The Plain Feel Doctrine in Washington: an Opportunity to Provide Greater Protections of Privacy to Citizens of This State

• Publication year: 1995

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 19, No. 1FALL 1995

COMMENTS

The Plain Feel Doctrine in Washington: An Opportunity to Provide Greater Protections of Privacy to Citizens of this State

Laura T. Bradley(fn*)

I. Introduction

It is late at night. You and your friend, Bob, have just finished your workout at the YMCA and he is giving you a ride home. On the way, Bob is stopped for a minor traffic offense. As Bob pulls the car to the side of the road, he hands you a piece of gum but you decide to chew it later, so you put the gum in your pocket. Bob stops the car and the officer approaches. While the officer is at the window of the car, Bob starts to reach down between the seat and door to open the trunk because his wallet is in his gym bag, in the trunk.

Before you know it, you and Bob are ordered out of the car to submit to a pat-down frisk because the officer interpreted your movements as indications that one or both of you might be armed and dangerous. That is, he saw you put something in your pocket before the car was stopped, and Bob reached for something under the seat while the officer was standing at the window. During the frisk, the officer feels a small hard object in your front pants pocket that is clearly not a weapon. It could be a tire valve, an aspirin, or a balled up foil wrapper. In fact, it is the piece of gum that Bob handed you. Nevertheless, the officer reaches into your pocket and grabs it because his experience leads him to believe that the object feels like a small piece of crack or cocaine.(fn1)

The preceding hypothetical is an example of the type of search that may be upheld under the United States Supreme Court's recent ruling in Minnesota v. Dickerson(fn2) and the Washington Supreme Court's decision in State v. Hudson.(fn3) These rulings state that the Fourth Amendment of the United States Constitution(fn4) permits the seizure of contraband during a protective search for weapons based on the sense of touch under two conditions: (1) the search must not exceed the scope of a Terry frisk,(fn5) and (2) the contraband nature of the object must be immediately apparent to the officer.(fn6) Permission to seize contraband under these two conditions is known as the "plain feel" or "plain touch" doctrine. By their adoption of this doctrine, the United States and Washington Supreme Courts have extended the rationale for conducting a pat-down search beyond the traditional concern for the safety of officers and bystanders, to include the discovery of contraband, that is, evidence of a crime.

Although some state and federal courts recognized the plain feel doctrine before the Supreme Court's decision in Dickerson,(fn7) Washington courts did not. In 1982, in State v. Broadnax(fn8) the Washington Supreme Court expressly stated that the plain feel doctrine should not be recognized in Washington because the "tactile sense does not usually result in the immediate knowledge of the nature of the item."(fn9) In reaching this conclusion, the court relied primarily on two United States Supreme Court decisions: Ybarra v. Illinois(fn10) and Sibron v. New York(fn11)

Despite Washington's rejection of tactile recognition of contraband in Broadnax, in 1994 the Washington Supreme Court reversed its position.(fn12) In State v. Hudson, the Washington court expressly adopted the plain feel doctrine, relying exclusively on the Fourth Amendment and the holding in Dickerson.(fn13)

Despite their adoption of the plain feel doctrine, however, both the Dickerson and Hudson courts refused to admit the evidence in question. In Dickerson, the Court held that the evidence was properly excluded because the officer exceeded the permissible scope of the pat-down frisk by manipulating the contraband with his finger.(fn14) Similarly, in Hudson, the court remanded the case for a determination of whether the officer impermissibly manipulated the object before determining that it was contraband.(fn15)

This Comment argues that Washington should return to an independent analysis of search and seizure doctrine under article I, section 7 of the state constitution and reject the admission of contraband seized during the course of a pat-down frisk.(fn16) The decisions in Hudson and Dickerson have established an unnecessary and unworkable standard, and involve an increased invasion of personal privacy without the counter-balancing need to protect the safety of others.

The plain feel doctrine as announced in Dickerson and Hudson developed from two well-established concepts in search and seizure law-the Terry frisk of persons to discover weapons and the plain view doctrine. Both concepts involve specific exceptions to the requirement of the Fourth Amendment that searches may be conducted only with the authorization of a warrant. Accordingly, Part II describes the principles of the Terry frisk and the plain view doctrine. Part III details the Supreme Court's decision in Dickerson. Part IV discusses the holdings of the primary search and seizure cases decided in Washington before Dickerson, and is followed, in Part V, by a description of the two Washington cases that have been decided since Dickerson. Part VI is a brief discussion of Washington constitutional analysis, laying the groundwork for distinguishing the right to privacy under article I, section 7 of the Washington Constitution from the right to be free from unreasonable searches and seizures under the Fourth Amendment. Finally, Part VII argues that Washington courts should depart from the ruling in Dickerson and continue to exclude contraband that is seized during a frisk for weapons because the plain feel doctrine is unnecessary, unworkable, subject to abuse and, most importantly, does not adequately protect the privacy interests of Washington citizens.

ii. background: the exclusionary rule and selected Exceptions to the Warrant Requirement

A. The Exclusionary Rule

The exclusionary rule provides that any evidence found as a result of an illegal search or seizure-one that violates a person's Fourth Amendment rights-cannot be introduced in a trial.(fn17) The rule exists to deter police officers from executing unreasonable searches and seizures,(fn18) to protect judicial integrity by preventing courts' involvement in the "willful disobedience of a Constitution they are sworn to uphold,"(fn19) and to maintain popular trust in the government by assuring citizens that the government will not profit from illegal conduct.(fn20)

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."(fn21) The Supreme Court defines "persons" to include their bodies(fn22) and attire,(fn23) and has extended Fourth Amendment protection to all areas that a person seeks to preserve as private, even if those areas are accessible to the public.(fn24) A search is "per se unreasonable" if it is "conducted outside the judicial process, without prior approval by judge or magistrate."(fn25) This rule is "subject only to a few specifically established and well-delineated exceptions."(fn26)

Two exceptions to the warrant requirement are discussed in this Comment: the Terry frisk and the plain view doctrine, both of which developed on the theory of exigent circumstances. In these contexts, searches and seizures are exempt from the warrant requirement because the delay involved in obtaining a warrant would result in physical harm or in the loss of evidence.(fn27) While both the Terry frisk and the plain view doctrine are exceptions to the warrant requirement, searches and seizures conducted under the plain view doctrine are not exempt from the requirement that the officer have probable cause to believe that the item searched is associated with criminal activity.(fn28) Probable cause is determined with reference to a reasonable person with the expertise and experience of the officer in question.(fn29) In other words, the test is an objective one, and the officer's subjective belief that he had grounds for his action will be insufficient.(fn30)

Although few would argue that Fourth Amendment rights should be abandoned, some detractors argue that the exclusionary rule is not the appropriate remedy for violation of those rights. For example, some critics believe that the exclusionary rule handcuffs the police and limits their effectiveness.(fn31) Others argue that it only aids the guilty and that it does not deter the police from infringing on citizens' rights to privacy.(fn32) Finally, some critics are concerned that the exclusionary rule will allow guilty people to escape conviction as a result of police error. These critics propose enacting statutes to provide for a civil remedy in the form of monetary damages for violations of Fourth Amendment rights.(fn33)

Responses to these criticisms point out that: (1) the Fourth Amendment restricts unreasonable searches and seizures because freedom and privacy are preferred over more efficient law enforcement,(fn34) (2) the exclusionary rule protects innocent people as well as the guilty, and (3) the rule really does deter, as illustrated by the fact that many police departments implemented training programs to teach officers how to obtain evidence without violating citizens' Fourth Amendment rights after the exclusionary rule was announced.(fn35) Moreover, the suggestion of...