Synopsis: The Supreme Court of Missouri has decided a case of first impression on the "plain feel" doctrine as enunciated in Minnesota v. Dickerson. However, in emphasizing the totality of the circumstances which indicated the existence of probable cause, the Court has left open the question of whether touch alone would be sufficient to justify a seizure of contraband discovered in a patdown for weapons and the full scope of the phrase "immediately apparent."
Ever since the Supreme Court of the United States handed down its ruling in Minnesota v. Dickerson,1 every law enforcement officer in Missouri has learned the magic words "immediately apparent." This key concept of what has come to be known as the "plain feel" exception to the warrant requirement (the functional equivalent of "plain view") has now become an essential component of patdown searches that expose contraband. As common as the language has become, however, there is still considerable confusion about exactly how "plain" the feel must be to qualify under the doctrine. Can the officer manipulate the item in any way to determine its exact nature? Does he have to be totally correct in his evaluation? What if it's contraband, but not what he had expected? Is the "plain feel," by itself, enough to justify seizure of the item? Most importantly, is "reasonable suspicion" or "probable cause" the standard to be used in determining when the contraband can, in fact, be seized?
Nor is it the law enforcement officers alone who are confused, as demonstrated in the cases decided since Dickerson.2 The Missouri Court of Appeals for the Eastern District heard the case of first impression in Missouri, State v. Rushing.3 In its unpublished opinion, the court commented on the difficulties that both courts and police officers have in translating the meaning of "immediately apparent" -- particularly when called upon to make on-the-spot determinations as to the scope of a proper search for contraband. Citing the need for "definitive search and seizure procedures to guide law enforcement officers and others," the Eastern District transferred the case to the Supreme Court. However, their hope for a definite and clear rule for patdown searches did not materialize. Although the Supreme Court ultimately upheld the seizure of contraband in the case, citing the "plain feel" doctrine, two of the six judges dissented as to the majority's application of the "immediately apparent" requirement. Judge Covington, speaking for the dissenters, argued that the majority opinion had simply "relabeled" reasonable suspicion and called it probable cause since the exact nature of the contraband was not immediately apparent to the arresting officer. She cites decisions from Kentucky4 and Pennsylvania5 in which state supreme courts had invalidated similar searches under the plain feel doctrine. As a result, there are still important questions left unresolved in the wake of the Rushing decision.
In Rushing, an experienced juvenile officer had witnessed what he believed to be a drug transaction by the defendant occurring in an area known for drug trafficking and gang activity. He reported the incident to a narcotics officer, who went to the location and recognized it as a street on which he had previously served two search warrants for drugs. The narcotics officer approached the defendant, identified himself as a police officer, and told the defendant he had received information that he was dealing drugs. Rushing denied the accusation. Out of a concern for his safety (given the presence of gang grafffiti in the neighborhood), the officer then conducted a patdown for "weapons and contraband." When he ran his hand down Rushing's front pants pocket, he felt what he thought was a tubular plastic Life Saver Hole candy container which, in his experience, was commonly used by crack dealers to carry cocaine. He pulled out the object and discovered it to be a cylindrical plastic medicine bottle containing 10 rocks of crack cocaine. Rushing was then arrested.
At the motion to suppress hearing, Officer Price testified that immediately upon touching the object in Rushing's pocket, he thought it was a container for crack cocaine. In his experience, he said, drugs were commonly carried in medicine bottles, Life Saver Hole containers, plastic baggies, film canisters and other types of containers that were easily concealed and easily opened. He assumed, in this instance, that it was a Life Saver container. He produced for the trial court a list of cocaine arrests and seizures in the Cape Girardeau area detailing the types of containers in which crack cocaine had been found.
The Eastern District, in its analysis of the case, considered the "dispositive issue" to be "whether Officer Price was acting within the lawful bounds marked by Terry6 at the time he gained probable cause to believe that the item in Rushing's pants pocket contained contraband."7
There was no dispute that the police were justified in doing a patdown for weapons under the Terry decision. Under the Dickerson case, if the "officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity (as contraband) immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons. If the object is contraband, its warrantless seizure would be justified."8
In the Dickerson case, the officer could not determine the exact nature of the item he felt without squeezing it and moving it around in the defendant's pocket. Such manipulation, the Supreme Court reasoned, was not "plain feel" any more than moving a stereo set to determine if it was stolen was "plain view."9 In the instant case, the officer did not need to manipulate the contents of the Defendant's pocket to determine its "exact" nature as a container for contraband. However, the officer's determination was not based solely on his feeling of the container but rather on a combination of what he felt and what he knew as a trained police officer with extensive experience in drug enforcement. And, in fact, the container was not what he initially believed it to be.
It is at this point that the Eastern District figuratively throws up its hands and turns to the Supreme Court for guidance on the precise meaning of "immediately apparent." In Texas v. Brown,10 a federal court found "all but irrelevant" the officer's inability to see through the opaque fabric of a seized balloon believed to contain cocaine. Instead, the plurality decision focused on the officer's prior knowledge and experience that "balloons tied in the manner of the one possessed by Brown were frequently used to carry narcotics."11 Thus, the nature of the balloon as a container for contraband was "immediately apparent" only in view of all the information available to the officers.
On the other hand, several state courts, also relying on Dickerson, have concluded that unless the officer says with certainty that the contents of the container are contraband, the seizure is invalid, even where the officer indicates that, in his experience, the container was likely to contain contraband. For example, in Commonwealth v. Crowder,12 the police had received a tip that Crowder would be in a known drug area dealing drugs. The police observed him and stopped him when he attempted to avoid police surveillance by walking away. During a patdown search, the officer felt what he described as "like a small gumball" or possibly a "bindle of drugs."13 The Kentucky Supreme Court invalidated the search because the "nature of the non-threatening contraband was not immediately apparent" to the officer when he was doing the search.14
The most common carrier for contraband on the street is, of course, the ubiquitous plastic baggie. In Commonwealth v. Stackfield,15 an officer seized several ziplock baggies during a routine Terry search on the grounds that baggies were often used for carrying drugs. The Pennsylvania Superior Court invalidated the search on the grounds that the baggie was not "per se contraband, although material contained in a zip-lock baggie may well be."16 A film canister, also commonly used to carry drugs on the street, met with the same fate in Campbell v. State,17 a Texas appellate court decision.
Judge Covington relies on these cases in her dissent in Rushing.
However, these cases, in focusing on the specific language of "immediately apparent," miss the broader point of Dickerson. No seizure is ever justified without probable cause. As the Court noted, "Regardless of whether the officer detects the contraband by sight or by touch . . . the Fourth Amendment's requirement that the officer have probable cause to believe that the item is contraband before seizing it ensures against excessively speculative seizures."18
Probable cause is determined by the totality of the circumstances, or, when the "facts and circumstances within the knowledge of the seizing officer are sufficient to warrant a person of reasonable caution to believe that the item may be contraband or other evidence of a crime."19 The Dickerson Court, in recognizing the existence of a "plain feel" equivalent to "plain view," did not extend the scope of the search permissible under the Terry line of cases. Thus, the officer in Dickerson was not permitted to squeeze and slide the item around in the suspect's pocket in order to determine what it was, any more than the officer in Hicks20 could move the stereo equipment to determine whether or not it was stolen.
Nor did the Dickerson Court, at least on its face, revise the probable cause downward to reasonable suspicion. In Dickerson, the U.S. Supreme Court made it clear that a protective search permitted on the basis of reasonable suspicion less than probable cause "must be strictly limited to that which is necessary for the discovery of weapons." To justify a seizure of contraband, the officer's determination of probable cause must depend on the cumulative weight of the information at his disposal at the time of the patdown search which reveals possible contraband. In certain situations, the characteristics of the item felt, when combined with other information available to the officer, will be sufficient probable cause to justify the seizure.
For example, if the officer in Hicks could decipher the serial numbers on the stereo equipment without manipulation of the object, and had already obtained information that indicated stereo equipment bearing the same serial number had been stolen, he would have probable cause to seize the equipment immediately upon viewing the numbers. The nature of the item would be "immediately apparent" as stolen property. In Dickerson, the officer saw the defendant exit a building considered to be a "notorious 'crackhouse'".21 When he suddenly changed direction upon seeing the officers, they conducted the patdown search for weapons. While the facts clearly constituted reasonable suspicion of criminal activity, they had not reached the level of probable cause. When the officer was unable to determine the nature of the "lump," the weight of the evidence remained at that level, i.e., reasonable suspicion and not probable cause.
The Rushing facts are distinguishable from those in Dickerson in two important respects. First, the officer had prior information that Rushing had actually engaged in what appeared to an experienced juvenile officer to be a drug transaction immediately before the search. In that transaction, Rushing had placed something into his pants pocket. Secondly, during the patdown for weapons, the officer felt in the defendant's pants pocket what he immediately believed was a crack cocaine container. This belief was based not just on the feel of the object, but also on "the information I received . . . the area we were in, and from . . . previous training and experience in arresting crack dealers, that's what they carry their crack cocaine in."22 At this point, the evidence had increased from reasonable suspicion to probable cause. At least as applied in Rushing by the Supreme Court of Missouri, the "plain feel" doctrine has not expanded beyond well-established boundaries of search and seizure law.
There remains the question of whether or not a "plain feel," in and of itself, without any other information, is likely to support a finding of probable cause. That question remains unanswered under the Rushing case. The Dickerson opinion implies that this is possible. The Minnesota Supreme Court had rejected the concept of "plain feel," at least in part, on the grounds that "the sense of touch is inherently less immediate and less reliable than the sense of sight."23 However, "even if it were true that the sense of touch is generally less reliable than the sense of sight," the Supreme Court responded, "that only suggests that officers will less often be able to justify seizures of unseen contraband."24 Once again, "probable cause" provides the guarantee against abuse. In its discussion of the question of intrusion, the United States Supreme Court appears to equate "probable cause" with certainty (for example, its references to "seizure of an item whose identity is already known" and "contraband plainly detected through the sense of touch").25 But is a mere statement of certainty sufficient without other facts which, essentially, provide probable cause? In the absence of such other facts, it is difficult to imagine a scenario in which (given the nature of drug contraband as opposed to weapons) touch alone would be definitive enough for probable cause. If, in fact, such a statement alone is sufficient, Judge Covington could well be correct in her assessment that the standard for contraband searches has descended from probable cause to reasonable suspicion.
Given the confusion surrounding the language of Dickerson and the inherent problems which the "plain feel" doctrine has created, there is considerable appeal in doing just that. As both the Missouri Court of Appeals for the Eastern District26 and Judge Lambert of the Kentucky Supreme Court in Crowder27 noted, there is a need for a clear, "bright line" rule that officers on the street can follow in determining when a seizure is appropriate. Judge Lambert's suggestion that the Terry principle simply be extended to permit officers to seize any item of contraband discovered during the weapons patdown would certainly be such a rule. Until such time as the United States Supreme Court resolves the issue, the exact nature and extent of the "plain feel" doctrine will remain a problem for police, prosecutors and the courts.
Footnotes
1 508 U.S. 366 (1993).
2 See, e.g., U.S. v. Hughes, 15 F.2d 798 (8th Cir. 1994) (seizure of small lumps believed to be cocaine upheld); U.S. v. Gibson, 19 F.3d 1449 (D.C. Cir. 1994) (seizure of flat, hard object containing cocaine held improper); U.S. v. Mitchell, 832 F. Supp. 1073 (N.D. Miss. 1993) (seizure of plastic bag containing cocaine stuffed in athletic sock in brown paper sack in jacket pocket held improper); U.S. v. Craft, 30 F.3d 1044 (8th Cir. 1994) (seizure of hard, compact packages of heroin taped around ankles upheld); State v. Buchanan, 504 N.W.2d 400 (Wis. Ct. App. 1993) (seizure of plastic baggie believed to contain cocaine upheld).
3 Eastern District, No. 68145, filed March 26, 1996; 935 S.W.2d 30 (Mo. banc 1996).
4 Commonwealth v. Crowder, 884 S.W.2d 649 (Ky. 1994).
5 Commonwealth v. Stackfield, 651 A.2d 558 (Pa. Super.Court. 1994).
6 Terry v. Ohio, 392 U.S. 1 (1968).
7 Rushing, 935 S.W.2d 30 (Mo. banc 1996)
8 Minnesota v. Dickerson, 508 U.S. 366, 375-76 (1993).
9 See Arizona v. Hicks, 480 U.S. 321 (1987).
10 Texas v. Brown, 460 U.S. 730 (1983) (plurality opinion).
11 Id. at 742-43.
12 Crowder, 884 S.W.2d 649 (Ky. 1994).
13 Id. at 650.
14 Id. at 652.
15 651 A.2d 558 (Pa.Super.Court. 1994).
16 Id. at 562.
17 864 S.W.2d 223 (Tex. App. 1993).
18 Dickerson, 508 U.S. 366 at 376.
19 Rushing, 935 S.W.2d 30 (Mo. banc 1996).
20 Arizona v. Hicks, 480 U.S. 321 (1987).
21 Dickerson, 508 U.S. 366 at 368.
22 Rushing, transcript on appeal, p. 48.
23 Dickerson, 508 U.S. 366 at 376.
24 Id. at 376.
25 Id. at 377.
26 On page 8 of its unpublished opinion dated March 26, 1996, the Court of Appeals commented on the problems that judges and police officers have had in translating the meaning of "immediately apparent," particularly when called upon to make on-the-spot determinations as to the scope of a proper search. It quotes extensively from Commonwealth v. Crowder, 884 S.W.2d at 653, in which Justice Lambert chastises the Dickerson Court for its irrational "hairsplitting."
27 Crowder, 884 S.W.2d at 653. In a rather pointed discussion, Justice Lambert states: "A far more rational rule would be to permit seizure of any item of contraband discovered in the course of a Terry search. Of course, no search would be permitted after it was determined that the suspect was unarmed, but any item suspected of being contraband and discovered in the course of a search for weapons should be subject to seizure and the convoluted process required by Dickerson entirely avoided."
Ms. Rushefsky is a 10-year veteran of the Greene County Prosecuting Attorney's Office, where she is currently first assistant prosecutor with primary responsibility for drug cases. She was formerly an assistant state's attorney in Gainesville, Florida.
©1997, Cynthia A. Rushefsky