In the Interest of: B.G., Appeal of: B.G. (judgment order)
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J- A04025- 14 N ON - PRECED EN TI AL D ECI SI ON - SEE SUPERI OR COURT I .O.P. 6 5 .3 7 I N THE SUPERI OR COURT OF PENNSYLVANI A I N THE I NTEREST OF: B.G., A MI NOR APPEAL OF B.G., A MI NOR No. 758 WDA 2013 Appeal from t he Order Dat ed April 4, 2013 I n t he Court of Com m on Pleas of Allegheny Count y Juvenile Division at No.: 2156- 12 BEFORE: BOWES, J., WECHT, J., and STABI LE, J. JUDGMENT ORDER BY WECHT, J.: FI LED: February 7, 2014 B.G., a m inor, appeals t he April 4, 2013 disposit ional order. B.G. challenges t he pre- hearing order denying his m ot ion t o suppress drugrelat ed evidence on t he basis of, int er alia, t he plain feel doct rine. We vacat e t he disposit ional order, and we rem and. The hist ory of t his case is fam iliar t o t he part ies, and we need not reproduce it here. For present purposes, we assum e, arguendo, t hat t he police officer in t his case had a reasonable suspicion sufficient t o j ust ify st opping B.G. for an invest igat ory det ent ion pursuant t o Te r r y v. Ohio, 392 U.S. 1 ( 1968) . During a Te r r y st op, a police officer m ay pat down a suspect for weapons. Com m on w e a lt h v. Pa k a ck i, 901 A.2d 983, 988 ( Pa. Super. 2006) . However, non- t hreat ening cont raband m ay be seized only if it is discovered in com pliance wit h t he plain feel doct rine. Th om pson, 939 A.2d 371, 376 ( Pa. Super. 2007) . Com m on w e a lt h v. J- A04025- 14 Under t he plain feel doct rine, a police officer m ay seize nont hreat ening cont raband det ect ed t hrough t he officer s sense of t ouch during a Te r r y frisk if t he officer is lawfully in a posit ion t o det ect t he presence of cont raband, t he incrim inat ing nat ure of t he cont raband is im m ediat ely apparent from it s t act ile im pression and t he officer has a lawful right of access t o t he obj ect . The plain feel doct rine is only applicable where t he officer conduct ing t he frisk feels an obj ect whose m ass or cont our m akes it s crim inal charact er im m ediat ely apparent . I m m ediat ely apparent m eans t hat t he officer readily perceives, wit hout furt her explorat ion or searching, t hat what he feels is cont raband. Pa k a ck i, 901 A.2d at 989. I n order t o rem ain wit hin t he boundaries [ of t he plain feel doct rine] , an officer m ust be able t o subst ant iat e what it was about t he t act ile im pression of t he obj ect t hat m ade it im m ediat ely apparent t o him t hat he was feeling cont raband. Com m on w e a lt h v. E.M ., 735 A.2d 654, 664 n.8 ( Pa. 1999) . The suppression record is devoid of any evidence subst ant iat ing t he officer s belief t hat t he obj ect t hat he felt in B.G. s pocket was im m ediat ely apparent t o him as being heroin. The record cont ains only t he officer s response of correct when asked whet her he im m ediat ely ident ified t he obj ect . Se e Not es of Test im ony, 1/ 28/ 2013, at 11. The Com m onwealt h concedes, fort hright ly, t hat t he record does not support t he applicat ion of t he plain feel doct rine. Se e Brief for t he Com m onwealt h at 19. - 2 - J- A04025- 14 We agree t hat t he record does not support t he court s findings of fact , and t hat t he court s legal conclusion drawn t herefrom was in error. 1 heroin should have been suppressed. The Thus, we vacat e t he disposit ional order, and we rem and for furt her proceedings. Order vacat ed. Case rem anded. Jurisdict ion relinquished. Judgm ent Ent ered. Joseph D. Selet yn, Esq. Prot honot ary Dat e: 2/ 7/ 2014 ____________________________________________ 1 Our st andard of review of t he denial of a suppression m ot ion is as follows: An appellat e court m ay consider only t he Com m onwealt h s evidence and so m uch of t he evidence for t he defense as rem ains uncont radict ed when read in t he cont ext of t he record as a whole. Where t he record support s t he fact ual findings of t he suppression court , t he appellat e court is bound by t hose fact s and m ay reverse only if t he legal conclusions draw n t herefrom are in error. I t is also well set t led t hat t he appellat e court is not bound by t he suppression court s conclusions of law. I n r e V.C., 66 A.3d 341, 350- 51 ( Pa. Super. 2013) ( quot ing Com m on w e a lt h v. Kn ox , 50 A.3d 749, 746- 47 ( Pa. Super. 2012) ) . - 3 - J- A04025- 14 - 4 -
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