In Commonwealth v. Robert Cooper, the Superior Court of Pennsylvania, with a three-member panel comprised of Judges Donohue, Allen and Fitzgerald, held that a police officer may not conduct a pat-down search of a person who reaches toward his pocket upon the officer’s approach when that person obeys the officer’s directive to stop before reaching into his pocket, and where the officer does not articulate any facts that would make him believe the person was armed and dangerous.

At a motion to suppress evidence, the evidence was that the defendant was standing next to a dumpster at about 9:00 A.M. The police, on routine patrol in the neighborhood where there had been complaints of people stealing copper from street dumpsters, saw the defendant and approached him. As a police officer approached, the defendant “belated his body backwards towards his left side and reached for his pocket.” The officer told the defendant to stop and then conducted a pat-down search (i.e, a Terry frisk). During the pat-down, the officer felt pill-like object that he thought were narcotics and recovered eight packets of marijuana. The officer testified at a motion to suppress evidence that he thought the defendant was about to draw a weapon when he reached into his pocket.

The defendant’s motion to suppress evidence (the marijuana) was denied in the Municipal Court of Philadelphia, and his petition for writ of certiorari was denied by the Court of Common Pleas. He then appealed to the Superior Court, arguing that the police did not have reasonable suspicion or probable cause to stop and detain him and that the police did not have reason to believe that he was armed and dangerous.

With respect to the defendant’s first argument, the Superior Court concluded that the police’s action in approaching him did not rise to the level of an investigative detention, so there was no infringement on his liberty rights. However, with respect to whether that the officer’s pat-down was improper, the court agreed with his argument that the officers could have only suspected him of trash theft, and therefore they had no reason to believe that he was armed and dangerous. Even if he made a movement toward a pocket, he complied immediately when the officer told him to stop. The court reiterated the long-standing requirement that the police need to point to specific and articulable facts indicating the person they intend to frisk may be armed and dangerous, otherwise, the catch phrase “‘for our own protection'”, a phrase commonly used by police officers testifying at motions to suppress evidence, becomes meaningless.

The Superior Court reversed the order denying the defendant’s petition and remanded the case, holding that the marijuana should have been suppressed from evidence.

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