Com. v. Kenney, J.

J-S10043-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JORDYN M. KENNEY : : Appellant : No. 920 MDA 2024 Appeal from the Judgment of Sentence Entered May 31, 2024 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0000863-2023

BEFORE: BOWES, J., OLSON, J., and SULLIVAN, J.

DISSENTING MEMORANDUM BY SULLIVAN, J.: FILED MARCH 25, 2026 Because I would hold that the trial court erred as a matter of law in denying the suppression motion filed by Jordyn M. Kenney (“Kenney”), which was predicated on an officer’s unlawful search that exceeded the scope of Kenney’s consent to a “pat down” search, I would vacate the judgment of sentence, and remand for the trial court to enter an order granting suppression and for further proceedings.

The suppression record reflects that the issue before the trial court was the scope of a “pat down” search. N.T., 10/4/23, at 5. Sergeant David Troxell (“Sergeant Troxell”) testified he specifically requested consent to “pat down [Kenney] for drugs or weapons”, a fact that is uncontested. N.T., 10/4/23, at 11, 15. The Commonwealth, Seargent Troxell, and defense counsel consistently referred to the search of Kenney as a “pat down” or “Terry J-S10043-25 search” and used the terms interchangeably. Id. at 11-15. A “pat down” is a legal term of art that has developed since the United States Supreme Court (“SCOTUS”) opinion in Terry v. Ohio, 392 U.S. 1 (1968) and denotes a “limited Search of an individual’s outer clothing . . .” Commonwealth v. Guillespie, 745 A.2d 654, 657 (Pa. Super. 2000) (emphasis added); accord Commonwealth v. Sharaif, 205 A.3d 1286, 1290 n.6 (PA. Super. 2019); see also Commonwealth v. Cavalieri, 485 A.2d 790, 793 (Pa. Super. 1984) (noting that in Terry, the scope of the permissible “pat down” was such that the officer did not place his hands in the [suspects’] pockets or under the outer surface of their garments until he had felt weapons) (internal citation and quotation omitted).

The scope of a “pat down”, whether consensual or not, is linked with the limited purpose of this category of warrantless search. The purpose of a “pat down” or “Terry search” is: to assure the safety of the officer and of bystanders. Under both state and federal constitutions, an officer performing a stop and frisk may pat down the suspect to identify weapons and may remove any weapons that he can identify by feel. If the search proceeds beyond this scope and extends to a general search for incriminating evidence, it is no longer valid and the fruits of the search will be suppressed.

Commonwealth v. Stoner, 710 A.2d 55, 58 (Pa. Super. 1998) (citations omitted). In order for this narrow exception to apply, the officer must be

-2- J-S10043-25 conducting 1) a valid investigatory stop,1 and 2) during the valid stop the officer must observe unusual and suspicious conduct on the part of the of the individual which leads him to reasonably believe that the suspect may be armed and dangerous. See Commonwealth v. E.M./Hall, 735 A.2d 654, 659 (Pa. 1999); see also Commonwealth v. Fulton, 345 A.3d 352, 368 (Pa. Super. 2025). An officer must articulate specific facts from which he could reasonably infer that the individual was armed and dangerous, and the suppression court examines the facts under a totality of the circumstances.

Fulton, 345 A.3d at 368. Under state and federal law a Terry “pat down” is limited to the suspect’s outer garments and for the purpose of identifying weapons by feel. E.M./Hall, 735 A.2d at 659; Stoner, 710 A.2d at 58.

Additionally, it “must always be strictly limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.” E.M./Hall, 735 A.2d at 659. It is not to discover evidence of a crime, but to allow the officer to pursue his investigation without fear of violence, and if the “pat down” “extends to a general search for incriminating evidence, it is no longer valid.” Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa. Super. 2011).

The limited exception to this rule is “the plain feel doctrine”, which our Supreme Court has made clear is an extremely narrow doctrine and is “only

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-3- J-S10043-25 applicable where the officer conducting the frisk feels an object whose mass or contour makes its criminal character immediately apparent.” Interest of T.W., 261 A.3d 409, 420- 422 (Pa. 2021). In sum: a “pat down”, pursuant to Terry, permits a frisk of a suspect’s outer clothing for weapons; the plain feel doctrine allows for a further search if the officer feels something immediately recognizable as illegal contraband. Our Supreme Court held that the “immediately apparent requirement of the plain feel doctrine is not met when an officer,” during a “pat down” search—in that case, 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. Stevenson, 744 A.2d at 1266. See id.; see also Commonwealth v. Fink, 700 A.2d 447, 451 (Pa. Super. 1997) (officer was authorized to perform a “pat down” of a suspect but exceeded the scope of consent to the “pat down” by seizing a marijuana pipe and other paraphernalia from the suspect’s pockets when those objects were not “immediately apparent” to the officer they were contraband); Mesa, 683 A.2d at 647-48 (concluding an officer was permitted to perform a “pat down” search for weapons, but exceeded his authority when he felt a bulge that he believed could be contraband, pulled it out, and discovered folded money and a packet of marijuana); accord Interest of T.W., 261 A.3d at 421-22 (setting forth the plain feel doctrine); Commonwealth v. Breeland, 279 A.3d 1251, 2022 WL 1515481 (Pa. Super.

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May 13, 2022) (unpublished mem. at *6) (holding the plain feel doctrine did not apply where “further investigation was needed for [the officer] to identify the criminal nature of the substance”).

Here, the record is uncontested that Sergeant Troxell asked for consent to conduct a “pat down for drugs and weapons.” N.T. 10/4/23 at 15. Our Supreme Court has articulated the limits of consent in Commonwealth v. Valdivia, 195 A.3d 855, 861 (Pa. 2018), while the Fourth Amendment and Article I, Section 8 require a warrant supported by probable cause for a search, one of the exceptions to the warrant requirement is consent; however, “there are carefully demarked limitations as to what constitutes a valid consent search.” Id. The Commonwealth bears the burden of establishing voluntary consent. See Commonwealth v. Venable, 200 A.3d 490, 497 (Pa. Super. 2018).

Regarding the scope of consent: If consent is given voluntarily, the ensuing search must be conducted within the scope of that consent. The standard for measuring the scope of an individual’s consent is one of objective reasonableness. We do not ascertain the scope of consent from the individual’s subjective belief or the officer’s understanding based on his or her training and experience, but based on what the typical reasonable person would have understood by the exchange between the officer and the suspect.

Valdivia, 195 A.3d at 862 (internal citations, quotations, and ellipses omitted). The scope of consent “is limited by the terms of its authorization,” and, accordingly, “[t]o be justified by consent, the scope of the search actually made should be no broader than the scope of consent given.” Id. at 865 -5- J-S10043-25

(internal citations and quotations omitted). Our Supreme Court has held that the “burden is on law enforcement officials to conduct a search within th[e] parameters” of the consent given. Id. at 868. Since a Terry “pat down” is limited in its application; likewise, consent for this specific type of search is limited by the extent of its authorization. Furthermore, the scope of a search is controlled by the scope of consent given, and when law enforcement exceed the scope of the individual’s consent, the search is illegal “regardless of whether the individual objected or revoked his or her consent.”

Comonwealth v. Fulton, 345 A.3d at 363. Additionally, the law is well established that a “pat down” is limited to the outer clothing to discover weapons that may endanger an officer’s safety, or if while conducting that limited search on the outside of a suspect’s clothes possession of illegal contraband is “immediately apparent.” Interest of T.W., 262 A.3d at 422.

In its opinion, the trial court, without analysis of the term “pat down,” or discussion of its context in the law, summarily concluded that a Terry analysis was not necessary because “[Kenney] gave [Sergeant] Troxell consent to pat him down.” Trial Ct. Op., 11/15/23, at 3-4. While it is unclear exactly why, it seems the trial court reasoned that if an officer requests a “pat down” for drugs and weapons it either takes the analysis outside the scope of Terry and expands it to a general search, or it creates an expanded

-6- J-S10043-25 sub-category of Terry.2 I have been unable to pinpoint any law that supports this expansive analysis. Rather, since the invasive search here clearly exceeded the scope of Kenney’s consent to the “pat down” requested, in derogation of the Fourth Amendment and Article I, Section 8, as explained further infra, I cannot agree with the court’s unsupported legal analysis or legal expansion of a “pat down.”

The facts here show the trial court expanded Kenney’s consent from a “pat-down” search to general consent to search the rest of his person for contraband. Here, Kenney was a pedestrian when Sergeant Troxell observed his strange behavior. Sergeant Troxell testified that he suspected Kenney was intoxicated. Suspecting intoxication, Sergeant Troxell conducted a field sobriety test, which was negative. Sergeant Troxell then suspected Kenney was under the influence of an unspecified controlled substance, and there was no testimony that the officer smelled marijuana, or specifically suspected marijuana use.

An obvious omission in Sergeant Troxell’s testimony was any fear for his safety because he believed Kenney was armed and dangerous; in fact, he clearly testified that the only safety concern he had was that Kenney might

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-7- J-S10043-25 get hit by a car. See N.T., 10/4/23, at 9. Despite having no fear for his safety, Sergeant Troxell asked for consent to “pat him down for weapons or drugs” and Kenney consented. Id. at 11, 15. Crucially, the testimony thereafter does not indicate an actual “pat down” even occurred; rather, Sergeant Troxell testified to first physically grabbing a water bottle Kenney was holding and opening it to determine if there was alcohol in it, and then proceeding straight into his jacket pockets and pulling out a charger, a phone, and then a package of cigarillos. See id. at 12, 15. Critically, Sergeant Troxell testified he was not able to tell immediately that illegal contraband was in Kenney’s pockets prior to reaching into his inner pocket, pulling items out, and then searching within them. See id. at 14. The record clearly shows that a Terry “pat down” became a search for incriminating evidence beyond the consent given.

Without legal support for an expansion of Terry “pat downs” or new sub-categories expanding the limits of consent, I am constrained to conclude the trial court committed legal error. The record reveals that Kenney consented to a “pat down” search, not a search of the contents of his pockets. When Sergeant Troxell did not feel a weapon or any items that were immediately recognizable as illegal contraband, the scope of a legal “pat down” was complete. Sergeant Troxell expressly testified that he asked for consent to perform a “pat down” on Kenney, not to pull items from inside his pockets. See N.T., 10/4/23, at 15. Additionally, Sergeant Troxell did not

-8- J-S10043-25 testify that he suspected Kenney to be under the influence of marijuana, and, therefore, the fact that the cigarillo packages often contain marijuana is of no moment. Rather, having asked for consent to perform a “pat down” of Kenney, and receiving consent, Sergeant Troxell performed the “pat down” search, and then without discerning any immediately apparent contraband and without asking for consent to expand the scope of the search inside Kenney’s pockets, he then proceeded to pull several items from inside Kenney’s pockets.

The Majority’s decision affirming the denial of suppression principally relies on Commonwealth v. Yedinak, 676 A.2d 1217 (Pa. Super. 1996), in which this Court affirmed a denial of suppression of the fruits of a vehicle search pursuant to a “general consent” to search the vehicle for drugs.

However, Yedinak is distinguishable not only because that case concerned a vehicular search but because, crucially, the officer asked for consent to search the entire vehicle for drugs to which the defendant gave “general consent,” whereas, here, the officer specifically asked for consent to conduct a “pat down”, a term denoting a limited search of a suspect’s outer clothing, see, e.g., Guillespie, 745 A.2d at 657, and then after the officer conducted a “pat down” and without any further consent or it being immediately apparent that Kenney possessed a weapon or contraband began searching inside Kenney’s pockets and pulling out several items that were not apparently contraband and then searching within those items, namely a packet of cigarillos. As the

-9- J-S10043-25 officer exceeded the scope of Kenney’s consent to conduct a “pat down” by performing a more invasive search than consent to “pat down” his person for drugs or weapons, Yedinak does not support affirmance.3 Based on the foregoing, I would hold that the trial court’s factual finding, i.e., that Kenney consented to a general search of his person, lacks support in the record, and its legal conclusions (i.e., that Kenny’s consent to a “pat down” search included a search of one’s pocketed personal effects, since he did not “terminate[] his consent” after Sergeant Troxell began going into his effects, see Trial Ct. Op., 11/15/23, at 5 n.1) constitute error.

Therefore, I respectfully dissent.

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J-S10043-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JORDYN M. KENNEY : : Appellant : No. 920 MDA 2024 Appeal from the Judgment of Sentence Entered May 31, 2024 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0000863-2023

BEFORE: BOWES, J., OLSON, J., and SULLIVAN, J.

MEMORANDUM BY BOWES, J.:* FILED MARCH 25, 2026 Jordyn M. Kenney appeals from the judgment of sentence of thirty days of probation and a $1 fine imposed following his conviction for possession of marijuana. We affirm.

The following facts were established at the suppression hearing. At approximately 10:00 p.m. on May 21, 2023, Sergeant David Troxell of the South Lebanon Township Police Department stopped his patrol car to assist Appellant when he flagged the sergeant down as he stumbled onto an unlit road.1 Due to Appellant’s unsteady gait and the lack of visibility on the street, the sergeant was concerned that Appellant would be struck by a vehicle. ____________________________________________

* This case was reassigned to the author on December 15, 2025.

J-S10043-25

Sergeant Troxell initially suspected that Appellant was under the influence of alcohol and administered a field sobriety test, which indicated that he was not. Based upon Appellant’s suspicious demeanor during the stop, however, the sergeant nonetheless believed that he was intoxicated by a controlled substance. He therefore asked Appellant for consent “to pat him down for weapons or drugs.” See N.T. Suppression, 10/4/23, at 11. Appellant acquiesced. During the search, Sergeant Troxell discovered, inter alia, a previously opened cigarillo package in Appellant’s inner jacket pocket.

Pursuant to his training and experience, the sergeant knew that marijuana was typically stored and smoked in cigarillo wrappers. Appellant immediately apologized for what was inside the package before Sergeant Troxell unzipped it. Once opened, the sergeant uncovered two marijuana cigarettes.

Appellant was arrested and charged with possession of a small amount of marijuana. He filed a motion to suppress the evidence obtained from the search of his jacket pocket, maintaining that the search exceeded the scope of his consent. At the ensuing hearing, Sergeant Troxell outlined the above facts. The court ordered additional briefing and subsequently issued an opinion denying Appellant’s motion. A bench trial followed. The court found Appellant guilty of the single charge and imposed the above-referenced sentence.

Appellant timely appealed, and he and the trial court complied with the requirements of Pa.R.A.P. 1925. He now raises the following questions for our

-2- J-S10043-25 determination: “Did the trial court err when it denied Appellant’s omnibus pre-trial motion by finding the pat-down search conducted by [Sergeant] Troxell to be lawful? Specifically, did the trial court err when it found that Appellant had consented to the search conducted by [Sergeant] Troxell?”

Appellant’s brief at 6 (some capitalization altered).2 We begin with the applicable legal principles: Our standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court’s factual findings are supported by the [suppression hearing] and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court’s factual findings are supported by the record, we are bound by these findings and may reverse only if the court’s legal conclusions are erroneous. The suppression court’s legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.

Commonwealth v. Phillips, 327 A.3d 1236, 1241 (Pa.Super. 2024) (cleaned up).

It is well-settled that a warrantless search is generally illegal but may be lawful where the circumstances fall into “specifically established and well- delineated exceptions to the warrant requirement.” Commonwealth v.

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Arrington, 233 A.3d 910, 915 (Pa.Super. 2020) (cleaned up). This Court has explained that “[s]uch exceptions include the consent exception, the plain view exception, the inventory search exception, the exigent circumstances exception, the automobile exception[,] the stop and frisk exception, and the search incident to arrest exception.” Commonwealth v. McMahon, 280 A.3d 1069, 1072 (Pa.Super. 2022) (cleaned up).

Where a suspect consents to a search, the following legal precepts apply: We have long approved consensual searches because it is no doubt reasonable for the police to conduct a search once they have been permitted to do so. Although a warrantless, but consensual, search is constitutionally permissible, obtaining consent is an investigative tool utilized by law enforcement. It allows police to do what otherwise would be impermissible without a warrant. As a consent search is in derogation of the Fourth Amendment, there are carefully demarked limitations as to what constitutes a valid consent search.

First, consent must be voluntarily given during a lawful police interaction . . . .

If consent is given voluntarily, the ensuing search must be conducted within the scope of that consent. The standard for measuring the scope of an individual’s consent is one of objective reasonableness. We do not ascertain the scope of consent from the individual’s subjective belief or the officer’s understanding based on his or her training and experience but based on what the typical reasonable person would have understood by the exchange between the officer and the suspect.

....

The burden is on law enforcement officials to conduct a search within those parameters. An individual is not required to police the police; absent another exception to the warrant requirement, when a search exceeds the scope of an individual’s given consent, -4- J-S10043-25 the search is illegal regardless of whether the individual objected or revoked his or her consent.

Commonwealth v. Valdivia, 195 A.3d 855, 862, 868 (Pa. 2018) (cleaned up).

Unlike the consent exception, the “sole justification of” a frisk pursuant to Terry v. Ohio, 392 U.S. 1 (1968), “is the protection of the police officer[,] and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Commonwealth v. Gibson, 333 A.3d 710, 726 (Pa.Super. 2025) (cleaned up). Closely related to the Terry frisk exception is the plain feel doctrine, which “allows officers to remove immediately apparent illegal contraband from within a suspect’s clothing during a lawful frisk.” Interest of T.W., 261 A.3d 409, 422 (Pa. 2021). Pursuant to these coinciding principles, “a police officer may remove an object from within a suspect’s clothing under the reasonable suspicion that the object is a weapon,” or “if, by touch, it is immediately apparent that the object is illegal contraband.” Id. (cleaned up).

Appellant acknowledges that the Terry frisk exception is distinct from the consent exception, and that he consented to a search. See Appellant’s brief at 16. However, he avers that because he agreed to a “pat-down” search, the caselaw governing the Terry frisk exception is applicable and informs the Court “about the expectations reasonable people have as to the scope of a pat-down search, and the nature of the consent they are providing -5- J-S10043-25 when they consent to a pat-down search.” Id. at 16-17. Citing law governing the Terry frisk exception and the plain feel doctrine, Appellant argues that Sergeant Troxell exceeded the scope of his consent when he removed the cigarillo package from Appellant’s pocket and opened it where the nature of the contraband was not immediately apparent. Id. at 17-22.

The trial court concluded that Appellant’s consent to a pat down for drugs and weapons “removed this search from the one governed by Terry to one governed by the laws pertaining to a consensual search.” Trial Court Opinion, 11/15/23, at 4. It explained that had Sergeant Troxell’s search been a Terry frisk, he “would not have been justified in progressing any further once he identified . . . the cigarette package.” Id. Since Appellant “afforded [Sergeant] Troxell with express permission to search his body for weapons or contraband[,]” however, the sergeant “was not prevented from taking the package of cigarettes into his hands” and search the contents thereof for drugs. Id. at 5-6.

We agree with the court that Appellant has improperly conflated the Terry frisk exception and the consent exception. Plainly, Sergeant Troxell’s request for permission to “pat down” Appellant for weapons or drugs does not equate to a Terry frisk. Accordingly, only the law governing the consent exception is applicable. Since Appellant does not contest that he voluntarily consented to a search during a lawful interaction, the focus of this appeal concerns whether Sergeant Troxell exceeded the scope of that consent based

-6- J-S10043-25 upon what a reasonable person would expect under these circumstances. 3 See Valdivia, 195 A.3d at 862.

Our decision in Commonwealth v. Sullivan, 293 A.3d 588, 2023 WL 1434289 (Pa.Super. 2023) (non-precedential decision), is instructive. There, Sullivan and her passenger were pulled over for a broken taillight. The officer conducting the traffic stop classified it “as an unknown risk stop, meaning he had no information that led him to believe that there was any threat or immediate risk or criminal activity other than the traffic violation.” Id. at *1 (cleaned up). After issuing a warning, the officer informed the occupants that they were free to leave and began to walk away, but he immediately returned and asked to search the vehicle. Notably, the officer “did not tell [Sullivan] what he was searching for or why he wanted to search the vehicle.” Id. at *2. He obtained Sullivan’s consent, uncovered an opaque cosmetic bag from the glove compartment, which did not appear to him to be “out of the ordinary,” and found two glassine bags of heroin inside. Id. The trial court granted Sullivan’s motion to suppress, and this Court affirmed. After determining that Sullivan voluntarily consented to a search of her vehicle, we concluded that the search of the makeup bag was outside the

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-7- J-S10043-25 scope of her consent. This Court stated that a reasonable person would not believe that a search of the vehicle would include the contents of a cosmetic bag located inside of the glove compartment based upon the officer: (1) neglecting to seek permission to “extend the search beyond the general vehicle;” (2) failing to provide “what he was searching for or why he requested to search the car;” and (3) having “no suspicion of criminal activity” outside the traffic violation. Id. at *8 (distinguishing Florida v. Jimeno, 500 U.S. 248 (1991), and Commonwealth v. Yedinak, 676 A.2d 1217 (Pa.Super. 1996)).

Unlike in Sullivan, Sergeant Troxell asked Appellant “for consent to pat him down for weapons or drugs” after suspecting that he was intoxicated.

See N.T. Suppression, 10/4/23, at 11. Also distinct from the officer in Sullivan, the sergeant’s request followed a field sobriety test, which ruled out alcohol, but did not resolve his concern of Appellant being under the influence of a controlled substance.

Relevantly, this Court has held that when officers obtain consent to search an individual’s car for drugs, they are “free to search any containers within the vehicle that could reasonably contain narcotics.” Yedinak, 676 A.2d at 1220. In Yedinak, this Court determined that the scope of consent included the contents of a cigarette pack and a cough drop container since those items could plausibly store illegal substances. Id.

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Here, as mentioned, Sergeant Troxell specifically requested to search Appellant for drugs because he suspected that he was intoxicated. It was therefore objectively reasonable for both the sergeant and Appellant to expect that a search for narcotics would include containers typically used to hold them, such as the cigarillo package in Appellant’s jacket pocket. See Jimeno, 500 U.S. at 249-51 (stating that after the officer informed respondent that “he had reason to believe that respondent was carrying narcotics in his car,” it was “objectively reasonable for the police to conclude that the general consent to search respondent’s car included consent to search containers within that car which might bear drugs,” and that “[a] reasonable person may be expected to know that narcotics are generally carried in some form of a container”). Accordingly, pursuant to the principles governing the consent exception, Appellant is not entitled to relief.

Judgment of sentence affirmed.

Judge Olson joins this Memorandum.

Judge Sullivan files a Dissenting Memorandum.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary Date: 03/25/2026

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