Commonwealth of Pennsylvania, v. Jordyn Kenney

Commonwealth of Pennsylvania, v. Jordyn Kenney

Criminal Action-Constitutional Law-Fourth Amendment-Search and Seizure-Pat Down-Cigarette Package-Marijuana-Omnibus Pretrial Motion-Terry Stop-Consensual Search-Voluntariness of Consent

Jordyn Kenney (“Defendant”) was charged with Possession of a Small Amount of Marijuana when a package appearing to be cigarettes contained marijuana after he consented to a pat down to search for weapons or contraband in light of the fact that a police officer believed he appeared to be under the influence.  Defendant filed an Omnibus Pretrial Motion seeking to suppress evidence on the basis that the police officer immediately should have stopped his inquiry when the pat down disclosed what appeared to be a pack of cigarettes, not contraband or weapons. 

1.  A stop and frisk pursuant to Terry v. Ohio, 392 US 1 (1968), is limited to what is necessary for the discovery of weapons that could be used to harm police. 

2.  Since Defendant consented to the pat down, the laws pertaining to consensual search as opposed to a Terry stop and frisk are applicable. 

3.  To establish a valid consensual search, the Commonwealth must prove that the consent was given during a legal police interaction and the consent voluntarily was given.

4.  In light of the fact that Defendant appeared intoxicated, the police officer had the authority to undertake interaction with Defendant.

5.  To be valid, consent must be knowingly, intelligently and voluntarily given.    

6.  A signed consent form is not a prerequisite to a finding of voluntariness.

7.  A police officer is not required to advise an individual that he or she has the right to refuse consent. 

8.  Since Defendant afforded the police officer with express permission to search his body for weapons or contraband and understood the object of the search was weapons and/or contraband as evidenced by the fact that he apologized for what the cigarette package contained before the officer discovered it contained marijuana, Defendant’s consent for the pat down was knowingly and intelligently made.

L.C.C.C.P. No. CP-38-CR-0000863-2023, Opinion by Bradford H. Charles, Judge, November 15, 2023.

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH OF                                        : 

PENNSYLVANIA                                                    :                                                                                                                                                           :           NO. CP-38-CR-863-2023

            v.                                                                     :          

                                                                                    :

JORDYN KENNEY                                     :

ORDER OF COURT

AND NOW, this 15^th day of November, 2023, in accordance with the attached Opinion, the Defendant’s Motion to Suppress is DENIED.  The Defendant is advised that he has thirty (30) days from today in which to file an Appeal of this decision with the Pennsylvania Superior Court.  A copy of this Order is to be provided to the Defendant’s counsel, to the District Attorney of Lebanon County and to the Defendant by certified mail, return receipt requested.

                                                                        BY THE COURT:

                                                                                                                         J.

                                                                        BRADFORD H. CHARLES

BHC/pmd

cc:       Court Administration

District Attorney 

Public Defender

Jordyn Kenney// 305 Federal Street, Lebanon PA 17046 (cert mail, ret rect req)

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH OF                                        : 

PENNSYLVANIA                                                    :                                                                                                                                                           :           NO. CP-38-CR-863-2023

            v.                                                                     :          

                                                                                    :

JORDYN KENNEY                                     :

APPEARANCES

Daniel Linares-Herrador, Esquire              For Commonwealth of

DISTRICT ATTORNEY’s Office                          Pennsylvania

Shannon Pascal, Esquire                                          For Jordyn Kenney

PUBLIC DEFENDER’s Office

OPINION BY CHARLES, J., November 15, 2023

              When a police Corporal conducts a pat-down search based upon consent, is the Corporal then restricted to searching only for weapons?  In this case, in part because the request for consent referenced both weapons and contraband, we conclude that the pat-down search conducted of the Defendant was lawful. 

I.     FACTS

             On May 21, 2023, Corporal David Troxell of the Cornwall Borough Police Department encountered the Defendant, who appeared to be under the influence of something.  During the conversation that ensued, Corporal Troxell asked the Defendant if he would afford permission for Corporal Troxell to search for weapons or contraband.  The Defendant assented to such a search. 

            Corporal Troxell located a bottle containing a liquid.  He unscrewed the cap to smell the liquid and determined that it was water.  He then continued and found what appeared to be a packet of cigarettes.  Corporal Troxell admitted that he could not immediately identify the package as containing contraband.  However, before he could undertake any action to open the packet, the Defendant apologized for what it contained.  Corporal Troxell subsequently discovered that the package did indeed contain marijuana.  As a result, the Defendant was arrested.

            One charge of Possession of a Small Amount of Marijuana was filed against the Defendant.  After he was arraigned, the Defendant filed a timely Pre-Trial Motion to Suppress Evidence.  The Defendant argued that when the Corporal’s pat-down disclosed what could have been a package of cigarettes, the Corporal should have immediately stopped his inquiry and not proceeded any further. 

            We conducted a Factual Hearing on October 4, 2023.  The facts set forth above were predicated on what was presented in that hearing.  Following the conclusion of testimony, we directed both parties to file briefs.  Both sides did.  The issue raised by the Defendant is now before us for disposition.

II.     DISCUSSION

             It should not surprise anyone that the Commonwealth and the Defendant have a very different perspective on the law that should govern this dispute.  The Defendant characterizes Corporal Troxell’s pat-down search as a stop and frisk of the type historically governed by the case of Terry v. Ohio, 392 U.S. 1 (1968).  In response, the Commonwealth argues: “Here, a Terry search analysis is not required, nor appropriate, because Defendant gave Corporal Troxell consent to pat him down.” (Commonwealth’s brief at page 7).

            Historically, a so-called “Terry Stop and Frisk” is limited to what is necessary for the discovery of weapons that could be used to harm police officers or others.  See, Terry v. Ohio, supra; Commonwealth v. Graham, 721 A.2d 1075 (Pa. 1998).  Volumes of decisional precedent have been created since Terry to establish what type of police search may or may not be justified.  Many of these cases involved the discovery of contraband during the pat-down process.  Some cases have determined that once an officer determines that an individual is unarmed, “any further poking, prodding, squeezing, or other manipulation of any objects discovered during the pat-down is outside the scope of the search.” Commonwealth v. Graham, supra at page 1082.  Other cases have determined that if a pat-down identifies an item that is “immediately apparent” to be contraband, police can seize the item under the so-called “plain feel doctrine.” See, Commonwealth v. Zhahir, 751 A.2d 1153 (Pa. 2000). 

            In this case, Corporal Troxell never identified anything possessed by the Defendant that could be characterized as a weapon.  He located a bottle of water and a cigarette package.  If Corporal Troxell’s pat-down was a prototypical Terry frisk, Corporal Troxel would not have been justified in progressing any further once he identified the bottle and the cigarette package. 

            What distinguishes this case from a standard Terry Stop and Frisk is the consent sought by Corporal Troxell and offered by the Defendant.  Before undertaking any action, Corporal Troxell asked permission to pat-down the Defendant for weapons or contraband.  The Defendant afforded such consent.  By doing so, the Defendant removed this search from one governed by Terry to one governed by the laws pertaining to a consensual search. 

            “To establish a valid consensual search, the prosecution must first prove that the consent was given during a legal police interaction…and second, that the consent was given voluntarily.”  Commonwealth v. Reid, 811 A.2d 530 (Pa. 2002).  Here, Corporal Troxell had the legal authority to investigate what was occurring with the Defendant given his obviously intoxicated condition.  Thus, the sole issue underlying the validity of Corporal Troxell’s search is whether the consent offered by the Defendant was voluntary.  To be valid, consent must be knowingly, intelligently and voluntarily given; mere acquiescence to a claim of lawful authority is insufficient.  See, Bumper v. North Carolina, 20 L.Ed. 2d 797 (U.S. 1 1968).  A signed consent form is not a prerequisite to a finding of voluntariness.  Commonwealth v. Markman, 467 A.2d 336 (Pa. Super. 1983).  Moreover, a police officer is not required to advise an individual that he has a right to refuse consent.  Commonwealth v. Cleckly, 738 A.2d 427 (Pa. 1999).

            In this case, the Defendant afforded Corporal Troxell with express permission to search his body for weapons or contraband.  Although the bottle and cigarette package could not be characterized as weapons, both items could contain contraband.^[1]  The Defendant obviously understood the object of Corporal Troxell’s search because he blurted out an apology about what was contained in the cigarette package before Corporal Troxell even opened that package. 

            The fact that the Defendant apologized for what was contained in the cigarette package has additional import to this decision; it afforded Corporal Troxell with independent probable cause to investigate what was contained in the package.  Thus, even if the Defendant is deemed to retain a right of privacy as to what was contained inside the cigarette package, and even if the initial consent afforded by the Defendant is not deemed to extend to what was inside the package, the Defendant’s blurted out apology for what was inside, combined with the Defendant’s intoxicated state, afforded Corporal Troxell with probable cause to investigate further. 

III.    CONCLUSION

            We have chosen to apply the law governing consent to search rather than the law articulated in Terry and its progeny.  Corporal Troxell’s search that disclosed the package of cigarettes was lawfully based upon the Defendant’s consent.  Because the consent was offered for Corporal Troxell to search for “contraband”, Corporal Troxell was not prevented from taking the package of cigarettes into his hands.  Because the Defendant blurted out an apology for what was contained therein, Corporal Troxell had probable cause to investigate what was inside.  Everything outlined above flowed from the consent afforded by the Defendant, and our decision is not limited by the law governing “Stop and Frisk” Terry pat-downs.  According, we will deny the Defendant’s Motion to Suppress the small amount of marijuana he was charged with possessing.

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[1] The fact that Corporal Troxell was looking for contraband should have been apparent to the Defendant when the officer opened the bottle to make sure that it contained water and not some other substance.  Even after this occurred, the Defendant never terminated his consent.