IN THE SUPREME COURT OF IOWA
No. 20–1595
Submitted March 23, 2022—Filed May 20, 2022
STATE OF IOWA,
Appellant,
vs.
EARNEST JONES HUNT JR.,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Dubuque County, Michael J.
Shubatt, Judge.
Defendant seeks further review of court of appeals decision that reversed
a district court ruling granting his motion to suppress evidence obtained during
a pat-down search for weapons. COURT OF APPEALS DECISION AFFIRMED;
DISTRICT COURT SUPPRESSION RULING REVERSED AND CASE
REMANDED.
McDermott, J., delivered the opinion of the court in which Christensen,
C.J., and Waterman, Mansfield, McDonald, and Oxley, JJ., joined. Appel, J., filed
a dissent. 2
Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney
General, for appellant.
Martha J. Lucey, State Appellate Defender, and Bradley M. Bender,
Assistant Appellate Defender, for appellee. 3
McDERMOTT, Justice.
May a police officer seize a concealed package from someone’s pocket
during a pat-down for weapons if the officer determines—through the officer’s
sense of touch—that the packaging is consistent with drugs of some sort, but
the officer can’t determine the precise type of drugs in the packaging? This case
presents this court’s first review of a district court decision addressing what has
become known as the “plain feel” doctrine. The district court held that the
officer’s confessed inability to discern the type of drugs in the packaging before
removing them from the person’s pocket—and thus an inability to discern
whether the substances were even drugs at all—required suppressing the
evidence. The court of appeals reversed. We granted the defendant’s application
for further review.
I.
Earnest Hunt, Jr. was a “person of interest” in the investigation of a
shooting in Dubuque. The day after the shooting, Officer Chad Leitzen saw Hunt
riding in the passenger seat of a Chevy Impala moving through downtown
Dubuque. Following the Impala in an unmarked car, Leitzen saw the Impala
make a left turn without signaling and stopped it. He approached the Impala on
the passenger (Hunt’s) side with his gun drawn but not trained on Hunt. Leitzen
directed Hunt to place his hands on the dashboard and began asking questions.
While responding, Hunt removed his hands from the dashboard, prompting
Leitzen to command Hunt to keep his hands on the dash. Leitzen described Hunt 4
as acting “extremely nervous,” speaking quickly, and asking several times
whether he was under arrest.
When Hunt again removed his hands from the dash without permission,
Leitzen told Hunt to get out of the car and that he was being detained in
handcuffs because his behavior was making Leitzen nervous. Leitzen asked Hunt
for permission to search him. Hunt refused. Leitzen then told Hunt that Leitzen
would pat him down for weapons.
While patting Hunt down, Leitzen (according to his later testimony)
“immediately felt small plastic or small hardballs, packaged balls which were
inside of a plastic bag” in Hunt’s sweatshirt pocket. Leitzen said that he could
“hear the crunch of the plastic bag” and could feel the plastic bag and the
individual hard packages inside the bag. The small individual packages he felt
in Hunt’s pocket were, according to Leitzen, “invariably how cocaine, crack
cocaine, or heroin are packaged for sale in Dubuque.” Leitzen testified that it
was “immediately apparent” that the objects were illegal drugs and that he didn’t
manipulate or squeeze the package within Hunt’s pocket to determine what it
was. Leitzen removed the drugs from Hunt’s pocket. In looking at the packages,
Leitzen believed that they contained drugs, but he still couldn’t discern what
type. He told Hunt, “Now you’re being arrested for the drugs,” and placed Hunt
under arrest.
Leitzen admitted that he couldn’t specifically identify the type of drugs in
the packaging based on the pat-down. The packaging led him to believe it was
heroin, powder cocaine, or crack cocaine, but he couldn’t determine for sure 5
which one. After he removed the bags from Hunt’s pocket, Leitzen manipulated
the bags to try to figure out what the substance was. Bodycam recordings from
the scene show Leitzen touching and looking at the small bags trying to
determine the substance. He stated that “one of the bags felt like it was very
squared off,” which was inconsistent with the usual feel of crack cocaine.
Hunt was charged with possession with intent to manufacture or deliver
forty grams or less of cocaine base—commonly known as “crack”—under Iowa
Code section 124.401(1)(c)(3) (2019). He moved to suppress the evidence of the
drugs, arguing that the police seized the drugs in violation of his rights under
the Fourth Amendment to the U.S. Constitution and article I, section 8 of the
Iowa Constitution.
At the suppression hearing, Leitzen testified that he’d worked as a police
officer for eighteen years, and for seven of those years worked in a drug task
force. He testified based on his experience that in Dubuque, “powder cocaine,
crack cocaine, and heroin are packaged in the corner of sandwich baggies, just
twisted into a knot and tied into small circulars from the corner of a plastic bag.”
By comparison, he testified that in Dubuque, “almost without exception,
methamphetamine is packaged in small Ziploc-type gem baggies” and that
“marijuana can be packaged in numerous ways.” Leitzen described the different
textures of powder and crack cocaine, with powder cocaine having
(unsurprisingly) a powder texture and crack cocaine having a more crystallized
or rock-like texture. 6
The district court suppressed the evidence, finding that “[t]he State has
not met its burden of showing that there was probable cause to believe that
Defendant had drugs in his pocket.” The district court elaborated that the item
in Hunt’s pocket “could have been anything.” The court reasoned that “Leitzen’s
testimony that he knew it was drugs lacked sufficient explanation as to how and
why he knew that to be true,” particularly since “Leitzen was not sure of the
nature of the substance in the bags even after he had removed them and was
examining them by feel and sight.”
The State applied for discretionary appellate review. Our court granted the
application for discretionary review, stayed the district court proceedings, and
transferred the case to the court of appeals. The court of appeals reversed the
district court’s suppression ruling, determining it sufficient under the plain-feel
exception to the warrant requirement that Leitzen believed the package
contained heroin, powder cocaine, or crack cocaine despite not knowing which
one, and remanded the case. We granted Hunt’s application for further review.
II.
Because Hunt’s motion to suppress asserts a violation of his constitutional
rights, our review is de novo, which means that we will independently evaluate
the record in the case. State v. Hillery, 956 N.W.2d 492, 498 (Iowa 2021). “We
give deference to the district court’s fact findings because of that court’s ability
to assess the credibility of the witnesses,” but “we are not bound by those
findings.” State v. Carter, 696 N.W.2d 31, 36 (Iowa 2005). 7
Both the Fourth Amendment to the United States Constitution and article
I, section 8 of the Iowa Constitution grant people a right of protection against
unreasonable searches and seizures of “their persons, houses, papers, and
effects.” U.S. Const. amend. IV; Iowa Const. art. I, § 8. The Fourth Amendment’s
protections apply to the states based on the Fourteenth Amendment. McDonald
v. City of Chicago, 561 U.S. 742, 761 (2010). These rights safeguard people
against warrantless searches and seizures by the government, with carefully
drawn exceptions.
In Terry v. Ohio, the Supreme Court held that a law enforcement officer
may pat-down a suspect without violating the Fourth Amendment’s prohibition
against unreasonable searches if the officer “has reason to believe that he is
dealing with an armed and dangerous individual, regardless of whether he has
probable cause to arrest the individual for a crime.” 392 U.S. 1, 27 (1968). The
officer must provide “specific reasonable inferences” to justify the pat-down; a
“hunch” isn’t enough. Id.
Hunt doesn’t contest the basis for the traffic stop, nor does he contest
Leitzin’s ability to perform the pat-down after the stop. Hunt makes no claim, in
other words, that Leitzen violated his constitutional rights in frisking him for
weapons. Hunt argues instead that Leitzen exceeded the lawful scope of that
frisk when he seized the package—which Leitzen knew wasn’t a weapon—from
Hunt’s pocket.
In Minnesota v. Dickerson, the Supreme Court articulated an exception to
the warrant requirement based on an officer’s “plain feel” of contraband during 8
a lawful frisk for weapons. 508 U.S. 366, 375 (1993). In Dickerson, officers were
on patrol near a “crack house” when a man spotted the police car and abruptly
began walking in the other direction. Id. at 368–69. The officers, suspicions now
aroused, stopped the man to investigate. Id. at 369. One of the officers patted
the man down for weapons. Id. Although he found no weapons, the officer
testified to feeling “a small lump” in the defendant’s pocket. Id. He examined the
lump with his fingers and concluded it was crack cocaine packaged in
cellophane. Id. The officer reached into the man’s pocket and removed the
package, which indeed turned out to contain a lump of crack. Id.
The man moved to suppress the evidence of the seizure, arguing that it
violated his Fourth Amendment rights. Id. The Court compared the seizure of the
package of crack, which was rooted in the officer’s sense of touch, to lawful
seizures rooted in a different sense: the “plain view” doctrine. Id. at 374–75. The
plain-view doctrine is an exception to the Fourth Amendment’s warrant
requirement that allows officers to seize contraband when an officer sees the
contraband in plain view, is lawfully present when they observe it, and has a
lawful right to access it. Arizona v. Hicks, 480 U.S. 321, 325–26 (1987); Michigan
v. Long, 463 U.S. 1032, 1050 (1983).
The Court articulated the plain-feel justification to seize property during a
frisk for weapons this way:
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 9
be justified by the same practical considerations that inhere in the plain-view context.
Dickerson, 508 U.S. at 375–76 (emphasis added). The Court rejected arguments
that touch is less reliable or more invasive than sight, noting the Court in Terry
had already determined that a pat-down could reliably detect weapons and that
officers could use their sense of touch for that search. Id. at 376–77. Regardless
of the means of perception (sight, touch, or otherwise), the Fourth Amendment
in all cases requires that “the officer have probable cause to believe that the item
is contraband before seizing it.” Id.
But when the Supreme Court actually applied the plain-feel doctrine to
the facts presented, it found that the officer didn’t meet the plain-feel exception
because the officer determined the lump was contraband only after “squeezing,
sliding and otherwise manipulating the contents of the defendant’s pocket.” Id.
at 378 (quoting State v. Dickerson, 481 N.W.2d 840, 844 (Minn. 1992)). And since
by that point the officer knew that the lump wasn’t a weapon, and wasn’t sure
that it was contraband without further manipulation, the officer exceeded the
scope of the Terry pat-down with his “continued exploration” of the pocket’s
contents. Id.
Neither party argues that we should apply a plain-feel standard under the
Iowa Constitution that differs from the standard applied under the Federal
Constitution in Dickerson. Hunt argues that Leitzen’s search failed to satisfy the
requirements of the plain-feel doctrine because it wasn’t “readily apparent” to
Leitzen that the package in Hunt’s pocket contained contraband. If an officer
believes an item in a pocket could be one of three different things, Hunt urges, 10
then the officer has no basis to say the item’s identity is apparent—let alone
readily so—to justify the officer’s seizure under the plain-feel doctrine. The
district court agreed and suppressed the evidence.
The State argues that Leitzen’s testimony establishes that the item’s
packaging made its identity as contraband “readily apparent,” and thus its
seizure met the requirements of the plain-feel doctrine. Even if Leitzen couldn’t
articulate the precise drug in the packaging, the State argues, he didn’t have to
know exactly what was in the bags; it was enough that Leitzen resolutely
concluded that the bag he felt in Hunt’s pocket contained illegal drugs.
And more broadly, the State argues that probable cause existed for the
seizure under any rendering of the facts here. The plain-feel exception, the State
urges, doesn’t put in place some heightened probable-cause standard to permit
an officer to seize contraband. An officer has probable cause to investigate when
“a person of reasonable prudence would believe a crime has been committed or
that evidence of a crime might be located in the particular area to be searched.”
State v. Naujoks, 637 N.W.2d 101, 108 (Iowa 2001); see 2 Wayne R. LaFave,
Search and Seizure: A Treatise on the Fourth Amendment § 3.2(b), at 44–45
(6th ed. 2020) [hereinafter LaFave].
The district court and court of appeals focused heavily on Dickerson’s
“immediately apparent” language, analyzing whether Leitzen needed to know the
exact illegal drug in the package or whether it was enough that the package
contained some illegal drug. But there’s a broader principle that Dickerson
suggests, and one that we think better clarifies the test for determining whether 11
a seizure of contraband comports with the constitution’s search-and-seizure
protections.
If an officer develops probable cause during a pat-down to believe that a
person possesses contraband and thus is committing a crime, then the officer
may lawfully arrest the person. See State v. Stevens, 970 N.W.2d 598, 604 (Iowa
2022). And if an officer may lawfully arrest a person, then the officer may perform
a warrantless search incident to that arrest. Id.; see 1 LaFave § 2.2(a),
at 635–36. The search incident to arrest would, in turn, justify the warrantless
seizure of the contraband. Stevens, 970 N.W.2d at 604 (citing United States v.
Robinson, 414 U.S. 218, 234 (1973)). “Even though a search incident to arrest
typically occurs after an arrest, ‘the timing of the formal arrest is not fatal to the
search.’ ” Id. (quoting State v. Horton, 625 N.W.2d 362, 364 (Iowa 2001)
(en banc)).
An officer can develop probable cause that a crime has been committed at
any time—including while frisking a person for weapons. See State v. McGee,
381 N.W.2d 630, 632 (Iowa 1986). And this is where the standard for probable
cause becomes important. “[P]robable cause does not require absolute certainty,
but a probable determination through the eye of a reasonably prudent person.”
State v. Prior, 617 N.W.2d 260, 268 (Iowa 2000) (en banc). The phrase
“immediately apparent” in Dickerson is logically read to refer to facts sufficient
to establish probable cause, not to establish certainty in the officer’s mind. See
2 LaFave § 4.11(d), at 1013–15. 12
The facts of this case indicate that Leitzen, while conducting a lawful Terry
frisk for weapons, determined based on his experience that the objects he felt in
Hunt’s pocket were packaged drugs, specifically either powder cocaine, crack
cocaine, or heroin. Unlike in Dickerson, the record in this case contains no
evidence to suggest that Leitzen extended the pat-down or explored Hunt’s
pocket further than permitted to discover if Hunt was armed. This determination
that Hunt at that moment possessed illegal drugs, if founded, would establish
probable cause for Hunt’s arrest and seizure of the drugs after a search incident
to his arrest.
A question nonetheless remains about whether Leitzen’s level of knowledge
gained by touching the packaging, without certainty of the contents inside the
packaging, was enough to generate probable cause to arrest Hunt. Leitzen didn’t
actually testify to feeling any drugs (for example, a powdery substance or rock-
like objects) in Hunt’s pocket. We must decide whether Leitzen’s conclusion that
Hunt possessed drugs in fact meets the bar to establish probable cause.
We hold that it does. Again, Leitzen worked as a police officer for eighteen
years, and for seven of those years worked in a drug task force. He testified based
on his experience that in Dubuque, “powder cocaine, crack cocaine, and heroin
are packaged in the corner of sandwich baggies, just twisted into a knot and tied
into small circulars from the corner of a plastic bag.” Letizen’s testimony
describing, in his experience, how these particular drugs are uniquely packed
into bags of a particular size and shape, with a particular means of fastening,
lends credence to his assertion of having identified the packages as likely to 13
contain one of the three drugs packaged in this way. Leitzen was also able to
rule out other types of drugs solely based on the packaging because the
packaging of the drugs was not similar to that of methamphetamine or
marijuana. The evidence, on the record before us, would establish probable
cause for Leitzen to have arrested Hunt for drug possession. See United States v.
Proctor, 148 F.3d 39, 42–43 (1st Cir. 1998) (finding an officer who “made an
immediate determination that the bulge was in fact a glassine bag containing
marijuana” could seize the object); Doctor v. State, 596 So. 2d 442, 445 (Fla.
1992) (during lawful frisk, officer was able by virtue of his particularized
experience to determine defendant carrying crack cocaine by “the texture of the
plastic bag that it’s in, the little rock formations of it”); People v. Custer, 630
N.W.2d 870, 879 (Mich. 2001) (“[W]hile conducting the patdown search of
defendant, the officer felt a two-by-three-inch object in defendant’s pocket that
he believed was a card of blotter acid . . . based on his knowledge that blotter
acid was often contained on sheets of cardboard . . . . Under these circumstances,
the officer had probable cause to believe that the object he felt in defendant’s
pocket was contraband.”); State v. Bradley, 867 So. 2d 31 (La. App. 2004) (finding
it sufficient that the officer felt a bulge in the defendant’s pocket that “in his
opinion felt like plastic bags such as are used for drug packaging”) State v.
Ochoa, 93 P.3d 1286, 1290 (N.M. 2004) (“An officer’s experience and training,
considered within the context of the incident, may permit the officer to identify
drug paraphernalia or drug packaging with a reasonable level of probability,
sufficient for probable cause.”); Commonwealth v. Parker, 957 A.2d 311, 316 (Pa. 14
Super. Ct. 2008) (“[T]he officer here was able to immediately identify the object
he felt as packaged crack cocaine before he reached into Parker’s pocket and
looked at the plastic bags.”); Maestas v. State, 416 P.3d 777, 782 (Wyo. 2018)
(“Corporal Halter’s testimony indicates that he felt and immediately believed the
rock-like object was contraband. At that moment, Corporal Halter had probable
cause to seize the object.”).
Again, the bar for probable cause is not absolute certainty, but rather
whether “a person of reasonable prudence would believe a crime has been
committed or that evidence of a crime might be located in the particular area to
be searched.” Naujoks, 637 N.W.2d at 108. See generally 2 LaFave § 3.2(c), at
58–59 (stating that probable cause “is to be viewed from the vantage point of a
prudent, reasonable, cautious police officer . . . guided by his experience and
training” (quoting United States v. Davis, 458 F.2d 819, 821 (D.C. Cir. 1972) (per
curiam) (omission in original))).
Our holding today neither stiffens nor dilutes the probable cause standard
that applies to law enforcement’s encounters with people. We simply apply it to
a factual scenario in which a police officer, while conducting what the defendant
concedes is a lawful frisk for weapons, establishes probable cause through touch
to believe that the defendant has committed a crime (in this case, possession of
illegal drugs). For purposes of establishing probable cause, there’s no meaningful
difference between Leitzen seeing Hunt place a package in his pocket with these
physical characteristics and Leitzen feeling a package with these same physical
characteristics while frisking for weapons. 15
Probable cause isn’t limited to any particular method of perception. We’ve
previously held that an officer can develop probable cause based on smell. State
v. Watts, 801 N.W.2d 845, 854 (Iowa 2011) (holding “that a trained officer’s
detection of a sufficiently distinctive odor, by itself or when accompanied by other
facts, may establish probable cause”). And we can surmise no good reason that
officers should be rendered unable to act on probable cause that develops during
the course of a lawful pat-down based on the officer’s sense of touch when the
officer is otherwise able to act on probable cause that develops during the course
of a lawful pat-down based on the officer’s seeing something, smelling something,
or hearing something. Probable cause based on tactile identification may be just
as compelling as probable cause drawn from visual, aural, or olfactory
identification.
For these reasons, we thus reverse the district court’s grant of Hunt’s
motion to suppress and remand for further proceedings.
COURT OF APPEALS DECISION AFFIRMED; DISTRICT COURT
SUPPRESSION RULING REVERSED AND CASE REMANDED.
Christensen, C.J., and Waterman, Mansfield, McDonald, and Oxley, JJ.,
join this opinion. Appel, J., files a dissenting opinion. 16
#20–1595, State v. Hunt
APPEL, Justice (dissenting).
This case involves a double-barreled risk of unconstitutional invasion of
privacy arising from a warrantless pretextual stop for a minor traffic violation
permitted under Whren v. United States, 517 U.S. 806 (1996), followed by a
warrantless search for weapons based not on probable cause but diluted
reasonable suspicion under the sprawling doctrine of Terry v. Ohio, 392 U.S. 1
(1968). The combination of these troublesome doctrines causes me to examine
closely the underlying legal doctrine and its application to the facts of this case.
See State v. Warren, 955 N.W.2d 848, 873–76 (Iowa 2021) (Appel, J., dissenting)
(citing interplay of Supreme Court doctrines in search and seizure).
As is always the case, the constitutional analysis is not about “correct”
and “incorrect” decisions but about choices made and roads not taken. And,
where exceptions to the warrant requirement are involved, there is always the
problem of mission creep, where supposedly narrow exceptions to the warrant
requirement (like Terry-type stops) end up being robust in practice.
Finally, I approach the question of the warrantless stop and warrantless
search in this case with a recognition that exceptions to the warrant requirement
must be tightly contained and that every expansion of government power to
search and seize leads to a corresponding reduction in personal liberty. See, e.g.,
State v. Price-Williams, ___ N.W.2d ___, ____, 2022 WL 1194018, at *7–28 (Iowa
Apr. 22, 2022) (Appel, J., dissenting) (arguing that a valid stop does not mean
that a frisk is necessarily permitted; there must be a reasonable suspicion that 17
the individual is armed and dangerous); State v. Hauge, ___ N.W.2d ___, ____,
2022 WL 1193721, at *12–43 (Iowa Apr. 22, 2022) (Appel, J., dissenting)
(arguing for use of waiver doctrine in consent searches).
I. Historical Overview of “Plain Touch” Doctrine.
A. From Terry v. Ohio to Minnesota v. Dickerson. The United States
Supreme Court adopted the notion of a warrantless pat-down search for weapons
in the controversial case of Terry v. Ohio. 392 U.S. at 30–31. In Terry, the
Supreme Court emphasized that it was authorizing only “narrowly drawn
authority” to engage in a search for weapons. Id. The pat-down search was to be
a “carefully limited search of the outer clothing of [the suspect] in an attempt to
discover weapons.” Id. at 30.
After Terry, the Supreme Court adopted the “plain view” doctrine in
Coolidge v. New Hampshire, 403 U.S. 443, 465–67 (1971). According to the
Coolidge plurality, the police were permitted to engage in a warrantless search if
(1) the object is in plain view, (2) its discovery was inadvertent, and (3) it was
“immediately apparent” that the items may be evidence of a crime, such as
contraband. 403 U.S. at 466–73. The plurality in Coolidge emphasized, as the
Supreme Court often does when crafting yet another exception to the warrant
requirement, the narrowness of the holding. Specifically, the plurality stated that
“[t]he ‘pla[i]n view’ doctrine may not be used to extend a general exploratory
search from one object to another until something incriminating at last emerges.”
Id. at 466. 18
A few years later, however, the Supreme Court abandoned the
inadvertence requirement in Horton v. California, 496 U.S. 128, 137 (1990),
thereby eliminating one of the protections against pretextual searches. In
Arizona v. Hicks, the Supreme Court addressed the meaning of the term
“immediately apparent” as used in Coolidge. 480 U.S. 321, 326–27 (1987). The
Hicks Court held that “immediately apparent” meant only that probable cause
must be present, not the higher degree of certitude that some appellate courts
were embracing. Id. at 326. Thus, what may have been a narrow exception to the
warrant requirement was expanding beyond its original confines.
Using Coolidge and Terry as a springboard, a number of federal courts
expanded the exception to the warrant requirement yet again to include
circumstances where a police officer engaged in a Terry-type search determines
that a person is carrying contraband based on the “plain feel” of the object. See,
e.g., United States v. Roach, 477 F. App’x 993, 998–99 (4th Cir. 2012) (per
curiam); United States v. Yamba, 506 F.3d 251, 256–60 (3d Cir. 2007); United
States v. Rivers, 121 F.3d 1043, 1046–47 (7th Cir. 1997); United States v. Russell,
670 F.2d 323, 325 (D.C. Cir. 1982); United States v. Ocampo, 650 F.2d 421, 427–
29 (2d Cir. 1981).
There was, however, an important distinction in the caselaw worth our
discussion. In United States v. Williams, the United States Court of Appeals,
District of Columbia Circuit adopted a variant of plain feel that insisted that the
police officer have a “reasonable certainty” of the presence of contraband. 822
F.2d 1174, 1184 (D.C. Cir. 1987). The reasonable certainty standard was a 19
higher standard than probable cause and, according to the Williams Court, was
justified based upon the differences between the plain-view and plain-feel
doctrines. Id. at 1184–85. Similarly, in United States v. Ocampo, the Second
Circuit applied a seemly-higher-than-probable-cause standard in applying the
newly minted exception. See 650 F.2d at 429 (noting that the agent was “able
readily to identify [the] contents as wrapped currency simply by feeling the
outside of the [paper] bag” and concluding that “[w]here the contents of a
container are easily discernible by frisking the exterior of a package, there is little
likelihood that the owner could reasonably expect any substantial degree of
privacy”).
Several state courts chose a different interpretation of the Fourth
Amendment in the context of the evolving plain-feel doctrine prior to Minnesota
v. Dickerson, 508 U.S. 366 (1993). State courts in Arizona, Illinois, and
Pennsylvania chose to reject the plain-feel doctrine largely because they sought
to enforce strict limitations of Terry and because the plain-feel doctrine was
thought to be too intrusive to withstand Fourth Amendment muster. See State
v. Collins, 679 P.2d 80, 81–84 (Ariz. Ct. App. 1983); People v. McCarty, 296
N.E.2d 862, 863 (Ill. App. Ct. 1973) (per curiam); Commonwealth v. Marconi, 597
A.2d 616, 619 (Pa. Super. Ct. 1991); State v. Broadnax, 654 P.2d 96, 101–03
(Wash. 1982) (en banc).
In a case decided just before the Supreme Court decided Dickerson, the
New York Court of Appeals rejected the plain-feel doctrine under both the United
States and New York Constitutions in People v. Diaz, 612 N.E.2d 298, 299 (N.Y. 20
1993). The Diaz court distinguished the plain-view doctrine from the plain-feel
doctrine in several ways. First, under the plain-view doctrine, no search occurs.
Id. at 301–02. Further, because the objects are out in the open, there is no
expectation of privacy. Id. at 302. But, according to the Diaz court, these features
of plain view do not extend to plain-feel cases. Id. A concealed item cannot be
identified except by further search, and the person who has the item concealed
in their clothing has an expectation of privacy in its contents. Id. Additionally,
the Diaz court noted the inherently unreliable nature of touch compared with
sight. Id. (“While in most instances seeing an object will instantly reveal its
identity and nature, touching is inherently less reliable and cannot conclusively
establish an object’s identity or criminal nature.”). The Diaz court recognized that
plain feel would often be based upon a police officer’s testimony, but that
identification of a concealed item would ordinarily require “a degree of pinching,
squeezing or probing” beyond the limited intrusion permitted under Terry. Id.
(cautioning additionally that to allow the plain-feel exception would risk “blurring
of the limits to Terry searches”).
The Supreme Court of Minnesota took a similar view to Diaz in State v.
Dickerson, 481 N.W.2d 840 (Minn. 1992). In Dickerson, the court considered a
case where a police officer conducting a Terry pat-down concluded the suspect
was carrying contraband after he examined a lump he felt with his fingers to be
crack cocaine. Id. at 842–43. The court refused to extend the plain-view doctrine
to a situation involving a plain feel for two reasons. Id. at 845. First, the court
noted that the senses of touch and sight are not equivalent as the sense of touch 21
is less immediate and reliable than sight. Id. Further, the court noted that
touching involves a greater invasion of privacy than plain-view situations. Id. As
a result, the court held that the evidence of the search must be suppressed under
the Fourth Amendment. Id.
After Dickerson, a few courts have interpreted the phrase “immediately
apparent” as requiring a showing of some certainty as suggested in the pre-
Dickerson case of Williams. For example, in Mason v. State, the Georgia appellate
court stated that under the plain-feel doctrine, the officer must express a degree
of certainty in identifying the item because the search is being conducted solely
for the safety of the police officer and others nearby, not to procure evidence. 647
S.E.2d 308, 309 (Ga. Ct. App. 2007); see also United States v. Ross, 827 F. Supp.
711, 719 (S.D. Ala. 1993); United States v. Winter, 826 F. Supp. 33, 37 (D. Mass.
1993); State v. Parker, 622 So. 2d 791, 795 (La. Ct. App. 1993); People v.
Champion, 549 N.W.2d 849, 861–62 (Mich. 1996) (near certainty required for the
plain-feel doctrine); Commonwealth v. Stevenson, 744 A.2d 1261, 1267 (Pa.
2000); State v. Bridges, 963 S.W.2d 487, 495 (Tenn. 1997) (per curiam). Other
state courts, however, have rejected this approach. See, e.g., State v. Wonders,
952 P.2d 1351, 1362 (Kan. 1998).
B. The United States Supreme Court’s Choice in Minnesota v.
Dickerson. The United States Supreme Court granted certiorari in Minnesota v.
Dickerson to consider whether the Minnesota Supreme Court properly rejected
the plain-feel doctrine. 508 U.S. at 368. In Dickerson, the Supreme Court
unanimously held in a short opinion that the principles of the established plain- 22
view doctrine extended by analogy to cases involving plain feel when police
officers engage in a Terry search. Id. at 374–76. According to Justice White, if a
police officer uncovers contraband during a Terry search, there is no further
invasion of privacy when the police officer seizes that item. Id. at 375–76. The
majority of the Court, however, concluded that the unlawful nature of the
contraband at issue in Dickerson was not “immediately apparent” because the
police officers engaged in “squeezing, sliding and otherwise manipulating the
contents of the defendant’s pocket” in a fashion not authorized by a Terry search.
Id. at 378–79 (quoting Dickerson, 481 N.W.2d at 844). In an interesting
concurrence, joined by Chief Justice Rehnquist, Justice Scalia questioned the
validity of Terry itself. Id. at 379–83 (Scalia, J., concurring).
Some academic commentary was critical of Dickerson. See, e.g., George M.
Dery III, The Uncertain Reach of the Plain Touch Doctrine: An examination of
Minnesota v. Dickerson and its Impact on Current Fourth Amendment Law and
Daily Police Practice, 21 Am. J. Crim. L. 385, 394–404 (1994) (criticizing the
plain-feel doctrine because it fails to recognize the difference between the sense
of sight and touch, and could encourage pretextual searches); Anne Bowen
Poulin, The Plain Feel Doctrine and the Evolution of the Fourth Amendment,
42 Vill. L. Rev. 741, 755 (1997) [hereinafter Poulin] (pointing out Dickerson may
tempt police to exploit any opportunity to search more broadly and to probe more
aggressively).
In my view, Dickerson has a number of problems. First, the immediately
apparent standard, even as potentially modified by Hicks, seems subjective in 23
nature. Determining what a police officer knew and when they knew it is a
slippery slope and not subject to effective cross-examination. As a result,
deferential application of the immediately apparent test will permit retrospective
“magic words” to sustain a search when a police officer provides scripted
testimony that declares expertise in drug matters and asserts that to the police
officer, it was immediately apparent the concealed substance was contraband.
Jones v. State, 682 A.2d 248, 256 (Md. 1996). In addition, because the item is
necessarily hidden from view, the ability of a police officer to determine what the
substance is with accuracy is necessarily highly speculative and not nearly as
reliable as evidence subject to visual examination. And, unlike the plain-view
doctrine, the plain-feel doctrine provides a basis for an intrusive seizure of
evidence on the body of a suspect, a highly intrusive act compared to the seizure
of objects in plain view. Finally, the plain-touch doctrine could encourage routine
pretextual searches where the stop and the subsequent weapons search is
primarily designed as a warrantless search for contraband rather than a stop
designed to promote public safety and protect police officers from the threat of
weapons. In my view, it is of critical importance that if it is to be adopted at all,
the plain-feel warrantless seizure should be permitted only in narrow, well-
defined circumstances.
C. “Plain Feel” Caselaw after Dickerson. The federal caselaw, of course,
follows Dickerson. The main issue in the federal cases is whether the standard
for further search of a person based on plain feel is “probable cause” or the higher
standard of “immediately” apparent utilized by the D.C. Circuit in the pre- 24
Dickerson case of Williams. This possibility, however, was largely undercut by
Hicks, where the United States Supreme Court found that probable cause was
the standard under the plain-view doctrine, which, by analogy, might also apply
to plain-feel cases.
In the state courts, Dickerson has generally been adopted as a plain-feel
exception to the warrant requirement. See, e.g., State v. Trine, 673 A.2d 1098,
1107 (Conn. 1996); People v. Mitchell, 650 N.E.2d 1014, 1023 (Ill. 1995);
Champion, 549 N.W.2d at 856. Some of the state cases, however, adhere strictly
to the requirement that the nature of the contraband must be immediately
apparent. For example, in Murphy v. Commonwealth, the Virginia Supreme Court
held that a police officer’s detection of a plastic baggie during a pat-down was
not sufficient to justify a seizure of the baggie because its unlawful nature was
not immediately apparent. 570 S.E.2d 836, 839–40 (Vir. 2002); see also Ex parte
Warren, 783 So. 2d 86, 94–95 (Ala. 2000); Commonwealth v. Stevenson, 744 A.2d
at 1268; State v. Parker, 622 So. 2d 791, 795 (La. Ct. App. 1993).
In these cases, “immediately apparent” means something beyond probable
cause and approaching certitude. The heightened standard is imposed because
of the need to ensure the narrow confines of Terry searches and to prevent
searches for weapons from routinely morphing into searches for drugs.
D. Caselaw Involving Drugs and Baggies. It is a surprise to no one that
the plain-feel doctrine has become an important tool for law enforcement in drug
investigations. Indeed, the police officers involved in this case were on duty as
part of a drug enforcement unit. It is not surprising that there are a number of 25
plain-feel cases involving Terry-type searches revealing baggies underneath the
clothing of the person being searched. The caselaw is diverse in part because the
cases are fact-specific.
In Commonwealth v. Stackfield, the Pennsylvania Supreme Court
considered whether the discovery of contraband during a Terry-type search was
valid under the plain-feel doctrine. 651 A.2d 558, 561 (Pa. Super. Ct. 1994). The
court concluded that the facts did not establish that the police officer
immediately recognized the presence of contraband while conducting the Terry
search. Id. at 562. According to the Stackfield court:
A zip-lock baggie is not per se contraband, although material contained in a zip-lock baggie may well be. . . . The record supports a factual finding that the officer felt a mass that he recognized as a baggie; it does not support a factual finding that the officer felt what he immediately recognized as contraband. Sight unseen, the contents of the baggies that the officer felt in appellant’s pants pockets could as easily have contained the remains of appellant’s lunch as contraband.
Id.
The fact that the material could be an illegal substance and that the police
officer had observed illegal substances being carried in baggies was insufficient.
As stated in Stackfield, to hold otherwise would be to ignore Dickerson’s mandate
that the plain-feel doctrine is a narrow exception to the warrant requirement that
only applies when an officer conducting a lawful Terry frisk feels an object and
the object’s mass or contour makes its identity as contraband immediately
apparent. Id. Note the Pennsylvania Supreme Court’s emphasis on the
narrowness of the doctrine. 26
In G.M. v. State, the police officer conducting a pat-down of the defendant
felt a bag inside the defendant’s pocket that he believed to have a plant-like
material within the bag. 172 So. 3d 963, 964 (Fl. Dist. Ct. App. 2015). The police
officer testified that based on his training and experience, he thought it was
marijuana within the bag and pulled it out of the defendant’s pocket. Id. at 965.
The court held the police officer did not know what kind of plant was in the bag—
the officer simply claimed that based on his training and experience that it was
marijuana. Id. at 968. The court found the officer had nothing more than an
“inkling” that the plant within the baggie could have been marijuana. Id. The
officer’s perception that there was contraband in the defendant’s pocket was not
a result of his “tactile perception” but an educated guess based on the plain feel
of the object. Id. This did not meet the immediate apparent requirement. Id.
Another instructive baggie case is State v. Garvin, 207 P.3d 1266 (Wash.
2009) (en banc). In Garvin, the police officer conducting a Terry frisk felt a plastic
baggie in the pocket of the defendant. Id. at 1268. Without removing the bag, the
officer squeezed the bag and felt something more within. Id. at 1269. The police
officer then recognized the item as something used by drug users and removed
the baggie. Id. at 1268–69. The Garvin court held that the actions of the police
officer exceeded that permitted by Dickerson and held that the evidence should
have been suppressed. Id. at 1272.
In Garvin, the officer admitted the common-sense notion that it was
necessary to squeeze a baggie in order to determine its contents. While the
existence of the baggie may have been immediately apparent, the determination 27
of the contents crossed the line from a permitted Terry-type frisk into an
impermissible plain-feel search.
In Murphy, the Virginia Supreme Court considered whether a police
officer’s seizure of a plastic baggie containing drugs was permitted under the
plain-feel doctrine where the police officer felt a plastic baggie and testified that
he knew from training and experience that the plastic bag contained drugs. 570
S.E.2d at 837. Consistent with Garvin, the Murphy court held that the plain-view
doctrine was not satisfied on such a minimal showing. Id. at 840.
Another case of interest is State v. Hudson, 874 P.2d 160, 166 (Wash.
1994). In Hudson, the police officer testified that when he reached into the
defendant’s pocket to touch a baggie, he believed he felt “a one ounce size piece
of cocaine broken off a kilo size.” Id. The Hudson court remanded the case for
further fact-finding, noting that “the detective described the substance in the
baggie with a particularity arguably unattainable without extensive
manipulation.” Id. That was exactly the point made in Garvin. Garvin and
Hudson stand for the proposition that the greater the detail obtained by police
officers of the physical characteristics of the hidden material, the greater the
likelihood that the action of the police officer exceeded the limited pat-down
permitted by Terry. See Poulin, 42 Vill. L. Rev. at 787–88 (asserting that Garvin
and Hudson stand for the proposition that the greater the detail obtained by
police officers of the physical characteristics of the hidden material, the greater
the likelihood that the action of the police officer exceeded the limited pat-down
permitted by Terry). 28
Finally, consider State v. Henderson, 589 S.E.2d 647 (Ga. Ct. App. 2003). In
this case, the Georgia appellate court held that the mere fact that a police officer
with experience in narcotics testified that drugs are frequently packaged in
plastic and that a coin pocket is a site used to store drugs was insufficient to
support a seizure based upon Dickerson. Id. at 650. Any further inquiry would
be outside the narrow confines of a Terry-type search under Garvin and Hudson.
Id.; see also People v. Blake, 645 N.E.2d 580, 583 (Ill. App. Ct. 1995) (noting the
search was more of a grope than a pat-down and suppressing marijuana packed
in plastic bag); Aguilar v. State, 594 A.2d 1167, 1172–73 (Md. Ct. Spec. App.
1991) (holding if a police officer pats a person’s clothing and finds only soft
objects, further search is not allowed under Terry); State v. Conners, 994 P.2d
44, 46 (Nev. 2000) (per curiam) (suppressing evidence where the police officer
concluded weapons were not present but continued hand palpitation); Graham
v. State, 893 S.W.2d 4, 8 (Tex. App. 1994) (suppressing drug evidence where the
police officer continued to rub and pinch the pocket after determining that it did
not contain a weapon).
There are certainly other cases, however, that evince a more demanding
approach to Dickerson plain-feel cases. In In the Matter of L.R., a Texas appellate
court considered a case where a police officer felt small baggies during a Terry
search. 975 S.W.2d 656, 659 (Tex. App. 1998). The Texas court found that the
police officer “immediately” recognized drugs as illegal substances because drugs
were typically “wrapped in cellophane packaging.” The Texas court concluded 29
that the police officer identified the contraband before manipulating the object.
In my view, the evidence was pretty thin.
Similarly, in Johnson v. State, a police officer conducting a Terry pat-down
felt a lump that he stated “felt like a ‘ball of drugs.’ ” 157 N.E.3d 1199, 1208 (Ind.
2020). The Johnson court concluded that the police officer immediately
recognized the hallmark of a narcotic packaged for sale. Id. Hard round objects
abound, however, but the court was content to defer to the police officer’s
expertise.
Among other things, there are several variables in these cases. First, to
what extent is the “immediately apparent” language in Dickerson taken at face
value or regarded as rhetorical excess. Second, when does a limited Terry pat-
down designed to be narrowly focused on a search for weapons cross the line to
become an overbroad touching, whether characterized as a grope, palm press,
additional pat, squeeze, or manipulation. Finally, to what extent does the trier of
fact credit conclusory testimony by police officers or engage in independent
review based on the totality of facts and circumstances presented.
In my view, the reviewing courts should engage in a degree of skepticism
in reviewing plain-feel cases in light of the important privacy interests involved,
the limited reliability of identification of unseen items, and the troublesome
interaction between Whren, Terry, and Dickerson described earlier. One
commentator has proposed a three-part test to aid district courts in making the
determination. First, a reviewing court should examine in court the physical
evidence claimed to have been identified as contraband under plain feel. Poulin, 30
42 Vill. L. Rev. at 786. Second, the court should consider objectively whether a
very limited Terry pat-down would immediately establish that the suspect is
carrying contraband. Id. at 786–87. Finally, the court should consider the
narrow scope of Terry-type searches and examine whether the touching
necessarily involved in identifying the contraband exceeded the permissible
narrow scope of the warrantless and probable-cause-less search under Terry. Id.
at 787–88.
II. Application of Plain-Feel Doctrine in This Case.
A. Preservation of Iowa Constitutional Claims. Hunt asserts the
admission of contraband evidence in this case violated the search and seizure
provisions of both article I, section 8 of the Iowa Constitution and the Fourth
Amendment to the United States Constitution. The majority asserts that while
Hunt cited the Iowa Constitution, he does not argue for a different standard
under the Iowa Constitution compared to the established caselaw of the United
States Supreme Court under federal law.
The majority is correct. Hunt did not advance under the Iowa Constitution
the argument embraced by the New York Court of Appeals in Diaz or Justice
Scalia in Dickerson that the plain-feel exception should not be recognized or the
evidence not admissible in later criminal proceedings. As a result, the issue is
not presented in this case and, of course, the unpresented issue is not decided
by the majority. And, although Hunt repeatedly claimed that the standard for
application of the plain-feel doctrine was an immediately apparent standard, he
did not assert that the required showing was something more than an immediate 31
determination of probable cause under Williams and some well-reasoned state
law cases.
And yet, to the extent a party has not argued for a different substantive
standard under the Iowa Constitution than that embraced by the United States
Supreme Court and federal caselaw, we may nonetheless apply the standard in
a fashion different from the federal caselaw. In short, we may apply the
immediately apparent standard with more “teeth” than the prevailing federal
caselaw. That is how I approach the facts in this case.
B. Overview of the Facts. In this case, there was no dispute that the
Whren-type stop of Hunt was valid and that the police officers had sufficient
grounds to conduct a Terry-type search for weapons. The record is devoid of any
suggestion arising from the pat-down search that Hunt possessed any weapon.
The important facts focus on the circumstances under which the police officer
discovered a baggie or baggies under Hunt’s clothing.
At the hearing on the motion to suppress, the police officer conducting the
pat-down testified:
I went across the sweatshirt pocket that he was wearing, the right front sweatshirt pocket, I immediately felt small plastic or small hardballs, packaged balls which were inside of a plastic bag. I could hear the crunch of the plastic bag and I could feel it, and I also felt the small individual hard packages inside of that plastic bag.
The police officer testified about his reaction when he felt the hard balls
inside the plastic bag:
I immediately knew that it was packaged drugs for sale inside of a plastic bag. It is almost invariably how cocaine, crack cocaine, or heroin are packaged for sale in Dubuque . . . . [Drug dealers] almost always put them inside of a larger plastic bag to keep them a 32
together so that they don’t lose them in their plastics or reach in their pocket and pull it out and have one fall out and lose it.
The police officer further stated, “[O]ne of the bags felt like it was very squared
off. It wasn’t asymmetric in shape . . . .” But when asked if he had to manipulate
or squeeze the object and determine that it was contraband, the police officer
said, “[N]ot at all.”
C. Rulings of the District Court and Court of Appeals. The district court
held that the evidence should be suppressed. The district court noted that the
question is whether the object in Hunt’s pocket had a contour or mass that made
it immediately apparent that there was probable cause that Hunt possessed
drugs. According to the district court, the item in the pocket “could have been
anything” and the police officer’s testimony that he knew it was drugs “lacked
sufficient explanation as to how and why he knew that to be true.” The district
court concluded that the police officer “did not know exactly what was in the
bags he thought he felt.” As a result, under Dickerson, the district court ordered
suppression.
The court of appeals reversed the district court. The court of appeals noted
that in other unpublished opinions, it had credited testimony from police officers
regarding the identification of contraband in Terry-type searches. The court of
appeals held that on the record before the district court, the State established
that the presence of contraband was “immediately established” in light of the
testimony of the officer. Although the exact nature of the drug could not be
identified, the court of appeals reasoned that the precise identification of the 33
drug was not required so long as there was probable cause to believe contraband
was present.
D. Discussion. The State challenges the district court’s ruling, noting that
all that is required under the plain-feel doctrine is for the State to establish that
the officer had probable cause to believe that Hunt possessed unlawful drugs.
Relying on the unreported case of State v. Carey, No. 12–0230, 2014 WL 3928873
(Iowa Ct. App. Aug. 13, 2014), the State contends that the experienced narcotics
officer “immediately recognized” drugs as a result of packaging. The State
rejected the view of some courts that the “immediately apparent” language in
Dickerson required a higher standard of certainty than probable cause. The State
contends that the unlawful nature of the substance in the baggies in Hunt’s
pocket was “immediately apparent” without any squeezing or manipulating of
the object.
Hunt responds that Dickerson requires that the unlawful character of the
substance must be “immediately apparent,” that the officer may not engage in a
search more intensive than the very limited Terry pat-down permitted to discover
weapons, and that the officer did not know the identity of the drugs until after
the baggie was removed and the material was examined more closely. While Hunt
concedes that absolute certainty might not be required under Dickerson, the
State must still show that an item’s incriminating nature was “immediately
apparent” and that the immediately apparent requirement is not met when an
officer has multiple-choice options regarding the nature of the substance. 34
This is a close case based upon a very limited factual record. Based on a
careful review of the record, I conclude that Hunt has the better argument. In
my view, it is hard to see how the officer “immediately” knew that there were
bags within bags containing drug-like substances concealed in Hunt’s sweatshirt
without engaging in physical contact that exceeds that permitted by Terry. In
other words, it is hard to understand how the officer developed the detailed
knowledge presented in the suppression hearing if he only conducted a mere
pat-down for weapons. Instead, it appears from the facts that the officer touched
the outer pocket of a sweatshirt, a very thick piece of clothing, with sufficient
action to hear “the crunch of the plastic bag” and to determine that there were
“bags within bags” containing small hard substances. He also testified that he
determined that the bags were “very squared off.” So he touched through the
sweatshirt pocket with sufficient force to generate a cracking sound, pressed to
determine not simply that there were bags but that there were bags within bags
of some kind of material, and that one of the bags “felt like it was very squared
off.” This sounds more like a drug search than a search for weapons. In order to
obtain such detail through a sweatshirt, the search must have exceeded the
narrow and limited pat-down authorized by Terry. See State v. Woods, 680
N.E.2d 729, 732–33 (Ohio Ct. App. 1996) (holding it not reasonable to conclude
a quick pat-down would provide sufficient details to identify presence of unlawful
drugs); State v. Hudson, 874 P.2d 160, 166 (Wash. 1994) (en banc) (noting that
the officer’s detailed description of the cocaine found in defendant’s pocket 35
suggested “considerable manipulation of the baggie”). As a result, I would uphold
the district court’s decision to suppress the evidence in this case.
I recognize that this case involves a fine-line-drawing exercise and that the
majority has ultimately come to a different conclusion. I emphasize that the
result in this case is fact-bound and that it does not provide a broad precedent
for law enforcement to avoid the narrow confines of Terry and Dickerson even if
these cases remain good law. Indeed, if Terry and Dickerson are to remain good
law, the limitations in these cases must be scrupulously recognized by law
enforcement and enforced by the courts.
III. Conclusion.
For the above reasons, I dissent. I would hold that the district court
properly suppressed the evidence in this case.