Ad hoc adjudication: People v. Champion, another confusing element in the turmoil following Minnesota v. Dickerson.

• Author: Dial, Audra A.

Picture two incidents separated by more than two hundred years, but uniquely similar: a government search of a private citizen suspected of committing a crime. A writ of assistance, similar to a modern search warrant but affording greater police discretion, justified the first search.(1) The plain feel doctrine justified the second search.(2) This exception to the Fourth Amendment's warrant requirement, established by the U.S. Supreme Court in Minnesota v. Dickerson,(3) allows an officer to search for and seize contraband that is immediately apparent to him during a patdown search for weapons.(4)

In 1756, two uniformed customs agents stopped a man suspected of smuggling illegal goods into the colonies.(5) Under the guise of a writ of assistance, the officers searched his person and his home in an effort to find damning evidence against him.(6) The colonist was innocent, but the officers continued the search in an attempt to find even the tiniest shred of evidence linking him to the crime.(7) After an unsuccessful search, the officers vowed to return, as their search authority remained valid during the reign of the monarch in power during their issuance.(8)

In 1996, two uniformed police officers stopped a man suspected of possessing illegal narcotics in Michigan.(9) Following clearly enumerated exceptions to the Fourth Amendment,(10) the officers conducted a patdown search of his person and felt potential contraband in his pants.(11) When the officers removed the questionable object, they found a prescription pill bottle, a container that is legal to possess.(12) The officers then invaded the sanctity of the suspect's privacy interests by opening the container to discover cocaine.(13) During this final search, the officers' conduct more closely resembled the custom agents' behavior in 1756 than conduct deemed allowable by Dickerson's plain feel exception.(14)

Fortunately, from the time of the searches of the 1750s and the searches of 1996, the U.S. Congress ratified the Fourth Amendment to guarantee all citizens freedom from unreasonable searches and seizures.(15) Unfortunately, although the Framers drafted the amendment to require a neutral magistrate to act as a buffer in justifying warrants and protecting individual rights, the Court has carved many exceptions into this protection.(16) Similarly, with the clear delineation of such exceptions to the warrant requirement, including the doctrines of stop and frisk,(17) plain view,(18) search incident to arrest,(19) and plain feel,(20) the courts have all too willingly extended the scope of these exceptions as part of the war on drugs and crime in America.(21) Although fighting drugs and crime is a laudable goal, there is now overwhelming confusion surrounding the rights of suspects at a very critical stage.(22)

One of the most confusing exceptions to the Fourth Amendment stems from the Court's 1993 Dickerson decision.(23) In creating the plain feel doctrine, the Court expanded the Terry patdown searches, specifically limited to weapons, to include the discovery of contraband in the suspect's possession if the contraband is "immediately apparent" to the officer during the initial patdown.(24) When interpreting the plain feel doctrine, other courts have taken Dickerson's standards and manipulated the language to support the "proper" outcome of a case.(25) The cases interpreting Dickerson's requirements establish seemingly bright-line rules that should provide consistent interpretations of the plain feel doctrine.(26) The result, however, is inconsistent.(27) The cases delineate factors such as the officer's experience,(28) the location of the contraband,(29) and the packaging of the contraband,(30) and these factors have led to disparate results, ranging from the exclusion of evidence(31) to the use of the evidence to obtain a conviction against the defendant.(32)

These decisions illustrate a movement away from the initial belief that "[t]he criminal is to go free because the constable has blundered"(33) toward "common sense in law enforcement,"(34) a change that does not reflect the rights of individuals under the Fourth Amendment accurately. This trend is especially concerning because, as the Court once stated, "[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of the law."(35)

This Note analyzes the impact of the plain feel exception to the Fourth Amendment, focusing specifically on the confusion in many jurisdictions resulting from the Court's original delineation of the doctrine in Dickerson and concludes that these interpretations lead to varying results in jurisdictions construing the plain feel doctrine. The first section briefly explores the history of the Fourth Amendment and the importance of using a historical context in Fourth Amendment jurisprudence. The second section addresses specific exceptions to the Fourth Amendment carved out by the Court, including the doctrines of search incident to arrest,(36) the Terry stop and frisk doctrine,(37) the plain view doctrine,(38) and the plain feel doctrine;(39) the Court's strange discussion of containers in relationship to these doctrines;(40) and the Court's creation of an exclusionary rule.(41) The third section discusses the confusion resulting from an inconsistent application of Dickerson and concludes that the Court must address this confusion because individuals' Fourth Amendment rights currently vary from jurisdiction to jurisdiction.(42) The fourth section addresses People v. Champion,(43) a case that clearly illustrates this confusion. This section argues that Champion is a rather tenuous opinion, focusing on factors that cannot justify the court's ultimate finding of probable cause.(44) Finally, the last section discusses the policy implications of the plain feel decisions and the need for a coherent rule concerning suspects' Fourth Amendment rights following the Dickerson decision.(45) This Note concludes that the plain feel doctrine, although applied inconsistently, is an important exception to the Fourth Amendment warrant requirement and the Supreme Court must revisit the doctrine to reformulate the elements of such a search.

ENFORCING INDIVIDUAL RIGHTS V. EFFICIENT LAW ENFORCEMENT: THE TENUOUS BALANCE OF INTERESTS IN THE FOURTH AMENDMENT CONTEXT

To understand the Fourth Amendment's exceptions, the underlying premise of the Fourth Amendment's guarantee against unreasonable searches and seizures must be analyzed. Given the disparity in potential interpretations, the historical underpinnings of the Fourth Amendment must be analyzed to determine its raison d'etre.

During the 1750s, British customs officers implemented ex officio searches in the colonies.(46) Under this authority, officials conducted warrantless searches of private homes in search of smuggled goods.(47) Ex officio searches were extremely unpopular, forming the basis for the British government's even more controversial and unpopular writs of assistance and serving as the precursor for the modern search warrant.(48) To many colonists, these searches were "two different sides of the same coin[, as b]oth allowed broad, discretionary governmental search power without any requirement of specific cause or judicial oversight."(49) These rampant abuses enraged the colonists.(50)

Similarly, colonial judges opposed the writs, claiming that the writs had no legal basis and certainly afforded no opportunity for judicial oversight.(51) In contrast to modern search warrants, these writs remained valid during the reign of the monarch and did not require a special hearing before their issuance.(52) Given the highly controversial nature of the writs, judges began rejecting these writs by refusing to enforce them, ultimately beginning the demise of such writs in colonial America.(53)

With this background of unbridled police discretion, the Framers drafted a constitutional amendment,(54) broad enough in scope to protect individuals' rights in situations such as unnecessarily intrusive searches of private homes.(55) In response to the colonists' experiences with these searches and the public outcry against these writs, the Framers drafted the Fourth Amendment to encompass such abuses.(56) The Fourth Amendment thus stands as a guardian of individual liberty against the unbridled discretion of the police.

One commentator has described the Fourth Amendment as having "both the virtue of brevity and the vice of ambiguity."(57) It is subject to much speculation and interpretation because of its broadly sweeping language, leaving courts free to define the term "unreasonable" using many methods of interpretation.(58) Two schools of thought have emerged concerning constitutional interpretation generally and in this context specifically.(59)

One view analyzes the wording of the Constitution, relying solely on written words as the source for constitutional interpretation.(60) This textualist view emphasizes the plain meaning of the words employed in the legislation itself.(61) This approach "read[s] constitutional provisions literally so that government is permitted to do nothing more than what is explicitly stated in the document."(62) Following a textualist interpretation, the Fourth Amendment merely guarantees reasonable police conduct; therefore, most police action in the area, although intrusive, will not be deemed unreasonable.(63)

Another approach follows a more liberal interpretation of the Constitution, focusing on the need to have a pliable, living document, relying heavily on the historical context of the Constitution.(64) Supporters of this interpretivist approach believe one can reach a better understanding of the meaning of the words used in the document itself by analyzing the Framers' intent.(65) Under this view, the Fourth...