POCKET POLICE: THE PLAIN FEEL DOCTRINE THIRTY YEARS LATER.

• Author: Recker, Kelly

TABLE OF CONTENTS INTRODUCTION I. DOCTRINAL ORIGINS A. Fourth Amendment Foundations and the Plain View Doctrine B. Dickerson's Additions II. INCONSISTENT APPLICATIONS A. Contraband Analysis 1. Officer Training and Experience 2. Specificity of "Contraband" 3. Surrounding Circumstances B. Weapons Analysis III. PLAIN FEEL PROBLEMS AND SOLUTIONS A. Fourth Amendment Contradictions B. Steps toward Reform CONCLUSION INTRODUCTION

In 2008, David Ourlicht, a twenty-five-year-old Black man, was walking to a deli near his university dorm with a notebook sticking out of his jacket pocket. (1) A police officer who thought Mr. Ourlicht was concealing something stopped him and asked for his ID. (2) When Mr. Ourlicht asked why, the officer frisked him and radioed for backup. (3) After backup arrived, the officer said, "[O]kay now you're going to get the full treatment, get against the wall." (4) As Mr. Ourlicht stood with his hands behind his head, officers pulled everything out of his jacket pockets and reached into his empty pants pockets. Finding nothing unlawful, they wrote Mr. Ourlicht a ticket for disorderly conduct and left. (5)

In 2010, Devin Almonor, a thirteen-year-old Black boy, was walking home with a friend when he was stopped by officers investigating a claim that youth in the area were fighting, throwing garbage cans, and might have weapons. (6) When police identified themselves, Devin pulled away, and within moments, officers pushed him down on the hood of their car and handcuffed him. (7) As the officers patted him down, Devin asked, "What are you doing?" and explained, "I'm going home. I'm a kid." (8) One of the officers later testified that he saw no suspicious bulge indicating a weapon. (9) Although they found nothing but a phone and a few dollars in his pockets, the officers put Devin in the back of a car and took him to the precinct, where he was later released. (10)

Mr. Ourlicht and Devin's searches were two of many deemed illegal in Floyd v. City of New York, a landmark class action challenging unconstitutional stop-and-frisks by the New York Police Department (NYPD). (11) The lawsuit illuminated the breadth and frequency of racially discriminatory stops in New York City. According to the data in Floyd, the NYPD conducted over 4.4 million stops from January 2004 to June 2012. (12) Officers performed a frisk for weapons in 52% of stops but found weapons in only 1.5% of those stops; officers searched inside a person's clothing in 8% of stops and found contraband in just 14% of those searches. (13) White people were the most likely demographic to have contraband (in 2.3% of stops, as compared to Black people in 1.8% and Latinx people in 1.7%) and the most likely to have weapons (in 1.4% of stops, as compared to Black people in 1% and Latinx people in 1.1%). (14) Black and Latinx people, however, were more likely to be stopped and more likely to be subjected to the use of force than White people. (15)

These racially biased stop-and-frisk practices were not unforeseen. In Minnesota v. Dickerson, the Supreme Court opened the door to officers seizing contraband during frisks, holding that the Fourth Amendment permits the warrantless seizure of contraband when its identity is immediately apparent to an officer conducting a lawful pat down. (16) Shortly thereafter, scholars argued the rule would provide cover for officers to use the "plain feel doctrine as a convenient proxy for conducting a warrantless, general investigatory search for contraband." (17) Or, as Judge Henry Friendly cautioned, the rule could create "too much danger that, instead of the stop being the [officer's] object and the protective frisk an incident thereto, the reverse will be true." (18) Some worried that courts would see an inaccurate picture of actual police behavior given that the only cases brought to trial are those where contraband was detected, and not those where officers wrongly seized, say, candy in a pocket. (19) Others presciently noted that the "conspicuous absence of guidelines" for what counts as immediately apparent contraband "suggests that trial courts will be unable to uniformly apply this new Fourth Amendment exception." (20)

Thirty years later, these concerns proved true: matchboxes, pill bottles, baggies, and film canisters have been deemed plainly obvious contraband in some jurisdictions while suppressed as the fruit of an illegal search in others. (21) As courts struggle to determine what can and cannot be identified through layers of clothing during a cursory pat down, police are incentivized to conduct stop-and-frisks in the hopes that any contraband found can be justified as obvious after the fact. (22) The consequences of this increased police contact for racial and ethnic minorities, particularly in an America where Black people "are considered dangerous even when they are in their living rooms eating ice cream, asleep in their beds, playing in the park, standing in the pulpit of their church, birdwatching, exercising in public, or walking home from a trip to the store to purchase a bag of Skittles," (23) cannot be overstated.

For thirty years, the plain feel doctrine has largely evaded scholarly attention. Despite incentivizing and enabling an unknowable number of searches each day, it has blended into the background of the routine overpolicing of marginalized communities. This Note aims to shed light on the doctrine by analyzing its evolution and highlighting the modern inconsistencies in its application. Part I reviews the Fourth Amendment precedent that led to the development of the doctrine. Part II identifies the primary factors courts look to when reviewing plain feel questions and demonstrates that the lack of clear guidelines has led to sharply contradictory outcomes across jurisdictions. Part III argues that a broad plain feel doctrine is in tension with core Fourth Amendment principles and suggests first steps toward change.

1. DOCTRINAL ORIGINS

   In order to understand why an officer can sometimes lawfully search a person without a warrant, it is helpful to first review when an officer can stop someone, what is required for a frisk, and the level of certainty an officer must have before reaching into someone's pocket. Part I summarizes the plain feel doctrine's predecessor, the plain view doctrine, and explains how that doctrine was expanded in Dickerson to allow officers to seize "immediately apparent" contraband during a frisk. (24)

   1. Fourth Amendment Foundations and the Plain View Doctrine

      Although the Fourth Amendment generally requires police to have a warrant for searches and seizures, (25) police officers can initiate warrantless investigatory stops if certain conditions are met. Under Terry v. Ohio, an officer who suspects criminal activity can stop a person if the officer can "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." (26) In other words, the officer needs to have more than a simple hunch that criminal activity might be afoot, but the officer can consider the totality of the circumstances in formulating their suspicion. Factors that can collectively lead to this "reasonable suspicion" include nervousness, unprovoked flight, being in a high crime area, furtive actions, and failure to cooperate. (27) Of course, these factors can cut in opposite directions. (28) Race and ethnicity may also be a relevant factor, either to undercut reasonable suspicion or to add to it. (29)

      Once a person is stopped, officers can conduct a frisk if they have reasonable suspicion the person is armed and dangerous. (30) The search must be "strictly circumscribed" to a limited pat down of the outer clothing to look for weapons. (31) A person is not assumed to be armed and dangerous any time there is suspicion of criminal activity, as the Supreme Court made clear in Sibron v. New York, a case decided the same day as Terry. (32) The Sibron Court ruled that frisking a person who was observed interacting with narcotics users over a period of eight hours was invalid for two reasons: first, because simply talking to narcotics users was not enough to establish reasonable suspicion, and second, because suspecting a person of narcotics possession was not the same thing as suspecting the person was armed. (33) Terry frisks are thus only appropriate when an officer can point to specific facts leading them to suspect a person is armed and dangerous, and can only extend to places where a weapon might reasonably be hidden. (34)

      The plain feel doctrine expands that scope by allowing an officer to seize contraband when, in the midst of a protective weapons frisk, the incriminating character of an illicit object is "immediately apparent" without further tactile manipulation. (35) This "immediately apparent" requirement is typically synonymous with an officer having probable cause for the search. (36) Probable cause is a "fluid," fact-specific, totality-of-the-circumstances test indicating a "fair probability that contraband or evidence of a crime will be found in a particular place." (37) It is in part anchored by what it is not: it must be higher than the reasonable suspicion standard, which requires an officer to point to particularized facts beyond just a hunch before lawfully conducting a frisk, but it does not require an officer's absolute certainty. (38) Thus, the test for whether contraband is "immediately apparent" is a fact-specific inquiry into the totality of the circumstances that led to the item's seizure.

      The plain feel doctrine described above is an extension of the plain view doctrine. The latter allows an officer to seize clearly visible contraband without a warrant if (1) there is probable cause to believe the item being seized is illicit, and (2) the officer is lawfully in a position to view and seize the object. (39) So, if an officer saw a brick of cocaine but unlawfully broke into a home to view it...