Tuesday, October 30, 2007

Adverse Fourth Amendment Holdings -- Frisk Justified, "Plain Feel Doctrine" Applied

In United States v. Yamba, __ F.3d __, 2007 WL 3054387 (filed October 22, 2007), the Court issued two Fourth Amendment holdings adverse to the defendant. Yamba was tried and convicted for wire fraud, based on evidence including several pieces of paper with what appeared to be credit card numbers written on them. These papers were discovered on his person during an inventory search at the police station following his arrest for possession of marijuana. He had moved to suppress the papers on two grounds: First, that the police were not justified in conducting the frisk that led to the discovery of the marijuana; and second, that the search that led to discovery of the marijuana went beyond a Terry "frisk" because the officer manipulated the bags of marijuana in Yamba’s pocket.

The Court held that the stop was justified because Yamba was sitting in a van that was parked in an odd and obstructive manner; the driver of the van was holding a pocket knife; Yamba and the other passenger made furtive gestures; there was an outstanding arrest warrant for the driver; and the police were outnumbered.

The Court also upheld the frisk under the "plain feel" doctrine approved by the Supreme Court in Minnesota v. Dickerson, 508 U.S. 366, 373 (1993). The plain feel doctrine permits an officer to slide or manipulate an object in a suspect’s pocket until the officer is able reasonably to eliminate the possibility that the object is a weapon. If, before that point, the officer develops probable cause to believe that the object is contraband, he may lawfully perform a more intrusive search and may seize any contraband discovered. Here, the Court relied on the district court’s finding that the officer reasonably suspected that the object was marijuana based on it’s "soft, spongy-like" nature and the "small buds and seeds" that he felt. It held, "While one may reasonably question the veracity of Officer Livingstone’s testimony, it was credited by the District Court. Were we the fact-finder, we may not have done the same; but we cannot say that the Court’s finding was clearly erroneous." The Court "purposely [did] not rely on the precision of Officer Livingstone’s testimony that he reached his conclusion within "a half second," noting that the more important inquiry is whether the officer "conducted anything beyond a routine frisk until after there was probable cause to search more intrusively."

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