                    THE "PLAIN FEEL" DOCTRINE

                               By

                     A. Louis DiPietro, J.D.
                 Special Agent/Legal Instructor
                           FBI Academy


     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."  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. 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 the search that occurred in that
particular case, all nine Justices nevertheless agreed that under
certain conditions, police may lawfully seize nonthreatening
contraband 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 facts
     demonstrating an objectively reasonable suspicion 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, (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 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 the scope of a frisk to
determine whether an officer's stated concern for safety was
legitimate or a pretext to seize evidence.

     For example, in United States 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 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 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. 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 into
probable cause 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 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 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, (14) which is often
referred to as the "plain feel" doctrine when applied to tactile
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 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 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 be a controlled 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.' " (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, (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 commonly carry
contraband in matchboxes. 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 in his pelvic area
through which the contours 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 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 safety 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; 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 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, 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)  Unites States v. Ross, 827 F.Supp. 711 (1993).

     (18)  The court in Ross stated that "It would strain
credulity 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).
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