THE PLAIN FEEL DOCTRINE TO ESTABLISH PROBABLE CAUSE
Minnesota v. Dickerson, _____U.S._____, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).
Some points to ponder during your contemplation of this memo:
The right to frisk is NOT automatic with every investigative stop.
A frisk is limited to a patdown of clothing sufficient to reveal possession of a dangerous weapon.
An object felt during a frisk must be "immediately apparent" as a drug container to be seized under the "plain feel" probable cause rule.
Now, the facts of the case: At 8:15 p.m., officers in a parked patrol car saw Dickerson leave a "known crack house" and walk toward their car. When he saw the officers, he suddenly stopped and walked in the opposite direction, turning into an alley. The officers followed Dickerson and ordered him to submit to a frisk. The frisk did not reveal any weapon but the frisking officer felt a small lump in Dickerson's jacket pocket. The officer knew it was not a weapon but he rubbed the lump back and forth several times. He withdrew the lump from the pocket and discovered it was rock cocaine.
On appeal to the United States Supreme Court, Dickerson argued that the officer conducted an illegal search when he withdrew the object from Dickerson's pocket. The right to frisk should not include the right to penetrate clothing and seize an object the officer has no reason to believe is a dangerous weapon, argued Dickerson. However, the Court disagreed with him and created the "plain feel" doctrine. In this case the Court did not consider the lawfulness of the stop and frisk itself. The Court assumed, without deciding, that the frisk was lawful since the question was not presented for review. You should NOT, therefore, assume that a stop and frisk based on these facts would be supported in our courts. The officers actions in this case were probably not supported by reasonable suspicion; any stop and frisk you perform should be based on more information of drug related activity than this stop.
The only issue on appeal since the Supreme Court assumed the stop and frisk was legal is whether or not the frisking officer acquired probable cause to conduct a full search when he felt the small object in the coat pocket. The Court considered two questions:
Can probable cause be based on "plain feel" information? YES!
If so, did the officer who frisked Dickerson comply with the requirements of the "plain feel" doctrine? No, he did not.
OK, you now know that you can acquire probable cause through the "plain feel" information. But note: the "plain feel" doctrine prohibits any search that is more intrusive than a weapons frisk. Only if the nature of the object is "immediately apparent" to be contraband, then "plain feel" probable cause allows penetrating the clothing to seize the object. In this case, the officer determined the lump was contraband only after additional feeling and sliding beyond the scope of the frisk allowed for finding a deadly weapon. Nothing about the lump was immediately apparent as contraband during the initial frisk itself.
The "immediately apparent" rule is satisfied when the container is identifiable by its size and shape during the patdown. Containers like crack vials or tinfoil twists meet that description. The place where the container is found on the body may contribute to the "immediately apparent" rule. Dealers often keep drugs in their underwear in the groin area. Very small containers felt in the groin area almost never will be noncriminal objects and almost always will be contraband. People do not normally carry small packages in their underpants. The location on the body is inconsistent with a noncriminal explanation.
"plain feel" also requires the stop and frisk to be lawful. If the officer does not have a valid lawful basis for the stop and frisk, the "plain feel" rule is violated. Reasonable suspicion to believe the suspect has, is, or is about to engage in criminal activity supports a stop. Reasonable suspicion to believe the suspect has a weapon and may threaten you supports a frisk. While reasonable suspicion is a lower evidentiary standard than probable cause, the burden of showing reasonable suspicion falls on the officer and must be satisfied by articulable facts in court. If the stop is no more than an investigative stop in a public place, the law does not require a warning or waiver of Miranda rights before asking questions.
Now, to sum up:
Objects that are not dangerous weapons cannot be seized by a frisking officer unless the object is "immediately apparent" as a probable drug container.
The contour and mass of an object (its shape and size), its location on the body, are important for the "immediately apparent" rule.
Ask the suspect to identify any object felt during a frisk before you seize it. The response may be part of your probable cause.
Me LEO 24 yrs
but I stole it from the a LE website