POLICE / PROSECUTOR UPDATE - MAY 1998
Investigatory Stop & Frisk ("plain feel")
The Court of Appeals recently decided an interesting "plain feel" case.
The court first examined the legality of the patdown search of the
defendant. The facts indicate that a sheriff's deputy observed the
defendant driving his car 78 m.p.h. in a 55 m.p.h. zone. The deputy
stopped the defendant, smelled alcohol on his breath, and then asked him
to get out of his car to take some field sobriety tests. The defendant
failed one of the tests. The deputy administered a portable breath test
which indicated the defendant had a BAC of .08. Before transporting the
defendant to the county jail for a certified breath test, the deputy
conducted a patdown search for his safety. During the patdown, the
deputy felt a round, hard object that was 3 to 4 inches long. Based on
his training and experience, the deputy recognized the object as a
"one-hitter" - a pipe used to smoke marijuana. When the deputy removed
the object from the defendant's pocket, he discovered it was not a pipe
but a green leafy substance tightly rolled in a plastic bag. A field
test was positive for marijuana.
The defendant contended there was no justification for the patdown. The
law permits a police officer to approach a person for purposes of
investigating possible criminal behavior without probable cause to make
an arrest and to conduct a reasonable search of the person for weapons
for the officer's protection. The officer need not be absolutely certain
that the person is armed but only that a reasonably prudent man in the
same circumstances would be warranted in the belief that his safety or
that of others is in danger. Here the deputy escorted the defendant to
the deputy's car for the purpose of transporting him to the jail. In the
court's view, because at this point the deputy would be alone in his car
with the defendant as he transported him to the jail, a reasonably
prudent person in the same circumstances would be warranted in
conducting a patdown of the defendant for his own safety.
Plain feel: The courts have determined that police officers may seize
contraband detected through the officer's sense of touch during a
protective patdown search. Two issues are dispositive as to the
admissibility of contraband seized without a warrant under the "plain
feel" doctrine: (1) whether the contraband was detected during an
initial search for weapons rather than during a further search, and (2)
whether the identity of the item or object is immediately apparent to
the officer. Evidently, if the object is immediately apparent to the
officer as contraband, the object is not rendered inadmissible if it
turns out not to be the exact contraband the officer believed it was
(although the court did not directly address this question). The court
said that the deputy testified that during the initial patdown search
conducted for his safety, he immediately recognized a "one-hitter" -
which is a pipe used to smoke marijuana. IC 35-48-4-8.3 criminalizes
possession of drug paraphernalia. Therefore, drug paraphernalia, such as
a "one-hitter" the deputy thought (the court's word) he recognized in
the defendant's pocket, would be contraband. Therefore, the marijuana
was admissible. It will be interesting to see if the defendant tries to
appeal this to the Supreme Court.
Burkett v. State, 691 NE2d 1241 (Ind. App. 1998).
This is a publication of the Clark County Prosecuting Attorney, covering
various topics of interest to law enforcement officers. It is directed
solely toward issues of evidence, criminal law and procedure. Please
consult your city, town, or county attorney for legal advice relating to
civil liability. Please direct any suggestions you may have for future
issues to Steve Stewart at 285-6264.
