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The Plain Feel Exception to the Warrant Requirement

Most people are familiar with the "plain view" doctrine, which permits police officers to seize items without a warrant, if those items are clearly visible while the officer is performing his or her official duties. For instance, if an officer observes contraband after a lawful traffic stop, that contraband can be immediately seized. What happens when the officer "feels" an item; does the same doctrine apply? Beginning with the case of Terry v. Ohio, 392 U.S. 1 (1968), courts have not hesitated to apply the plain feel exception to warrantless searches. 

Recently, the Second District Court of Appeal reaffirmed the plain feel exception to the warrant requirement in Conyers v. State, 2015 WL 2078588 (Fla. 2d DCA 2015). In Conyers, the defendant consented to a pat down search of his person. During the pat down, the officer, with his open palm, felt a hard, cylindrical object that he "immediately recognized to be a crack pipe." He then conducted a search incident to arrest for possession of drug paraphernalia and found crack cocaine in a sweatband underneath the defendant's hat.

The defendant moved to suppress the evidence. At the suppression hearing, the officer testified about his extensive experience as a narcotics officer and specifically, his training and exposure to crack pipes. He also testified that he immediately recognized the object without manipulating it that the object is unmistakable and unique "because [crack pipes] are all hard, cylindrical objects that measure approximately two and a half to three inches in length and are 'not quite as big around as a ChapStick tube' but wider than a pencil."

The issue on appeal was whether the officer had established probable cause under the plain feel doctrine. Under the plain feel doctrine (which is also sometimes called the "plain touch" doctrine), the warrantless seizure of an item is justified by probable cause when a police officer conducts a lawful pat down and it is immediately apparent to the officer that the item is a weapon or contraband. Whether an officer has probable cause to believe the item is contraband depends on the totality of the circumstances at the time of the seizure. A relevant inquiry is the officer's specific experience with respect to the particular item seized. While the officer need not know that an item is contraband, he must have more than a "feeling" that the object is contraband.

The defendant argued, based on prior case law, that probable cause to seize contraband requires more than an officer's immediate recognition of a crack pipe because a crack pipe is not per se contraband as pipes can be used to smoke materials other than drugs. The court distinguished the defendant's cases because a crack pipe is not similar to a tobacco pipe, which may be used in a lawful manner, and the defendant offered no alternative explanation for carrying the pipe. Thus, the court affirmed the lower court's decision denying the defendant's motion to suppress.

The key to challenging a search based on the plain feel doctrine, assuming of course that the initial stop and frisk is lawful, is arguing that the item was not immediately recognized and/or recognizable. There are a number of ways to do so, including but not limited to, arguing that the officer manipulated the object in some way such as sliding it and grabbing it, that the item was not found in a place where someone would ordinarily store contraband, that the item is not identifiable merely by its shape and size (i.e., the item is not unmistakable and unique), that the officer does not have extensive experience, training and/or exposure to the particular item in question, or that the item can be used for a lawful purpose. However, as Conyers illustrates, whether or not a motion to suppress will be successful is highly fact-specific. Prior to litigating this issue, it is imperative that the facts giving rise to the police encounter, as well as the subsequent seizure, be fully investigated.

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Sheppard, White, Kachergus, & DeMaggio, P.A. Attorneys & Counselors at Law.
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