What If a Police Officer Pats Me Down for Weapons but Finds Drugs?

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

New Jersey’s Appellate Division has recently decided a case regarding a warrantless pat-down of the defendant’s person and seizure of heroin. In the case, a police officer heading home from work in an unmarked vehicle witnessed the defendant driving his car on the shoulder of the road with no lights on at night time. The officer witnessed the defendant enter an address where numerous narcotic search warrants had been executed and then emerge minutes later.

The officer stopped and questioned the defendant. The defendant seemed startled and nervous, so the officer conducted a Terry pat-down of the defendant to look for a weapon. No weapons were recovered. A second officer arrived who also conducted a pat-down when he saw the defendant looking nervous and reaching in his pockets. The second officer heard plastic crumble during the pat-down and recovered a golf ball sized bag of heroin from the defendant’s pockets.

Defendant entered a guilty plea to one count of third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1). The defendant moved to suppress the heroin found on his person, arguing the search was unlawful. His motion was denied. Defendant appealed to the Appellate Division.

A Terry stop, sometimes called an investigatory stop or investigative detention, is valid only if the officer has a particularized suspicion based upon an objective observation that the person stopped had been or is about to engage in criminal wrongdoing. This particularized suspicion requires specific and articulable facts that give rise to a reasonable suspicion of criminal activity through rational inferences. A Terry stop is more intrusive than an ordinary field inquiry, and thus affords the suspect with certain protections. Whether an inquiry becomes an investigative detention is based off of whether a reasonable person were to believe he was not free to leave. The critical inquiry in determining this is whether the police conducted themselves in a manner that would be viewed as nonoffensive contact if it occurred between two ordinary citizens.

Authoritative questions that presuppose criminal activity, thus making the suspect aware he is the focus of a particularized investigation, may be considered in determining whether a field inquiry has escalated into an investigatory stop. On the other hand, if an officer puts his questions in a conversational manner, if he did not make demands or issue orders, and if his questions were not overbearing or harassing in nature, his manner would not result in a detention of the person.
In this case, the police officers posed questions and conducted Terry frisks, making this an investigative detention. The Court ruled that it was reasonable the defendant did not feel free to leave at the time. The first Terry frisk was a reasonable search for weapons, none of which were recovered. The second search resulting in finding a bag of heroin went too far, however.

The Trial Court ruled that the heroin retrieved was lawfully seized under the plain feel doctrine exception to a warrantless search. A threshold requirement for the application of the plain feel exception is that the character of the contraband be immediately apparent. The Appellate Court ruled that because the officer could not have known that the plastic ball was heroin until the bag was removed, the plain feel exception did not apply. Therefore, the heroin was unlawfully seized.

In summary, if a police officer conducts a search for weapons on a person and recovers drugs, the drugs can only be seized by way of the plain feel doctrine if the officer knew exactly what kind of drugs it was just by feeling.

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