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Summary
Officers may not rely on the Plain Feel doctrine to seize Tac Tac boxes containing narcotics, even when the frisking officer testifies that he believes drug users sometimes use Tac Tac boxes to carry drugs.
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Plain Feel and Tic Tac Boxes
TIC TAC OR A CROOK ON CRACK?
Wynn Dee Allen, JD, Alabama Court of Criminal Appeals
The Alabama Supreme Court recently held in Ex parte Warren, [No. 1980792, September 8, 2000], that feeling a Tic Tac box in a pocket does not establish probable cause to remove the box from a suspect's pocket during a Terry search.
During the circuit court trial, a Captain in the narcotics division testified that he received a telephone call from a confidential informant informing him that a group of men on a nearby street were buying and selling drugs. The Captain relayed this information to one of his Detectives, who immediately went to the scene.
At trial, the Detective stated that, as he patted down the suspect for weapons, he felt an object he believed to be a Tic Tac box and removed it from the suspect's pocket. The box contained several small rocks of crack cocaine. When asked why he took the box out of the suspect's pocket, the Detective stated that, from his past experience as a police officer, he knew Tic Tac boxes sometimes contained illegal drugs, but he admitted that he did not believe the Tic Tac box felt like a weapon.
The Alabama Supreme Court determined that the “plain-feel” doctrine did not justify the seizure of the Tic Tac box from the suspect's pocket. The Court reasoned that, if an object detected by a police officer's touch during a Terry search is a hard-shell, closed container, then “the incriminating nature of any contents of the container cannot be immediately apparent until he seizes and opens it.” The Court further stated that a police officer does not have probable cause to believe, before seizing a hard-shell container, that the object is contraband. Because of this, the Alabama Supreme Court reversed the suspect's conviction.
Justice Houston, Justice See, Justice England, and Justice Cook concurred with Justice Lyon's opinion. Justice Johnstone specially concurred. Chief Justice Hooper dissented stating that he “refused to participate in such shackling of our law enforcement personnel,” and Justice Maddox joined the dissent.