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The "plain feel" doctrine.



Imagine that while on routine patrol in a marked squad car, you and your partner observe a 23-year-old man walking out of an apartment building that you consider to be a notorious "crack house crack house
n. Slang
A building or apartment where crack cocaine is regularly sold, used, or produced.
." Your perception stems from the number of complaints of drug sales in the building's hallways, which you previously investigated, as well as your prior execution of several search warrants on the premises.

The man begins walking toward you, but upon spotting the patrol car and making eye contact, he abruptly halts and begins to walk in the opposite direction. Suddenly, he turns and enters an alley on the other side of the apartment building. Now, your suspicions are aroused.

You follow the man into the alley, where he complies with your command to stop. Then, based on a reasonable fear that he could be armed, you conduct a patdown search for weapons. Although no weapon is found, you do feel a small lump in the front pocket of his nylon jacket. When you examine it with your fingers, the lump slides and feels like crack cocaine in cellophane cellophane, thin, transparent sheet or tube of regenerated cellulose. Cellophane is used in packaging and as a membrane for dialysis. It is sometimes dyed and can be moisture-proofed by a thin coating of pyroxylin. . You then reach into the man's pocket and retrieve a small plastic bag that contains 1/5 gram of crack cocaine. Is the seizure of the cocaine lawful under the so-called "plain feel" doctrine?

Based on these very facts, the Supreme Court recently answered "no" to that question in Minnesota v. Dickerson.(1) Yet, while the Court invalidated in·val·i·date  
tr.v. in·val·i·dat·ed, in·val·i·dat·ing, in·val·i·dates
To make invalid; nullify.



in·val
 the search that occurred in that particular case, all nine Justices nevertheless agreed that under certain conditions, police may lawfully seize nonthreatening contraband contraband, in international law, goods necessary or useful in the prosecution of war that a belligerent may lawfully seize from a neutral who is attempting to deliver them to the enemy.  detected through the sense of touch during a protective patdown search.(2)

Officers facing similar circumstances need to understand why the Court concluded that the search in Dickerson violated the fourth amendment. The following four questions illustrate the reasoning process the Court used to resolve this issue and are instructive for guiding officer conduct.

1. Does the Officer have articulable ar·tic·u·la·ble  
adj.
That can be articulated: vague, barely articulable thoughts. 
 facts demonstrating an objectively reasonable suspicion Reasonable suspicion is a legal standard in United States law that a person has been, is, or is about to be, engaged in criminal activity based on specific and articulable facts and inferences.  that the person is presently armed with a potential weapon? 2. Is the protective frisk conducted by the officer strictly limited in scope to actions necessary for the discovery of weapons?

3. Does the officer reasonably believe that an object detected during the limited frisk could be a weapon?

4. During the limited frisk for weapons, does the officer see and/or feel an object that is immediately recognized as evidence or contraband?

This article examines court decisions involving investigative scenarios that raise these questions and discusses various investigative responses permitted by the fourth amendment.

Justifying a Frisk--Articulable Reasonable Suspicion

In order to justify a frisk for weapons under the Supreme Court's decision in Terry v. Ohio In Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the U.S. Supreme Court ruled that the Fourth Amendment to the U.S. Constitution permits a law enforcement officer to stop, detain, and frisk persons who are suspected of criminal activity without first obtaining ,(3) officers must be able to clearly articulate facts that demonstrate an objectively reasonable suspicion that the defendant is presently armed with a potential instrument of assault.(4) Absent such facts, the evidence seized pursuant to the patdown will be suppressed.(5) In cases where a detainee de·tain·ee  
n.
A person held in custody or confinement: a political detainee.

Noun 1. detainee - some held in custody
political detainee
 is suspected of engaging in a crime like drug trafficking or where past police experience suggests a high likelihood that the suspect is armed, some courts take judicial notice that officers can reasonably suspect such suspects to be armed and dangerous, thereby justifying the frisk.(6)

Frisks Strictly Limited in Scope

A protective frisk is not designed to discover evidence of crime. Rather, it is strictly limited to those actions necessary to discover weapons so that officers can pursue investigations without fear of violence. Once they determine by touch that a particular object is not a weapon, officers cannot continue to feel that object.

When a protective frisk goes beyond what is necessary to determine if a suspect is armed, it is no longer a valid Terry frisk.(7) Courts carefully scrutinize scru·ti·nize  
tr.v. scru·ti·nized, scru·ti·niz·ing, scru·ti·niz·es
To examine or observe with great care; inspect critically.



scru
 the scope of a frisk to determine whether an officer's stated concern for safety was legitimate or a pretext PRETEXT. The reasons assigned to justify an act, which have only the appearance of truth, and which are without foundation; or which if true are not the true reasons for such act. Vattel, liv. 3, c. 3, 32.  to seize evidence.

For example, in United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area.  v. Winter,(8) a Federal district court suppressed $12,500 in serialized currency seized during a Terry frisk--$9,000 of which had been previously furnished to a confidential informant informant Historian Medtalk A person who provides a medical history  to buy drugs. At the suppression hearing, the trooper testified that one purpose for conducting the patdown frisk of the defendant was to find the serialized currency. He also testified that he decided beforehand to seize the money wherever it was. Although the trooper stated he was concerned about a weapon, he admitted that when he took a brown bag out of the defendant's jacket, he "obviously" knew the bag did not contain a weapon. Whatever else the bulge Bulge

A slang term used to describe a rapid advance in prices within the commodities market.

Notes:
A bulge is similar to a rally on equity exchanges.
See also: At The Market, Bear, Break, Bull, Buoyant, Congestion, Rally



Bulge
 might be, the trooper knew that it was not a weapon.

The court concluded that the trooper should have terminated the frisk as soon as he ascertained that the defendant was not carrying any weapons and that the seizure and search of the bag was illegal. The court also reaffirmed that the sole justification for a frisk is to protect the officer and others and that the scope of a frisk does not include the right to search for evidence to prevent its disappearance or destruction.(9) Therefore, once an officer determines by the sense of touch that an object is not a weapon, the frisk must stop. Justifying a Seizure--Reasonable Belief Object Could Be a Weapon

If, during a lawful limited patdown for weapons, officers feel an object that they reasonably believe could be a weapon, they may seize it.(10) Even if the object turns out in retrospect to be contraband or evidence, its seizure does not offend the fourth amendment, as long as the officers' belief that it was a weapon is objectively reasonable.

In determining what objects might be a weapon, consideration must be given to the setting of the particular case.(11) In United States v. El-Gabrowny,(12) officers conducting a lawful patdown frisk of a suspect in the bombing of the World Trade Center felt a rectangular object, which they thought could be plastic explosives plastic explosive
n.
A versatile explosive substance in the form of a moldable doughlike solid, used in bombs detonated by fuse or electrical impulse. Also called plastique.
. Before the officers could remove the object, the suspect struck the officers who were controlling him. After securing the defendant, the officers removed the rectangular object from the suspect's pocket.

Although the rectangular object turned out not to be explosives, a Federal district court ruled that the officers had two independent legal justifications for seizing the object. First, it was reasonable for the officers to fear that the rectangular object was a potential source of danger and seize it under the rationale of a Terry frisk. Second, once the suspect assaulted the officers, it was lawful to arrest him for that assault and to then conduct a full search of his person incident to that arrest. Therefore, the fruits of a lawful frisk can, alone or together with other suspicious circumstances, ripen rip·en  
tr. & intr.v. rip·ened, rip·en·ing, rip·ens
To make or become ripe or riper; mature. See Synonyms at mature.



rip
 into probable cause Apparent facts discovered through logical inquiry that would lead a reasonably intelligent and prudent person to believe that an accused person has committed a crime, thereby warranting his or her prosecution, or that a Cause of Action has accrued, justifying a civil lawsuit.  to arrest, thereby justifying a more extensive search incident to arrest. In another example, a U.S. Court of Appeals reviewed a case wherein officers saw a noticeable bulge in the defendant's pants pocket and had other facts suggesting that he had been involved in an armed robbery.(13) During the ensuing en·sue  
intr.v. en·sued, en·su·ing, en·sues
1. To follow as a consequence or result. See Synonyms at follow.

2. To take place subsequently.
 patdown for weapons, one of the officers recognized the outline of a gun and pulled a loaded pistol out of the defendant's pocket. The officer placed the defendant under arrest for carrying a concealed firearm firearm, device consisting essentially of a straight tube to propel shot, shell, or bullets by the explosion of gunpowder. Although the Chinese discovered gunpowder as early as the 9th cent., they did not develop firearms until the mid-14th cent.  and then searched him incident to the arrest, finding cocaine in the other pants pocket. Although the officer did not immediately recognize the cocaine during the initial patdown, which would have been necessary to justify its seizure under the "plain feel" doctrine, the court nonetheless held the contraband was reasonably seized incident to a lawful arrest.

"Plain Feel" Seizures of Immediately Recognizable Evidence

Totally separate from the Terry frisk rationale, officers may have an independent justification to seize objects under a variation of the Plain View Doctrine In the context of searches and seizures, the principle that provides that objects perceptible by an officer who is rightfully in a position to observe them can be seized without a Search Warrant and are admissible as evidence.

The U.S.
,(14) which is often referred to as the "plain feel" doctrine when applied to tactile tactile /tac·tile/ (tak´til) pertaining to touch.

tac·tile
adj.
1. Perceptible to the sense of touch; tangible.

2. Used for feeling.

3.
 searches. Under this rationale, if officers conducting a lawful weapons frisk feel an object that they immediately recognize as evidence or contraband, they may lawfully seize that object under this so-called "plain feel" doctrine.

To be seizable, the incriminating in·crim·i·nate  
tr.v. in·crim·i·nat·ed, in·crim·i·nat·ing, in·crim·i·nates
1. To accuse of a crime or other wrongful act.

2.
 nature of the evidence must be immediately apparent to the searching officer to the level of probable cause.(15) A recent decision by a Pennsylvania Superior court illustrates the importance of officers being able to articulate in detail the specific nature and basis for their perceptions. In that case, an officer's testimony concerning his frisk of a suspect in a drug case was paraphrased as follows:

"|He~ felt something 'crunchy' or 'granular' in Johnson's crotch crotch
n.
The angle or region of the angle formed by the junction of two parts or members, such as two branches, limbs, or legs.
 that did not feel like anything that, physiologically, was supposed to be there....that 50 times over the last four years he had felt something 'crunchy' or 'granular' during a frisk of a crotch area that turned out to substance....that in conducting frisks he 'feel|s~ a lot of guys' crotches' and that what he felt on this occasion 'did not feel like anyone's testicle testicle /tes·ti·cle/ (tes´ti-k'l) testis.

tes·ti·cle
n.
A testis, especially one contained within the scrotum.



testicle

testis.
.'"(16)

Based on the officer's detailed explanation for his "plain feel" seizure, the court held that his tactile impression of the consistency and location of the package, combined with his years of experience and surrounding circumstances, made the illegal nature of the object immediately apparent, thereby justifying its seizure.

The importance of officers' being able to clearly articulate probable cause for believing the object is or contains evidence or contraband is illustrated by the decision in United States v. Ross United States v. Ross, 456 U.S. 798 (1982), was a search and seizure case argued before the Supreme Court of the United States. The high court was asked to decide if a legal warrantless search of an automobile allows closed containers found in the vehicle (specifically, in ,(17) where a Federal district court found that the incriminating character of the suspected contraband was not "immediately apparent." In that case, an officer conducted a patdown search of a suspected drug dealer and felt a matchbox in the defendant's groin area, which felt hollow when the officer hit it. The officer testified that he suspected the matchbox contained contraband because drug traffickers Noun 1. drug trafficker - an unlicensed dealer in illegal drugs
drug dealer, drug peddler, peddler, pusher

criminal, crook, felon, malefactor, outlaw - someone who has committed a crime or has been legally convicted of a crime
 commonly carry contraband in matchboxes Matchboxes is a drinking game of skill played around a table. It can be played by any number of people. The aim is to flick the matchbox over one's pint such that it lands on its edge or end. Main Rules
Play proceeds around the circle.
. The officer also stated that in his years of experience, he had found contraband concealed in small matchboxes tucked in the groin area 50 to 100 times.

Although the officer testified that he believed the item to be a matchbox, the court nonetheless held that his suspicion that the matchbox contained contraband did not satisfy the "immediately apparent" requirement.(18) The court explained that the result might have been different if the defendant had been carrying the cocaine in a plastic baggy bag·gy  
adj. bag·gi·er, bag·gi·est
Bulging or hanging loosely: baggy trousers.



bag
 in his pelvic pelvic /pel·vic/ (pel´vik) pertaining to the pelvis.

pel·vic
adj.
Of, relating to, or near the pelvis.
 area through which the contours Contours may mean:
  • Contour lines on a map indicating elevation
  • The Contours, a Motown musical group notable for the hit single "Do You Love Me"
See also: plain
 or mass of contraband could be sensed by the officer conducting the frisk. In Ross, the court concluded that the fourth amendment required the officer to have probable cause to believe the matchbox contained contraband before seizing it. Because the officer's suspicion that the matchbox contained cocaine did not rise to the level of probable cause, his removal of the box to verify his suspicion exceeded the legitimate bounds of a "plain feel" seizure. Where officers lack probable cause to believe that an object they feel during a frisk is contraband or evidence, because its incriminating nature is not "immediately apparent" without conducting some further search of the object, the "plain feel" doctrine does not permit either its seizure or a further search of the object.(19) Conclusion

The Supreme Court decision in Dickerson discussed at the beginning of this article ruled that the patdown frisk of the suspect's jacket was justified because the officer had a reasonable suspicion that he was armed. The scope of that frisk would permit the officer to place his hands on the suspect's jacket and feel the lump in the pocket. However, once the officer determined the object was not a weapon, no further search was permissible, unless the officer had probable cause to believe it was evidence to justify its seizure under the "plain feel" doctrine.(20) Thus, the continued sliding and squeezing of the object exceeded the scope of a legitimate Terry frisk.

Although the officer in Dickerson contended that he immediately recognized the feel of crack cocaine before conducting the expanded manipulation of the object in Dickerson's pocket,(21) the Supreme Court apparently agreed with the Minnesota Supreme Court's conclusion set forth below that the officer's contention was not credible:

"We are led to surmise that the officer's sense of touch must compare with that of the fabled princess who couldn't sleep when a pea pea, hardy, annual, climbing leguminous plant (Pisum sativum) of the family Leguminosae (pulse family), grown for food by humans at least since the early Bronze Age; no longer known in the wild form.  was hidden beneath her pile of mattresses."(22)

Three important principles can be drawn from an analysis of Dickerson:

1. An officer may rely on the sense of touch to develop probable cause to make a "plain feel" seizure.

2. The probable cause requirement to make a "plain feel" seizure has not been diminished.

3. The "plain feel" doctrine does not enlarge the scope of a Terry frisk.

Endnotes

1 113 S.Ct. 2130 (1993).

2 Id. at 2136.

3 Terry v. Ohio. 392 U.S. 1 (1968) (A protective frisk may be conducted if a reasonably prudent person under the circumstances would be warranted to believe that his safely or that of others was in danger.)

4 United States v. Ross, 827 F.Supp. 711 (1993).

5 Id. In response to leading questions by prosecutor, the officer testified that the matchbox he felt during frisk might have contained a razor blade ra·zor·blade also ra·zor blade  
n.
A thin sharp-edged piece of steel that can be fitted into a razor.

razor blade nhoja de afeitar

razor blade 
; however, the court found that the officer was not really concerned about a razor blade but that the removal of the box was part of deliberate and focused search for drugs.

6 State v. Evans, 618 N.E.2d 162 (Ohio 1993); Commonwealth v. Patterson, 591 A.2d 1075, 1078 (Pa. Super. 1991); Commonwealth v. Johnson, 54 Cr.L. 1054 (Pa. Super. 1993).

7 Minnesota v. Dickerson, 113 S.Ct. 2130, 2136 (1993).

8 826 F.Supp. 33 (D. Mass. 1993).

9 Id. at 37. See also. United States v. Taylor, 997 F.2d 1551 (D.C. Cir. 1993) (A second frisk of defendant's pocket fell outside the bounds of a lawful Terry search because it was not aimed at, let alone limited to, the discovery of weapons.)

10 State v. Evans, 618 N.E.2d 162 (Ohio 1993). See also, United States v. Oates, 560 F.2d 45 (1977).

11 3 LaFave, Search and Seizure search and seizure

In law enforcement, an exploratory investigation of a premises or a person and the taking into custody of property or an individual in the interest of gaining evidence of unlawful activity or guilt.
 522, Section 9.4(c) (2d Ed. 1987).

12 825 F.Supp. 38 (S.D.N.Y. 1993).

13 United States v. Brooks, 2 F.3d 838 (8th Cir. 1993).

14 Under the "Plain View" Doctrine, if officers are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. Horton v. California, 496 U.S. 128, 136-137 (1990); Minnesota v. Dickerson, 113 S.Ct. 2130, 2136-37 (1993).

15 Arizona v. Hicks Arizona v. Hicks, 480 U.S. 321 (1987), held that the Fourth Amendment requires the police to have probable cause to seize items in plain view. , 480 U.S. 321, 326 (1987); United States v. Naugle, 997 F.2d 819 (10th Cir. 1993).

16 Commonwealth v. Johnson, 54 Cr.L. 1054, 1055 (Pa. Super. 1993).

17 United States v. Ross, 827 F.Supp. 711 (1993).

18 The court in Ross stated that "It would strain credulity cre·du·li·ty  
n.
A disposition to believe too readily.



[Middle English credulite, from Old French, from Latin cr
 to conclude that by his sensing of the box the presence of cocaine therein was immediately apparent.'" Id. at 719 n. 16.

19 Arizona v. Hicks, 480 U.S. 321 (1987); Minnesota v. Dickerson, 113 S.Ct. 2130, 2137 (1993).

20 "|A~n officer who satisfies himself while conducting a Terry check that no weapon is present in a container is not free to continue to manipulate it in an attempt to discern the contents." United States v. Williams, 822 F.2d 1174, 1184 (D.C. Cir. 1987).

21 In Dickerson, the officer never believed nor made any claim that he suspected the lump to be a weapon.

22 State v. Dickerson, 481 N.W.2d 840, 844 (Minn. 1992).

Special Agent DiPietro is a legal instructor at the FBI Academy The FBI Academy, located in Quantico, Virginia, is the training grounds for new Special Agents of the United States Federal Bureau of Investigation. It was first opened for use in 1972 on 385 acres (1.6 km²) of woodland. .
COPYRIGHT 1994 Federal Bureau of Investigation
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1994, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Title Annotation:frisking suspects
Author:DiPietro, Louis
Publication:The FBI Law Enforcement Bulletin
Date:Feb 1, 1994
Words:2635
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