J-A11020-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DAVID MORROW

Appellant No. 20 EDA 2015

Appeal from the Order December 16, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): MC-51-CR-0007023-2014

BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.: FILED JUNE 06, 2016

Appellant, David Morrow, appeals from the December 16, 2014 order, 

denying his petition for a writ of certiorari, after the Municipal Court of 

Philadelphia found him guilty of one count of intentional possession of a 

controlled substance1and sentenced him to three years’ probation. After 

careful review, we affirm.

The trial court summarized the relevant factual and procedural history 

of this case as follows.

On March 6, 2014 at approximately 1:30 a.m., 

Officer [Joseph] Sperry was on routine patrol in his 

marked patrol vehicle in the area of the 1100 block 

of West Cumberland Street in the City of 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 35 P.S. § 780-113(a)(16).
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Philadelphia. The officer observed a vehicle, in which 

Appellant was the passenger, with an obscured 

license plate due to a tinted cover. As he 

approached the vehicle, Officer Sperry smelled a 

strong odor of marijuana emanating from the 

vehicle. As he collected the driver’s information, he 

observed Appellant reach into his left coat pocket. 

The officer instructed Appellant to keep his hands 

where the officer could see them and not to reach 

into his pocket. Despite this command, Appellant 

again reached for his left side pocket, at which time 

Officer Sperry decided to remove Appellant from the 

vehicle for his safety to conduct a frisk. He walked 

behind the rear of the vehicle to approach Appellant 

and maintained visual contact. While he was 

removing Appellant from the vehicle, Appellant 

reached for his left side pocket a third time, at which 

time his fingertips went into his pocket. Officer 

Sperry conducted a frisk and felt, with open hands 

and his palm what he described as a plastic baggie 

containing one solid object; the object felt hard and 

larger than a tic-tac or M&M. He believed the item 

was consistent with narcotics and narcotics 

packaging. He formed this belief because of his 

seven and a half years of experience recovering 

narcotics, as well as Appellant’s furtive movements, 

the odor of an additional type of drug, and 

Appellant’s failure to follow his directives. The officer 

removed this item from Appellant’s jacket. He 

recovered a sandwich bag with an off-white chunky 

substance smaller than a golf ball size which turned 

out to be crack cocaine.

Trial Court Opinion, 7/31/15, at 1-2.

On March 6, 2014, Appellant was arraigned in the municipal court on 

the above-mentioned offense. On June 4, 2014, Appellant orally argued a 
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suppression motion.2 After hearing Officer Sperry’s testimony, the municipal 

court denied the motion. Immediately afterwards, the Commonwealth 

moved for all of Officer’s Sperry’s relevant non-hearsay testimony, along 

with the relevant property receipt showing 2.115 grams of crack cocaine be 

considered as its case in-chief. The Commonwealth rested, Appellant 

presented no evidence, and neither side presented argument to the 

municipal court. The municipal court found Appellant guilty of intentional 

possession of a controlled substance and immediately imposed a sentence of 

three years’ probation.

On July 1, 2014, Appellant filed a petition for a writ of certiorari in the 

trial court. Therein, Appellant argued that his Fourth Amendment rights 

were violated insofar that Officer Sperry lacked probable cause to search his 

pockets and the plain feel doctrine did not apply. Appellant’s Certiorari

Petition, 7/1/14, at ¶¶ 6-9. After reviewing the record, on December 16, 

2014, the trial court entered an order denying Appellant’s petition for a writ 

of certiorari. On December 23, 2014, Appellant filed a timely notice of 

appeal.3

On appeal, Appellant raises the following issue for our review.

____________________________________________

2

Pennsylvania Rule of Criminal Procedure 1005(A) explicitly authorizes oral 

suppression motions in municipal court cases. Pa.R.Crim.P. 1005(A).

3 Appellant and the trial court have complied with Pennsylvania Rule of 

Appellate Procedure 1925.
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Was not [A]ppellant searched without probable 

cause and in violation of the plain feel exception to 

the warrant requirement where, during a frisk, an 

officer felt in [A]ppellant’s pocket a plastic baggie 

and a “solid object” described merely as being larger 

than a tic-tac or M&M, items whose incriminating 

nature was not immediately apparent?

Appellant’s Brief at 3.

Here, Appellant argues that the criminal nature of the contents of his 

pocket was not “immediately apparent.” Appellant’s Brief at 8-9. The 

Commonwealth counters that under the totality of the circumstances, Officer 

Sperry’s belief as to the incriminating nature of what he felt in the 

Appellant’s pocket was objectively reasonable. Commonwealth’s Brief at 6. 

We begin by noting our well-settled standard of review.

In addressing a challenge to a trial court’s 

denial of a suppression motion, we are limited to 

determining whether the factual findings are 

supported by the record and whether the legal 

conclusions drawn from those facts are correct. 

Since the Commonwealth prevailed in the 

suppression court, we may consider only the 

evidence of the Commonwealth and so much of the 

evidence for the defense as it remains 

uncontradicted when read in the context of the 

record as a whole. Where the record supports the 

factual findings of the trial court, we are bound by 

those facts and may reverse only if the legal 

conclusions drawn therefrom are in error.

Commonwealth v. Scarborough, 89 A.3d 679, 683 (Pa. Super. 2014) 

(citation omitted), appeal denied, 102 A.3d 985 (Pa. 2014). As Appellant 

was seeking a writ of certiorari, the trial court was limited to a review of the 
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municipal court record. See generally Commonwealth v. Beaufort, 112 

A.3d 1267, 1269 (Pa. Super. 2015).

The Fourth Amendment of the Federal 

Constitution provides, “[t]he right of the 

people to be secure in their persons, houses, 

papers, and effects, against unreasonable 

searches and seizures, shall not be violated ....” 

U.S. Const. amend. IV. Likewise, Article I, 

Section 8 of the Pennsylvania Constitution 

states, “[t]he people shall be secure in their 

persons, houses, papers and possessions from 

unreasonable searches and seizures ....” Pa. 

Const. Art. I, § 8. 

Commonwealth v. Carter, 105 A.3d 765, 768 (Pa. 

Super. 2014) (en banc), appeal denied, 117 A.3d 

295 (Pa. 2015).

Commonwealth v. Williams, 125 A.3d 425, 432 (Pa. Super. 2015). 

Warrantless searches are per se unreasonable unless they fall into one of the 

delineated exceptions to the warrant requirement. Commonwealth v. 

Dunnavant, 63 A.3d 1252, 1257 (Pa. Super. 2013), aff’d by equally divided 

court, 107 A.3d 29 (Pa. 2014). One such exception is the plain feel 

exception, first enunciated by the Supreme Court in Minnesota v. 

Dickerson, 508 U.S. 366 (1993). Our Supreme Court held in 

Commonwealth v. Zhahir, 751 A.2d 1153 (Pa. 2000) that Dickerson was 

consistent with Article I, Section 8 of the Pennsylvania Constitution. Id. at 

1163. Our Supreme Court has explained the plain-feel doctrine in the 

following terms.

[T]he Dickerson Court adopted the so-called plain 

feel doctrine and held that a police officer may seize 
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non-threatening contraband detected through the 

officer’s sense of touch during a Terry frisk if the 

officer is lawfully in a position to detect the presence 

of contraband, the incriminating nature of the 

contraband is immediately apparent from its tactile 

impression and the officer has a lawful right of 

access to the object. As Dickerson makes clear, the 

plain feel doctrine is only applicable where the officer 

conducting the frisk feels an object whose mass or 

contour makes its criminal character immediately 

apparent. Immediately apparent means that the 

officer readily perceives, without further exploration 

or searching, that what he is feeling is contraband. 

If, after feeling the object, the officer lacks probable 

cause to believe that the object is contraband 

without conducting some further search, the 

immediately apparent requirement has not been met 

and the plain feel doctrine cannot justify the seizure 

of the object.

Commonwealth v. Stevenson, 744 A.2d 1261, 1265 (Pa. 2000).

In this case, Officer Sperry testified that he stopped the vehicle in 

which Appellant was a passenger for having a tinted license plate cover. 

N.T., 6/4/14, at 8. Upon approaching the vehicle, Officer Sperry detected “a 

strong odor of marijuana emanating from the vehicle.” Id. Officer Sperry 

observed Appellant stick his hand in his left coat pocket three times, despite 

being commanded not to do so. Id. at 8-9. Upon ordering Appellant out of 

the vehicle and conducting a frisk, Officer Sperry “[felt] an object that [he] 

believe[d] ... was consistent with narcotics packaging.” Id. at 9. The item 

was “larger than a tic-tac ... and a M&M.” Id. at 13-14. Officer Sperry 

testified that he had over seven years of experience on the police force, and 

had been involved with detecting narcotics packaging “anywhere [from] fifty 
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to sixty times.” Id. at 11. Officer Sperry testified that he did not have to 

grab the contents of Appellant’s pocket, he “was able to tell by the palm of 

[his] hand.” Id. at 18.

Instantly, the trial court concluded that Appellant’s suppression motion 

was properly denied for the following reasons.

Here, the recovery of crack cocaine from 

Appellant was constitutionally sound. Officer Sperry 

did not physically manipulate the package of crack 

cocaine, but felt with an open palm what he instantly 

believed to be contraband. Even if he was not 

completely sure that the hard object was cocaine, 

the “immediately apparent” requirement does not 

demand that an officer have absolute certainty; 

rather he need only form an objectively reasonable 

belief in light of the facts and circumstances. 

Considering the totality of the circumstances and 

Officer Sperry’s seven years of experience and 

knowledge that this type of baggie is commonly used 

for narcotics packaging, the incriminating nature of 

the item was immediately apparent to him. ... [In 

t]he instant case ... Officer Sperry did not feel only 

cardboard or other containers that would have 

required a second search, but felt the crack cocaine 

itself and was able to recognize its mass and 

contour. Therefore, Officer Sperry properly seized 

the contraband from Appellant when, bolstered by 

Appellant’s furtive movements, lack of compliance 

with his directives, and the smell of drugs emanating 

from the car, he immediately recognized the object 

as narcotics.

Trial Court Opinion, 7/31/15, at 3-4.

After careful review of the certified record, we conclude Appellant is 

not entitled to relief. Appellant emphasizes that Officer Sperry used the 

phrase “narcotics packaging.” Appellant’s Brief at 14-15. We agree with 
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Appellant that had Officer Sperry only testified that he felt a sandwich 

baggie which in his experience usually contained narcotics, this would not 

satisfy the plain feel exception to the warrant requirement. See 

Commonwealth v. Stevenson, 744 A.2d 1261, 1266 (Pa. 2000) (stating, 

“the plain feel doctrine is not met when an officer conducting a Terry frisk 

merely feels and recognizes by touch an object that could be used to hold 

either legal or illegal substances, even when the officer has previously seen 

others use that object to carry or ingest drugs[]”); Commonwealth v. 

Guillespie, 745 A.2d 654, 658 (Pa. Super. 2000) (concluding that the plain 

feel exception did not apply where the officer only felt pill bottles in the 

defendant’s pocket and did not immediately seize the item when felt); 

Commonwealth v. Stackfield, 651 A.2d 558, 562 (Pa. Super. 1994) 

(stating, “[a] zip-lock baggie is not per se contraband ... [and s]ight unseen, 

the contents of the baggies that the officer felt in appellant’s pants pockets 

could as easily have contained the remains of appellant’s lunch as 

contraband[]”). 

However, we look at the totality of the circumstances, not just Officer 

Sperry’s word choice in isolation. See Commonwealth v. Griffin, 116 A.3d 

1139, 1143 (Pa. Super. 2015) (stating, “[a]n officer’s subjective belief that 

an item is contraband is not sufficient unless it is objectively reasonable in 

light of the facts and circumstances that attended the frisk[]”) (citation 

omitted). Here, Officer Sperry, who has experience in narcotics detection, 
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observed Appellant consistently make furtive movements, reaching into the 

pocket in question, despite being told not to, after Appellant was ordered to 

step out of a vehicle, from which, Officer Sperry smelled a strong odor of 

marijuana. N.T., 6/4/14, at 8-9. Further, Officer Sperry did more than just 

use the term “narcotics packaging,” he described the contours of the object 

as “larger than a tic-tac ... and a M&M.” Id. at 13-14. In our view, when 

combined with Officer Sperry’s feeling of the object’s contour, this made his 

belief “objectively reasonable,” so as to satisfy the immediate apparent 

requirement of the plain feel exception. Griffin, supra.

Appellant cites to several plain feel doctrine cases, none of which alter 

our conclusion here. In Commonwealth v. Mesa, 683 A.2d 643 (Pa. 

Super. 1996), we concluded an officer exceeded the scope of the plain feel 

doctrine because the officer “stated that he made no observations of the 

bulge until he reached into appellant’s pocket and pulled out what was in 

there.” Id. at 648 (internal quotation marks and brackets omitted). In In 

the Interest of S.D., 633 A.2d 172 (Pa. Super. 1993), we held that an 

officer exceeded the scope of his pat-down when he reached into the 

juvenile’s pockets after a pat-down and retrieved cocaine vials. Id. at 176. 

We concluded that the officer “was told that the suspects were carrying 

weapons and drugs, he never indicated what it was he perceived he had 

felt.” Id. In Commonwealth v. Thompson, 939 A.2d 371 (Pa. Super. 

2007), we held that an officer’s affidavit that he “felt and removed a digital 
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scale, commonly used by actors engaged in the unlawful dealing of 

controlled substances, and felt and removed a large sum of U.S. Currency[]” 

was insufficient because the Commonwealth produced “no evidence 

whatsoever of the size, shape, or hardness of the objects removed.” Id. at 

377-378. Finally, in Commonwealth v. E.M., 735 A.2d 654 (Pa. 1999), our 

Supreme Court concluded that officers did not comply with the plain feel 

doctrine where they “offered no testimony indicating what it was about the 

mass or contour of this soft bulge which would support a finding that the 

feeling of the bulge made it immediately apparent to him that the bulge was 

contraband.” Id. at 663. As we have explained above, in this case the 

record contains testimony concerning the mass felt by Officer Sperry, and 

when combined with the other circumstances we have enumerated, this 

satisfied the plain feel doctrine. Therefore, in light of all of these 

considerations, Appellant’s Fourth Amendment rights were not violated by 

the scope of Officer Sperry’s frisk. See Williams, supra.

Based on the foregoing, we conclude the trial court correctly denied 

Appellant’s petition for a writ of certiorari. See Scarborough, supra. 

Accordingly, the trial court’s December 16, 2014 order is affirmed.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/6/2016