The Pa. Superior Court recently remanded the case of Commonwealth v. Sharaif, No. 4019 EDA 2017 (March 8, 2019) to the trial (suppression) court for a new suppression hearing after the suppression court failed to comply with the applicable rules and specifically state what facts and legal bases it used to determine that suppression was warranted.  

Officer MacConnell, a twelve-year veteran of the Philadelphia Police Department, was working routine patrol in a marked police vehicle. Upon conducting a vehicle stop, he noticed the driver, Sharaif, “appeared to be stuffing something in the front of his pants.”

“MacConnell walked toward the vehicle and ordered Sharaif to show his hands. As MacConnell approached, Sharaif continued to have one hand in the front of his pants. MacConnell again ordered Sharaif to show his hands.” 

“MacConnell then ordered Sharaif to exit the vehicle and he performed a pat- down of Sharaif for officer safety, noting that the waist is a common place to conceal a weapon. When MacConnell removed Sharaif from the vehicle, his concern was ‘100 percent’ officer safety.”

“During the pat-down, MacConnell felt a bulge in the front-waist area of Sharaif’s pants. MacConnell stated that he felt ‘numerous small, rock-like objects consistent with narcotics packaging from [his] experience.’ Later, MacConnell testified that he ‘didn’t know 100 percent they were [drugs], but [he] believed them to be from [his] experience.’ MacConnell then stated that he did not know for sure that they were drugs until he removed the objects.”

Sharaif filed Motion to suppress the drug evidence, arguing the seizure of the drugs were a result of an unlawful search, conducted without a warrant or probable cause. The Motion was granted by the suppression court.

Tellingly, the suppression court explained on the record,

I like for the officer to be safe enough to ask questions to make sure the guy they’re talking to doesn’t have a firearm on him. But if that happens, don’t tell me you found his nickel bag. I want him to be able to be safe. But as soon as we find it’s not a weapon, I can’t allow him to bring these drugs into court, that that’s what he found when he was trying to be safe. I find him credible as to what he told me, but I will grant the motion to suppress. 

Those comments aside, the suppression court failed to enter on the record a statement of findings of fact and conclusions of law regarding the case at hand as to whether the evidence was obtained in violation of the Sharaif’s rights. 

The Commonwealth appealed, arguing that the suppression court improperly suppressed the evidence because MacConnell conducted a protective frisk and, upon feeling objects in Sharaif’s pants, MacConnell immediately identified the objects as drugs and properly seized them. 

Notably, the suppression court judge failed to prepare a written opinion explaining his reasons for suppressing the evidence. 

Accordingly, the Superior Court concluded that they were unable to determine what facts and legal bases the suppression court judge – who is now no longer on the bench – used to determine that suppression was warranted. 

Having concluded that, as a matter of law, the drugs should have been suppressed due to the inadequate record before it, the Superior Court was “compelled to remand this case to the trial court so that a new suppression hearing may be held.”