Timothy Dickerson walked out of his apartment and noticed police officers across the street. Being in a known drug trafficking area, Dickerson walked in the other direction, but the officers stopped him to pat him down first. One of the officers felt a lump inside Dickerson’s pocket and pulled out a bag of cocaine. Dickerson was charged. He made a motion to suppress the evidence gathered from the officer’s search, claiming that it violated his Fourth Amendment rights. The trial court denied his motion and convicted Dickerson. The Court of Appeals reversed the trial court’s decision, which the Minnesota Supreme Court affirmed. The Minnesota Supreme Court cited Terry v. Ohio to prove that the stop and frisk of Dickerson was legal, but went on to argue that the officer’s seizure of the narcotics in his pocket was in conflict with the Constitution. This ruling prohibited law enforcement from seizing illegal objects found during a pat down search of a suspect unless it passed the “plain feel” rule to be consistent with Terry. The Supreme Court ruled in a similar manner. The unanimous court said that the officer’s frisk of Dickerson was permissible, and that the officer’s assumption that the lump was contraband was legal as it applies the “plain sight” rule to his sense of touch, which is a comparable sense to use. However, stop-and-frisk searches are meant to protect the officer and are used only when necessary to find weapons. Yet in this case, the officers were not looking to find weapons, but rather find drugs, making the seizure of cocaine a product of a bad search.
Minnesota v Dickerson
508 US 366 (1993)
(Plain Touch Doctrine)
On the evening of November 9, 1989, two Minneapolis police officers were patrolling an area on the city's north side in a marked squad car. At about 8:15 p.m., one of the officers observed respondent leaving a 12-unit apartment building on Morgan Avenue North. The officer, having previously responded to complaints of drug sales in the building's hallways and having executed several search warrants on the premises, considered the building to be a notorious "crack house." According to testimony credited by the trial court, respondent began walking toward the police but, upon spotting the squad car and making eye contact with one of the officers, abruptly halted and began walking in the opposite direction. His suspicion aroused, this officer watched as respondent turned and entered an alley on the other side of the apartment building. Based upon respondent's seemingly evasive actions and the fact that he had just left a building known for cocaine traffic, the officers decided to stop respondent and investigate further.
The officers pulled their squad car into the alley and ordered respondentto stop and submit to a pat-downsearch. The search revealed no weapons, but the officer conducting the search did take an interest in a small lump in respondent's nylon jacket. The officer later testified: "As I pat-searched the front of his body, I felt a lump, a small lump, in the front pocket. I examined it with my fingers and it slid and it felt to be a lump of crack cocaine in cellophane."
The officer then reached into respondent's pocket and retrieved a small plastic bag containing one fifthof one gram of crack cocaine.
Whether the Fourth Amendment permits the seizure of contraband detected through a police officer's sense of touch during a protective pat-downsearch.
Whether contraband detected through the sense of touch during a pat-down search may be admitted into evidence.
Whether police officers may seize nonthreatening contraband detected during a protective pat-down search of the sort permitted by Terry.
Whether the officer who conducted the search was acting within the lawful bounds marked by Terryat the time he gained probable cause to believe that the lump in respondent's jacket was contraband."
The Fourth Amendment, made applicable to the States by way of the Fourteenth Amendment, guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."Searches and seizures "conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subjectonly to a few specifically established and well delineatedexceptions." One such exception was "where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot . .., " the officer may briefly stop the suspicious person and make "reasonable inquiries" aimed at confirming or dispelling his suspicions.
"When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others," the officer may conduct a pat-down search "to determine whether the person is in factcarrying a weapon." A protective search -- permitted without a warrant and on the basis of reasonable suspicion less than probable cause -- must be strictly "limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby." If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terryand its fruits will be suppressed.
Under the "plain-view" doctrine, if police 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. If, however, the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object -- i. e., if "its incriminating character [is not] 'immediately apparent,'" -- the plain-view doctrine cannot justify its seizure.
This doctrine has an obvious application by analogy to cases in which an officer discovers contraband through the sense of touch during an otherwise lawful search. The rationale of the plain-view doctrine is that if contraband is left in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no "search" within the meaning of the Fourth Amendment -- or at least no search independent of the initial intrusion that gave the officers their vantage point. The warrantless seizure of contraband that presents itself in this manner is deemed justified by the realization that resort to a neutral magistrate under such circumstances would often be impracticable and would do little to promote the objectives of the Fourth Amendment. The same can be said of tactile discoveries of contraband. If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity 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 by the same practical considerations that inhere in the plain-view context.
The suspect's privacy interests are not advanced by a categorical rule barring the seizure of contraband plainly detected through the sense of touch.
The police officer in this caseoverstepped the bounds of the "strictly circumscribed" search for weapons allowed under Terry. The officer's continued exploration of respondent's pocket after having concluded that it contained no weapon was unrelated to "the sole justification of the search [under Terry:] . . . the protection of the police officer and others nearby."
Although the officer was lawfully in a position to feel the lump in respondent's pocket, because Terryentitled him to place his hands upon respondent's jacket, the court below determined that the incriminating character of the object was not immediately apparent to him. Rather, the officer determined that the item was contraband only after conducting a further search, one not authorized by Terryor by any other exception to the warrant requirement. Because this further search of respondent's pocket was constitutionally invalid, the seizure of the cocaine that followed is likewise unconstitutional.
The police may seize nonthreatening contraband detected through the sense of touch during a protective pat-down search of the sort permitted by Terry, so long as the search stays within the bounds marked by Terry.
If police are in a lawful position and feel an object that is immediately apparent to be incriminating, then the officers may seize it.
Based upon respondent's seemingly evasive actions when approached by police officers and the fact that he had just left a building known for cocaine traffic, the officers decided to investigate further and ordered respondent to submit to a patdown search. The search revealed no weapons, but the officer conducting it testified that he felt a small lump in respondent's jacket pocket, believed it to be a lump of crack cocaine upon examining it with his fingers, and then reached into the pocket and retrieved a small bag of cocaine. The state trial court denied respondent's motion to suppress the cocaine, and he was found guilty of possession of a controlled substance. The Minnesota Court of Appeals reversed. In affirming, the State Supreme Court held that both the stop and the frisk of respondent were valid under Terry v. Ohio, but found the seizure of the cocaine to be unconstitutional. Refusing to enlarge the "plain-view" exception to the Fourth Amendment's warrant requirement, the court appeared to adopt a categorical rule barring the seizure of any contraband detected by an officer through the sense of touch during a patdown search. The court further noted that, even if it recognized such a "plain-feel" exception, the search in this case would not qualify because it went far beyond what is permissible under Terry.
1. The police may seize nonthreatening contraband detected through the sense of touch during a protective patdown search of the sort permitted by Terry, so long as the search stays within the bounds marked by Terry.
(a) Terry permits a brief stop of a person whose suspicious conduct leads an officer to conclude in light of his experience that criminal activity may be afoot, and a patdown search of the person for weapons when the officer is justified in believing that the person may be armed and presently dangerous. This protective search -- permitted without a warrant and on the basis of reasonable suspicion less than probable cause -- is not meant to discover evidence of crime, but must be strictly limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others. If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed.
(b) In Michigan v. Long, the seizure of contraband other than weapons during a lawful Terry search was justified by reference to the Court's cases under the "plain-view" doctrine. That doctrine -- which permits police to seize an object without a warrant if they are lawfully in a position to view it, if its incriminating character is immediately apparent, and if they have a lawful right of access to it -- has an obvious application by analogy to cases in which an officer discovers contraband through the sense of touch during an otherwise lawful search. Thus, if an officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity 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 by the realization that resort to a neutral magistrate under such circumstances would be impracticable and would do little to promote the Fourth Amendment's objectives.
2. Application of the foregoing principles to the facts of this case demonstrates that the officer who conducted the search was not acting within the lawful bounds marked by Terry at the time he gained probable cause to believe that the lump in respondent's jacket was contraband. Under the State Supreme Court's interpretation of the record, the officer never thought that the lump was a weapon, but did not immediately recognize it as cocaine. Rather, he determined that it was contraband only after he squeezed, slid, and otherwise manipulated the pocket's contents. While Terry entitled him to place his hands on respondent's jacket and to feel the lump in the pocket, his continued exploration of the pocket after he concluded that it contained no weapon was unrelated to the sole justification for the search under Terry. Because this further search was constitutionally invalid, the seizure of the cocaine that followed is likewise unconstitutional.
How the Justices Voted
Majority: White, joined by unanimous
Concur/dissent: Rehnquist, joined by Blackmun, Thomas