[J-6-2021] [MO: Mundy, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                EASTERN DISTRICT


    IN THE INTEREST OF: T.W., A MINOR           :   No. 22 EAP 2020
    APPEAL OF : T.W.                            :
                                                :   Appeal from the Judgment of
                                                :   Superior Court entered on February
                                                :   4, 2020 at No. 2390 EDA 2018
                                                :   affirming the Order entered on July
                                                :   10, 2018 in the Court of Common
                                                :   Pleas of Philadelphia County,
                                                :   Juvenile Division, at No. CP-51-JV-
                                                :   0001105-2018.
                                                :
                                                :   ARGUED: March 9, 2021


                      CONCURRING AND DISSENTING OPINION

JUSTICE WECHT                                           DECIDED: October 20, 2021
        This case requires us to delineate the quantum of suspicion that a police officer

initiating a protective search pursuant to Terry v. Ohio, 

 (1968), must possess

before he expands the scope of that search from a pat-down to the more intrusive act of

reaching inside a suspect’s clothing. Terry did not specify whether an officer must have

probable cause or, alternatively, only reasonable suspicion to believe that an object felt

during a pat-down is a weapon before the officer reaches inside a suspect’s clothing and

removes that object. In resolving that open question, the Majority concludes that “a police

officer may remove an object from within a suspect’s clothing under the reasonable

suspicion that the object is a weapon.”1 On this broad and important holding, my views

align with those of the Majority.




1       Maj. Op. at 17.
       I part ways with the Majority in its application of the reasonable suspicion standard

to this case. In my view, the Majority errs in concluding that Officer Nicholas Grant

reasonably believed that the object in T.W.’s pocket was a weapon. The only additional

information that Officer Grant acquired during the frisk—the lone fact that, according to

the Majority, empowered him to reach inside T.W.’s clothing—was the presence of a “hard

object,”2 without more. Disregarding the not insignificant likelihood that any given “hard

object” might be a great many things other than a weapon, the Majority approves the

intrusion because to do otherwise “would require police officers to allow suspicious

objects to remain on a suspect’s person during a stop, which could potentially be used to

harm police officers or the general public.”3

       The Majority posits a false dilemma. When a pat-down reveals a hard object, the

officer is not forced to choose only between (a) risking his (or others’) safety; and (b)

reaching inside the suspect’s clothing. A third choice is available. The police officer can

discern whether the hard object is dangerous through a less invasive option:

manipulating the object from outside the clothing. Terry, as further developed by its

progeny, requires police officers to use the least intrusive means reasonably available

during a protective search. Given the decidedly limited support for any belief that T.W.

possessed a weapon here, prevailing Fourth Amendment law required Officer Grant to

manipulate the unknown object before reaching into the interior of T.W.’s pocket.

       By failing to require police officers to employ the least invasive method of searching

for weapons, the Majority sanctions substantial intrusions upon persons whenever a

police officer detects any object that conceivably or theoretically could present a danger,

no matter how unlikely it is that the object presents a real and actual threat. To permit

2      

.
3      

.


                              [J-6-2021] [MO: Mundy, J.] - 2
intrusion into a suspect’s clothing on such scant indicia is to remove all meaningful

limitation on the breadth of the protective search. The privacy interests secured by the

Fourth Amendment require more than a vague hunch that an unidentified object might be

a weapon in order to justify a warrantless search of a suspect’s person. This is particularly

so in light of the availability of external manipulation as an alternative.

                                       I. Background

       At approximately 4:15 a.m. on June 19, 2018, Officer Grant, a two-year veteran of

the Philadelphia Police Department, and his partner, Officer Robert Heeney, were on

routine patrol of the 2200 block of North 20th Street in Philadelphia when they observed

two vehicles, a silver Toyota and a green Chevrolet, make the same illegal U-turn. When

the officers attempted to follow in order to initiate simultaneous traffic stops, the vehicles

accelerated and sped through several red lights. The Chevrolet struck several cars and

crashed. Two men alighted from the vehicle and fled. The police officers exited their

patrol car and chased the two men on foot. During that ultimately unsuccessful pursuit,

Officers Grant and Heeney saw the Toyota stopped at a red light. Still on foot, the officers

conducted a vehicle stop of the Toyota. Notes of Testimony (“N.T.”), 7/10/2018, at 8-12.

       Three people were inside the Toyota:          a female driver, a female front-seat

passenger, and seventeen-year-old T.W., who was sitting directly behind the driver.

Upon approaching the vehicle, Officer Grant witnessed T.W. reach into his pockets while

“blad[ing] his body”—i.e., turning his left shoulder away from Officer Grant to block his

view. 

. Officer Grant ordered T.W. to stop moving, but T.W. did not comply.

. Concerned that T.W. “could have had a weapon [or] narcotics,” Officer Grant

directed T.W. to exit the vehicle. 

.

       Once T.W. stepped out of the vehicle, Officer Grant conducted “an open-hand pat

down” of the outside of T.W.’s clothing. 

. While patting down the left pocket of




                               [J-6-2021] [MO: Mundy, J.] - 3
T.W.’s pants, Officer Grant felt a “[h]ard” object. 

. Unable to determine what the

object was, Officer Grant reached into T.W.’s pocket and removed the object. Upon

closer inspection, Officer Grant determined that the item was a medicine bottle labeled

“Promethazine,” which contained a liquid. 

. Officer Grant learned that the bottle

was not prescribed to T.W., who was unable to produce identification. 

 Suspecting

that promethazine was a controlled substance, Officer Grant arrested T.W. Officer Grant

conducted a search incident to the arrest, during which he reached into T.W.’s right pants

pocket and recovered a prescription pill bottle (also prescribed to a person other than

T.W.) containing two white pills, later identified as oxycodone, a known controlled

substance. 

. No weapon was retrieved. See 

       The Commonwealth filed a juvenile delinquency petition against T.W., charging

him with possession of a controlled substance. T.W. moved to suppress the items of

physical evidence recovered from his person as fruits of an unlawful search. The Court

of Common Pleas conducted a suppression hearing, at which Officer Grant testified to

the facts recited above. Other than recalling that the object in T.W.’s pocket was “large”

and “hard,” Officer Grant provided no additional description. 

. Nor did he state

that he believed that the object was a weapon. Instead, several times throughout the

hearing, Officer Grant testified candidly that he was unable to identify the object. See 

 (“He could have had a weapon. He could have narcotics. I wasn’t really sure. It’s

a high crime area.”); 

 (“I felt a large object in his left pants pocket. . . . I wasn’t

sure what it was. But it was large, so I felt the need to take it out.”); 

 (“I did not

know what it was.”). During cross-examination, Officer Grant could not remember the

“exact size” of the bottle, though defense counsel, referencing the property receipt that

Officer Grant filled out following the arrest, stated that it was a “seven-milligram bottle,”

approximately “two to three inches in height.” 

 (referencing Commonwealth’s




                               [J-6-2021] [MO: Mundy, J.] - 4
Exhibit 1-C, Property Receipt No. 3345946).4 Officer Grant agreed that the bottle of

promethazine was comparable “to a bottle of cough syrup,” or “Nyquil”—and that its

presence was the “sole reason” that he decided to reach inside to search T.W.’s front

pants pocket. 

.

       At the conclusion of the suppression hearing, the court rendered findings of fact

and denied T.W.’s motion. The parties proceeded immediately to trial and incorporated

the suppression testimony by reference. Contrary to Officer Grant’s suspicion and the

trial court’s apparent factual finding at the suppression hearing, the Commonwealth, at

trial, conceded that the bottle of promethazine did not contain any “commonly

encountered controlled substance.”        

 at 37 (citing Commonwealth’s Exhibit 1-A,

Seizure Analysis).5 In light of T.W.’s possession of oxycodone, however, the court

adjudicated him delinquent and ordered that he be placed in a residential facility.

       T.W. appealed. He argued, in relevant part, that the trial court erred in denying his

suppression motion because Officer Grant exceeded the scope of a Terry search by

reaching into his pocket without probable cause and removing the bottle of cough syrup.

4      Property Receipt No. 3345946 contradicts Officer Grant’s testimony that he pulled
the bottle of oxycodone from T.W.’s right pants pocket. According to the property receipt,
Officer Grant seized both the promethazine and the oxycodone from the left pocket of
T.W.’s pants. See Commonwealth’s Exhibit 1-C, Property Receipt No. 3345946.
5        As the trial court later acknowledged, promethazine is not a controlled substance.
Trial Court Opinion (“TCO”), 10/10/2018, at 3 n.1. The court explained that it initially found
that the seized liquid was a controlled substance because no party objected to Officer
Grant’s testimony on that issue. The court noted that promethazine is commonly mixed
with “limited amounts of codeine,” which is a controlled substance. 

 Typically, the
promethazine and codeine mixture is put into Sprite, along with Jolly Ranchers. See Lean
(Drug),      W IKIPEDIA, THE FREE ENCYCLOPEDIA,             http://   en.wikipedia.org/wiki/
Lean_(drug)#Names (last visited June 16, 2021). This recreational drug beverage, which
was popularized by musicians from Houston, Texas, goes by several names: lean, purple
drank, sizzurp, dirty Sprite, and Texas tea. 

 The drink is so deeply embedded in
Houston’s hip-hop scene that local artists developed a sub-genre of hip-hop inspired by
it, called Chopped-N-Screwed, in which the musicians distort the music by slowing it down
and skipping beats, thereby imitating the intoxicating effects of the mixture. See 

                              [J-6-2021] [MO: Mundy, J.] - 5
       In its Pa.R.A.P. 1925(a) opinion, the trial court recognized that the sole issue was

whether Officer Grant exceeded the permissible scope of the Terry search by reaching

into T.W.’s pocket. The court found that “[i]t was reasonable for Officer Grant to go into

[T.W.’s] pockets to dispel a reasonable fear for his safety and the safety of others during

the investigatory stop.” TCO at 4. To justify its reasonableness determination, the court

relied upon the same circumstances that it found adequate to support the initial pat-down,

with the lone additional fact that Officer Grant felt a hard object. In particular, the court

opined:

       [T.W.] was a passenger in a vehicle that was just in a high[-]speed chase
       with police at 4:15 in the morning in a high crime area where Officer Grant
       has a plethora of personal experience with weapons recovered from traffic
       stops. Moreover, the officers made the stop without the benefit of a police
       vehicle. [T.W.] did not comply with Officer Grant’s order to stop hiding his
       body and reaching into his pockets. It was only after a limited the [sic]
       search of the outside of [T.W.’s] clothes and feeling a hard object that was
       not readily identifiable that Officer Grant expanded his search to the inside
       of that particular pocket. Looking at the totality of the circumstances, Officer
       Grant had a reasonable suspicion, based on specific and articulable facts,
       that [T.W.] may be armed and dangerous, and Officer Grant tailored his
       search to only that which was reasonably necessary for the discovery of
       weapons.

 (record citations omitted).

       In other words, the trial court concluded that, because the pat-down was supported

by a reasonable suspicion that T.W. possessed a weapon, and because the pat-down did

not fully alleviate Officer Grant’s suspicion, Officer Grant was justified in reaching into

T.W.’s pocket and removing whatever he found in order to satisfy his general safety

concerns. By that logic, the reasonable suspicion necessary for a “limited” protective frisk

suffices as well to permit a police officer to reach inside any clothing provided that he

feels any “hard” object, no matter how slight the probability that the object is a weapon.

This rationale, which the Majority endorses wholeheartedly, eviscerates the limited

exception to the warrant requirement engendered in Terry and developed further by its


                               [J-6-2021] [MO: Mundy, J.] - 6
progeny. Because allowing such an expansion of the Terry exception swallows the

warrant rule and facilitates overreach by law enforcement, I cannot join the Majority’s

opinion.

                                 II. Terry and its Progeny

       In light of the Majority’s expansive gloss, a review of Terry is in order. That seminal

case began when Detective Martin McFadden of the Cleveland, Ohio Police Department

observed John Terry and Richard Chilton engaging in an “elaborately casual and oft-

repeated reconnaissance of” a store, a circumstance that led the detective to conclude

that the men were preparing to burglarize the establishment. Terry, 

. Based

upon his thirty years of investigating shoplifters and pickpockets, Detective McFadden

suspected that the men could be carrying guns. 

 When he approached Terry and

Chilton and asked for their names, they did not respond. 

. Although he lacked

probable cause to believe that Terry was carrying a firearm or planning to commit a crime,

Detective McFadden “grabbed” Terry and “patt[ed] down the outside of his clothing.” 

. He “felt a pistol” in the pocket of Terry’s overcoat and reached inside, but he could

not remove the gun. 

 Consequently, Detective McFadden removed Terry’s coat and

proceeded to retrieve the pistol. He then frisked Chilton’s outer clothing, discovered a

revolver in Chilton’s coat pocket, and seized it. 

       Terry and Chilton were charged with possession of a concealed weapon. 

.

At a suppression hearing, Detective McFadden “testified that he only patted the men

down to see whether they had weapons, and that he did not put his hands beneath the

outer garments of either Terry or Chilton until he felt their guns.” 

. The men were

convicted, and ultimately Terry appealed to the Supreme Court of the United States.

       In addressing the legality of Detective McFadden’s conduct, the Supreme Court

balanced the competing governmental and individual interests at issue. On the one hand,




                              [J-6-2021] [MO: Mundy, J.] - 7
the Court recognized that even a protective search is “a serious intrusion upon the sanctity

of the person, which may inflict great indignity and arouse strong resentment.” 

.

Indeed, the Court characterized such an intrusion as an “annoying, frightening, and

perhaps humiliating experience.” 

 But the Court then explained that the individual’s

interest in personal security was opposed to “the more immediate interest of the police

officer in taking steps to assure himself that the person with whom he is dealing is not

armed with a weapon that could unexpectedly and fatally be used against him.” 

.

The Court held that the latter interest carried the day, stating, “it would be unreasonable

to require that police officers take unnecessary risks in the performance of their duties.”

.

       Given the weighty and pressing state interest in officer safety, the Terry Court

determined that the traditional calculus of probable cause was ill-suited to the

circumstances before it. Thus, the Court devised a new, lesser standard of proof, which

permits a protective search when an officer has a reasonable suspicion, based upon

“specific and articulable facts,” that the detainee is “armed and dangerous.” 

.

When that standard of proof is satisfied, a “carefully limited search of the outer clothing

of such persons . . . is a reasonable search under the Fourth Amendment.” 

.

The Court concluded that Detective McFadden’s search of Terry satisfied those

requirements. 

.

       The Terry Court underscored that the scope of the search is just “as vital a part of

the inquiry” as the issue of whether the search is warranted at all. 

. But the Court

declined to articulate the specific “limitations which the Fourth Amendment places upon

a protective seizure and search for weapons,” opining only that it must 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.” 

 Rather than establish a bright-line




                              [J-6-2021] [MO: Mundy, J.] - 8
rule, the Court concluded that the permissible scope of a protective search is context-

dependent, and must “be developed in the concrete factual circumstances of individual

cases.” 

       It is beyond cavil that Terry allows a police officer who possesses specific and

articulable facts that a suspect is armed and dangerous to conduct a frisk of that person

and to remove any objects that the officer identifies as weapons. And Terry provides

unambiguously that, in assessing whether a reasonable suspicion exists, “it is imperative

that the facts be judged against an objective standard.” 

. Thus, “the Fourth

Amendment’s concern with ‘reasonableness’ allows certain actions to be taken in certain

circumstances, whatever the subjective intent” of the law enforcement officer. Whren v.

United States, 

 (1996). As such, whether a police officer’s conduct was

unreasonable “turns on an objective assessment of [the officer’s] actions in light of the

facts and circumstances confronting him at the time.” Scott v. United States, 

 (1978). The officer’s actual belief is legally irrelevant; courts must focus instead

upon whether the circumstances that predicated the protective search would lead a

reasonable and similarly-situated police officer to conclude that the suspect was armed

and dangerous.

       While certain aspects of Terry are clear, the High Court provided no meaningful

guidance on two vital questions that persist in any protective search inquiry, making the

task of defining the scope in some individual cases exceedingly difficult. First, the Terry

Court did not articulate whether a police officer conducting a protective search must utilize

the least intrusive means reasonably available to the officer. The Terry Court stated only

that “Officer McFadden confined his search strictly to what was minimally necessary to

learn whether the men were armed and to disarm them once he discovered the weapons.”

Terry, 

.     The Court expressed its broad objective of affording law




                              [J-6-2021] [MO: Mundy, J.] - 9
enforcement “the power to take necessary measures to determine whether the person is

in fact carrying a weapon and to neutralize the threat of physical harm.” 

.

       Second, Terry does not establish the requisite level of suspicion that a police

officer must possess in order to escalate a pat-down to a more intrusive search. The

Terry Court emphasized that, after patting down the suspects, Detective McFadden “did

not place his hands in their pockets or under the outer surface of their garments until he

had felt weapons.” 

. Because Officer McFadden was certain that the object

he felt was a weapon, it is fair to conclude from Terry that an investigating officer must

definitively know that the object is a weapon before removing it from the suspect’s person.

But, as today’s Majority observes, making certainty a prerequisite to further exploration

also seems to conflict with Terry’s broad concern for officer safety. In many encounters,

a pat-down may not produce a sufficient tactile impression to allow determination of an

object’s character. For example, if a suspect is wearing bulky clothing, it might well be

difficult to discern whether the object within is a weapon based upon an open-handed

frisk alone.

       The issue presented in today’s case calls upon this Court to define the scope of a

protective search, which in turn requires a serious examination of Terry’s open questions.

While Terry itself left the bounds of a protective search nebulous, decisions applying Terry

provide some grounds for demarcation. In the companion case to Terry—Sibron v. New

York, 

 (1968)—the Supreme Court offered some clarity on the first question

that Terry left unanswered. There,6 Officer Anthony Martin (“Patrolman Martin”) observed

6      Sibron addressed two cases that the Court had consolidated for argument. Sibron,

. The lead case involved Nelson Sibron, who was convicted of possessing
heroin. See 

. The other case concerned John Francis Peters, who was
subjected to a search incident to arrest based upon probable cause that Peters was
planning to commit a robbery. See 

. Consequently, the Court’s assessment
of the search of Peters neither concerns the scope of a protective search nor informs the
analysis here.


                             [J-6-2021] [MO: Mundy, J.] - 10
Nelson Sibron “in conversation with six or eight persons whom Patrolman Martin knew

from past experience to be narcotics addicts.” 

. During Patrolman Martin’s eight-

hour surveillance of Sibron, “he did not overhear any of these conversations,” nor did he

“see anything pass between Sibron and any of the others.” 

 Nevertheless, Patrolman

Martin confronted Sibron and told him, “You know what I am after.” Sibron then “mumbled

something and reached into his pocket.” 

. Patrolman Martin simultaneously

“thrust his hand into the same pocket” and removed several glassine envelopes

containing heroin. 

 Sibron was arrested and ultimately convicted of a narcotics

possession offense. 

.

      On appeal, the Supreme Court of the United States, noting that Patrolman Martin

lacked probable cause to arrest Sibron, explained that the “seizure and search of Sibron

might still have been justified at the outset if he had reasonable grounds to believe that

Sibron was armed and dangerous.” 

. In concluding that Patrolman Martin lacked

the requisite quantum of suspicion, the Court explained that, during the suppression

hearing, the officer presented no “facts from which he [could have] reasonably inferred

that [Sibron] was armed and dangerous.” 

.

      But the Court did not stop there. The Court further held that, even assuming “that

there were adequate grounds to search Sibron for weapons, the nature and scope of the

search conducted by Patrolman Martin were so clearly unrelated to that justification as to

render the heroin inadmissible.” 

. To that end, the Court explained:

      The search for weapons approved in Terry consisted solely of a limited
      patting of the outer clothing of the suspect for concealed objects which
      might be used as instruments of assault. Only when he discovered such
      objects did the officer in Terry place his hands in the pockets of the men he
      searched. In this case, with no attempt at an initial limited exploration for
      arms, Patrolman Martin thrust his hand into Sibron’s pocket and took from
      him envelopes of heroin.




                             [J-6-2021] [MO: Mundy, J.] - 11


 (emphasis added). Because nothing prevented Patrolman Martin from first frisking

Sibron, the Court held that “[t]he search was not reasonably limited in scope to the

accomplishment of the only goal which might conceivably have justified its inception—the

protection of the officer by disarming a potentially dangerous man.” 

 Accordingly, the

Court held that the search of Sibron was unlawful, and that the “heroin was

unconstitutionally admitted in evidence against” him. 

.

       Sibron confirms that concerns for officer safety cannot justify a greater intrusion

into a constitutionally protected area than the circumstances warrant. Terry cited Sibron

as a case that develops “the limitations which the Fourth Amendment places upon a

protective seizure and search for weapons.” See Terry, 

. Generally, in

accord with Sibron, a police officer must employ the least intrusive means reasonably

available to determine whether the suspect is armed. The “limited nature of the intrusion”

is essential to the constitutional validity of a Terry stop and search. See United States v.

Brignoni-Ponce, 

 (1975) (“Because of the limited nature of the intrusion,

stops of this sort may be justified on facts that do not amount to the probable cause

required for an arrest.”) (emphasis added). The use of the least intrusive measures

reasonably available is “the predicate” that permits searches “on suspicion short of

probable cause.”     Florida v. Royer, 

 (1983) (plurality); 

 (“The

investigative methods employed should be the least intrusive means reasonably available

to verify or dispel the officer’s suspicion in a short period of time.”); see also United States

v. Place, 

 (1983) (“When the nature and extent of the detention are

minimally intrusive of the individual’s Fourth Amendment interests, the opposing law

enforcement interests can support a seizure based on less than probable cause.”).

       The search must be proportional to the circumstances that induced it, escalating

to a more intrusive search only when the circumstances reasonably warrant a more




                              [J-6-2021] [MO: Mundy, J.] - 12
substantial intrusion. Without that limitation, there is a “danger” that police “officers will

enlarge a specific authorization, furnished by” safety concerns, “into the equivalent of a

general warrant to rummage and seize at will.” Texas v. Brown, 

 (1983)

(Stevens, J., concurring).7 Accordingly, “[i]f the protective search goes beyond what is

necessary to determine if the suspect is armed, it is no longer valid under Terry and its

fruits will be suppressed.” Minnesota v. Dickerson, 

 (1993); see also

Commonwealth v. Stevenson, 

 (Pa. 2000) (explaining that “a

protective search must be strictly ‘limited to that which is necessary for the discovery of

weapons’”) (quoting Terry, 

); Commonwealth v. Lovette, 

(Pa. 1982) (encouraging strict adherence to Terry and disapproving unnecessary police

conduct that “increased the intrusiveness of the encounter”).

       When conducting a safety search, does an officer have options that go beyond an

open-handed pat-down of the exterior of the suspect’s clothing but that fall short of

reaching into the suspect’s pocket? Does a police officer who detects an object during a

frisk but who lacks a sufficient basis to determine that the object is a weapon face only a

starkly binary choice: risk his safety or invade the suspect’s person by reaching inside

his clothing?   Unlike the Majority and the Concurrence, I conclude that applicable

precedents indeed provide a middle ground.

       Dickerson is instructive. In that case, a police officer frisked a man after observing

the man’s seemingly evasive conduct upon departing “a building known for cocaine

traffic.” Dickerson, 

. During the ensuing pat-down, the officer felt a small

lump and determined that it was not a weapon. 

 Despite concluding that the object




7     Brown concerned the “plain view” doctrine, not the scope of a Terry search per se.
Brown, 

.


                              [J-6-2021] [MO: Mundy, J.] - 13
was not a weapon, the officer proceeded to manipulate the lump in order to determine

whether it was cocaine.

       On appeal, the Supreme Court held that, “if a police officer lawfully pats down a

suspect’s outer clothing and feels an object whose contour or mass makes its identity [as

contraband] immediately apparent, . . . its warrantless seizure would be justified.”

Dickerson, 

.      That rule, which has been dubbed the “plain feel”

doctrine,8 is what gives Dickerson its status as a landmark decision. Relevant for present

purposes, the Court also held that the manipulation of an object constituted “a further

search” that was not categorically within the scope of the initial, lawful frisk. 

.

The Court explained that, “[a]lthough the officer was lawfully in a position to feel the lump

in [Dickerson’s] pocket,” the officer exceeded the scope of a Terry search by manipulating

the object once he determined that it was not a weapon. 

. After the officer

concluded that the object was not a weapon, no further manipulation was permissible.

       Dickerson does not prevent an officer from manipulating an object in all

circumstances. The manipulation in Dickerson was unlawful only because the officer

already had concluded that the object was non-threatening. Had the officer not yet

negated the presence of a weapon, the manipulation, consistent with Terry, would be

within “the power to take necessary measures to determine whether the person is in fact

carrying a weapon and to neutralize the threat of physical harm.” Terry, 

;

see also United States v. Mattarolo, 

 (9th Cir. 2000) (holding that,

where an initial pat-down revealed a cylindrical object several inches long in a suspect’s

pocket, “a precautionary squeeze is well within the scope of Terry”).


8      As today’s Majority aptly explains, the plain feel doctrine does not apply to this
case because Officer Grant, unlike the officer in Dickerson, did not reach into T.W.’s
pocket and seize the object under the belief that the object was contraband. See Maj.
Op. at 15-17.


                              [J-6-2021] [MO: Mundy, J.] - 14
       A police officer is not faced with a binary choice when the frisk reveals an object

that is not readily identifiable as a weapon. In such circumstances, the officer has a third

option: briefly manipulating the object from the outside of the individual’s clothing in order

to establish its tactile characteristics. External manipulation is a reasonable and minimally

intrusive investigative measure that protects the suspect’s interest in personal security

while maintaining officer safety.       Police officers are accustomed to performing this

investigative measure.9       Indeed, the Philadelphia Police Department’s manual of



9      The Concurrence disagrees that external manipulation is a viable alternative. In
the Concurrence’s view, the requirement that officers manipulate an unknown object “is
problematic from both an officer and suspect/bystander safety perspective.” Concurring
Op. at 14 (Dougherty, J.). Respectfully, this concern is misplaced. When officers reach
into suspects’ clothing in order to seize objects, they also are required to “move, squeeze,
or otherwise handle a potentially dangerous weapon they cannot see[.]” 

 Reaching
into a suspect’s clothing and grasping objects that could be “firearms without trigger
guards or with modified trigger pull weight” also creates a risk of an officer “possibly
mishandling a weapon hidden from view.” Id. at 15. Yet police officers regularly and
safely reach into suspects’ garments and seize potential weapons. If police officers are
capable of safely performing the arguably more dangerous act of grasping and removing
objects that they cannot see, they undoubtedly have the capacity as well to manipulate
objects briefly from outside suspects’ clothing without creating dangerous situations.

        In the Concurrence’s view, the reach into the suspect’s clothing is the safest option
available to the officer because an “officer reaching into a suspect’s pocket to touch the
object in question can immediately perceive the object’s material . . . or other feature that
would aid in identifying whether it is a weapon and its position.” Id. at 15 n.6. I disagree.
A police officer cannot acquire such features without first wriggling through the suspect’s
clothing, inevitably causing the object contained therein to move, and then grasping an
unknown portion of the object. If an officer knows only that the object is hard and does
not first manipulate the item, the officer could grasp a sharp blade, an unguarded trigger,
or some other dangerous feature of the object. Conversely, if an officer manipulates the
object before performing the blind reach into the suspect’s clothing, the officer can acquire
features of the object that can assist him in removing the object safely. For example, if
an officer manipulates a hard object in a suspect’s pocket and feels a pointed tip near the
opening of the pocket or feels an L-shaped object, the officer can employ that additional
information to reach into the suspect’s pocket and grasp a portion of the object in a way
that reduces the possibility of an injury. I fail to see how it is any safer for an officer blindly
to reach into a pocket and squeeze an unknown portion of an unknown object than it is



                               [J-6-2021] [MO: Mundy, J.] - 15
directives provides the following instruction regarding a search incident to arrest: “The

search can consist of . . . the grabbing, squeezing or sliding of hands over the remaining

clothing to detect a weapon or contraband.” Phila. Police Department Directive 5.7 §

21(H)(1)(a).10

       Therefore, based upon the unique circumstances of a given case, a Terry search

can encompass three permissible intrusions:         (1) the protective frisk itself, (2) the

manipulation of an object felt during the pat-down, and (3) the reach into the clothing.

Those three means of searching a suspect lie on a continuum of increasing invasiveness.

Dickerson provides that manipulation is a more intrusive act than simply patting the

individual down and thus generally requires facts indicating the presence of a weapon

beyond those facts that justified the initial pat-down. The intrusion into an individual’s

clothing in order to remove an object is more intrusive than frisking the person and also

more intrusive than manipulating the object from the outside of the individual’s clothing.

       Generally, the police officer should commence the protective search through the

least intrusive means reasonably available to him before that officer proceeds to a more

intrusive search. Otherwise, the search would not be limited to what is necessary to

accomplish its purpose under the circumstances. With this Fourth Amendment principle

in mind, the question now becomes whether a set of circumstances sufficiently indicates




for an officer to manipulate an object gently from outside of the clothing, allowing him to
reach into the suspect’s clothing with more information than he would possess otherwise.
10      https://www.phillypolice.com/assets/directives/D5.7-SearchWarrants.pdf
(last visited Sept. 30, 2021). The Concurrence dismisses the Philadelphia Police
Department’s own procedures as pertaining to “Strip and Body Cavity Searches,” as
providing what officers “can” rather than “must” do, and as falling outside the certified
record. See Concurring Op. at 14-15 n.5. These quibbles fail to dispel the manifest reality
that external manipulation is available, practical, and in use on the street today.


                             [J-6-2021] [MO: Mundy, J.] - 16
the presence of a weapon such that a police officer can progress from a less intrusive

search to a more intrusive one.

      The sufficiency of the evidence supporting a given search or seizure is controlled

by two broad, epistemic standards: reasonable suspicion and probable cause. Must a

police officer have probable cause that an object which he feels during a frisk is a weapon

before reaching inside the suspect’s clothing, or is a mere reasonable suspicion enough?

That question rests at the heart of this appeal. The United States Supreme Court has

distinguished the two standards of proof as follows:

      Reasonable suspicion is a less demanding standard than probable cause
      not only in the sense that reasonable suspicion can be established with
      information that is different in quantity or content than that required to
      establish probable cause, but also in the sense that reasonable suspicion
      can arise from information that is less reliable than that required to show
      probable cause.

Alabama v. White, 

 (1990).

      I agree with the Majority that a reasonable suspicion standard of proof controls

throughout the duration of a Terry search. The High Court’s decision in Adams v.

Williams, 

 (1972), compels that conclusion. There, a police officer patrolling

alone at 2:15 a.m. received an uncorroborated tip from a known and reliable informant

that Robert Williams was sitting in a car with narcotics on his person and “a gun at his

waist.” 

. The officer was within the high crime area where the informant told

him that Williams was located, and the officer decided to investigate the tip. The officer

approached the car and ordered Williams to step out of the vehicle. Williams refused and

instead rolled down the window, placing the officer in a vulnerable position. 

.

Immediately thereafter, the officer reached through the window, placed his hand

underneath the waistband of Williams’ pants, where the informant stated that the weapon

would be hidden, and removed a revolver. 

 Under those circumstances, the Supreme




                             [J-6-2021] [MO: Mundy, J.] - 17
Court held that the police officer’s conduct was lawful. While emphasizing that the officer

lacked probable cause that the suspect was armed, the Court held that “the policeman’s

action in reaching to the spot where the gun was thought to be hidden constituted a limited

intrusion designed to insure his safety, and we conclude that it was reasonable.” 

; see 

 (explaining the lack of probable cause).

         Although the act of reaching underneath the suspect’s clothing was more intrusive

than a mere pat-down, the Williams Court did not require a showing of probable cause

that the suspect had a gun concealed within his waistband. The reasonableness of the

officer’s conduct, based upon the facts within his ken, determined its lawfulness. Because

Williams applied a reasonable belief standard to the most intrusive aspect of a Terry

protective search, it is logical to conclude that a reasonable belief standard governs until

the officer’s safety concerns are alleviated. And, by extension, the propriety of each of

the three intrusions that could occur during a Terry protective search—frisk, tactile

manipulation, and reaching into clothing—are assessed under this lesser standard of

proof.

         As the Concurrence aptly explains, “if an officer has reasonable suspicion to

conduct a Terry frisk, that reasonable suspicion remains unless and until the officer’s

belief that the object may be a weapon is negated.” Concurring Op. at 7. This principle

does not furnish unbridled discretion to expand the scope of a validly initiated protective

search. The search must be proportional to the circumstances that induced it, escalating

to a more intrusive search only as the circumstances confronting the investigating officer

necessitate a more substantial intrusion. The need to increase the intrusiveness of the

search hinges upon the occurrence of one of two distinct conditions. First, an officer may

expand the scope from a less invasive protective search to a more invasive one when the

officer apprehends specific and articulable facts that demonstrate a need for more




                              [J-6-2021] [MO: Mundy, J.] - 18
intrusive conduct.11 Put simply, as the reasonable belief that the suspect is armed waxes,

the permissible scope of the protective search broadens as well. Second, the officer may

expand the scope if the less intrusive option either is impractical under the circumstances

or fails to negate a material possibility that the suspect is armed. See United States v.

Sharpe, 

 (1985) (“The question is not simply whether some other

alternative was available, but whether the police acted unreasonably in failing to

recognize or to pursue it.”).

       Both the Majority’s and the Concurrence’s reasonable suspicion analyses fail to

limit the scope of the protective search to the least intrusive search reasonably available

to the officer in light of the specific and articulable facts within the officer’s knowledge. By

contrast, the framework set forth below enforces the High Court’s edicts, ensuring that

the state and private interests implicated in a protective search maintain the balance that

the Supreme Court struck in Terry.

           III. A Framework for Defining the Scope of a Protective Search

       Generally speaking, a police officer who reasonably believes that a lawfully

stopped individual is armed and dangerous should commence the protective search with

a pat-down. When the officer performs an open-handed pat-down, the severity of the

trespass is at its nadir. Thus, the quality and quantity of evidence required to yield a

reasonable belief that the individual is armed and dangerous at that point is comparably

low. Accordingly, the United States Supreme Court has indicated that, while certain

evidence is insufficiently reliable to justify an initial stop, that same evidence may allow


11     The claim that additional facts can further fortify an officer’s reasonable suspicion
and thus authorize conduct that is more intrusive should not be viewed as controversial.
If an officer conducts a pat-down and feels an object that shares characteristics with a
weapon, the officer has acquired additional facts that create a stronger reasonable belief
that the suspect is armed and dangerous than the officer possessed before performing
the pat-down.


                                [J-6-2021] [MO: Mundy, J.] - 19
an officer who lawfully stops an individual to frisk the suspect. Florida v. J.L., 

 (2000) (explaining that “the requirement that an anonymous tip bear standard

indicia of reliability in order to justify a stop in no way diminishes a police officer’s

prerogative, in accord with Terry, to conduct a protective search of a person who has

already been legitimately stopped”).

       Given the minimal intrusion involved in a protective frisk, this Court has upheld a

pat-down following a lawful stop based upon specific and articulable facts that, while

consistent with possession of a weapon, were equally susceptible to a litany of “innocent”

explanations. Commonwealth v. Cook, 

 (Pa. 1999). Thus, we have

approved protective searches initiated based upon furtive movements, the nature of the

suspected crime, and visual observations of bulges in the suspect’s clothing.           See

Commonwealth v. Zhahir, 

 (Pa. 2000) (explaining valid reasons to

frisk a suspect).

       If the open-handed pat-down supplies tactile impressions that would lead a

reasonable officer under the same circumstances to conclude that the object is not a

weapon, then Terry forbids further intrusion; the officer may neither manipulate the object

nor reach inside the individual’s pocket. See Dickerson, 

. Thus, if the

pat-down reveals the presence of an object that a reasonable officer would conclude is

too soft, too small, or too irregularly shaped to be a typical weapon, the protective search,

generally, must cease. See Commonwealth v. E.M., 

 (Pa. 1999)

(holding that the detection of a soft object during a frisk required termination of the

protective search); Commonwealth v. Wilson, 

 (Pa. Super. 2007)

(holding that a reasonable person would not “conclude that the physical sensation of

touching a round cluster of 12 tiny knotted plastic baggie corners—which contained a net




                             [J-6-2021] [MO: Mundy, J.] - 20
weight of 1.743 grams of cocaine—could realistically produce the mental image or fear of

a weapon”).

       Next, if, following the frisk, a reasonable officer would not yet negate the possibility

that the object is a weapon, then the officer may manipulate the object from the outside

of the suspect’s clothing in order to identify additional palpable, tactile characteristics. In

this interstice between a frisk and a reach into the suspect’s clothing, the requisite

strength of the specific and articulable facts indicating a weapon is at its midpoint, thus

necessitating tangible characteristics that would inhibit a reasonable officer from

concluding that the object is harmless. Compare United States v. Miles, 

 (9th Cir. 2001) (holding that an officer exceeded the permissible limits of a protective

search by manipulating a box that “was no bigger than a large package of chewing gum

and was one-half the size of a package of cigarettes”), with Mattarolo, 

(holding that a police officer who felt a cylindrical object several inches long in the

defendant’s pocket” acted within the scope of a Terry search by “pressing it between his

thumb and forefinger in order to make sure” it was not a pocket knife). When the pat-

down produces those kinds of articulable impressions, the officer may briefly “palpate the

object” from the exterior of the clothing, going no further than is necessary to determine

whether it is “a typical or obvious weapon.” State v. Black, 

 (R.I. 1998).

       Finally, if either the frisk or the subsequent manipulation reveals sufficient tangible

qualities from which a reasonable officer would conclude that the object is a weapon, the

officer may reach inside the suspect’s clothing and remove the object. This is the most

intrusive aspect of a protective search, generally demanding a demonstration of

reasonable suspicion at its peak. A reasonable likelihood that the object is a weapon

exists if it is hard, possesses spatial qualities of a typical weapon, and is located where

one reasonably would carry such a weapon. Compare United States v. Swann, 149 F.3d




                              [J-6-2021] [MO: Mundy, J.] - 21
271, 276 (4th Cir. 1998) (holding that a police officer reasonably believed a “hard

rectangular object” in the suspect’s sock could have been a box cutter because of “[t]he

location of the object, as well as its hard character and its shape. . . . A similarly shaped

hard object in [the suspect’s] pocket certainly would have raised no alarms, as there could

be innumerable innocent explanations for it”), with United States v. Campa, 

 (1st Cir. 2000) (holding that removal of every “bulging” item detected during a pat-

down was unlawful where the officer did not first “attempt to distinguish between”

threatening and nonthreatening objects).12 Stated differently, a reasonable officer would

not conclude that an object that shares qualities with countless nonthreatening items

presents a danger.

       In applying this general framework, suppression courts must remain cognizant of

several precepts underlying protective search jurisprudence. First, the Terry rule that an

officer must employ the least intrusive means reasonably available generally requires an

officer to acquire additional facts during the pat-down before manipulating the object and

to obtain further facts during that manipulation before reaching into the suspect’s clothing.

Second, this general principle should not be viewed as a hard and fast line that requires

police officers to gamble with their lives unnecessarily. “The question is not simply

whether some other alternative was available, but whether the police acted unreasonably

in failing to recognize or to pursue it.” Sharpe, 

. Hence, while the

prosecution would be wise to substantiate or support each escalation of the search with

discrete, articulable facts, a police officer’s failure to proceed step-by-step in the moment


12     In relying upon Swann to conclude that the reasonable suspicion standard applies,
see Maj. Op. at 12, the Majority fails to recognize that the Court of Appeals found the
location of the “hard rectangular object” to be essential to its finding of reasonable
suspicion. Swann, 149 F.3d at 276. The Swann court underscored that “a similarly
shaped hard object in [the suspect’s] pocket certainly would have raised no alarms, as
there could be innumerable innocent explanations for it.” Id. (emphasis added).


                             [J-6-2021] [MO: Mundy, J.] - 22
does not, standing alone, compel suppression. In some cases, for example, the evidence

that warrants the investigatory stop may, by itself, warrant immediate intrusion into the

suspect’s clothing.    With greater frequency, the pat-down alone might suffice to

demonstrate that the object likely is a weapon, thus allowing intrusion into the suspect’s

clothing without first manipulating the object.      Relatedly, certain circumstances will

demonstrate that requiring a pat-down or manipulation before reaching into a suspect’s

clothing presents an unreasonable danger.13           And there will be instances where

manipulation of the object fails to produce sufficient tactile impressions to assure that the

object is innocuous.14 In such cases, reaching into the suspect’s clothing is the least

invasive option reasonably available to the officer in light of the facts within his ken.15



13      Cf. Williams, 

 (holding that the officer lawfully reached into the
suspect’s clothing without performing a pat-down where the suspect’s failure to comply
with the officer’s command to exit the vehicle made it impossible for the officer to pat
down the suspect without the officer placing himself in a more dangerous position);
Sharpe, 

 (explaining that the assessment of whether officers pursued the
least intrusive means reasonably available considers “whether the police are acting in a
swiftly developing situation”).
14     The Concurrence reads the foregoing framework as “indulg[ing] in unrealistic
second-guessing” because, in the Concurrence’s view, police officers are incapable of
safely manipulating objects through a suspect’s clothing. See Concurring Op. at 13-16.
As explained supra, it is common practice for police officers to employ external
manipulation during a search incident to arrest. The safety concerns hypothesized by the
Concurrence are unfounded. If the circumstances of an individual case demonstrate that
it would be either dangerous or futile for an officer to manipulate a potential weapon, the
foregoing framework does not require an officer to employ that investigative measure.
The framework ensures that the failure initially to manipulate the object warrants
suppression only when the officer acted unreasonably in failing to take that step. Here,
the record does not suggest that requiring Officer Grant to first manipulate the object
would have been either futile or dangerous.
15      This nuance flows naturally from the Concurrence’s cogent observation that the
initial reasonable suspicion that a suspect is armed and dangerous exists until
extinguished by facts that negate the reasonable possibility of a weapon.




                              [J-6-2021] [MO: Mundy, J.] - 23
       Third, courts must scrutinize the type of potential weapons that a reasonable officer

would conclude that the suspect possessed. In certain situations, a reasonable officer

might conclude that, when a pat-down or manipulation reveals a small, thin, and hard

object, the object is a weapon; a reasonable officer in different circumstances could

conclude that those identical tactile impressions do not warrant the belief that the object

poses a danger.16

       Fourth, it bears repeating that the suppression court’s review of a claim that a

police officer exceeded the scope of a protective search does not encompass the officer’s

subjective conclusion that the object was or was not a particular weapon. The court

considers only whether an objectively reasonable officer confronting the same


16      Consider, by way of illustration, a Birmingham, U.K. police officer in the fictional
world of the English television series “Peaky Blinders.” The Peaky Blinders were
members of an early-twentieth-century Birmingham criminal gang that concealed razor
blades in the brims of their peaked hats. During violent confrontations with rival gangs or
law enforcement, the Peaky Blinders would use their caps as weapons, slashing the eyes
of their victims with the razor-blade-laden brims of their peaked caps (hence the titular
name).

        In this fictional scenario, the Birmingham police officer notices a man engaged in
suspicious activity and lawfully conducts an investigative detention pursuant to Terry. The
suspect has a distinctive Peaky Blinders’ haircut, he is standing near a known Peaky
Blinders’ safe house, and he is wearing the gang’s signature peaked cap. Reasonably
believing the man might be armed, the officer pats down both the man and his hat. The
officer feels a small, thin, and hard object in the cap. He removes the cap, looks inside,
and notices a foil packet containing a thin layer of hash. Under these circumstances, the
search of the hat was lawful, as it was substantially likely that the object in the hat was a
razor blade.

        Compare that hypothetical with the following scenario. In 2020, a Pittsburgh police
officer observes a man wearing a peaked hat and engaging in suspicious activity. The
officer conducts a valid Terry frisk and feels a small, hard object in the suspect’s hat. The
officer removes the cap, looks inside, and discovers a foil packet containing a thin layer
of hash. But Pittsburgh does not have a gang akin to the Peaky Blinders. Consequently,
the search of the hat would not be reasonable, but would instead be based upon rank
speculation, rendering it beyond the scope of a lawful Terry search.




                             [J-6-2021] [MO: Mundy, J.] - 24
circumstances would remain suspicious that the item was a weapon capable of inflicting

harm upon the officer or others nearby, and whether a reasonable officer would have

employed a less intrusive investigative measure given the strength of that suspicion. The

relevant circumstances are the tactile impressions, other developments that the officer

perceived during the protective search, and the events that prompted that search. As in

all cases, the facts known to the investigating officer, coupled with his training and

experience, are critical.

       Finally, the court must weigh the quantum and quality of the Commonwealth’s

evidence against the level of intrusion, mindful that greater intrusions generally call for

stronger or more abundant evidence. In assessing the strength of the evidence, the

suppression court should evaluate witness credibility17 and the reasonableness of the

assumptions relied upon by the officer in concluding that the suspect was armed. The

court must consider whether the witness testified as to the size, density, material

composition, shape, and location of the object. A trial court’s finding that the officer’s

suspicions were reasonable is more likely to survive appellate review when the record

contains credible testimony accounting for more of those descriptive features.

                                     IV. Application

       Applying these principles to the circumstances of the present case yields the

following assessment. In searching T.W. for weapons, Officer Grant was required to

employ the least intrusive means reasonably available to him.             If, and as, the

circumstances amplified, or failed to negate, the likelihood that T.W. was armed and

dangerous, the scope of the protective search expanded accordingly. Thus, the pertinent

17     For instance, whether the alleged tactile impressions are consistent with the object
actually seized bears upon the officer’s credibility, as does the officer’s training and
experience. See, e.g., Wilson, 

 (finding that the officer’s belief that an
object was a weapon was unreasonable because it was “not supported by the physical
facts and characteristics of the evidence that was actually seized”).


                             [J-6-2021] [MO: Mundy, J.] - 25
inquiry must weigh the facts that tended to show that T.W. possessed a weapon against

those that countered that conclusion.

       The facts that justified the initiation of the Terry stop and frisk, without more, did

not support the more invasive protective search sanctioned by today’s Majority. While

the officers observed the vehicle driving erratically, reckless driving is not a crime

inexorably associated with weapons.18 What weapon must we associate with reckless

driving? Perhaps the Majority and the Concurrence favor an inference that any motor

vehicle violation creates a probability that an individual is armed.           Even if the law

supported such an unsound inference, it surely would not support the additional inference

that T.W. also was armed, as he was not operating the vehicle. Cf. Sibron, 

 (“The suspect’s mere act of talking with a number of known narcotics addicts over an

eight-hour period no more gives rise to reasonable fear of life or limb on the part of the

police officer than it justifies an arrest for committing a crime.”); Ybarra v. Illinois, 

      For the view that reckless driving supports the inference that an individual is armed
and dangerous, both the Majority and the Concurrence uncritically rely upon In re O.J.,

 (Pa. Super. 2008). There, the Superior Court held that a police officer
reasonably believed that the suspect possessed a weapon because the “vehicular stop
occurred at night,” and the suspect “had been driving dangerously and initially refused to
heed police efforts to stop his car.” 

. The Majority and Concurrence would
incorporate this non-binding holding into this Court’s protective search jurisprudence
despite the fact that the O.J. panel failed to articulate any support for the notion that erratic
driving indicates that an individual is armed and dangerous. To make matters worse, the
Majority and Concurrence would extend that unsupported inference to situations where
the subject of the protective search was not the individual who was driving erratically. Our
precedents do not ratify the supposition that one individual’s dangerous acts can be
attributed to another by mere association. In fact, this Court has expressly rejected such
a proposition. Commonwealth v. Grahame, 

 (Pa. 2010) (holding that “a
police officer must have a particularized, objective basis for a protective search; an
individual’s mere proximity to others engaged in criminal activity is insufficient”). While
we here construe the evidence in the light most favorable to the Commonwealth, that
obligation does not include grasping at straws and adopting dubious rules of law that are
inconsistent with well-established legal precepts.


                               [J-6-2021] [MO: Mundy, J.] - 26
85, 91 (1979) (holding that “a person’s mere propinquity to others independently

suspected of criminal activity” did not authorize a protective search).

       T.W.’s mere presence in a high crime area at night is a weak and non-

particularized indicator that he was armed and dangerous. To be sure, reduced visibility

can heighten the potential for dangerousness, but the Earth’s rotation on its axis sheds

no particular light on the likelihood that any given individual is armed. And it surely would

be misguided for this Court to hold that the protection against unlawful searches and

seizures is reduced for those individuals who happen to live in, or simply pass through, a

high-crime area. Even when considered together, (1) low visibility, (2) being a passenger

in a car that drove in a dangerous manner, and (3) presence in a high-crime area, do not

create a reasonable belief that a passenger may be carrying a weapon.                 Those

circumstances in tandem provided constitutional authority to commence a protective

search only because T.W. also was “blading” his body—the lone individualized fact

suggesting that T.W. could be armed and dangerous. Although this additional fact could

support a suggestion that T.W. might be armed, it could support a contrary suggestion as

well. After all, while T.W.’s movements were consistent with an attempt to conceal a

weapon, they were equally, if not more, indicative of concealing nonthreatening

contraband or an embarrassing item.

       The facts that justified the pat-down did not alone warrant any more intrusive

search. That conclusion is obvious when the present circumstances are compared with

those at issue in 

 There, a police officer, who “was alone early in the

morning on car patrol duty in a high-crime area,” reached into the suspect’s clothing after

observing the suspect’s furtive movements. Williams, 

. Although the

officer did not first perform a pat-down, the Williams Court held that the more substantial

intrusion was lawful at the outset because the officer was acting upon a reliable informant




                             [J-6-2021] [MO: Mundy, J.] - 27
tip that the suspect possessed a gun. 

. While both Officer Grant and the

officer in Williams observed a suspect’s furtive movements in a high-crime area at night,

Officer Grant did not commence the protective search based upon similarly reliable,

additional support for the belief that T.W. possessed a weapon. Thus, the lawfulness of

Officer Grant’s reaching into T.W.’s pocket turns upon whether the tactile impressions the

officer gleaned from the frisk would have led a reasonable officer to conclude that the

object was a weapon.

       The palpable characteristics of record would not have led a reasonable officer to

believe that the object in T.W.’s pocket was a weapon. Officer Grant testified that he felt

a “large,” “hard” object. The tactile features attested to by Officer Grant are not analogous

to the informant tip in Williams, which carried enough evidentiary “value and reliability”

that it was reasonable for the officer to reach into “the spot where the gun was thought to

be hidden.” 

. People (including juveniles such as T.W.) carry countless

objects in their pockets that are hard and yet pose no threat to anyone’s safety.19 Officer

Grant did not testify that the pat-down revealed the material composition, shape, or

density of the object. While Officer Grant was not required to testify as to all those

features with scientific certainty, he was required to offer something more than a vague

assertion of a “large,” “hard” object. Given that these were the only tangible qualities that

Officer Grant could articulate, it is unsurprising that he repeatedly and candidly admitted

at the suppression hearing that he did not know what the object was. N.T., 7/10/2018,

at 14, 17, 26.




19      When frisking a random individual’s pants, an officer might find a weapon. But he
might just as likely find that the hard object he feels is a cellphone, a wallet, a key fob, a
flask, an inhaler, an insulin pump, a bottle of hand sanitizer, a lighter, a hairbrush, a pack
of cigarettes, a box of Tic Tacs, or a pedometer.


                              [J-6-2021] [MO: Mundy, J.] - 28
       The reasonable belief that an object may or may not be a weapon is not a

reasonable belief that the object is a weapon. The latter requires more than a trivial

possibility; it requires that the totality of the circumstances causes a reasonable officer to

conclude that the object likely was a weapon. Because Officer Grant detected only a

tangible attribute that, under the circumstances, was more consistent with the many and

sundry innocuous objects that people carry in their pockets, the possibility that the object

was a weapon was small. Such a de minimis probability did not, without more, warrant

an intrusion into T.W.’s pocket.

       That said, the fact that the open-handed frisk revealed only a hard object did not

require Officer Grant to terminate the search. When a pat-down reveals an object that

shares characteristics with a weapon, a reasonable officer would not exclude the

possibility that the object posed a realistic threat. Confronted with such circumstances, it

would have been reasonable for Officer Grant briefly to manipulate the object from outside

of T.W.’s clothing. Had the officer employed this less intrusive measure, he probably

would have realized that the object was a bottle with a twist cap that posed no danger to

him at all.

       Officer Grant understood how to perform an external manipulation, as the

Philadelphia Police Department’s manual of directives instructs officers performing

certain searches to proceed by “grabbing, squeezing or sliding of hands over the

remaining clothing to detect a weapon.”20 “[A]ll personnel[, including Officer Grant,] are

required to have a working knowledge of [the manual’s] contents.”21                  External

manipulation is standard procedure that should not pose the safety concerns raised by

20     Phila. Police Dep’t Directive 5.7 § 21(H)(1)(a); see also id. § 21(H)(1)(c) (providing
other instances where police officers are permitted to manipulate objects felt within a
detainee’s clothing).
21     PHILA. POLICE DEP’T, http://www.phillypolice.com/accountability/index.html.


                              [J-6-2021] [MO: Mundy, J.] - 29
the Concurrence. And nothing about the situation at hand demonstrates that employing

such an investigative measure would have created a dangerous situation in fact.

Therefore, Terry and its progeny required Officer Grant to take that less intrusive step

before reaching into T.W.’s pocket.22 See Sharpe, 

 (providing that an

officer’s failure to employ a less intrusive measure warrants suppression if “the police

acted unreasonably in failing to recognize or to pursue it”). Because the officer failed to

do so, he exceeded the scope of the Terry search.

       Today’s Majority fails to acknowledge that Officer Grant could have manipulated

the object before reaching into T.W.’s pocket. Utilizing the thinnest of evidence, the

Majority instead endorses the utmost trespass upon the sanctity of one’s person that a

protective search implicates. In reaching the conclusion that a reasonable officer would

believe the hard object presented a danger, the Majority relies exclusively upon the

minimal, low-quality evidence that warranted the initiation of the protective search. See

Maj. Op. at 20-21. As my colleagues recognize, the mere presence in a high-crime area

is insufficient by itself to initiate even the minimally invasive pat-down. 

 at 20 n.5. The

Majority nonetheless employs that non-particularized consideration to approve a far more

intrusive search. T.W.’s suspicious movements and his noncompliance with Officer

Grant’s commands are the only particularized facts that the Majority cites. Those facts

do not speak to the character of the object in T.W.’s pocket, and they are weak indicators

of a weapon. For the Majority, the presence of a hard object will suffice, without more,

to license a police officer to reach into a suspect’s clothing during any validly initiated

protective search. But that is no limitation at all. Most people carry some hard object on


22      I also doubt that Officer Grant needed to remove the object from T.W.’s pocket in
order to confirm that it was not a gun, knife, club, or other weapon. As soon as Officer
Grant reached into the pants pocket and felt the bottle, it should have been readily
identifiable as, in fact, a bottle.


                              [J-6-2021] [MO: Mundy, J.] - 30
their persons.   The Majority has birthed the “hard object” exception to the warrant

requirement, effectively holding that the Fourth Amendment permits all searches into a

suspect’s clothing as long as the protective search was initiated lawfully and the officer

feels something that might share a “hardness” quality with some theoretical weapon.

Because most people carry some hard object or item with a single weapon-like quality,

the Majority’s approach ensures that, in Pennsylvania, Terry’s limited exception

effectively devours the Fourth Amendment’s warrant rule.

       While the Majority notes correctly that reasonable suspicion is a less demanding

standard than probable cause,23 this does not mean that the standard of proof is without

teeth. The present matter requires this Court to ensure that the search of T.W. was

“confined in scope to an intrusion reasonably designed to discover guns, knives, clubs,

or other hidden instruments for the assault of the police officer.” Terry, 

.

In defining the boundaries, Terry instructs courts to limit the search “strictly to what was

minimally necessary to learn” whether the suspect was armed. 

. The Majority’s

approach abandons our obligation to uphold those mandates.24


23     See Maj. Op. at 19.
24       The Majority contends that T.W. has not preserved for our review the issue of
whether the scope of the protective search must be limited to the least intrusive means
reasonably available to the officer. See Maj. Op. at 221-22 n.8. I respectfully disagree.
In order to preserve an issue for this Court’s review, the party seeking resolution of the
question must have raised it in the trial court and in the intermediate appellate court. See
Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot be raised for
the first time on appeal.”). Issues, not specific arguments, must be preserved for appeal,
and all arguments clearly implicated by the issues are subject to our review. See HIKO
Energy, LLC v. Pa. Pub. Util. Comm’n, 

 (Pa. 2019) (explaining that
arguments that “merely strengthen[ a] previously articulated argument with additional
legal authority” are not waived); Arnold v. W.C.A.B. (Lacour Painting, Inc.), 

 (Pa. Cmwlth. 2015) (“Our courts permit a litigant to make new arguments on
appeal in support of a preserved issue.”); cf. Pa.R.A.P. 2116(a) (providing that a
“statement will be deemed to include every subsidiary question fairly comprised therein .
. . or fairly suggested thereby”). In resolving the question presented and its logical



                             [J-6-2021] [MO: Mundy, J.] - 31
components, we are not limited to the answers supplied by the parties. This Court
possesses the “authority to sua sponte address arguments which are clearly implicated
in the cases before us.” Freed v. Geisinger Med. Ctr., 

 (Pa. 2010).
Occasionally, we are required to address issues squarely encompassed by the question
presented in fulfilling “this Court’s function and responsibility to consider the broader
picture, including the impact of precedent beyond the facts of an individual case, and the
interplay between established precedent in varying areas of the law.” 

. Because
the least intrusive means analysis is part and parcel of T.W.’s basic legal theory
concerning the scope of the protective search, the Majority errs in finding waiver.

         In both the trial court and the Superior Court, T.W. raised the issue of whether
Officer Grant’s reach into T.W.’s pocket exceeded the scope of a Terry protective search
in light of the facts within the officer’s ken. Before the trial court, T.W. “argued that Officer
Grant exceeded the scope of a permissible [Terry] search when he entered [T.W.’s] left
pants pocket and removed what [T.W.] argues Officer Grant should have already realized
was not [] a firearm.” TCO at 4. In his Pa.R.A.P. 1925(b) statement, T.W. asserted that
the trial court “erred in denying the defense motion to suppress physical evidence, as
[T.W.] was searched and arrested without probable cause.” As the Majority observes,
T.W. presented a virtually identical issue in his brief to the Superior Court. Before both
of the lower courts, T.W. claimed that Officer Grant exceeded the permissible scope of
the search because Officer Grant lacked probable cause.

       The lack of probable cause was mere support for T.W.’s fundamental contention
that Officer Grant exceeded the scope of the Terry search in light of the facts known to
him. See T.W.’s Brief to the Superior Court, 2390 EDA 2018, at 9 (“A frisk is limited to a
flat-handed pat-down for weapons and does not permit a cursory search for evidence or
anything other than a weapon.”); id. at 7 (asserting that the officer exceeded the narrow
scope of the Terry exception because “after patting him down, and feeling nothing
consistent with a weapon, the officer[] searched his pocket”). Neither T.W. nor this Court
are constrained by the specific argument that T.W. advanced in the lower courts in
furtherance of the issue that he raised and preserved. It is T.W.’s fundamental legal
issue, not his supporting argument, that provides the limit on our review. That issue asks
whether Officer Grant exceeded the permissible scope of the protective search because
the severity of the intrusion was not proportional to the facts within his knowledge.

       An assessment of the permissible scope of a protective search must address the
subsidiary issue of whether Officer Grant employed the least intrusive means of searching
T.W. for weapons. Contrary to the Majority’s view, a police officer’s obligation to utilize
the least intrusive investigative steps reasonably available is clear from Terry’s
admonition that the scope of the search be “confined . . . strictly to what [i]s minimally
necessary to learn whether [a suspect is] armed and to disarm [him] once” a weapon is
discovered on his person that could be used to assault the officer. Terry, 

(emphasis added). That assessment necessarily encompasses the question of whether
a police officer must provide a more detailed description of the object—at the very least
something more than “hard”—in order to escalate immediately from a pat-down to pocket-



                               [J-6-2021] [MO: Mundy, J.] - 32
picking, and whether a middle-ground tactic is available to the officer when a protective
frisk fails to assuage his initial concerns given the subsequent discovery of some object
that is not immediately identifiable as innocuous. In other words, the facts supporting the
officer’s suspicion and the investigative measures reasonably available to the officer are
interconnected considerations, and both of them inform the assessment of whether the
totality of the circumstances demonstrates that the search was “confined in scope to an
intrusion reasonably designed to discover” a weapon. 

.

        As framed by T.W., the question presented to this Court encompasses the issue
of whether Officer Grant exceeded the permissible scope of a protective search by failing
to use the least intrusive means reasonable available given the facts within his
knowledge. We granted review in order to “clarify the issue left unresolved by” our split
decision in Commonwealth v. Taylor, 

 (Pa. 2001) (plurality), regarding the
standards that govern a police officer’s authority to “conduct an additional more intrusive
search of a pocket following a pat-down for weapons.” In re T.W., 

 (Pa.
2020) (per curiam). As the competing opinions in Taylor demonstrate, the unsettled issue
of the legality of the more invasive search of Taylor’s pocket for weapons—i.e., the scope
of the Terry search—inextricably was bound up with the Court’s assessment of the
quantum of evidence needed to justify the investigating officer’s suspicions that Taylor
was armed and dangerous. See Taylor, 

 (Opinion Announcing
Judgment of Court) (“We granted [review] . . . to consider whether the searches conducted
in the basement were beyond the scope of the warrant . . . .”) (emphasis added); 1269
(noting that “the scope of a Terry frisk is limited to that which is necessary for the discovery
of weapons”); 1270 (opining that the officer who searched Taylor “did not exceed the
scope of a proper Terry frisk,” in contrast with the officer in Commonwealth v. Graham,

 (Pa. 1998), who unlawfully searched the appellant’s pocket and seized a
Lifesaver Holes bottle containing contraband); accord 

 at 1275 n.5 (Nigro, J., concurring
and dissenting) (“In my view, although Officer Adams may have had reasonable suspicion
to frisk Taylor in order to insure that he was not armed, once Officer Adams patted
Taylor’s pocket and felt a cylinder object of approximately four inches in length and one
and three-quarters in diameter, which he determined was neither a gun nor a knife, Officer
Adams was not constitutionally justified in further searching Taylor’s pocket and seizing
the pill bottle.” (citing Terry, 

; E.M., 

)).

        By its plain terms then, the broad question before us fairly subsumes consideration
of the full ambit of a permissible Terry search in light of the known characteristics of a
particular object found on a suspect’s person. The question and its constituent inquiries
have been preserved for our review. This Court’s resolution of those questions is not
limited to the answers suggested by the parties at either this stage of the litigation or the
earlier stages. Our obligation to create legally sound precedent mandates an assessment
of whether the facts within the officer’s knowledge demonstrated that the scope of the



                              [J-6-2021] [MO: Mundy, J.] - 33
                                       V. Conclusion

       From time to time, suppression courts, in unintentional dereliction of their duty to

scrutinize and where necessary check the government’s power, stare at the accused’s

protection against unlawful searches and seizures with glazed eyes.             It is perhaps

tempting simply to defer to the facts and subjective conclusions provided in the police

officer’s testimony and, without thorough analysis, conclude that the testimony

demonstrated the requisite level of suspicion. On review, appellate courts sometimes

perpetuate that error, blindly accepting the lower courts’ reasonable suspicion

determinations.    Our precedents require that judges instead employ a heedful and

principled analysis.

       Perhaps as a natural consequence of police work and its frequent dangers, law

enforcement officers may sometimes mistake innocuous circumstances as grave

hazards. See United States v. Montero-Camargo, 

 (9th Cir. 2000)

(en banc) (Kozinski, J., concurring) (“Just as a man with a hammer sees every problem

as a nail, so a man with a badge may see every corner of his beat as a high crime area.”).

The judiciary is not the police; it falls to our courts to exercise a healthy skepticism rather

than a blind credulity when it considers these challenging circumstances. Otherwise, we

would uniformly and reflexively elevate the undoubtedly salutary objectives of law



protective search was “confined . . . strictly to what [i]s minimally necessary to learn
whether [a suspect is] armed.” Terry, 

.

       Here, Officer Grant offered scant testimony about the “hard object” in T.W.’s
pocket. He was equivocal at best when asked about his concerns, even suggesting that
the object could have been narcotics. He failed to articulate sufficient facts demonstrating
a reasonable fear that T.W. was armed, let alone “presently dangerous.” 

. On
this bare-bones record, Officer Grant’s decision to forego less invasive investigative
measures, e.g., external manipulation of the object, and to instead reach directly into
T.W.’s pocket and remove the medicine bottle he felt therein exceeded the lawful scope
of a protective search under the Fourth Amendment.


                              [J-6-2021] [MO: Mundy, J.] - 34
enforcement over the individual security and privacy guaranteed by the Fourth

Amendment, thereby relegating an indispensable protection among “the catalog of

indispensable freedoms” to a “mere second-class right.” Brinegar v. United States, 

 (1949) (Jackson, J., dissenting). As Justice Robert Jackson observed,

       Among deprivations of rights, none is so effective in cowing a population,
       crushing the spirit of the individual and putting terror in every heart.
       Uncontrolled search and seizure is one of the first and most effective
       weapons in the arsenal of every arbitrary government. And one need only
       briefly to have dwelt and worked among a people possessed of many
       admirable qualities but deprived of these rights to know that the human
       personality deteriorates and dignity and self-reliance disappear where
       homes, persons and possessions are subject at any hour to unheralded
       search and seizure by the police.
       But the right to be secure against searches and seizures is one of the most
       difficult to protect. Since the officers are themselves the chief invaders,
       there is no enforcement outside of court.

. The judiciary’s duty to enforce the protections of the Constitution is not

limited only to the “more flagrant abuses.” 

. The competing interests that the

Terry Court grappled with persist in every protective search case. No matter how banal

these intrusions may appear to some, their dangers persist. The dangers of a protective

search are realized when the amorphous reasonable suspicion standard becomes a

hollow artifice used to preclude suppression.

       We are called upon here to maintain a necessary equilibrium between the

competing state and private interests. Doing so requires a refinement of the scope of the

standard in light of the facts at hand. Through a careful analysis, which ensures that the

Commonwealth demonstrated the officer employed the least intrusive means reasonably

available, the court confirms that officer safety concerns do not become a license to

rummage and seize at will. The Majority fails at this task. In the view of my learned

colleagues, the most intrusive aspect of a protective search may occur when reasonable

suspicion is at its nadir. In so holding, the Majority allows for a world in which virtually all


                              [J-6-2021] [MO: Mundy, J.] - 35
persons subject to a frisk also are subject to a more intrusive search inside their clothing.

This utterly dissolves the balance struck in Terry. See United States v. Askew, 

 (D.C. Cir. 2008) (“When the Supreme Court has weighed the interests

relevant to determining whether a certain type of official conduct is reasonable under the

Fourth Amendment, lower courts are not free to strike a new and different balance.”).

       I would toe the line drawn in Terry. Indeed, I think that we are bound to do so.

That line leads me to conclude that Officer Grant exceeded the scope of the permissible

search upon reaching inside T.W.’s pocket in circumstances where he instead possessed

solely the authority to manipulate the object from outside of the clothing. The basic Fourth

Amendment principle that more invasive searches require additional justification

necessitates this conclusion. While I agree with the Majority that a reasonable suspicion

standard, not probable cause, controls, I disagree that Officer Grant employed the least

intrusive means reasonably available in light of the circumstances at hand. Therefore,

the promethazine and derivative evidence should have been suppressed.




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