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Comm v. Wilson (Plain Feel)

The defendant claims that marijuana discovered on his person pursuant to a patfrisk should have been suppressed because the seizure of the marijuana violated his rights under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. Specifically, the defendant argues the officer conducting the patfrisk lacked reasonable suspicion to stop and frisk the defendant, and that the scope of the frisk exceeded that which is constitutionally permissible. In his challenge to the scope of the frisk, the defendant raises an issue of first impression, whether the "plain feel" doctrine comports with the requirements of art. 14. We conclude that it does; that the judge's findings were supported by the evidence; that there was reasonable suspicion for the stop and the frisk; and therefore, that the evidence was properly seized.

Brockton PD call from a person who stated, "[T]his is Stella's Pizza." The caller reported
that a person was being beaten with a hammer or being stabbed in a group of ten people huddled across the street from the small commercial area where the pizza parlor was located. State Trooper Francis Walls, alone in his unmarked vehicle and dressed in plain clothes, was the first officer to arrive at the scene. Walls stopped a short distance from the commercial area, saw a group of 9-10 men standing in a circle, but detected no suspicious activity. He was familiar with the area as one where he had made numerous arrests for drug and weapon violations and fights.

When he saw a backup vehicle close by, Walls pulled up to the group of men. As he got out of his vehicle, Walls made eye contact with the defendant. On making eye contact, the defendant turned, started walking away from Walls, and put his hand "to his waist area." The defendant's back was toward Walls, who, at this point, was concerned that the defendant possessed a gun. Walls grabbed the defendant by the back of his shirt and simultaneously placed his hand on "the area of the defendant's waist" where the defendant's hand had been. As soon as Walls put his hand on the defendant's waist, he felt a bundle of smaller packages, which he recognized by feel as "dime" bags of marijuana. Walls immediately asked the defendant, "You did that for weed? I thought you were putting a gun in your pants." The defendant responded that he did not "mess with guns." Walls retrieved the bag from the defendant's waist and handcuffed him.

The defendant claims that the police lacked the requisite reasonable suspicion to stop him and to initiate a patfrisk. "In 'stop and frisk' cases our inquiry is two-fold: first, whether the initiation of the investigation by the police was permissible in the circumstances, and, second, whether the scope of the search was justified by the circumstances." In both aspects, the inquiry is whether the police conduct was reasonable under the Fourth Amendment.

In regard to the stop, a police officer may make an investigatory stop where suspicious conduct gives the officer reasonable ground to suspect that a person is committing, has committed, or is about to commit a crime. Id. Concerning the second part of the analysis, a Terry-type patfrisk incident to the investigatory stop is permissible where the police officer reasonably believes that the individual is armed and dangerous. The officer's action in both the stop and the frisk must be based on specific and articulable facts and reasonable inferences therefrom, in light of the officer's experience.

Applying these principles to the facts in this case, we first consider the stop. The defendant erroneously contends that the "stop" occurred when the police officers pulled their vehicles over and confronted the group on the sidewalk. The defendant was "stopped" when Walls grabbed his shirt because it was at this point, not before, that a reasonable person would have believed that he was not free to leave. At that time, specific and articulable facts supported Walls's belief that the defendant had committed a crime. Walls was responding to dispatch that described 10 people involved in a stabbing or beating with a weapon outside Stella's Pizza. On arriving at the location, where Walls had made numerous arrests for fights and weapon violations, Walls's observations confirmed a group of men huddled on the sidewalk, just as the caller had described. As he left his vehicle, Walls made eye contact with the defendant who immediately turned away from him, walked away from the group, and simultaneously moved his hand into his "waist area." The totality of these facts supports a reasonable belief that the defendant had been involved in a fight with a weapon and, therefore, the stop was proper. The same facts justify the patfrisk, as they establish a reasonable belief that the defendant was armed and dangerous and presented a threat to the officer or others. Walls stated, "As soon as he looked at me, he turned around and took his right hand and placed it into his pant line . . . ." Walls did not change his description during cross-examination, when he testified that the defendant "stuffed his hands into his pants," "placed something in his pants," "[his hand] went into his pants area," and "I could see [his hand] go into his pants area . . . ."

The defendant also challenges the reliability and credibility of the caller who reported an alleged beating or stabbing involving a weapon in front of Stella's Pizza. Where an officer's suspicion justifying a stop is based on an informant's tip, the Commonwealth has the burden of establishing the informant's reliability and basis of knowledge. A deficiency in either prong may be remedied by independent police corroboration. Because the standard is reasonable suspicion, not probable cause, "a less rigorous showing in each of these areas is permissible." The caller had a basis of knowledge because he identified himself as someone from "Stella's Pizza," described events occurring outside the pizza parlor at the very moment he telephoned, and stated that, "I don't want to go out there." Independent police corroboration of the details in the telephone call by Trooper Walls when he arrived at the location identified by the caller and saw a group of nine men establishes that the caller's information was also reliable.

The defendant next argues that Walls exceeded the scope of the patfrisk by "explor[ing]" and seizing the package of marijuana he discovered in the defendant's waistband after he had determined it contained no weapon. The scope of a Terry search cannot be general; rather it is strictly tied to the circumstances that render its initiation permissible. The Fourth Amendment permits a police officer to conduct a patfrisk for concealed weapons, provided that such a search is confined to what is minimally necessary to learn whether the suspect is armed and to disarm him should weapons be discovered. In Minnesota v. Dickerson, 508 U.S. 366 (1993), the Supreme Court concluded that a police officer may also seize nonthreatening contraband discovered during a Terry-type frisk if the "police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity [as contraband] immediately apparent." If the officer must manipulate or otherwise further physically explore the concealed object in order to discern its identity, then an unconstitutional search has occurred.
The scope of a Terry search is not exceeded if, during a lawful patfrisk, it is immediately apparent to the police officer, in light of the officer's training and experience, that a concealed item is contraband. The "plain feel" doctrine is grounded on the same premise that authorizes an officer to frisk the suspect for concealed weapons, i.e., that the weapon will be immediately detected through touch during the patfrisk. As long as the object's contraband identity is immediately apparent to the officer, there is no further "invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons." The "plain feel" doctrine is limited; it does not permit an officer to conduct a general exploratory search for whatever evidence of criminal activity he might find. The contraband nature of the item must be immediately apparent on touch. For these reasons, we conclude that the "plain feel" doctrine is consistent with art. 14, as well as with the Fourth Amendment.

We consider "plain feel" as analogous to "plain view." As long as the initial search is lawful, the "seizure of an item whose identity is already known occasions no further invasion of privacy." ("Under [the plain view] doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant"). The only difference between the two doctrines is the sensory perception used to identify the contraband nature of the object. The "plain feel" doctrine merely recognizes that if contraband is immediately apparent by sense of touch, rather than sight, the police are authorized to seize it.

The "plain feel" doctrine is no more susceptible to fabrication than the "plain view" doctrine. The initial requirement, that the officer be conducting a valid patfrisk of the suspect, ensures that the officer is lawfully in the position immediately to identify the contraband. Once an otherwise lawful search is in progress, the police may inadvertently discover contraband. Requiring an officer who recognizes contraband by "plain feel" to ignore this fact and walk away from the suspect without seizing the object flies in the face of logic.

Nor is the "plain feel" doctrine an extension of current law under art. 14. In Commonwealth v. Johnson, 413 Mass. 598 (1992), an officer saw the defendant place something inside the waistband of his pants as the officer approached the defendant's vehicle. Officers pulled the defendant from his vehicle, frisked him, and one officer withdrew a plastic bag containing a lump of white powder from the defendant's pants. We concluded that the cocaine discovered in the defendant's waistband was properly seized pursuant to a patfrisk because the officers feared for their safety and confined the search "to what was minimally necessary to learn whether the [defendant was] armed." The scope of the search was not impermissible, despite the fact that the officer did not believe the concealed package he felt was a weapon. The Johnson case, decided seven months before Minnesota v. Dickerson, supra, recognized the doctrine (albeit without naming it) we expressly adopt today pursuant to art. 14.
When we apply these principles to the facts here, Walls did not exceed the scope of the search because the judge found that it was immediately apparent to Walls when he touched the defendant's waist area that the object in the defendant's waistband was bundles of marijuana, and no manipulation was necessary to determine that fact. (seizure under "plain feel" doctrine proper where officer immediately recognized concealed bag as containing marijuana). Contrast Minnesota v. Dickerson, supra at 378-379 (scope of search unconstitutional where officer manipulated contents of defendant's pocket before discerning lump was contraband).

The defendant also contests the judge's finding that Walls knew the item in the defendant's waistband was drugs as soon as he touched it and did not manipulate it. The judge's finding is supported by record evidence. Walls repeatedly stated, despite thorough examination by the defense attorney, that he knew the identity of the object as soon as he touched it, without any manipulation. ("The second I hit it, that's what I felt"; "As soon as I felt it, I knew what it was"; "As soon as I grabbed it, as soon as I grabbed his waist area, I knew exactly what it was)." Other testimony by Walls supports this finding: his seven years of experience as a State trooper , and his inquiry to the defendant made immediately on touching the object, "You did that for weed?"
Contrary to the defendant's argument that there was no evidence concerning Walls's training and experience in tactile detection of marijuana or its packaging, Walls stated that he has made numerous arrests for drug violations, has seized drugs, and was serving in the "gang unit." From all of this evidence, the judge could reasonably infer that Walls had sufficient personal experience in narcotics packaging and detection to identify immediately the object in the defendant's waistband.

Zombie Hunter
4,815 Posts
Good win for our side; I sure all of us routinely do pat-frisks every day to ensure officer safety.
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