on the 

front porch. He could easily have been a 

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lookout for the people inside. And 

therefore there’s a threat of a danger that 

did exist and is sufficient to establish 

probable cause for a search. . . . 

Further[,] danger existed and the probable 

cause existed because the magistrate had 

issued the search warrant. 

II. 

ANALYSIS 

 At a hearing on a defendant’s motion to suppress, the 

Commonwealth has the burden of proving that a warrantless search 

or seizure did not violate the defendant’s Fourth Amendment 

rights. See Simmons v. Commonwealth, 238 Va. 200, 204, 380 

S.E.2d 656, 659 (1989); Alexander v. Commonwealth, 19 Va. App. 

671, 674, 454 S.E.2d 39, 41 (1995). On appeal, we view the 

evidence in the light most favorable to the prevailing party, 

granting to it all reasonable inferences fairly deducible 

therefrom. See Commonwealth v. Grimstead, 12 Va. App. 1066, 

1067, 407 S.E.2d 47, 48 (1991). “[W]e are bound by the trial 

court’s findings of historical fact unless ‘plainly wrong’ or 

without evidence to support them[,] and we give due weight to 

the inferences drawn from those facts by resident judges and 

local law enforcement officers.” McGee v. Commonwealth, 25 Va. 

App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing 

Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 

1659, 134 L. Ed. 2d 911 (1996)). However, we review de novo the 

trial court’s application of defined legal standards such as 

probable cause and reasonable suspicion to the particular facts 

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of the case. See Shears v. Commonwealth, 23 Va. App. 394, 398, 

477 S.E.2d 309, 311 (1996); see also Ornelas, 517 U.S. at 699, 

116 S. Ct. at 1659. 

 Appellant contends Officer Lowery’s detention and search of 

his person pursuant to the authority of the search warrant for 

the duplex was unreasonable under the United States and Virginia 

Constitutions. The Commonwealth argues that the detention was 

justified as a frisk for safety reasons and that appellant’s 

presence on the porch of the residence for which other officers 

were executing a search warrant for narcotics provided 

reasonable suspicion that appellant was engaged in criminal 

activity. The trial court ruled that the probable cause which 

provided the basis for issuance of the warrant to search the 

premises for narcotics and the associated “threat of . . . 

danger” provided “probable cause for a search” of appellant. 

For the reasons that follow, we hold that the search was 

unlawful under the facts of this case. 

A. 

PROBABLE CAUSE TO SEARCH APPELLANT’S PERSON 

 We hold first that neither the issuance of the search 

warrant nor the risk of danger to the officers during its 

execution provided Officer Lowery with probable cause to conduct 

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a full search of appellant under the facts of this case.3 We are 

unaware of any controlling precedent which provides that a 

warrant to search only a specified private residence, and not 

the people found therein, for narcotics automatically carries 

with it the blanket authority to conduct full searches of those 

people present either for narcotics or weapons.4 Furthermore, we 

 3

Had the evidence proven that the search of the residence 

yielded cocaine and that the police fully searched appellant 

only afterward, the discovery may have been proper as a search 

incident to arrest for possession of the contraband found on the 

premises, regardless of whether the presence of the contraband 

found on the premises would have been sufficient to support a 

conviction for its possession. See Michigan v. Summers, 452 

U.S. 692, 695 & n.3, 101 S. Ct. 2587, 2590 & n.3, 69 L. Ed. 2d 

340 (1981). In appellant’s case, the Commonwealth did not 

advance the argument that the search was valid as incident to 

arrest based on narcotics found in the residence. Further, when 

appellant attempted to elicit testimony from Officer Lowery 

regarding what was found in the search of the residence, the 

trial court ruled that this evidence was irrelevant. 

4

The United States Supreme Court has expressly avoided such 

a question. See Summers, 452 U.S. at 695, 705, 101 S. Ct. at 

2590, 2595 (holding “that a warrant to search for contraband 

founded on probable cause implicitly carries with it the limited 

authority to detain the occupants of the premises while a proper 

search is conducted” based in part on fact that “execution of a 

search warrant for narcotics is the kind of transaction that may 

give rise to sudden violence or frantic efforts to conceal or 

destroy evidence” but expressly avoiding “question whether a 

search warrant for [private] premises includes the right to 

search persons found there” (footnote omitted)); Williams v. 

Commonwealth, 4 Va. App. 53, 59, 67, 354 S.E.2d 79, 82, 87 

(1987) (holding, based on language in Summers regarding 

connection between narcotics and violence, that officers had 

reasonable suspicion that Williams was armed and dangerous 

necessary to justify weapons frisk based on warrant to search 

Williams’ residence for narcotics and accompanying affidavit 

containing specific information that Williams himself was 

engaged in distributing narcotics from the place to be 

searched). 

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conclude that such a holding would be contrary to existing 

constitutional precedent.5

 The Fourth Amendment to the United States Constitution 

provides as follows: 

The right of the people to be secure in 

their persons, houses, papers, and effects, 

against unreasonable searches and seizures, 

shall not be violated, and no Warrants shall 

issue but upon probable cause, supported by 

Oath or affirmation, and particularly 

describing the place to be searched, and the 

persons or things to be seized. 

See also Va. Const. art. 1, § 10. Based on these provisions, 

the United States Supreme Court stated in Ybarra v. Illinois, 

444 U.S. 85, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979), that “a 

warrant to search a place cannot normally be construed to 

authorize a search of each individual in that place.” Id. at 92 

n.4, 100 S. Ct. at 342 n.4 (expressly not considering 

“situations where the warrant itself authorizes the search of 

unnamed persons in a place and is supported by probable cause to 

believe that persons who will be in the place at the time of the 

 5

In a slightly different context, the United States Supreme 

Court recently has reaffirmed the “unique, significantly 

heightened protection afforded against searches of one’s 

person.” See Wyoming v. Houghton, 67 U.S.L.W. 4225, 4227 (U.S. 

Apr. 5, 1999) (holding that officers, who stopped driver for 

traffic infraction and received admission that he possessed 

syringe in plain view for purpose of taking drugs, were allowed, 

based on probable cause to believe drugs were in the car, to 

search containers in car, even one allegedly belonging to 

passenger, but reaffirming holding in United States v. Di Re, 

332 U.S. 581, 68 S. Ct. 222, 92 L. Ed. 210 (1948), “that 

probable cause to search a car did not justify a body search of 

a passenger”). 
search will be in possession of illegal drugs”). Compare Morton 

v. Commonwealth, 16 Va. App. 946, 434 S.E.2d 890 (1993) 

(upholding conviction of person searched under warrant for 

apartment where warrant authorized search of “all persons 

present” and was supported by affidavit regarding drug 

transactions from reliable informant, apartment manager, and 

police surveillance establishing presence of cocaine, convicted 

drug dealers and known fugitives in apartment). 

 Although Ybarra involved a search warrant for a public bar 

rather than a private residence, we nevertheless find the 

Court’s holding in Ybarra instructive. The Court further 

observed in Ybarra that “a person’s mere propinquity to others 

independently suspected of criminal activity does not, without 

more, give rise to probable cause to search that person.” 

Ybarra, 444 U.S. at 85, 100 S. Ct. at 338. 

Where the standard is probable cause, a 

search or seizure of a person must be 

supported by probable cause particularized

with respect to that person. This 

requirement cannot be undercut or avoided by 

simply pointing to the fact that 

coincidentally there exists probable cause 

to search or seize another or to search the 

premises where the person may happen to be. 

Id. at 91, 100 S. Ct. at 342 (emphasis added). Although one’s 

presence at a private residence in which drugs have been sold 

provides a stronger nexus between the person and the premises 

than does presence in a public bar in which drugs have been 

sold, see 2 Wayne R. LaFave, Search and Seizure § 4.9(e), at 

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633-34 (3d ed. 1996), we do not believe that such a nexus is 

sufficient, without more, to provide probable cause for personal 

searches of those present in the absence of a prior judicial 

determination of probable cause for the search of the people as 

well as the premises. Cf. Wyoming v. Houghton, 67 U.S.L.W. 

4225, 4227 (U.S. Apr. 5, 1999) (recognizing that “a car 

passenger . . . will often be engaged in a common enterprise 

with the driver, and have the same interest in concealing the 

fruits or the evidence of their wrongdoing” such that officers 

with probable cause to search a vehicle may search containers 

therein, even those allegedly belonging to a passenger, which 

are capable of concealing the items sought, but nevertheless may 

not conduct body search of passenger). 

 “As a general rule, ‘subject only to a few specifically 

established and well-delineated exceptions,’ warrantless 

searches are presumptively unreasonable” under the Fourth 

Amendment. Farmer v. Commonwealth, 21 Va. App. 111, 115, 462 

S.E.2d 564, 565 (1995) (quoting Horton v. California, 496 U.S. 

128, 133 & n.4, 110 S. Ct. 2301, 2306 & n.4, 110 L. Ed. 2d 112 

(1990)). The most commonly used exception for searching a 

person without a search warrant is that the search was conducted 

incident to a lawful custodial arrest, which, of course, must be 

based on probable cause to believe the individual arrested has 

committed a crime. See United States v. Robinson, 414 U.S. 218, 

235-36, 94 S. Ct. 467, 477, 38 L. Ed. 2d 427 (1973); see also 2 

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LaFave, supra, § 4.5(e), at 543-44 (noting that “[i]f there is 

probable cause to believe that a certain individual has on his 

person the evidence, fruits, or instrumentalities of crime, it 

would be an unusual case in which there was not also probable 

cause to believe that this individual was a participant in the 

criminal activity under investigation” such that “the more usual 

procedure is simply to arrest that person and then search him 

incident to arrest” rather than first obtaining a search warrant 

for his person). Other exigent “circumstances that will justify 

a warrantless search include danger to the officer6 [and] . . . 

the risk of loss or destruction of evidence.” Helms v. 

Commonwealth, 10 Va. App. 368, 371, 392 S.E.2d 496, 487 (1990) 

(footnote added). 

 In determining whether Officer Lowery had probable cause to 

believe that one of these exceptions existed, thereby justifying 

a full search of appellant, we are guided by the holding of this 

Court in Helms, 10 Va. App. 368, 392 S.E.2d 496. In Helms, we 

held, under similar facts, that officers executing a search 

warrant for a private residence lacked probable cause to search 

 6

We refer here only to danger sufficient to provide probable 

cause for a full search and not to the lower standard of 

reasonable suspicion for a weapons frisk under Terry v. Ohio, 

392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). 

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- 13 -

a container7 found during a weapons frisk of a person present at 

the residence. See id. In that case, a confidential informant 

told police that PCP was being sold at a particular house and 

made a controlled purchase of PCP from that address. See id. at 

369, 392 S.E.2d at 496. The officers then obtained a warrant 

which authorized a search of the premises for PCP, but neither 

Helms nor anyone else was described in the search warrant or 

supporting affidavit. See id. at 369, 372 & n.1, 392 S.E.2d at 

496, 498 & n.1. 

 When police arrived to execute the search warrant and 

encountered Helms a few feet inside the front door, “[h]e did 

not act suspicious and was cooperative when confronted, ordered 

to lie down and submit to a personal search.” Id. at 369, 392 

S.E.2d at 496. The search yielded a film canister, a small pipe 

and some keys. See id. The officer seized the items and, 

suspecting the canister contained PCP or some other illegal 

drug, he opened the canister and found that it contained what he 

believed, based on his experience, to be parsley laced with PCP. 

See id. at 369-70, 392 S.E.2d at 496-97. 

 Helms conceded on appeal that safety reasons justified a 

frisk of his person and even the removal of the items from his 

pocket, but contended that the officer, who admitted he knew the 

 7

A “search within small containers, such as wallets, 

cigarette boxes and the like, which are found in or about [an 

individual’s] clothing” is “deemed to be [a search] ‘of a 

person.’” 2 LaFave, supra, § 5.5, at 170. 
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canister did not contain a weapon, lacked probable cause to 

arrest Helms or to examine the canister’s contents without a 

search warrant. See id.; see also id. at 373, 392 S.E.2d at 

498-99 (Coleman, J., dissenting) (agreeing that Helms conceded 

legality of frisk for weapons and “agree[ing] with the majority 

that the question [on appeal] is whether probable cause existed 

under these circumstances for [officer] reasonably and 

objectively to believe that the film canister contained PCP or 

some illicit drug”). 

 We agreed and reversed Helms’ conviction.8 We held that 

none of the exceptions to the warrant requirement--“danger to 

the officer, search incident to a lawful arrest, or the risk of 

loss or destruction of evidence”--was present in Helms’ case. 

See 10 Va. App. at 371, 392 S.E.2d at 497. We emphasized that 

“[Helms] cooperated totally, offering no resistance” and that, 

“[e]xcept for being on the premises, there [was] no showing of 

 8

In so doing, we distinguished Harris v. Commonwealth, 9 Va. 

App. 355, 388 S.E.2d 280 (1990), in which we had held that 

officers conducting a vehicle stop had probable cause to conduct 

a warrantless search of a film canister found in a suspect’s 

pocket based on the specific testimony of an officer that 

“during ‘his experience as a police officer he had, on numerous 

occasions seen film canisters used to transport controlled 

substances.’” Helms, 10 Va. App. at 371-72, 392 S.E.2d at 498 

(emphasis omitted). However, Harris was subsequently reversed 

on appeal to the Virginia Supreme Court, which held that even 

the facts in Harris were insufficient to provide probable cause 

for a search of the canister. See Harris V. Commonwealth, 241 

Va. 146, 400 S.E.2d 191 (1991). In reversing Harris, the 

Virginia Supreme Court noted that “law-abiding citizens, on a 

daily basis, also use film canisters to store film, which is a 

legitimate use.” Id. at 154, 400 S.E.2d at 196. 
[Helms’] association with any person who was the object of the 

police investigation, nor was any person named or described in 

the search warrant.” Id. at 372, 392 S.E.2d at 498. Under 

those facts, we held that the record “disclose[d] no legally 

cognizable reason for the warrantless search of the film 

canister” and that the trial court erred in denying the motion 

to suppress. Id.

 In appellant’s case, as in Helms, the search warrant was 

for a private residence in which narcotics were being sold, but 

neither the warrant nor the accompanying affidavit named or 

described a person or people to be searched during the search of 

the premises. Further, here as in Helms, Officer Lowery did not 

know who appellant was, and no evidence other than appellant’s 

mere presence on the porch linked him to the premises. Finally, 

here as in Helms, appellant was cooperative and engaged in no 

suspicious or furtive behavior giving rise to the belief that he 

might be attempting to conceal contraband sought in the warrant 

or reaching for a weapon with which to challenge the officers. 

Therefore, here as in Helms, the officers lacked the probable 

cause necessary to conduct a full search of appellant. See

generally 2 LaFave, supra, § 4.9(c) (discussing factors involved 

in determining whether person not arrested or described in a 

premises search warrant may be searched for items described in 

warrant and noting that “the requisite probable cause is most 

likely to be deemed present if the person lives at the place 

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searched, was implicated by the search warrant affidavit in the 

crimes under investigation, had engaged in suspicious or 

incriminating conduct, or was found in immediate proximity to 

contraband in open view” (footnotes omitted)). 

B. 

DETENTION AND FRISK FOR WEAPONS 

 In the absence of probable cause to search appellant 

incident to execution of the search warrant for the premises, 

the Commonwealth argues that Officer Lowery’s actions 

constituted a justifiable detention and frisk for weapons. “[A] 

warrant for contraband founded on probable cause implicitly 

carries with it the limited authority to detain the occupants of 

the premises while a proper search is conducted.” Michigan v. 

Summers, 452 U.S. 692, 705, 101 S. Ct. 2587, 2595, 69 L. Ed. 2d 

340 (1981) (involving warrant to search private residence). We 

assume without deciding that, pursuant to execution of the 

search warrant for the premises, Officer Lowery was entitled to 

conclude that appellant was an occupant subject to detention and 

to frisk appellant for weapons. Despite these assumptions, we 

nevertheless conclude that Lowery’s actions exceeded the 

permissible scope of such a frisk. 

 The United States Supreme Court has recognized that 

principles which permit an officer to seize contraband found in 

plain view under certain circumstances also may permit an 

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officer to seize contraband detected by the sense of touch 

during a weapons frisk: 

If a police officer lawfully pats down a 

suspect’s outer clothing and feels an object 

whose contour or mass makes its identity 

immediately apparent, there has been no 

invasion of the suspect’s privacy beyond 

that already authorized by the officer’s 

search for weapons; if the object is 

contraband, its warrantless seizure would be 

justified by the same practical 

considerations that inhere in the plain view 

context. 

Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S. Ct. 2130, 

2137, 124 L. Ed. 2d 334 (1993) (emphasis added). The Court has 

made clear, however, that where the character of the item 

detected is not immediately apparent and the officer makes “no 

claim that he suspected [the] object to be a weapon,” he may not 

investigate further. See id. at 377-78, 113 S. Ct. at 2138-39. 

The officer may not engage in “squeezing,” “sliding” or 

“otherwise manipulating” the item once he has concluded it is 

not a weapon because such “exploration . . . [is] unrelated to 

‘[t]he sole justification of the search [under Terry:] . . . the 

protection of the police officer and others nearby.’” Id. at 

378, 113 S. Ct. at 2138-39 (quoting Terry v. Ohio, 392 U.S. 1, 

29, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889 (1968)); see id. at 

378, 113 S. Ct. at 2139 (analogizing to plain view case of 

Arizona v. Hicks, 480 U.S. 321, 107 S. Ct. 1149, 94 L. Ed. 2d 

347 (1987), in which Court held stolen stereo not properly 

seized under plain view doctrine because officers had to move 

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stereo to see serial numbers which allowed them to conclude item 

was stolen). 

 Here, viewing the facts in the light most favorable to the 

Commonwealth, the prevailing party below, Officer Lowery 

testified that while patting appellant’s shirt pocket with an 

open palm, he felt “a lump” and “suspected [appellant] had 

something in his pocket.” (Emphasis added). Lowery did not 

testify that he believed the item to be a weapon nor did he 

testify that the character of the lump was immediately apparent 

to him after patting it with an open hand. Rather, he testified 

that he “squeezed” the lump and “came off of it because [he] 

knew what it was” after squeezing it. Because the evidence does 

not support a finding that the character of the item was 

immediately apparent to Lowery during the permissible scope of 

the frisk, he was not permitted to investigate further.9 

Therefore, even viewing the evidence in the light most favorable 

 9

Although the trial court denied that it was making any 

findings on this issue during the hearing on the motion to 

suppress, it observed that “[t]he officer is trained in this 

sort of thing, when he feels it and he’s pretty sure what it is, 

and he squeezes it to confirm it, he had sufficient cause to 

make that.” Assuming without deciding that these statements 

constituted findings of fact by the trial court, they are both 

unsupported by the evidence and insufficient under the plain 

feel doctrine to permit the seizure. First, on a factual level, 

Officer Lowery never testified that he was “pretty sure” what 

the item was before he squeezed it. When the prosecutor tried 

to clarify this point, asking, “When you felt the lump, Officer, 

did you suspect anything at that point?” Lowery responded 

merely, “I suspected he had something in his pocket.” (Emphasis 

added). Second, even assuming Lowery was “pretty sure” the lump 

was cocaine when he first felt it, he had to squeeze the lump to 
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to the Commonwealth, we are unable to conclude that the 

Commonwealth carried its burden of proving the frisk and 

resulting seizure of the cocaine under the plain feel doctrine 

did not violate appellant’s rights. Accordingly, we hold that 

the trial court erred in failing to exclude the cocaine. 

 Because Officer Lowery’s discovery of the cocaine led to 

his arrest of appellant and the incident search revealing the 

altered one-dollar bill which provided the basis for appellant’s 

conviction for possession of forged United States currency, both 

of appellant’s convictions must be reversed. 

Reversed.

 

confirm its identity, which does not translate into the legal 

conclusion that its “identity [was] immediately apparent” before

the squeeze.