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March 25, 2026 Get Citation Alerts Download PDF Add Note

Com. v. Kenney, J.

Superior Court of Pennsylvania

• Citations: None known
• Docket Number: 920 MDA 2024
• Precedential Status: Non-Precedential

• Judges: Bowes; Sullivan

• Opinion

• Authorities (13)

• Cited By (0)

• Summaries (0)

• Similar Cases (55K)

• PDF

Lead Opinion

                        by [Mary Janes Bowes](https://www.courtlistener.com/person/8225/mary-janes-bowes/)

J-S10043-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JORDYN M. KENNEY :
:
Appellant : No. 920 MDA 2024

Appeal from the Judgment of Sentence Entered May 31, 2024
In the Court of Common Pleas of Lebanon County Criminal Division at
No(s): CP-38-CR-0000863-2023

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

MEMORANDUM BY BOWES, J.:* FILED MARCH 25, 2026

Jordyn M. Kenney appeals from the judgment of sentence of thirty days

of probation and a $1 fine imposed following his conviction for possession of

marijuana. We affirm.

The following facts were established at the suppression hearing. At

approximately 10:00 p.m. on May 21, 2023, Sergeant David Troxell of the

South Lebanon Township Police Department stopped his patrol car to assist

Appellant when he flagged the sergeant down as he stumbled onto an unlit

road.1 Due to Appellant’s unsteady gait and the lack of visibility on the street,

the sergeant was concerned that Appellant would be struck by a vehicle.

---

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

1 The sergeant was employed as a corporal at the time of the stop but has
since been promoted. See N.T. Bench Trial, 5/31/24, at 4.
J-S10043-25

Sergeant Troxell initially suspected that Appellant was under the

influence of alcohol and administered a field sobriety test, which indicated that

he was not. Based upon Appellant’s suspicious demeanor during the stop,

however, the sergeant nonetheless believed that he was intoxicated by a

controlled substance. He therefore asked Appellant for consent “to pat him

down for weapons or drugs.” See N.T. Suppression, 10/4/23, at 11. Appellant

acquiesced. During the search, Sergeant Troxell discovered, inter alia, a

previously opened cigarillo package in Appellant’s inner jacket pocket.

Pursuant to his training and experience, the sergeant knew that marijuana

was typically stored and smoked in cigarillo wrappers. Appellant immediately

apologized for what was inside the package before Sergeant Troxell unzipped

it. Once opened, the sergeant uncovered two marijuana cigarettes.

Appellant was arrested and charged with possession of a small amount

of marijuana. He filed a motion to suppress the evidence obtained from the

search of his jacket pocket, maintaining that the search exceeded the scope

of his consent. At the ensuing hearing, Sergeant Troxell outlined the above

facts. The court ordered additional briefing and subsequently issued an

opinion denying Appellant’s motion. A bench trial followed. The court found

Appellant guilty of the single charge and imposed the above-referenced

sentence.

Appellant timely appealed, and he and the trial court complied with the

requirements of Pa.R.A.P. 1925. He now raises the following questions for our

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J-S10043-25

determination: “Did the trial court err when it denied Appellant’s omnibus

pre-trial motion by finding the pat-down search conducted by [Sergeant]

Troxell to be lawful? Specifically, did the trial court err when it found that

Appellant had consented to the search conducted by [Sergeant] Troxell?”

Appellant’s brief at 6 (some capitalization altered).2

We begin with the applicable legal principles:

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

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

up).

It is well-settled that a warrantless search is generally illegal but may

be lawful where the circumstances fall into “specifically established and well-

delineated exceptions to the warrant requirement.” Commonwealth v.

---

2 Despite its title, Appellant’s omnibus pre-trial motion only sought
suppression of the evidence obtained during the search. See generally
Omnibus Pre-Trial Motion to Suppress, 4/14/24.

-3-
J-S10043-25

Arrington, 233 A.3d 910, 915 (Pa.Super. 2020) (cleaned up). This Court has

explained that “[s]uch exceptions include the consent exception, the plain

view exception, the inventory search exception, the exigent circumstances

exception, the automobile exception[,] the stop and frisk exception, and the

search incident to arrest exception.” Commonwealth v. McMahon, 280

A.3d 1069, 1072 (Pa.Super. 2022) (cleaned up).

Where a suspect consents to a search, the following legal precepts

apply:

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

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

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

....

The burden is on law enforcement officials to conduct a search
within those parameters. An individual is not required to police
the police; absent another exception to the warrant requirement,
when a search exceeds the scope of an individual’s given consent,

-4-
J-S10043-25

the search is illegal regardless of whether the individual objected
or revoked his or her consent.

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

up).

Unlike the consent exception, the “sole justification of” a frisk pursuant

to Terry v. Ohio, 392 U.S. 1 (1968), “is the protection of the police officer[,]

and it must therefore be confined in scope to an intrusion reasonably designed

to discover guns, knives, clubs, or other hidden instruments for the assault of

the police officer.” Commonwealth v. Gibson, 333 A.3d 710, 726

(Pa.Super. 2025) (cleaned up). Closely related to the Terry frisk exception

is the plain feel doctrine, which “allows officers to remove immediately

apparent illegal contraband from within a suspect’s clothing during a lawful

frisk.” Interest of T.W., 261 A.3d 409, 422 (Pa. 2021). Pursuant to these

coinciding principles, “a police officer may remove an object from within a

suspect’s clothing under the reasonable suspicion that the object is a weapon,”

or “if, by touch, it is immediately apparent that the object is illegal

contraband.” Id. (cleaned up).

Appellant acknowledges that the Terry frisk exception is distinct from

the consent exception, and that he consented to a search. See Appellant’s

brief at 16. However, he avers that because he agreed to a “pat-down”

search, the caselaw governing the Terry frisk exception is applicable and

informs the Court “about the expectations reasonable people have as to the

scope of a pat-down search, and the nature of the consent they are providing

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J-S10043-25

when they consent to a pat-down search.” Id. at 16-17. Citing law governing

the Terry frisk exception and the plain feel doctrine, Appellant argues that

Sergeant Troxell exceeded the scope of his consent when he removed the

cigarillo package from Appellant’s pocket and opened it where the nature of

the contraband was not immediately apparent. Id. at 17-22.

The trial court concluded that Appellant’s consent to a pat down for

drugs and weapons “removed this search from the one governed by Terry to

one governed by the laws pertaining to a consensual search.” Trial Court

Opinion, 11/15/23, at 4. It explained that had Sergeant Troxell’s search been

a Terry frisk, he “would not have been justified in progressing any further

once he identified . . . the cigarette package.” Id. Since Appellant “afforded

[Sergeant] Troxell with express permission to search his body for weapons or

contraband[,]” however, the sergeant “was not prevented from taking the

package of cigarettes into his hands” and search the contents thereof for

drugs. Id. at 5-6.

We agree with the court that Appellant has improperly conflated the

Terry frisk exception and the consent exception. Plainly, Sergeant Troxell’s

request for permission to “pat down” Appellant for weapons or drugs does not

equate to a Terry frisk. Accordingly, only the law governing the consent

exception is applicable. Since Appellant does not contest that he voluntarily

consented to a search during a lawful interaction, the focus of this appeal

concerns whether Sergeant Troxell exceeded the scope of that consent based

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J-S10043-25

upon what a reasonable person would expect under these circumstances. 3

See Valdivia, 195 A.3d at 862.

Our decision in Commonwealth v. Sullivan, 293 A.3d 588, 2023 WL

1434289 (Pa.Super. 2023) (non-precedential decision), is instructive. There,

Sullivan and her passenger were pulled over for a broken taillight. The officer

conducting the traffic stop classified it “as an unknown risk stop, meaning he

had no information that led him to believe that there was any threat or

immediate risk or criminal activity other than the traffic violation.” Id. at *1

(cleaned up). After issuing a warning, the officer informed the occupants that

they were free to leave and began to walk away, but he immediately returned

and asked to search the vehicle. Notably, the officer “did not tell [Sullivan]

what he was searching for or why he wanted to search the vehicle.” Id. at

*2. He obtained Sullivan’s consent, uncovered an opaque cosmetic bag from

the glove compartment, which did not appear to him to be “out of the

ordinary,” and found two glassine bags of heroin inside. Id.

The trial court granted Sullivan’s motion to suppress, and this Court

affirmed. After determining that Sullivan voluntarily consented to a search of

her vehicle, we concluded that the search of the makeup bag was outside the

---

3 Although Appellant’s statement of questions appears to focus on whether he

gave consent, the argument section of his brief bears out that he only
challenges the extent of Sergeant Troxell’s search following his consent. See
Appellant’s brief at 11 (summarizing his argument that the sergeant exceeded
the scope of the pat down search to which Appellant had consented).

-7-
J-S10043-25

scope of her consent. This Court stated that a reasonable person would not

believe that a search of the vehicle would include the contents of a cosmetic

bag located inside of the glove compartment based upon the officer: (1)

neglecting to seek permission to “extend the search beyond the general

vehicle;” (2) failing to provide “what he was searching for or why he requested

to search the car;” and (3) having “no suspicion of criminal activity” outside

the traffic violation. Id. at *8 (distinguishing Florida v. Jimeno, 500 U.S.

248 (1991), and Commonwealth v. Yedinak, 676 A.2d 1217 (Pa.Super.

1996)).

Unlike in Sullivan, Sergeant Troxell asked Appellant “for consent to pat

him down for weapons or drugs” after suspecting that he was intoxicated.

See N.T. Suppression, 10/4/23, at 11. Also distinct from the officer in

Sullivan, the sergeant’s request followed a field sobriety test, which ruled out

alcohol, but did not resolve his concern of Appellant being under the influence

of a controlled substance.

Relevantly, this Court has held that when officers obtain consent to

search an individual’s car for drugs, they are “free to search any containers

within the vehicle that could reasonably contain narcotics.” Yedinak, 676

A.2d at 1220. In Yedinak, this Court determined that the scope of consent

included the contents of a cigarette pack and a cough drop container since

those items could plausibly store illegal substances. Id.

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J-S10043-25

Here, as mentioned, Sergeant Troxell specifically requested to search

Appellant for drugs because he suspected that he was intoxicated. It was

therefore objectively reasonable for both the sergeant and Appellant to expect

that a search for narcotics would include containers typically used to hold

them, such as the cigarillo package in Appellant’s jacket pocket. See Jimeno,

500 U.S. at 249-51 (stating that after the officer informed respondent that

“he had reason to believe that respondent was carrying narcotics in his car,”

it was “objectively reasonable for the police to conclude that the general

consent to search respondent’s car included consent to search containers

within that car which might bear drugs,” and that “[a] reasonable person may

be expected to know that narcotics are generally carried in some form of a

container”). Accordingly, pursuant to the principles governing the consent

exception, Appellant is not entitled to relief.

Judgment of sentence affirmed.

Judge Olson joins this Memorandum.

Judge Sullivan files a Dissenting Memorandum.

Judgment Entered.

Benjamin D. Kohler, Esq.
Prothonotary

Date: 03/25/2026

-9-

Dissent

                        by Sullivan

J-S10043-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JORDYN M. KENNEY :
:
Appellant : No. 920 MDA 2024

Appeal from the Judgment of Sentence Entered May 31, 2024
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000863-2023

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

DISSENTING MEMORANDUM BY SULLIVAN, J.: FILED MARCH 25, 2026

Because I would hold that the trial court erred as a matter of law in

denying the suppression motion filed by Jordyn M. Kenney (“Kenney”), which

was predicated on an officer’s unlawful search that exceeded the scope of

Kenney’s consent to a “pat down” search, I would vacate the judgment of

sentence, and remand for the trial court to enter an order granting

suppression and for further proceedings.

The suppression record reflects that the issue before the trial court was

the scope of a “pat down” search. N.T., 10/4/23, at 5. Sergeant David Troxell

(“Sergeant Troxell”) testified he specifically requested consent to “pat down

[Kenney] for drugs or weapons”, a fact that is uncontested. N.T., 10/4/23, at

11, 15. The Commonwealth, Seargent Troxell, and defense counsel

consistently referred to the search of Kenney as a “pat down” or “Terry
J-S10043-25

search” and used the terms interchangeably. Id. at 11-15. A “pat down” is

a legal term of art that has developed since the United States Supreme Court

(“SCOTUS”) opinion in Terry v. Ohio, 392 U.S. 1 (1968) and denotes a

“limited Search of an individual’s outer clothing . . .” Commonwealth v.

Guillespie, 745 A.2d 654, 657 (Pa. Super. 2000) (emphasis added); accord

Commonwealth v. Sharaif, 205 A.3d 1286, 1290 n.6 (PA. Super. 2019);

see also Commonwealth v. Cavalieri, 485 A.2d 790, 793 (Pa. Super. 1984)

(noting that in Terry, the scope of the permissible “pat down” was such that

the officer did not place his hands in the [suspects’] pockets or under the outer

surface of their garments until he had felt weapons) (internal citation and

quotation omitted).

The scope of a “pat down”, whether consensual or not, is linked with the

limited purpose of this category of warrantless search. The purpose of a “pat

down” or “Terry search” is:

to assure the safety of the officer and of bystanders. Under both
state and federal constitutions, an officer performing a stop and
frisk may pat down the suspect to identify weapons and may
remove any weapons that he can identify by feel. If the search
proceeds beyond this scope and extends to a general search for
incriminating evidence, it is no longer valid and the fruits of the
search will be suppressed.

Commonwealth v. Stoner, 710 A.2d 55, 58 (Pa. Super. 1998) (citations

omitted). In order for this narrow exception to apply, the officer must be

-2-
J-S10043-25

conducting 1) a valid investigatory stop,1 and 2) during the valid stop the

officer must observe unusual and suspicious conduct on the part of the of the

individual which leads him to reasonably believe that the suspect may be

armed and dangerous. See Commonwealth v. E.M./Hall, 735 A.2d 654,

659 (Pa. 1999); see also Commonwealth v. Fulton, 345 A.3d 352, 368

(Pa. Super. 2025). An officer must articulate specific facts from which he

could reasonably infer that the individual was armed and dangerous, and the

suppression court examines the facts under a totality of the circumstances.

Fulton, 345 A.3d at 368. Under state and federal law a Terry “pat down” is

limited to the suspect’s outer garments and for the purpose of identifying

weapons by feel. E.M./Hall, 735 A.2d at 659; Stoner, 710 A.2d at 58.

Additionally, it “must always be strictly limited to that which is necessary for

the discovery of weapons which might be used to harm the officer or others

nearby.” E.M./Hall, 735 A.2d at 659. It is not to discover evidence of a

crime, but to allow the officer to pursue his investigation without fear of

violence, and if the “pat down” “extends to a general search for incriminating

evidence, it is no longer valid.” Commonwealth v. Simmons, 17 A.3d 399,

403 (Pa. Super. 2011).

The limited exception to this rule is “the plain feel doctrine”, which our

Supreme Court has made clear is an extremely narrow doctrine and is “only

---

1 Whether this was an investigatory stop, and, if so, whether permissible under

Terry, was not argued at suppression; therefore, we do not address this issue.

-3-
J-S10043-25

applicable where the officer conducting the frisk feels an object whose mass

or contour makes its criminal character immediately apparent.” Interest of

T.W., 261 A.3d 409, 420- 422 (Pa. 2021). In sum: a “pat down”, pursuant

to Terry, permits a frisk of a suspect’s outer clothing for weapons; the plain

feel doctrine allows for a further search if the officer feels something

immediately recognizable as illegal contraband. Our Supreme Court held that

the “immediately apparent requirement of the plain feel doctrine is not met

when an officer,” during a “pat down” search—in that case, a Terry frisk—

merely “feels and recognizes by touch an object that could be used to hold

either legal or illegal substances, even when the officer has previously seen

others use that object to carry or ingest drugs.” Commonwealth v.

Stevenson, 744 A.2d at 1266. See id.; see also Commonwealth v. Fink,

700 A.2d 447, 451 (Pa. Super. 1997) (officer was authorized to perform a “pat

down” of a suspect but exceeded the scope of consent to the “pat down” by

seizing a marijuana pipe and other paraphernalia from the suspect’s pockets

when those objects were not “immediately apparent” to the officer they were

contraband); Mesa, 683 A.2d at 647-48 (concluding an officer was permitted

to perform a “pat down” search for weapons, but exceeded his authority when

he felt a bulge that he believed could be contraband, pulled it out, and

discovered folded money and a packet of marijuana); accord Interest of

T.W., 261 A.3d at 421-22 (setting forth the plain feel doctrine);

Commonwealth v. Breeland, 279 A.3d 1251, 2022 WL 1515481 (Pa. Super.

-4-
J-S10043-25

May 13, 2022) (unpublished mem. at *6) (holding the plain feel doctrine did

not apply where “further investigation was needed for [the officer] to identify

the criminal nature of the substance”).

Here, the record is uncontested that Sergeant Troxell asked for consent

to conduct a “pat down for drugs and weapons.” N.T. 10/4/23 at 15. Our

Supreme Court has articulated the limits of consent in Commonwealth v.

Valdivia, 195 A.3d 855, 861 (Pa. 2018), while the Fourth Amendment and

Article I, Section 8 require a warrant supported by probable cause for a search,

one of the exceptions to the warrant requirement is consent; however, “there

are carefully demarked limitations as to what constitutes a valid consent

search.” Id. The Commonwealth bears the burden of establishing voluntary

consent. See Commonwealth v. Venable, 200 A.3d 490, 497 (Pa. Super.

2018).

Regarding the scope of consent:

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

Valdivia, 195 A.3d at 862 (internal citations, quotations, and ellipses

omitted). The scope of consent “is limited by the terms of its authorization,”

and, accordingly, “[t]o be justified by consent, the scope of the search actually

made should be no broader than the scope of consent given.” Id. at 865

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J-S10043-25

(internal citations and quotations omitted). Our Supreme Court has held that

the “burden is on law enforcement officials to conduct a search within th[e]

parameters” of the consent given. Id. at 868. Since a Terry “pat down” is

limited in its application; likewise, consent for this specific type of search is

limited by the extent of its authorization. Furthermore, the scope of a search

is controlled by the scope of consent given, and when law enforcement exceed

the scope of the individual’s consent, the search is illegal “regardless of

whether the individual objected or revoked his or her consent.”

Comonwealth v. Fulton, 345 A.3d at 363. Additionally, the law is well

established that a “pat down” is limited to the outer clothing to discover

weapons that may endanger an officer’s safety, or if while conducting that

limited search on the outside of a suspect’s clothes possession of illegal

contraband is “immediately apparent.” Interest of T.W., 262 A.3d at 422.

In its opinion, the trial court, without analysis of the term “pat down,”

or discussion of its context in the law, summarily concluded that a Terry

analysis was not necessary because “[Kenney] gave [Sergeant] Troxell

consent to pat him down.” Trial Ct. Op., 11/15/23, at 3-4. While it is unclear

exactly why, it seems the trial court reasoned that if an officer requests a “pat

down” for drugs and weapons it either takes the analysis outside the scope of

Terry and expands it to a general search, or it creates an expanded

-6-
J-S10043-25

sub-category of Terry.2 I have been unable to pinpoint any law that supports

this expansive analysis. Rather, since the invasive search here clearly

exceeded the scope of Kenney’s consent to the “pat down” requested, in

derogation of the Fourth Amendment and Article I, Section 8, as explained

further infra, I cannot agree with the court’s unsupported legal analysis or

legal expansion of a “pat down.”

The facts here show the trial court expanded Kenney’s consent from a

“pat-down” search to general consent to search the rest of his person for

contraband. Here, Kenney was a pedestrian when Sergeant Troxell observed

his strange behavior. Sergeant Troxell testified that he suspected Kenney was

intoxicated. Suspecting intoxication, Sergeant Troxell conducted a field

sobriety test, which was negative. Sergeant Troxell then suspected Kenney

was under the influence of an unspecified controlled substance, and there was

no testimony that the officer smelled marijuana, or specifically suspected

marijuana use.

An obvious omission in Sergeant Troxell’s testimony was any fear for his

safety because he believed Kenney was armed and dangerous; in fact, he

clearly testified that the only safety concern he had was that Kenney might

---

2 The Commonwealth likewise argues that Kenney expressly consented to a

“pat down” search, and impliedly consented to the search inside of his water
bottle and pockets by not telling Sergeant Troxell to stop the search or
otherwise expressly revoking his consent as the search continued. See
Commonwealth’s Br. at 6, 14.

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J-S10043-25

get hit by a car. See N.T., 10/4/23, at 9. Despite having no fear for his

safety, Sergeant Troxell asked for consent to “pat him down for weapons or

drugs” and Kenney consented. Id. at 11, 15. Crucially, the testimony

thereafter does not indicate an actual “pat down” even occurred; rather,

Sergeant Troxell testified to first physically grabbing a water bottle Kenney

was holding and opening it to determine if there was alcohol in it, and then

proceeding straight into his jacket pockets and pulling out a charger, a phone,

and then a package of cigarillos. See id. at 12, 15. Critically, Sergeant Troxell

testified he was not able to tell immediately that illegal contraband was in

Kenney’s pockets prior to reaching into his inner pocket, pulling items out,

and then searching within them. See id. at 14. The record clearly shows that

a Terry “pat down” became a search for incriminating evidence beyond the

consent given.

Without legal support for an expansion of Terry “pat downs” or new

sub-categories expanding the limits of consent, I am constrained to conclude

the trial court committed legal error. The record reveals that Kenney

consented to a “pat down” search, not a search of the contents of his

pockets. When Sergeant Troxell did not feel a weapon or any items that were

immediately recognizable as illegal contraband, the scope of a legal “pat

down” was complete. Sergeant Troxell expressly testified that he asked for

consent to perform a “pat down” on Kenney, not to pull items from inside his

pockets. See N.T., 10/4/23, at 15. Additionally, Sergeant Troxell did not

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J-S10043-25

testify that he suspected Kenney to be under the influence of marijuana, and,

therefore, the fact that the cigarillo packages often contain marijuana is of no

moment. Rather, having asked for consent to perform a “pat down” of

Kenney, and receiving consent, Sergeant Troxell performed the “pat down”

search, and then without discerning any immediately apparent

contraband and without asking for consent to expand the scope of the

search inside Kenney’s pockets, he then proceeded to pull several items

from inside Kenney’s pockets.

The Majority’s decision affirming the denial of suppression principally

relies on Commonwealth v. Yedinak, 676 A.2d 1217 (Pa. Super. 1996), in

which this Court affirmed a denial of suppression of the fruits of a vehicle

search pursuant to a “general consent” to search the vehicle for drugs.

However, Yedinak is distinguishable not only because that case concerned a

vehicular search but because, crucially, the officer asked for consent to search

the entire vehicle for drugs to which the defendant gave “general consent,”

whereas, here, the officer specifically asked for consent to conduct a “pat

down”, a term denoting a limited search of a suspect’s outer clothing, see,

e.g., Guillespie, 745 A.2d at 657, and then after the officer conducted a “pat

down” and without any further consent or it being immediately apparent that

Kenney possessed a weapon or contraband began searching inside Kenney’s

pockets and pulling out several items that were not apparently contraband

and then searching within those items, namely a packet of cigarillos. As the

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J-S10043-25

officer exceeded the scope of Kenney’s consent to conduct a “pat down” by

performing a more invasive search than consent to “pat down” his person for

drugs or weapons, Yedinak does not support affirmance.3

Based on the foregoing, I would hold that the trial court’s factual finding,

i.e., that Kenney consented to a general search of his person, lacks support

in the record, and its legal conclusions (i.e., that Kenny’s consent to a “pat

down” search included a search of one’s pocketed personal effects, since he

did not “terminate[] his consent” after Sergeant Troxell began going into his

effects, see Trial Ct. Op., 11/15/23, at 5 n.1) constitute error.

Therefore, I respectfully dissent.

---

3 The Majority cites this Court’s decision in Commonwealth v. Sullivan, 293

A.3d 588 (Pa. Super. 2023) (non-precedential decision) in context of
distinguishing Yedinak and illustrating what an impermissible search
exceeding the scope of consent would look like. However, Sullivan is just as
inapposite as Yedinak because Sullivan involved general consent to search
a vehicle—there, consent to search the vehicle, but not inside containers
therein—and not a “pat down” of a pedestrian.

• 10 -