Plain Feel, A Second Look

<body topmargin=0 leftmargin=0 marginheight=0 marginwidth=0> <table cellpadding=0 cellspacing=0 border=0><tr> <td valign="top" colspan=2 height=82 BGCOLOR="#006699" TEXT="#080000"> <div> <FONT SIZE="5" COLOR="#FFFFFF" FACE="Arial" ><B>Institute for Criminal Justice Education, Inc. 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This article will show how to make a valid search and how to testify in court about the search.  Inexperienced officers should receive practical training in this area before attempting to make cases through the "Plain Feel" technique. </B></div> <div> <B>For a discussion of Plain Feel and Tic Tac boxes, click</B></div> <div> <A HREF="id78.htm" TARGET="_top" TITLE="Plain Feel and Tic Tac Boxes"><B>Plain Feel and Tic Tac Boxes</B></A></div> <bR> <bR> <div> <A HREF="id37.htm" TARGET="_top" TITLE="ICJE Articles"><B>Return to Articles</B></A></div> <bR> <div> <B>ICJE articles have been prepared for educational and information purposes only. They are not intended to be published as  legal advice or legal opinion about any specific subject matter. Transmission of this ICJE information is not intended to create, and receipt does not constitute, a lawyer-client relationship between the author(s),   ICJE and  the reader. The opinions expressed in the articles found herein are those of the author(s), and not necessarily those of ICJE. Officers and departments should review any proposed change in policy or procedure with the appropriate professional authority or advisor prior to implementation. All articles may be reproduced and distributed free of charge with attribution.</B></div> </td> <td valign="top" height=398 width="100%" BGCOLOR="#FFFFFF" TEXT="#080000"> <div> <I>Plain Feel, A Second Look</I></div> <bR> <div> <I><B>When is it used and what should officers know before using this technique?</B></I></div> <bR> <bR> <div> <B>by Robert T. Thetford, JD</B></div> <bR> <bR> <div> When <U>Minnesota v. Dickerson</U>, 113 S.Ct. 2130 (1993), was issued by the U.S. Supreme Court in June, 1993, few people realized the future impact this case would have. At first blush, the case seemed to give officers a new tool in the war against drugs by implementing the “plain feel” doctrine, but the case itself seemed to take away the same rights.  In the four years following  <U>Dickerson</U>  there have been a number of  “plain feel” cases, some in Alabama and some in other states. A study of these cases will give the officer insight into exactly what can be done under “plain feel” situations.</div> <bR> <div> <U>Dickerson</U> involved officers in a marked squad car approaching a subject at night. The subject had just left a building known to contain a “crack house.”  The subject at first began walking toward the squad car, but upon spotting it, turned and walked away, entering an alley next to the building.  The officers, being suspicious of criminal activity, drove their squad car into the alley and ordered the subject to stop and submit to a pat down search. No weapons were found but the searching officer felt (with his open hand) a small lump in the pocket of the subject's nylon jacket. He then examined the object with his fingers and confirmed that it felt like a lump of crack cocaine. The officer reached into the pocket and retrieved a small plastic bag with 1/5 of a gram of crack cocaine. The suspect was then arrested.  </div> <bR> <div> The U.S. Supreme Court held that if the officers had a reasonable suspicion to detain (<U>Terry</U> stop) and to make a protective pat down search (exterior frisk) for weapons, they may seize any object whose mass or contour makes it “immediately apparent” as contraband or evidence. Here, the frisk did not make the cocaine “immediately apparent” so the officer had to examine it with his fingers to determine it was evidence. This further act made the officer's seizure illegal.</div> <bR> <div> So just when can the “plain feel” doctrine be used to legally obtain evidence?  First, there must be a valid <U>Terry</U> stop. Second, the situation must be such that the officer is justified in frisking (exterior pat down) for weapons.  Once those conditions are met, the following cases may be used as guidelines:</div> <bR> <div> The Alabama Court of Criminal Appeals, in <U>Seay v. State</U>, 651 So.2d 81, Ala.Crim.App. (1994), held that where there was clearly probable cause to arrest a suspect, the examination of the evidence (drugs) in the suspect's pocket during a <U>Terry</U> stop and frisk just prior to formally placing the suspect under arrest did not violate the suspect's rights. This case was, in certain respects, like <U>Dickerson</U>, but the probable cause here was overwhelming. The officers had reliable informant information that the subject was transporting marijuana in his vehicle, he failed to stop immediately and threw something out of his vehicle, and he had what appeared to be marijuana in plain view in his vehicle while it also appeared to be clinging to his pants. The officers certainly could have arrested the suspect on the spot instead of frisking him first and then placing him under arrest. <B>CAUTION:</B> Officers having clear probable cause are on stronger legal ground if they make the arrest first and then search incident to the arrest, rather than conducting a <U>Terry</U> frisk prior to making the arrest.</div> <bR> <div> In <U>Huffman v. State</U>, 651 So.2d 78, Ala.Crim.App (1994), the Alabama Court of Criminal Appeals upheld a pat down which yielded crack cocaine. The officer testified that his training and experience led him to believe the lump found in the pat down was crack cocaine. He said that he felt the outline of the object without “wriggling” it and that the outline was that of a crack cocaine rock. He further testified that he had made several other arrests in which he had felt crack cocaine rocks and that he could tell the general outline of a crack cocaine rock.</div> <bR> <div> The Court of Appeals made it clear, however, that <B>ordering</B> <B>a suspect to take something out of his pocket</B> would not amount to a “plain feel” search because if the officer were worried about a weapon, he would have made a pat down of the pocket himself. By ordering the suspect to remove the item from the pocket, the officer showed he was not  too worried that the suspect might have a weapon and so this was clearly a search for evidence. <U>Ford v. State</U>, 680 So.2d 948, Ala.Crim.App. (1995). This was emphasized again in <U>Martin v. State</U>, 695 So.2d 141, Ala.Crim.App. (1996), and shows the need for officers to clearly understand the difference between a pat down for weapons (to protect the officer) and an order for the suspect to empty his or her pocket (a search). </div> <bR> <div> Like the above case, a nonconsensual lifting of a subject's clothing during a <U>Terry</U> stop to examine areas underneath the clothing also violates the permissible scope of a protective frisk for weapons, according to the Maryland Supreme Court in <U>State v. Smith</U>. 1997 WL 183991 (MD, 1997).</div> <bR> <div> In <U>Allen v. State</U>, 689 So.2d 212, Ala.Crim.App. (1995), the officer testified that he moved his hand over the suspect's pocket and felt what turned out to be a small, folded envelope containing marijuana. The officer moved his hand over the pocket more than once to insure the substance was not a weapon or did not have a razor blade in it. He testified that he simultaneously realized that there was no weapon and that the object was a “dime bag” of marijuana. In approving the pat down, the Court of Criminal Appeals relied upon the officer's statement that he had felt marijuana packaged this way on hundreds of occasions.  </div> <bR> <div> <U>Conclusion:</U> The “plain feel” doctrine is still so new that there is no easily followed rule for officers. The law here is still being developed and will probably undergo many changes. That being said, the above cited cases do give us some guidance in this area. </div> <bR> <div> The key here seems to be having an immediate reasonable belief (probable cause) that the item is contraband based upon a lawful pat down <U>State v. Burton</U>,  556 N.W.2d 600,  Minn. App. (1996).   </div> <bR> <div> In order to accomplish this, officers first must have an understanding of the law as it applies to consent searches and <U>Terry</U> stops. Next, the cases teach us that officers relying upon a great deal of experience or training have a distinct advantage over untrained or inexperienced officers when testifying in “plain feel” cases.  An officer testifying that he/she was <U>certain</U> the item felt during a pat down was contraband and backing this belief up with testimony outlining the officer's specific training and/or experience in this area is in a much stronger position to have the evidence admitted.   </div> <bR> <div> The obvious solution here is for departments to incorporate “plain feel” scenarios in their training programs so that officers can truthfully testify that they have experienced the same or similar objects in a controlled setting, if not in actual street encounters. If the case law does not drastically change in this area, such training may mean the difference between winning and losing close cases in the future. </div> <bR> <div>    <SCRIPT>/*</SCRIPT> <script LANGUAGE="JavaScript">  </script> <SCRIPT language="javascript1.2">/*</SCRIPT> <SCRIPT>/*</SCRIPT> <NOSCRIPT> <IMG width="1" height="1" SRC="http://HZ0029.icdirect.com/cgi-bin/hitctr.exe/HZ0029?wsID=89&ctr=394&htRefer=Not+Available" BORDER=0> </NOSCRIPT>   </div> <bR> <bR> <bR> <bR> <bR> <bR> <bR> <bR> <bR> <bR> <bR> <bR> <bR> <bR> <bR> <bR> <bR> <bR> <bR> </td> </tr></table></body>