State v. Dickerson

COYNE, Justice

(concurring in part, dissenting in part).

Because it seems to me that concluding that the “crack” cocaine discovered in the pocket of the defendant’s jacket is the inadmissible product of an unreasonable search and seizure represents a departure from common sense and common experience, I respectfully dissent from that part of the decision which holds the trial court erred in admitting the contraband into evidence.

Officer Vernon Rose, the testifying police officer whose credibility as a witness the majority rather cavalierly questions, was in 1989 a 14-year veteran of the Minneapolis Police Department, with IIV2 of those years spent on the north side, and he had recently had extensive experience working on cases involving narcotics and weapons. At 8:15 p.m. on November 9, 1989, Rose and his partner, in a marked *847 squad car, approached a notorious “crack house” in north Minneapolis. The building in question is a three-story 12-unit apartment building; it is not clear from the record how many of the units were then occupied. What is clear is that the building had become known, as Rose put it in his testimony at the pretrial suppression hearing, as a “crack house” that “goes 24 hours a day,” a building which had been the subject of much complaint from the community, including “aldermanic complaint,” and which had been raided by police on “numerous” occasions, with drugs and weapons (including knives, handguns and sawed-off shotguns) being seized.

Rose testified that as the squad car approached the crack house, he saw defendant emerge from the front entrance and walk toward the front sidewalk. When defendant looked up and made eye contact with the officer, defendant made an “abrupt * * * strange and suspicious” change in direction, apparently “just because he saw a police car.” As defendant headed toward the alley instead of toward the street, the officers drove into the alley and stopped him. While subjecting defendant to a pat-down search of the outer clothing, here a thin nylon jacket, Rose felt a lump in defendant’s jacket pocket. With the clothing still between his hands and the object, Rose “examined it with [his] fingers and it slid and it felt to be a lump of crack cocaine in cellophane.” Rose had “felt [crack] before in clothing” — approximately 50 to 75 times — and “was absolutely sure that’s what it was, or I would have left it there.”

Up to that point Rose had been “just patting the outside.” However, upon detecting the presence of the lump which he was certain was crack cocaine, he reached into the pocket and seized the substance, which indeed was crack cocaine (.20 grams), and arrested defendant. This prosecution followed.

Defendant moved to suppress the crack cocaine, challenging the basis for the stop and for the pat-down search for weapons, contending that Rose impermissibly used the pat-down search for weapons as an excuse to search for contraband, and claiming, finally, that the “plain view” seizure doctrine does not allow seizure of drugs or other contraband felt during a pat-down search for weapons. The trial court rejected each of these arguments. It determined that there was objective reasonable suspicion justifying the stop, that Rose was justified in conducting a pat-down search for weapons, and that Rose was justified in reaching into the pocket of defendant’s jacket and seizing the crack cocaine after properly identifying it by feel during the pat-down search.

The majority, as a prelude to explaining why it agrees with the court of appeals that suppression is required, accepts the trial court’s conclusions that the officers were justified in stopping defendant and that Rose was justified in conducting a pat-down search for weapons. I agree with both of these ultimate conclusions but offer a more detailed and somewhat different analysis of these issues to lay the ground work for my examination of the issue on which I formally dissent.

In State v. Johnson, 444 N.W.2d 824 (Minn.1989), we upheld a stop based upon a suspicious evasive act of driving: a person made a quick turn off the highway seconds after spotting a state trooper, then resumed driving on the highway within the next minute. We said, “While defendant’s behavior may have been consistent with innocent behavior, it also reasonably caused the officer to suspect that defendant was deliberately trying to evade him.” 444 N.W.2d at 827 . Concluding that the officer had a “particular and objective basis for suspecting * * * criminal activity,” we upheld the stop. Id.

Here Officer Rose saw not just an obviously evasive act by defendant but an obviously evasive act seconds after defendant left a notorious crack house and immediately on making eye contact with the officers, who were in a marked squad car. The stop was therefore clearly proper under Johnson .

In Terry v. Ohio, 392 U.S. 1, 23-27 , 88 S.Ct. 1868, 1881-83 , 20 L.Ed.2d 889 (1968), the United States Supreme Court held, for *848 the first time, that a police officer making an investigative stop may make a pat-down search of the suspect for weapons if the officer has a sufficient objective basis to believe that a pat-down search or frisk is necessary for self protection. “[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch/ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Id. at 27 , 88 S.Ct. at 1888 (citation omitted).

This court has consistently followed the lead of the United States Supreme Court. For example, in State v. Bitterman, 304 Minn. 481 , 232 N.W.2d 91 (1975), police patted down the defendant when he arrived at a residential heroin outlet which was then being searched by police pursuant to a search warrant. We upheld the limited search because of the fact that the defendant was a known user of heroin, a very dangerous drug, the fact that the defendant walked in on the police when they were searching the apartment for heroin, the fact that other known users were present, and the testimony of the officer, who had made approximately 3,000 narcotic arrests, that it was common for narcotics users to carry weapons. Similarly, in State v. Payne, 406 N.W.2d 511, 513 (Minn.1987), while upholding the pat-down search of the defendant and two others stopped at 3:00 a.m. in a high crime area for investigation of their involvement in an attempted break-in of a nearby residence moments earlier, we quoted Professor LaFave’s statement that courts have been inclined to view the right to pat-down as automatic “whenever the suspect has been stopped * * * [for] a type of crime for which the offender would likely be armed * * * [including] such suspected offenses as robbery, burglary, rape, assault with weapons, homicide, and dealing in large quantities of narcotics.” 406 N.W.2d at 513 (quoting 3 W. LaFave, Search and Seizure § 9.4(a) at 506 (1987)).

Ultimately the resolution of the question of the sufficiency of the basis for a protective pat-down search depends on the facts and circumstances of each individual case. The test, as I have already indicated, is an objective test which looks only at whether there was an objective basis for a limited search, not into the officer’s motivation. As we put it in State v. Pleas, 329 N.W.2d 329, 332 (Minn.1983):

Under the ‘objective theory’ of probable cause which the United States Supreme Court has adopted, a search must be upheld, * * * if there was a valid ground for the search, even if the officers conducting the search based the search on the wrong ground or had an improper motive. See Scott v. United States, 436 U.S. 128 , 98 S.Ct. 1717 , 56 L.Ed.2d 168 (1978), discussed in 1 W. LaFave, Search and Seizure § 1.2(g) (Supp.1982), and relied upon by this court in a number of cases, including State v. Ludtke, 306 N.W.2d 111 (Minn.1981), and State v. Veigel, 304 N.W.2d 900 (Minn.1981). The same rule applies to police investigatory practices short of arrest or search.

(Emphasis added). Thus, the fact that Officer Rose candidly admitted that he hoped to find drugs in the pat-down search does not answer the question whether or not the search was justified. Instead, justification must be found in objective facts existing at the time of the search and articulated by the officer at the suppression hearing.

Here, although there was no objective basis for suspicion that defendant was dealing in large quantities of narcotics, Officer Rose was justified in suspecting that defendant was at least in possession of or using crack cocaine based on his observation of defendant’s conduct — leaving a notorious crack house and abruptly turning and walking in the other direction upon seeing the officers in the marked squad car. The officer’s reasonable suspicion that defendant was a crack user, together with the other circumstances — the fact that weapons had often been found during the several raids on the house, the fact the area was a high crime area, the fact defendant had acted in a furtive manner, and the fact the stop occurred in a dark alley— satisfy me that the trial court did not err in concluding that the officer was objectively *849 justified in patting down defendant for weapons.

In his testimony Officer Rose said that while patting down defendant’s outer clothing, a thin nylon jacket, he felt a lump in the pocket. With the clothing still between his hands and the object, Rose “examined it with [his] fingers and it slid and it felt to be a lump of crack cocaine in cellophane.” The majority concludes that by examining the lump in this fashion Rose somehow exceeded the permissible scope of a lawful pat-down search for weapons. The case law, however, supports my conclusion that the limited search was not excessive in scope, or more precisely, not too intrusive. Once again, a resort to Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), is in order. There Chief Justice Warren made clear the bright line dividing a limited pat-down search or frisk from a more intrusive full search of the person. A pat-down search or frisk is, as the Court put it, a “careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons * * * Id. at 16 , 88 S.Ct. at 1877 (emphasis added). As the Court made clear in the companion case of Sibron v. New York, 392 U.S. 40, 65 , 88 S.Ct. 1889, 1904 , 20 L.Ed.2d 917 (1968), if an officer invades the suspect’s clothing and puts his or her hands into the suspect’s pockets or otherwise reaches inside the outer clothing in order to examine an object, the search is no longer the limited search approved in Terry . As I said, Officer Rose testified here that he “examined [the lump] with [his] fingers and it slid and it felt to be a lump of crack cocaine in cellophane.” This simple act of feeling the outline and shape of the lump was permissible under Terry , and it appears from Rose’s testimony that, because of his extensive experience in discovering crack cocaine while patting down previous suspects, he was “absolutely sure” that the substance was crack cocaine “before" he reached into the pocket and removed it. The trial court, as factfinder, credited Rose’s testimony, expressly finding that Rose felt the crack cocaine as part of the pat-down search for weapons and that “[b]ased upon his training and experience, Officer Rose formed the opinion that the object in defendant’s pocket was crack/cocaine and removed it.”

The majority makes light of Rose’s testimony on this point, comparing the officer to the fabled princess who felt the pea placed under a stack of mattresses. Although the majority then goes on to make it clear that its skepticism concerning Rose’s credibility on this point is irrelevant to its ultimate conclusions, I believe that, in fairness to Officer Rose, the characterization of his testimony as fiction ought not to go unchallenged. Officer Rose was not trying to feel something hidden under a stack of mattresses; he was patting down a thin nylon jacket. Furthermore, as we have observed time and again, trained, experienced, intelligent police officers often detect and perceive criminal acts that might elude the rest of us. In any event, the trial court, the appropriate factfinder in our system, had the opportunity to observe the demeanor of Officer Rose and expressly credited his testimony on this point. In short, the finder of fact found the testimony to relate fact not fiction, and I can find no basis for rejecting the trial court’s determination of credibility.

In order to seize an object without a warrant pursuant to the “plain view” seizure doctrine, the officer must be acting lawfully when he or she discovers the object. Further, it must be “immediately apparent” to the officer that the object is contraband, incriminating evidence or something else of a seizable nature — i.e., the officer must have probable cause to believe the object is contraband or some other item subject to seizure. Horton v. California, 496 U.S. 128 , 110 S.Ct. 2301, 2308 , 110 L.Ed.2d 112 (1990). 1 The dis *850 covery of the object need not be “inadvertent.” Id. 110 S.Ct. at 2308-10 . “The fact that an officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure if the search is confined in area and duration by the terms of a warrant or a valid exception to the warrant requirement.” Id. at 2309. Thus, the fact that Officer Rose was looking for or hoping or expecting to find crack cocaine during the pat-down search for weapons does not invalidate its seizure.

Defendant contends, however, and the majority of this court so holds, that since the crack cocaine was discovered by the sensation of touch during a pat-down search rather than by the sensation of sight — that is, by “plain feel” instead of “plain sight” — it was unjustified. In fact, despite the majority’s reluctance to admit it, we have relied on the plain view seizure doctrine in a number of cases to uphold police conduct similar to that of Officer Rose. The leading such case is State v. Ludtke, 306 N.W.2d 111 (Minn.1981). A trooper stopped a car in which Ludtke was the passenger. When the driver could not produce identification papers, the trooper began to question Ludtke pursuant to standard procedures to verify the identification of the driver. While talking with Ludtke, the officer spotted a bag of marijuana sticking out of his shirt pocket. He seized this, then subjected the driver to a pat-down search for weapons and found more marijuana on him. He then subjected Ludtke to a pat-down search for weapons and found a knife and a bag of cocaine. With respect to the pat-down search of Ludtke and the seizure of the bag of cocaine, we said:

We need not decide in this case whether the frisk of defendant’s person could be justified on the ground that the officer had probable cause to believe he would find more drugs on defendant’s person. In this case, the frisk was clearly justifiable as a limited protective weapons search, * * *. While the plastic bag of powder was soft and presumably did not feel like a weapon through the clothing, [the officer] was justified in reaching in and seizing it because he had already found a plastic bag of marijuana in the other shirt pocket and therefore could assume that this packet which he had felt also contained drugs. After he removed the packet and saw that it indeed was suspected cocaine, he certainly was justified in seizing it and arresting defendant.

Id. at 113 (citations omitted) (emphasis added). 2

The rule that emerges from Ludtke and similar cases is (a) if while patting down a suspect for weapons the officer feels an object and concludes that it is not a weapon, the officer generally may not reach in and remove the object but (b) if because of the feel of the object and other circumstances it is immediately apparent that the object, although not a weapon, is contraband, then the officer may seize it pursuant to the plain view seizure doctrine.

Professor LaFave cites Ludtke as the main authority for the following statement supporting the officer’s conduct in this case:

Assuming the object discovered in the pat-down does not feel like a weapon, this only means that a further search may not be justified under a Terry analysis. There remains the possibility that the feel of the object, together with other suspicious circumstances, will amount to probable cause that the ob *851 ject is contraband or some other item subject to seizure, in which case there may be a further search based upon that probable cause.

3 W. LaFave, Search and Seizure § 9.4(c) at 524 (2d ed. 1987) (emphasis added). 3

Other courts have reached the same conclusion. See, e.g., United States v. Buckannon, 878 F.2d 1065, 1066-67 (8th Cir.1989) (upholding “plain feel” seizure), and State v. Washington, 134 Wis.2d 108 , 396 N.W.2d 156, 161-62 (1986) (holding that plain view rule is not limited to seizure of items discovered in plain view but also includes items discovered through the use of other senses, including touch, and holding further that “[tjhough a pat-down provides no justification to search for evidence of a crime, it does not mean that the police must ignore evidence of a crime which is * * * discovered” during pat-down).

My opinion in this case is also supported fully by the decisions of the United States Supreme Court. For example, the Court has said that if, while conducting a so-called Terry “frisk” (protective weapons search) of an automobile, the officer “should, * * * discover contraband other than weapons, he clearly cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances.” Michigan v. Long, 463 U.S. 1032, 1050 , 103 S.Ct. 3469, 3481 , 77 L.Ed.2d 1201 (1983) (citations omitted). See also Texas v. Brown, 460 U.S. 730, 739 , 103 S.Ct. 1535, 1541-42 , 75 L.Ed.2d 502 (1983), stating that plain view seizure doctrine “reflects the fact that requiring police to obtain a warrant once they have obtained a first-hand perception of contraband, stolen property, or incriminating evidence generally would be a ‘needless inconvenience,’ ” * * *. (Emphasis added). (Citation omitted).

In summary, the officer did not violate defendant’s fourth amendment rights in discovering and seizing the crack cocaine. The objective facts articulated by the offi-eer at the pretrial suppression hearing justify not only the stop-to-investigate but also the protective pat-down search for weapons. As the trial court determined, the officer felt the crack cocaine during a properly conducted limited search and, given the feel of the object and all the relevant surrounding circumstances, had probable cause to believe that the object was seiza-ble contraband. Pursuant to decisional authority of both the United States Supreme Court and this court, that first-hand perception justified reaching into the pocket of defendant’s jacket, seizing the object, and arresting defendant for illegal possession of a controlled substance.

It is well to remind ourselves occasionally that “[l]aw enforcement is not a game in which liberty triumphs whenever the policeman is defeated.” E. Barrett, Exclusion of Evidence Obtained by Illegal Searches — A Comment on People v. Ca-han, 43 Calif.L.Rev. 565, 582 (1955). Certainly, evidence obtained as the result of any unreasonable search or seizure should be excluded. But a policeman should not be compelled to ignore what his senses— whether sight, sound, smell, taste, or touch — tell him in clear and unmistakable language.

. Arizona v. Hicks, 480 U.S. 321 , 107 S.Ct. 1149 , 94 L.Ed.2d 347 (1987), cited by the majority, is not on point. There the police, after coming upon a stereo in plain view during the course of a search of an apartment, picked up the stereo tó order to check the serial number and see if the stereo was stolen. The United States Supreme Court held that this movement of the stereo in order to view the serial number amounted to a seizure of the object and that *850 absent probable cause this seizure was unjustified under the "plain view” seizure exception— i.e., that the police could not seize the ohject in order to find probable cause for the seizure. The majority in this case argues that by feeling the shape and outline of the lump, Officer Rose exceeded the proper scope of a pat-down search without probable cause. I believe that the United States Supreme Court will continue to rely on the bright line of Terry as to the scope and degree of intrusion permitted in a pat-down search for weapons and will not rely on Hicks in an attempt to modify the Terry rule.

. See also State v. Gobely, 366 N.W.2d 600, 602-03 (Minn.), cert. denied, 474 U.S. 922 , 106 S.Ct. 256 , 88 L.Ed.2d 262 (1985); State v. Alesso, 328 N.W.2d 685, 689 (Minn.1982); State v. Cavegn, 294 N.W.2d 717, 722 (Minn.), cert. denied, 449 U.S. 1017 , 101 S.Ct. 580 , 66 L.Ed.2d 477 (1980).

. The majority states: "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.” The quote from the treatise in the text of this dissent more accurately presents Professor LaFave’s approving analysis of Ludtke .