Com. v. Benussi, R., 43 MDA 2016

Police received a BOLO for an armed carjacking and a suspect description; Victim identified Appellee as “Rob.”
Officer DeSimone, familiar with Appellee, went to an associate’s home late at night and encountered Appellee on the porch. DeSimone asked Appellee to keep his hands visible; Appellee put his hand in his pocket.
DeSimone secured Appellee’s hands behind his back and performed a Terry frisk; he removed a hatchet and then a cylindrical item from Appellee’s pocket that he later identified as a snuffer (drug paraphernalia).
After arrest, officers seized additional items from Appellee (razor, pipe, bullets, glassine bags, suspected bath salts, cash, cell phone); a loaded .22 firearm was found nearby in the snow.
Appellee moved to suppress the snuffer and all evidence obtained from his person; the trial court suppressed the snuffer and the items seized from Appellee’s person as fruit of the unlawful seizure but did not suppress the gun found in the snow.
The Commonwealth appealed, arguing the snuffer was lawfully seized under the plain-feel doctrine and the subsequent items should not have been suppressed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the snuffer was lawfully seized during a Terry frisk under the plain-feel doctrine	Officer DeSimone immediately recognized the cylindrical object as contraband based on his training and felt it without manipulating it, so seizure was lawful	The object’s incriminating nature was not immediately apparent from tactile feel; identification required removal and closer inspection	Court held the frisk was justified but the seizure of the snuffer failed the “immediately apparent” requirement of plain-feel and was unlawful
Whether items seized after arrest were admissible or fruit of the unlawful seizure	The snuffer’s lawful seizure supported the arrest and subsequent search incident to arrest	Because the snuffer seizure was unlawful, the arrest lacked probable cause and subsequent items are fruit of the poisonous tree	Court suppressed items seized from Appellee’s person as fruit of the unlawful seizure; the nearby rifle was not suppressed because its retrieval did not result from the personal search

Terry v. Ohio, 392 U.S. 1 (establishing stop-and-frisk standard)
Minnesota v. Dickerson, 508 U.S. 366 (plain-feel doctrine requires incriminating character to be immediately apparent)
Commonwealth v. Stevenson, 744 A.2d 1261 (Pa.) (plain-feel requires immediate apparentness; further exploration invalidates seizure)
Commonwealth v. Goldsborough, 31 A.3d 299 (Pa. Super. 2011) (standard of review for suppression rulings)
Commonwealth v. Preacher, 827 A.2d 1235 (Pa. Super. 2003) (frisk justified only when officer reasonably believes suspect may be armed)
Commonwealth v. Cottman, 764 A.2d 595 (Pa. Super. 2000) (totality of circumstances for reasonable suspicion)