I have a case I am handling right now which seems to be typical of many cases. My client was under surveillance by police officers assigned to the drug task force. They had a regular patrol vehicle pull him over for not coming to a complete stop at a stop sign. They allege that he failed to come to a complete stop twice at a two stop signs.
Then the police officers took him out of the car and did what they call a Terry frisk. This is pursuant to Terry v. Ohio a Supreme court case which gives officers the authority to conduct a limited pat down on suspects to make sure they do not have any weapons. The officers can pat the suspect down without looking into their pockets. If when they pat the suspect down, and they feel something that feels like a weapon, they can reach into the pocket and retrieve the weapon.
This has lead to the plain-feel exception to a warrant requirement, under which a warrantless seizure of an object is justified if police officer feels an object in a lawful pat-down search during an investigative stop and the object’s contour or mass makes its identity as contraband immediately apparent.
In my clients case, the police officer patted him down and reached into his pocket and retrieved more than $2,000. Then the officer reached into the other pocket and retried a small baggie with 2 grams of cocaine in it.
Obviously, I am going to move to suppress the evidence that the police obtained from my client as being an unlawful search and seizure prohibited by the fourth amendment to the Constituition.
The state will use two theories to justify the search:
1) They will say that the search was justified because the officer could conduct a Terry Frisk of my client and the while conducting the Terry frisk they could plainly feel contraband.
My response will be that money is not contraband and does not feel like a weapon. Once they felt the money they just pulled it out of his pocket and then pulled whatever was in the other pocket which happened to be a baggie containing 2 grams of cocaine. In addition, there is no way that they can feel what was in the baggie because it was such a small amount of cocaine.
2) Now that the District Attorney has called them, the police are trying to say that they would have arrested my client and taken him into custody for the traffic law violation. Technically, police can arrest someone and take them into custody for a traffic law violation. Once they are in custody, they can search them. So, the state might try and argue that the cocaine would have inevitably been discovered because the police where intending to take him into custody for the traffic law violation.
The inevitable discovery doctrine assumes a causal relationship between the illegality and the evidence. It assumes that the evidence was actually ‘obtained’ illegally. The doctrine then asks whether the evidence would have been ‘obtained’ eventually in any event by lawful means.
So, in this particular case both the defense and the state have arguments they can advance and I think that it will be within the discretion of the judge to decide whether the inevitable discovery doctrine should apply. I would argue that at the time they were executing the Terry frisk the rules regarding Terry frisks should apply. The police should not be able to justify their actions after the fact using a different theory of law. The police should have performed a proper Terry frisk and not reached into my clients pockets. After they performed that frisk, they could take him into custody for the traffic law violation. Once in custody they can do an inventory search of everything he has on him. Since they did not follow the law, the evidence should be suppressed and my clients case should be dismissed.
