State v. Dickerson

481 N.W.2d 840, 1992 Minn. LEXIS 80, 1992 WL 52364

• Court: Supreme Court of Minnesota
• Decided: March 20, 1992
• Docket: C9-90-1780
• Status: Published

Opinions

TOMUANOVICH, Justice.

This case presents the question of whether a police officer executing a warrantless protective weapons search may seize an object from a detainee’s pocket based on the officer’s perception that although the object is not a weapon, it feels like contraband. The trial court held in the affirmative and the court of appeals reversed. State v. Dickerson, 469 N.W.2d 462 (Minn.1991). We affirm.

After a trial on essentially stipulated facts from the omnibus hearing, defendant was convicted in Hennepin County District Court of fifth degree possession of a controlled substance, crack cocaine. Police found the cocaine in the defendant’s jacket pocket during a pat search for weapons. The trial court denied the defendant’s motion to suppress the evidence, ruling that the stop was justified under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and that seizure of the cocaine was justified under a “plain feel” exception to the fourth amendment warrant requirement. A unanimous court of appeals panel found the stop justified but reversed on the “plain feel” issue. The state appeals from that decision and the defendant cross appeals on the validity of the stop.

Shortly after 8 p.m. on November 9, 1989, two Minneapolis police officers were on patrol in a marked squad car in North Minneapolis. At 8:15 p.m., while driving southbound on Morgan Avenue North, the officers saw a man leaving a multi-unit apartment building. The man later was identified as the defendant. The officers were suspicious because one had executed search warrants at the building and had found drugs and weapons. He testified that he also had been called to the building to investigate complaints of drug sales in the hallways. The officer said the apartment building was known as a 24-hour-a-day crack house, and police were monitoring it, especially after receiving a complaint from the local alderman.

The officer testified that the defendant came down the stairs from the building and started to walk toward the street until he saw the squad car and made eye contact with the officer. The defendant then stopped, turned around, walked back three to five feet and took a sidewalk around the side of the house to the alley. The defendant testified that he never saw the police car on Morgan Avenue, never made eye contact with the officers and went directly from the apartment building to the sidewalk that leads to the alley. He said he was on his way to a friend’s house and the alley was the fastest route. The trial judge credited the officer’s version and found that the defendant had turned abruptly after seeing police.

The officer testified that the defendant’s change of direction made him suspicious, and he told his partner to pull the squad car into the alley so he could “check [the defendant] for weapons and contraband.” They drove into the alley, where the defendant was walking southbound. The officer, who never had seen the defendant before and knew of no criminal activity by him, confronted the defendant and ordered him to submit to a pat. , search.

The officer described the search as follows: “As I pat searched the front of his body, I felt a lump, a small lump in the front pocket [of the defendant’s nylon jacket]. I examined it with my fingers and slid it and felt it to be a lump of crack cocaine in cellophane.” The officer then reached into the defendant’s jacket pocket and pulled out what proved to be ,20 grams of crack cocaine in a knotted sandwich-wrap bag. The confiscated material was described as the size of a pea or a marble.

The Stop

Warrantless searches “are per se unreasonable under the fourth amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). One such exception is the protective pat search for weapons. Terry holds that police may stop and frisk a person when (1) they have a reasonable, articula-ble suspicion that a suspect might be engaged in criminal activity and (2) the officer reasonably believes the suspect might be armed and dangerous. 392 U.S. at 30, 88 S.Ct. at 1884. If both of those factors are present, police may “conduct a carefully limited search of the outer clothing of such person[] in an attempt to discover weapons which might be used to assault him.” Id.

We have held that one circumstance giving rise to reasonable suspicion is evasive conduct. State v. Johnson, 444 N.W.2d 824, 827 (Minn.1989). As the court of appeals and the defendant correctly point out, merely being in a high-crime area will not justify a stop. See Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979). But defendant’s evasive conduct after eye contact with police, combined with his departure from a building with a history of drug activity, justified police in reasonably suspecting criminal activity.

In this case, defendant denied making eye contact with the officer and denied making a sudden change in direction, but the trial court, which had an opportunity to observe both the officer and defendant testify, credited the officer’s testimony. We accord great deference to the trial court’s determinations in this area. “The credibility of witnesses and the weight to be given their testimony are determinations to be made by the factfinder.” DeMars v. State, 352 N.W.2d 13, 16 (Minn.1984). We therefore agree with the trial court and the court of appeals that the stop was valid.

The Search

Because the stop was valid under Terry, police were justified in frisking the defendant if they reasonably suspected he could be armed and dangerous. In this case, the defendant’s suspicious behavior, the history of drug activity in the immediate vicinity and Officer Rose’s personal experience in seizing guns from the building the defendant left justified a pat search. The remaining issue is whether the search was “carefully limited” as Terry requires. The court of appeals held that police exceeded the scope of a Terry search. We agree and affirm.

While we give great deference to the trial court on factual determinations, that deference is not unlimited. The trial court’s findings “will not be reversed upon review unless clearly erroneous or contrary to law.” State v. Gilbert, 262 N.W.2d 334, 340 (Minn.1977) (citations omitted). In evaluating the search in this case, the trial court made errors of fact and law, requiring a reversal of the defendant’s conviction. When the correct law is applied to all of the facts, it is clear that the defendant’s fourth amendment right to be free from unreasonable searches and seizures was violated. The pat search of the defendant went far beyond what is permissible under Terry. To conduct the type of search at issue in this case required a warrant, which police did not have. Therefore, the fruits of that illegal search must be suppressed. Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 415-16, 9 L.Ed.2d 441 (1963).

The trial court and the dissenting justices of this court would allow the seized evidence to be admissible under a “plain feel” exception to the fourth amendment warrant requirement. Neither this court nor the United States Supreme Court ever has recognized such an exception and we decline to do so today.

The trial court found that when the officer felt the defendant’s jacket pocket, he knew immediately he was feeling a plastic bag containing a lump of crack cocaine. The officer’s “immediate” perception is especially remarkable because this lump weighed 0.2 grams and was no bigger than a marble. 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. But a close examination of the record reveals that like the precocious princess, the officer’s “immediate” discovery in this case is fiction, not fact.

The officer testified that he was sure he had found crack cocaine only after (1) feeling a lump, (2) manipulating it with his fingers, and (3) sliding it within the defendant’s pocket. That testimony belies any notion that he “immediately” knew what he had found. And this was not a case of some clever cross-examiner putting words in the officer’s mouth; this was his own testimony on direct examination. Any doubts we might have about the trial court’s findings are removed by another piece of information, also provided by the officer on direct examination. He testified that after observing the defendant engage in evasive behavior he directed his partner to stop the car so he could search the defendant for weapons and drugs.

It is true, as the dissent points out, that an improper motive does not invalidate an otherwise lawful search. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 2308-10, 110 L.Ed.2d 112 (1990). But the officer’s testimony that he intended to conduct a warrantless search for drugs, combined with his testimony about squeezing, sliding and otherwise manipulating the contents of the defendant’s pocket, convince us that he set out to flaunt the limitations of Terry, and he succeeded. The results of such a search cannot be admitted into evidence. Terry would be rendered meaningless if such conduct were allowed. If given long enough, most police officers, or civilians for that matter, could pinch and squeeze and twist and pull and rub and otherwise manipulate a suspect’s jacket pocket and figure out what is inside. But the fourth amendment doesn’t permit that type of intrusive conduct without a warrant or probable cause to arrest, and police in this case had neither.

Terry permits a protective frisk for weapons. When the officer assures himself or herself that no weapon is present, the frisk is over. During the course of the frisk, if the officer feels an object that cannot possibly be a weapon, the officer is not privileged to poke around to determine what that object is; for purposes of a Terry analysis, it is enough that the object is not a weapon. See State v. Alesso, 328 N.W.2d 685, 688 (Minn.1982); State v. Bitterman, 304 Minn. 481, 486, 232 N.W.2d 91, 95 (1975); State v. Ludtke, 306 N.W.2d 111 (Minn.1981); 3 W. LaFave, Search and Seizure § 9.4(c) at 524 (2d ed. 1987).

The trial court held, and the dissent argues, that the officer’s discovery should be admissible under a “plain feel” exception to the fourth amendment warrant requirement. The handful of courts that have applied a “plain feel” analysis have described it as an extension of the well-recognized “plain view” doctrine. See State v. Washington, 134 Wis.2d 108, 396 N.W.2d 156, 161-62 (1986); United States v. Williams, 822 F.2d 1174 (D.C.Cir.1987).¹

Under plain view, if the sight of an object gives a police officer probable cause to believe the object is the fruit or instrumentality of a crime, it may be seized without a warrant, provided (1) police are legitimately in the position from which they view the object; (2) they have a lawful right of access to the object; and (3) the object’s incriminating nature is immediately apparent. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Arizona v. Hicks, 480 U.S. 321, 326, 107 S.Ct. 1149, 1153, 94 L.Ed.2d 347 (1987); Horton, 110 S.Ct. at 2308.

Because we do not believe the senses of sight and touch are equivalent, we decline to extend the plain view doctrine to the sense of touch. We reach this conclusion for two primary reasons. First, the sense of touch is inherently less immediate and less reliable than the sense of sight. For an excellent analysis on this point, see State v. Broadnax, 98 Wash.2d 289, 654 P.2d 96, 102 (1982). But even more important, the sense of touch is far more intrusive into the personal privacy that is at the core of the fourth amendment. It is one thing to see a bag of marijuana in a suspect’s pocket, as occurred in Ludtke. It is quite something else to pinch, squeeze and rub the suspect’s pocket to see what might be inside. Observing something that is held out to plain view is not a search at all. Hicks, 480 U.S. at 325, 107 S.Ct. at 1152-53. Physically touching a person cannot be considered anything but a search.

The dissent also argues that we already have tacitly adopted a “plain feel” rule in previous cases. We do not believe that is the proper interpretation of our reasoning in upholding warrantless searches in those cases. In Bitterman, the officer felt a hard, round object that he couldn’t immediately rule out as a weapon, so he seized it, and it turned out to contain contraband. In Alesso, as the officer approached a stopped car, he saw the defendant quickly move his hand into a pocket. Fearing for his safety, the officer reached into the defendant’s pocket and grabbed what proved to be a soft plastic bag containing contraband.

The distinction between those cases and the present one is obvious. In Bitterman, the officer felt a hard object that might or might not have been or contained a weapon. Under those circumstances, the law does not require him to wait until the bullets are flying to be sure. He may continue his frisk until his safety is assured. So long as his continued concern for his safety is reasonable, if the hard object turns out to be or contain contraband, that item may legitimately be seized. Likewise, the officer in Alesso acted reasonably in heading off any possibility the suspect was drawing a weapon. He instinctively reached for the source of the threat and removed it, only to discover it was a soft bag containing contraband. This court held that under those circumstances, where the suspect made a seemingly aggressive move, the officer was justified in protecting himself by grabbing whatever it was the suspect was trying to reach. The law does not require an officer to carefully feel the item s/he is grabbing when s/he reasonably believes s/he might be in danger.

That is where the present case differs from Alesso and Bitterman. There was never any possibility that the object in the defendant’s pocket was a weapon, and there was no justification for grabbing it as a matter of self-protection because the defendant never made an aggressive move. With Bitterman and Alesso not applicable, the dissent relies on Ludtke for the proposition that there are circumstances in which it is proper for police to seize an item during a frisk, even if it could not be a weapon and the suspect does not act aggressively. Ludtke shows that such circumstances can exist, but it does not change the fact that those circumstances do not exist in this case. During a pat search in Ludtke, the officer came across a plastic bag on Ludtke’s person and seized it. It later proved to contain 11 grams of cocaine, 55 times the amount at issue in this case. This court said because the officer had seen a small bag of marijuana in Ludtke’s pocket, he was justified in seizing the larger bag. The court never said why, but when the gap in the analysis is filled, it becomes clear why Ludtke.is inapplicable to the present case.

As Katz points out, warrantless searches and seizures are automatically invalid unless they fall under a recognized exception. Two exceptions are applicable here: (1) the protective weapons frisk in Terry and (2) a search incident to arrest. See Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969). Professor LaFave cites Ludtke for the proposition that although finding a soft object will terminate the officer’s right to continue a pat search, the item may be subject to seizure on other grounds. 3 W. LaFave, Search and Seizure § 9.4(c) at 524 (2d ed. 1987).

The Ludtke court did not specify what those other grounds were, but to be valid under Katz the other grounds have to be among the well-delineated exceptions to the fourth amendment. The Ludtke court acknowledged that soft objects cannot be seized under the rationale of a Terry protective search. And contrary to the dissent’s assertion, Ludtke should not be viewed as a “plain feel” case. First, “plain feel” is not a well-delineated exception to the fourth amendment. The Supreme Court never has recognized it and neither have we. Second, there is nothing in Ludtke’s facts to suggest that the officer discerned any texture that indicated to him what the bag contained. He knew he had come across a plastic bag but he never suggested he could tell what was inside it by its feel.

The best explanation for Ludtke is that based on all the circumstances, the seizure of the soft bag was justified because it occurred during a search incident to arrest. Before the frisk, the officer had seen a bag of marijuana in Ludtke’s pocket. He also had found marijuana during a search of Ludtke’s companion. He also observed Ludtke reaching furtively into the back seat of the car. Then the frisk of Ludtke revealed a knife. All of those circumstances, plus the presence of a plastic bag containing anything on Ludtke’s body gave police probable cause to believe that Ludtke was in possession of a controlled substance, justifying a full search.

The present case is clearly distinguishable. Here, there was no visual sighting of contraband, no presence of a knife, no effort by the defendant to hide anything and no accomplice in possession of contraband. In short, there was nothing about the defendant or his conduct that would give the police probable cause to arrest him and justify the extensive search that was performed. Even accepting the State’s version of the facts, all the police had, as a matter of law, was Terry-type reasonable suspicion. That entitled the officer to stop the suspect and, based on a reasonable suspicion that he might be armed, conduct a carefully limited frisk for weapons.

Once it was apparent that the defendant had no weapon, Terry ceased to legitimize the officer’s conduct. Any further intrusion into the defendant’s privacy required a warrant or probable cause to arrest, and the officer had neither. Instead, he continued feeling the defendant’s person until he found what he was looking for all along. That type of warrantless search is not permissible under the fourth amendment and its fruits must be suppressed.

The dissent notes that “law enforcement is not a game in which liberty triumphs whenever a policeman is defeated.” We agree, but we are equally certain that liberty does triumph when the vitality of the fourth amendment is reaffirmed and an individual’s basic right to be free from unreasonable searches and seizures is vindicated.

Affirmed.

1 . Even if we recognized a “plain feel” exception, the search in this case would not qualify. The Circuit Court for the District of Columbia, in adopting "plain feel,” anticipated the type of abuse that occurred in the present case, saying: ”[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.” Williams, 822 F.2d at 1184.