Plain Feel Doctrine California Case Law
In Minnesota v. Dickerson (1993) 508 U.S. 366, the court quoted T Terry v. Ohio (1968) 392 U.S. 1 at page 26 that a protective search-permitted without a warrant and on the basis of reasonable suspicion less than probable cause-must be strictly "limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby." (Id. at pp. 2, 26.)
The defendant in Dickerson turned and walked in the opposite direction when he made eye contact with an officer observing a 12-unit apartment building characterized as a crack house from which defendant had just emerged. He was patted down and found to have no weapons. But the officer felt a small lump in his jacket pocket, which he examined with his fingers and thought was a lump of crack cocaine in cellophane. (Dickerson, supra, 508 U.S. at p. 368.)
The officer then reached into the pocket and retrieved a small plastic bag containing one fifth of one gram of cocaine. The high court found the internal search of the defendant's pocket to be impermissible. Although the officer was entitled to place his hands on the defendant's jacket and to feel the lump he found in the pocket, the officer never thought the lump was a weapon and did not immediately recognize it as cocaine. After concluding that it contained no weapon the further manipulation and exploration of the pocket was found to be unrelated to the sole justification for the search. (Id. at pp. 377-378.)
The scope of the "plain feel" doctrine is illustrated in the following cases.
In People v. Dickey (1994) 21 Cal.App.4th 952, the officer felt a small object in the defendant's pocket, reached in, and retrieved one baggie containing a small amount of marijuana and another containing a small amount of cocaine. At the suppression hearing, the officer testified: "'The consistency and feel of the bulge led me to believe that it might be a controlled substance.'" He added: "'I felt the bulge, and it felt not round, but elongated and it had a texture or just a good feeling to it, and I just squeezed from the outside of it and felt it was a plastic--felt like plastic or felt like a plastic baggie with something in it.'" (Id. at p. 955.) The appellate court concluded that the officer's testimony indicated that the incriminating nature of the soft object was not immediately apparent. The officer exceeded the scope of a Terry search by manipulating the object before removing it. As a result, under Dickerson, retrieval of the soft object was unlawful. (People v. Dickey, supra, at p. 957.)
In People v. Lee (1987) 194 Cal.App.3d 975, the officer had lawfully detained the defendant on a reasonable suspicion he was selling drugs. During the patdown search for weapons, the officer felt a clump of small resilient objects. The officer knew these were not weapons, but he believed they were heroin-filled balloons. The officer reached inside the pocket and removed the heroin. (Id. at p. 980.) The court held the scope of the search to be lawful. The court held that the officer was not engaging in "fanciful speculation" but had formed a "definite belief based on articulable facts and on considerable training and experience in the tactile characteristics of narcotics-filled balloons." (Id. at p. 984.) The crucial issue in each case is that the incriminating nature of the object should be "immediately apparent" to the officer.
In People v. Dibb (1995) 37 Cal.App.4th 832, the defendant was a passenger in a car stopped for expired registration and seatbelt violations. He consented to a search of his fanny pack, which contained a pistol magazine, a gram scale that smelled of methamphetamine, a small plastic bag and a beeper. When the officer conducted a patdown for weapons, the officer felt something lumpy with volume and mass beneath the defendant's pants. At that point, the officer "ruled out a gun" but suspected a controlled substance based on the items in the fanny pack. While the defendant sat on the street curb, the officer pushed up defendant's pants, reached under the clothing, and seized the package which contained methamphetamine. (Id. at pp. 834, 835.) The question for the court was not whether the officer could identify the object as contraband based on only the "'plain feel,'" but whether the officer's "tactical perception of the lump, combined with the other circumstances, created a reasonable inference that the lump was contraband." (Id. at pp. 836, 837.) The court held that the search was reasonable. (Id. at p. 837.)