State v. Rushing

COVINGTON, Judge,

dissenting.

I respectfully dissent. The question is whether the officer’s tactile perception of the object gave him immediately, without further searching, probable cause to believe the object contained contraband. I disagree with the majority’s conclusion that Officer Price had probable cause to search the defendant’s pocket. My disagreement with the majority is simply one of where to strike the proper balance. I believe that the effect of the majority opinion is to reduce the probable cause standard to one of reasonable suspicion.

The majority relies on Texas v. Brown, 460 U.S. 730 , 103 S.Ct. 1535 , 75 L.Ed.2d 502 (1983) (plurality opinion). Whether probable cause is required to invoke the plain-view doctrine, directly analogous to the plain-feel doctrine, was an issue left open in Brown . Later, however, in Arizona v. Hicks, a premises case, the United States Supreme Court held that probable cause is, in fact, required to invoke the plain-view doctrine. 480 U.S. 321, 326 , 107 S.Ct. 1149, 1153 , 94 L.Ed.2d 347 (1987). Justice Scalia, writing for the Court, explained:

*35 Dispensing with the need for a warrant is worlds apart from permitting a lesser standard of cause for the seizure than a warrant would require, ie., the standard of probable cause. No reason is apparent why an object should routinely be seizable on lesser grounds, during an unrelated search and seizure, than would have been needed to obtain a warrant for that same object if it had been known to be on the premises.

Id. at 327 , 107 S.Ct. at 1153-54 .

In Hicks, police officers entered an apartment looking for a suspect in an apartment shooting. They seized weapons and a ski-mask. One of the officers noticed two sets of expensive stereo components that looked out of place. He recorded the serial numbers. In order to view the serial numbers, he moved some of the components. He reported the numbers to headquarters. Upon being told that the turntable was reported stolen, he seized the turntable. The Court held that moving the components to view the serial numbers constituted a search unrelated to the search for the shooter and the weapons. Id. at 325 , 107 S.Ct. at 1152-53 . A finding of probable cause was required to uphold the search of the stereo components. Id. at 326 , 107 S.Ct. at 1153 . The State conceded that the officer in Hicks had only reasonable suspicion to believe the components were stolen; therefore, the search was unconstitutional. Id.

Other jurisdictions have found similar searches to have exceeded the authority of Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), and Minnesota v. Dickerson, 508 U.S. 366 , 113 S.Ct. 2130 , 124 L.Ed.2d 334 (1993). In Commonwealth v. Crowder, the Kentucky Supreme Court invalidated a search under circumstances similar to the present case. 884 S.W.2d 649 (Ky. 1994). Crowder had been previously arrested in the same “hot drug area.” The police had received a tip that if Crowder was in that area he would be dealing drugs. When Crowder saw the police watching him, he walked away. The officer stopped him, searched him, and felt what the officer described as “something like a small gumball.” The officer also stated that it “felt like it may have been a bindle of drugs.” Id. at 650 . The court stated that the search was invalid because the officer did not immediately recognize what he felt in Crowder’s pocket as drugs. “The nature of the non-threatening contraband was not immediately apparent to [the] officer” when he was conducting the patdown search. Id. at 652 .

Likewise, in Commonwealth v. Stackfield, an officer seized several zip-lock baggies after a patdown search. 438 Pa.Super. 88 , 651 A.2d 558 (1994). The officer testified that he thought the bags felt like packaging materials that are often used for carrying drugs. The Pennsylvania Superior Court held that the search was invalid. “A zip-lock baggie is not per se contraband, although material contained in a zip-lock baggie may well be.” Id. 651 A.2d at 562 . See also Campbell v. State, 864 S.W.2d 223 (Tex.App.1993) (“The incriminating character of a 35 millimeter film canister was not ‘immediately apparent’ under the facts before us to justify its seizure”). These cases, read together with Arizona v. Hicks, would seem to tip the scales in favor of finding a lack of probable cause.

The majority’s reliance on Texas v. Brown is questionable in another respect; the majority extends Brown well beyond its facts. During a traffic stop a police officer saw Brown holding an uninflated, opaque, green party balloon tied off at the end. The balloon contained heroin. The Court held that the search was proper because the nature of the balloon as contraband was immediately apparent. Id. at 743 , 103 S.Ct. at 1543 ^44. The balloon was in plain view; the officer did not have to search to find the contraband.

The facts of the present case are distinguishable. Officer Price testified that he first patted down the defendant for “weapons and contraband.” The officer searched the defendant and felt the bottle in his front pants pocket. The officer testified that he “thought it was a Life Savers Holes candy container.” Although he testified further that he knew this to be a container commonly used by drug dealers to carry crack, there is nothing distinctive about a candy container. The container was actually a prescription pill bottle, and it was impossible for him to discern what the bottle contained. The nature *36 of the bottle as contraband was not apparent to the officer until after he removed the bottle from the defendant’s pocket. Put another way, the nature of the container as contraband was not immediately apparent to the officer.

Certainly there are factors that support affirmance in this case, those being the officer’s information regarding defendant’s drug activities and the officer’s experience in narcotics enforcement. It would be difficult to disagree that Officer Price had reasonable suspicion that the defendant was carrying contraband. That suspicion, however, did not rise to the level of probable cause necessary for a valid search under Dickerson’s plain-feel exception. Reasonable suspicion is not transformed into probable cause simply by relabeling.

The search of the defendant’s pocket and seizure of the bottle exceeded the scope of authority of Terry and Dickerson . I would reverse.