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In a recent case, I represented a client who was present at the scene officers responded to to investigate alleged loitering in a vacant house. When they arrived, my client was found to be in the vicinity of some empty beer cans and inside a vacant residence, along with other individuals. The officer observed him to be carrying a backpack, which he describes as filled with unknown items. The officer then asked my client if he possessed any illegal items on his person such as narcotics, weapons, or alcohol. The officer then told my client he was going to search him and proceeded to conduct what he described as a “pat-down search” for weapons – except that this “pat-down” search was clearly a search for evidence of crime and not a pat-down search motivated by any officer safety concerns. It is undisputed that there was no warrant to justify the search in this case, as well as arguably a lack of adequate probable cause to justify a search, and a clear lack of consent or exigency. During what the officer described as the “pat down search” that followed, the officer stated that he felt an object in my client’s right front pants pocket that, based on his training and experience, “felt like a baggie of a powdery substance which felt similar to cocaine”. The discovery of this one baggie led to a further search and discovery of additional drugs and alleged indicia of sales. Two issues arise: (1) was this a legal pat-down for weapons and (2) was the officer legally entitled to seize that baggie?

To follow are some of the interesting areas of argument in his case. At the Law Office of Jennifer Zide, we are committed to protecting your rights and litigating all issues of illegal search and seizure in your case. Call us today to discuss the specific facts of your case and how we can bring your important Constitutional rights to life.

Under the circumstances of this case, there is no legal justification for a “pat down” search of the defendant Mr. “Smith”. If a defendant is legally detained, a police officer may pat the defendant down only if there are specific and articulable facts supporting a reasonable belief that the defendant is armed and dangerous.

“In Terry v. Ohio (1968) 392 U.S. 1, 27[20 L.Ed.2d 889, 909, 88 S.Ct. 1868], the United States Supreme Court held thata police officer who lacks probable cause to arrest could undertake a pat-downsearch only ‘. . . where he has reason to believe that he is dealing with an armed and dangerous individual. . . . ‘The sole justification of the search . . . is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer. ( Id. at p. 29 [20 L.Ed.2d at p.911].) The officer must be able to point to specific and articulable facts together with rational inferences therefrom which reasonably support a suspicion that the suspect is armed and dangerous. ( Id., at p. 20.)

Under very similar facts to the facts of our case, in In re Marcellus L, an officer decided to investigate further why a minor he detained was not in school, but first conducted a pat search for safety reasons. The facts known to the officer were that the minor was in a high crime area associated with drugs and loitering and that he, at the time the officer contacted him, was sitting in front of a residence known to that officer to be a location where crack was sold. However, the court noted that just because the officer had a legitimate reason to question the minor, does not mean he also had a legitimate reason to frisk him. In re MarcellusL (1991) 229 Cal.App.3d 150. Further, the court cites the requirements of Terryv. Ohio in reflecting on the fact that the officer in In re Marcellus L. had no belief that the minor was armed and dangerous. And although the court wound up concluding that the search there was valid as a probation search (although the officer was not aware that the minor was on a juvenile probation at the time of the search), the court significantly made clear that “everyone, including this court, agrees there were no articulable facts justifying the patsearch.” In re Marcellus L,229 Cal.App.3d 138.

Similarly, under our fact scenario, there is no reason that Officer would have reasonably believed Mr. Smith to be armed and presently dangerous. The call regarding the young people suspected of being in the abandoned house did not involve any observation of weapons or of a threat posed by these individuals. Further, the officer does not detail anything about Mr. Smith’s person or conduct which, at this time, would reasonably cause him to fear for his safety. And neither was Mr. Smith placed within the context of the apparently higher risk scenario presented in In reMarcellus L. (in a high drug use area known for loitering and criminal activity, or positioned directly in front of a residence known to be a location of drug sales), where the Court still found that a pat-down search for weapons was not justified.

On the contrary, rather than being motivated by concern for his own safety as an officer, it is clear from Officer’s writing that he was looking for evidence of crime in his search. In his report,Officer notes that he had observed alcoholic beverages both inside and outside of the residence – the possession of which would have been illegal for Mr.Smith as he was a minor at that time. Although Officer describes this as a “patdown” search, he also makes clear that, immediately before he engaged in this “pat down” search, he asked Mr. Smith if he possessed any illegal items on his person “such as narcotics, weapons or alcohol”. Therefore, it seems that a tleast a partial motivation of his search was to search for evidence of crime. The close connection between the observations as to the alcohol, the questioning about evidence of crime, and the search itself underlines the fact that this was not merely a “pat down” for weapons.

ILLEGAL PAT DOWN SEARCH FOR EVIDENCE, NOT FOR WEAPONS

LEGAL PAT DOWN, BUT ILLEGAL SEIZURE OF ITEMS FELT

Even if Mr. Smith was subjected to a legal pat-down for weapons, not an illegal search for evidence, this “pat-down” went too far when Officer removed an item from Mr. Smith’s pocket that was not clearly evidence of crime. Even if a defendant is legally patted down, an officer may seize an item felt during that pat down only if it is immediately apparent that the object felt is a weapon or contraband. This plain “feel” doctrine is akin to the “plain view” doctrine, allowing an officer, when searching where he is legally entitled to be, to seize items in plain view (or,in this case, “plain feel”) when their incriminating natures are clear at first blush.”[E]ven if the pat-down before us was justified at its inception,the search became impermissible in its scope when . . . [the deputy] reached into defendant’s pocket. ( People v. Collins (1970) 1 Cal.3d658, 664 [83 Cal.Rptr. 179, 463 P.2d 403].) ‘Feeling a soft object in a suspect’s pocket during a pat‑down, absent unusual circumstances, does not warrant an officer’s intrusion into a suspect’s pocket to retrieve the object.’ ( Id., at p. 662.) The United States Supreme Court has held that a soft object may not be retrieved by a police officer performing a pat-down search unless its incriminating character is ‘immediately apparent.’ (Minnesota v. Dickerson (1993) 508U.S. 366 [124 L.Ed.2d 334, 345, 113 S.Ct. 2130].)” ( People v. Dickey (1994) 21Cal.App.4th 952, 957.)

Even assuming that the officer’s action here represented a legal pat-down for weapons, the officer is only empowered to seize evidence uncovered in a pat-down search if the incriminating nature of the object is immediately apparent. As recognized by the courts in Dickey and Minnesota v. Dickerson, the soft bag Officer felt here would not necessarily be consistent with evidence of crime. Further, the soft bag necessarily requires a squeeze or some additional manipulation as the officer attempts to identify its contents; this rises to the level of an additional “search”, not just the act of stumbling upon a plainly incriminating item in plain view (or here, plain feel). The court in Dickey emphasizes that a soft bag must be squeezed, not merely encountered, for an officer to then try to reach a conclusion about what is inside. It is very different from an officer encountering a definite outline of a pipe or a hard rock of drugs that he is able to identify at first blush. Peoplev. Dickey (1994) 21 Cal.App.4th 952, presents very similar facts to those in our case. There, the officer was conducting a pat-down search when he felt a soft object in the suspect’s pocket. Just like in our case, the officer there had to squeeze it to conclude it was plastic with something inside it. What it was was a plastic bag, just like in our case, that contained cocaine, just like in our case (except in Dickey the bag contained cocaine and some marijuana). The Court of Appeal in Dickey held that, when the officer reached into the suspect’s pants pocket to seize that item, the seizure was unlawful, because”[f]eeling a soft object in a suspect’s pocket during a pat-down, absent unusual circumstances, does not warrant an officer’s intrusion into a suspect’s pocket to retrieve the object.” People v. Dickey(1994) 21Cal.App.4th 952, 956.

In contrast, in People v. Dibb,37 Cal.App.4th 832, a case where the legal patdown search led to the legal seizure of evidence of crime, the officer had already compiled additional factors which, in light of the “totality of the circumstances”, made the incriminating nature of the object felt immediately apparent. There, the officer had already found scales with an odor of methamphetamine, beepers, and a small plastic bag. He then located, in what the court noted was an “unusual location” way down in the suspect’s pant leg by his knee, an unusual lumpy object. The court in Dibb held that, given the totality of the circumstances, it was immediately apparent that the lump felt was contraband. People v. Dibb, 37 Cal.App.4th837. There, the court found that the officer had probable cause to arrest the defendant when he first touched the object.

In our case, the officer has collected no information or observations which, all together, would allow him to form any reasonable conclusion, at the first moment he encountered that soft object in Mr. Smith’s pocket, that that object must have been contraband.

FRUIT OF THE POISONOUS TREE

All of this evidence in the case against Mr. Smith flows from that initial illegal search of Mr. Smith and the illegal seizure of items on his person. Any evidence which flows from an illegal detention, arrest, search, or seizure is tainted by the illegality and must be suppressed. “If the challenged police conduct is shown to be violative of the Fourth Amendment, the exclusionary rule requires that all evidence obtained as a result of such conduct be suppressed. Such evidence includes not only what was seized in the course of the unlawful conduct itself ‑the so‑called ‘primary’ evidence [citations]‑‑but also what was subsequently obtained through the information gained by the police in the course of such conduct‑‑the so‑called ‘derivative’ or ‘secondary’ evidence. Thus, the ‘fruit of the poisonous tree,’ as well as the tree itself, must be excluded.” ( People v. Mayfield (1997) 14 Cal.4th 668, 760; citations omitted; quoting People v. Williams (1988) 45Cal.3d 1268, 1299.)

It is in many small ways and through many small cases that our constitutional rights are either made real or eroded. As Supreme Court Justice William Douglas reminds us, “as nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such a twilight that we all must be most aware of change in the air — however slight– lest we become the unwitting victims of the darkness.”

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