Plain Feel Doctrine
PLAIN FEEL DOCTRINE
the fourth amendment prohibits the government from conducting unreasonable seizures of effects. This protection, however, does not require the government to obtain a warrant in every instance. In Minnesota v. Dickerson (1993), the Supreme Court established the plain feel or plain touch doctrine, based on the premise that tactile information can justify a warrantless seizure. The plain feel doctrine extends the principle of the plain view doctrine, which rests on the sense of sight, to the sense of touch. The doctrine permits a law enforcement officer to seize an object if its nature is immediately apparent during a touching permitted by the Fourth Amendment. Thus Dickerson held that an officer authorized to touch clothing or a container may acquire probable cause to believe the felt object is contraband or evidence and thereby justify a further Fourth Amendment intrusion.
The plain feel doctrine does not provide authority to touch. It merely permits the officer to act on tactile information concerning a felt object. Authority to feel the object in the first instance must be found elsewhere. In many cases, the officer derives authority from the stopand-frisk principles of terry v. ohio (1968) which allow a pat down for weapons. In others, the officer has consent for the touching. Authority to touch may also rest on the need to move an object or on other permitted conduct involving contact with the object.
In every case, however, the officer's authority to engage in tactile exploration is limited. When the prosecution relies on the plain feel doctrine, the court should determine not only whether the object could be recognized by touch as contraband or evidence, but also whether its tactile characteristics are so pronounced that it could be recognized within the scope of the permitted search. An officer may not extend the scope of a search in an attempt to obtain probable cause. The Dickerson Court recognized authority to seize items felt during a pat down but emphasized that a Terry frisk for weapons is strictly circumscribed and does not permit an officer to probe an object that does not feel like a weapon. The officer's continued manipulation in Dickerson went beyond the authorized intrusion and also belied any claim that it was immediately apparent that the lump was crack cocaine.
The prosecution needs to rely on the plain feel doctrine only when an officer without probable cause to arrest a defendant seizes a nonweapon-like item recognizable by feel. Because few seizable items other than weapons can be identified by feel, one might expect plain feel to be a tool of limited utility. On the contrary, prosecutors often rely on plain feel to justify seizures. Plain feel cases fall into a predictable pattern. The prosecution most often invokes the doctrine to uphold a seizure of drugs, drug paraphernalia, or evidence of drug trafficking from the defendant's person. The touching typically occurs during a Terry frisk or a consensual pat down following an authorized stop.
Determining whether the nature of the seized item was immediately apparent to the officer is critical to justify a seizure based on plain feel. Although Dickerson used "immediately apparent" to describe the standard for seizure, it is clear from Arizona v. Hicks (1987) that plain feel, like plain view, requires probable cause.
The "immediately apparent" requirement for seizing items that do not feel weapon-like should be distinguished from the Terry basis for seizing items that feel like weapons. Terry allows the officer to frisk to detect and remove weapons. The Terry frisk is biased to protect the safety of the officer and public. Generally, any object of sufficient hardness and size can be explored, even though its shape does not advertise it as a gun or knife. If clothing obscures the contents from tactile detection, courts often approve investigation of the object.
By contrast, the plain feel doctrine is not biased to permit exploration of suspicious objects. The Dickerson Court emphasized that the tactile information obtained during the authorized touching must immediately raise probable cause to believe the object is seizable. Mere reasonable suspicion that an object is contraband does not support further intrusion.
Anne Bowen Poulin
(2000)