Fourth Amendment - the plain touch exception to the warrant requirement.

• Author: MacIntosh, Susanne M.
• Position: Supreme Court Review - Case Note

1. INTRODUCTION

   In Minnesota v. Dickerson,(1) the United States Supreme Court unanimously adopted the plain touch doctrine, thereby allowing officers to seize evidence recognized through the sense of touch during a lawful patdown without a warrant. Analogizing to the plain view doctrine developed in Coolidge v. New Hampshire(2) and its progeny, Justice White's opinion held plain touch seizures constitutional when three conditions are met: (1) a lawful patdown has occurred under Terry v. Ohio,(3) (2) the character of the item as contraband or evidence of a crime is immediately apparent, and (3) the officer has a lawful right of access to the item.(4)

   The Supreme Court held that officers must stop examining an object as soon as they are satisfied that the item is not a weapon. At that point, it is impermissible for officers to further examine the item in order to determine if it is some other contraband.(5) In the case at bar, Justice White found that the officer exceeded the bounds of Terry by continuing to examine the object when it was clear that it was not a weapon.(6) Consequently, the Court affirmed the Minnesota Supreme Court's decision to reverse the conviction.(7)

   Justice Scalia, in his concurrence, concluded that Terry was incorrect in holding that a protective patdown is constitutional, because patdowns were not an accepted part of police procedure when the Fourth Amendment was adopted.(8) Nevertheless, he concurred in the decision because the constitutionality of the patdown in the instant case was not challenged.(9)

   In a separate opinion, Chief Justice Rehnquist joined in the majority opinion with respect to the establishment of the plain touch doctrine.(10) He dissented, however, with respect to the treatment of the instant case. Because the findings of fact were imprecise about the extent to which the officer examined the object in Respondent's pocket, the Chief Justice would have remanded the case.(11)

   This Note examines the Court's treatment of the plain view doctrine and concludes that the Court properly held that the plain touch doctrine is analogous to the plain view doctrine. This Note argues, however, that the Court provided a vague outline of the requirements of this newly recognized exception to the warrant requirement. The Court wavered between two different standards of certainty, referring to both "probable cause" and "immediately apparent." This Note argues that probable cause is the proper standard of certainty. Additionally, the Court required that the officer have lawful access to the object before seizing it, without explaining how this requirement functions in the plain touch context.(12)

   This Note further argues that the Court improperly upheld the lower court's reversal. Relying on a misquote of the trial transcript, the Court determined that the officer in the instant case overstepped the boundaries of Terry.(13) The Court should have satisfied any doubt about the scope of the search by remanding the case for further proceedings, as Chief Justice Rehnquist suggested in his separate opinion.(14) This Note contends, however, that a proper application of the plain touch doctrine did permit seizure in the instant case.

2. UNREASONABLE SEARCHES AND THE WARRANT REQUIREMENT

   The Fourth Amendment to the United States Constitution prohibits only "unreasonable" searches.(15) It is a well established rule of Fourth Amendment jurisprudence, however, that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specially established and well-delineated exceptions."(16) This warrant requirement is primarily based on the premise that a neutral and detached magistrate is a better judge of probable cause than the officer or prosecutor who is actively involved in a specific case.(17)

   These considerations led the Court to conclude in Weeks v. United States(18) that evidence seized by federal officers without a warrant may not be introduced as evidence in a federal trial.(19) This ruling became known as the exclusionary rule, and has been extended to state trials.(20) The exclusionary rule works with the warrant requirement to forbid the use of evidence obtained without a search warrant in a criminal trial.

   Numerous exceptions to the warrant requirement exist.(21) One such exception was developed by the Court in Terry v. Ohio,(22) which held that a police officer may conduct a protective patdown search for weapons of a suspect's outer clothes based on a reasonable suspicion that the suspect has been engaged in, or is in the process of engaging in, criminal activity and may be armed.(23) Less than probable cause is sufficient to validate this warrantless search, as long as the officers conducting the search reasonably believe that their safety, or the safety of others, is in jeopardy.(24) The Court noted that due weight must be given to the specific inferences that an officer is entitled to draw based upon the specific facts of a situation and based on his training and experience.(25) Evidence may not be introduced if discovered through a search that is not reasonably limited in scope to the original justification for the search, namely the protective search for weapons.(26)

   Another relevant exception to the warrant requirement is the plain view doctrine, expounded in Coolidge v. New Hampshire.(27) The Court held in Coolidge that police may seize evidence discovered in plain view without a warrant specifying the item(s) in certain circumstances.(28) The Court delineated three requirements for a seizure to be valid under the plain view doctrine: (1) the initial intrusion must be justified by either a warrant or a valid exception to the warrant requirement; (2) the incriminating character of the object must be immediately apparent; and (3) the discovery of the object must be inadvertent.(29)

   The first requirement of the plain view doctrine is that the initial intrusion be justified by either a warrant, or some valid exception to the warrant requirement, such as hot pursuit, search incident to arrest, or a protective search under Terry.(30) The Court found that it would be a "needless inconvenience," and potentially dangerous to both the evidence and the officer, to require officers to leave evidence in order to obtain a warrant in these circumstances.(31)

   The second element of the plain view doctrine as delineated in Coolidge requires that the nature of the object as contraband or evidence of a crime be "immediately apparent" to the police.(32) However, later in the opinion, the Court commented that "[i]ncontrovertible testimony of the senses that an incriminating object is on the premises belonging to a criminal suspect may provide the fullest measure of Probable cause."(33) This decision was not clear about which standard of certainty is required to justify seizure under the plain view doctrine, since the phrase "immediately apparent" indicates a higher degree of certainty than is required by probable cause.(34)

   The Court clarified the second element of the plain view doctrine in Texas v. Brown.(35) The plurality commented on the ambiguous nature of the phrase "immediately apparent":

   [d]ecisions by this Court since Coolidge indicate that the use of the

   phrase |immediately apparent' was very likely an unhappy choice of

   words, since it can be taken to imply that an unduly high degree of

   certainty as to the incriminating character of evidence is necessary for

   an application of the plain view doctrine.(36)

   Probable cause is flexible, and merely requires that the facts available to the officer at the time of the seizure be sufficient to "warrant a man of reasonable caution" to believe that an item is contraband or evidence of a crime.(37) The Court held that probable cause is sufficient to justify a seizure under the plain view doctrine.(38)

   Likewise, in Arizona v. Hicks(39) a majority of the Court reaffirmed that probable cause is sufficient to invoke the plain view doctrine.(40) The Court determined that if probable cause is satisfied, officers may seize evidence of crime or contraband in plain view or conduct a further search of that material.(41) The majority remarked that it would be "absurd" to permit seizure of an object but not allow closer examination of that object before seizure.(42) Because the state conceded in Hicks that it did not have probable cause to conduct a further search, the officer's act of moving a stereo to read the serial number was an impermissible further search.(43)

   The third and final requirement of the plain view doctrine, as originally delineated by the Coolidge plurality, was that the discovery of evidence be inadvertent.(44) The Court determined that if the police expect in advance to find and seize some piece of evidence, there is no inconvenience involved in obtaining a warrant for that particular piece of evidence, and thus no valid reason for not fulfilling the warrant requirement.(45) However, the inadvertence requirement was overruled in Horton v. California.(46) The Horton Court concluded that, although inadvertence is usually a characteristic of plain view seizures, it is not a requirement.(47) The Horton Court determined that even-handed law enforcement is best promoted by using objective standards to judge an officer's conduct, rather than relying on his or her subjective state of mind.(48)

   The Horton Court added a new requirement to the plain view doctrine. It held that an officer must have lawful access to the object for seizure to be permissible under the plain view exception to the warrant requirement.(49) The Court did not discuss the purpose or function of this additional requirement. The only guidance the Court provided was a brief, footnoted reference to some pre-coolidge cases, all of which held evidence inadmissible when officers committed trespass in order to seize the evidence.(50)

   While the plain view cases all involved...