*1 Kentucky, COMMONWEALTH
Appellant, CROWDER, Appellee.
Arthur
No. 93-SC-288-DG. Kentucky.
Sept. Gen., Gorman, Atty. Joseph R.
Chris John- son, Gen., Appellate Atty. Asst. Criminal Div., Frankfort, appellant. for Heft, Jr., De- Appellate W. Chief Frank Public De- fender of the Jefferson District (Daniel Goyette, Dist. T. Jefferson fender counsel), Louisville, Defender, Public appellee. ROSENBERG, Special
JOHN M. Justice. the sei- The issue this case whether a zure of a incident to “bindle”1 patdown prohibi- Terry2 search violated the tion on “unreasonable searches and seizures” Amendment the Constitu- tion of the United 10 of States Kentucky Constitution. 4, 1991, May facts these. On days prior
twelve
to the incident involved
Crowder,
proceeding, Appellee, Arthur
charge
trafficking in
arrested
on
marijuana by
Brian
Louisville
Nunn,
arresting
in this
one of the
officers
place
of the arrest on this earlier
occasion, 22nd
in Louis-
and Garland Streets
ville,
“hot
had been described to Nunn as a
Nunn,
drug
According to
on the earli-
area.”
standing
Appellee
er occasion
a transaction. When
comer
police,
dropped
ran
saw
marijuana.
ar-
bag containing
Nunn
plastic
envelope,
New
slang:
package,
or
Merriam-Webster Third
International
1. Bindle:
a small
Dictionary
(as morphine,
paper containing
her-
a narcotic
oin,
cocaine;
quantity of a
also: a small
Ohio,
dose).
narcotic:
narcotic
*2
him
anything
rested
and the ease
resolved in
did not
resembling weapon,
feel
Jefferson District Court.
we believe that
the officer exceeded the
scope
permissible
Terry
under
May
On
13 or
while Nunn
inwas
patdown
appellant’s
when he reached into
again,
area
an unknown man told him that if
to retrieve an
which he be-
Crowder were on the corner that Crowder
drugs
weapon.”
lieved to be
and not a
selling drugs.
would be
Appeals
Court of
relied on its earlier deci-
May 16,
On
Officer Nunn was in the area
Commonwealth,
Johantgen
in
Ky.
sions
more,
patrolling
once
in
this time
a vehicle App.,
(1978); Waugh
seized without a warrant.3 alleyway. suspect into an Based on the hav- decision, Appeals, ing The Court of in a 2-to-l budding left as a “crack known holding away reversed that: “[S]ince officer house” and his decision to walk were, plea guilty might Crowder entered a conditional If it there cocaine, trafficking and was sentenced to one question validity well be a serious about its since year imprisonment. the record is devoid of evidence that Crow- armed, dangerous, der was or was or that he Dickerson, however, the Minnesota courts officers, posed safety a threat to the based requirements Terry found that the for a valid May on his conduct on earlier patdown present had been met. York, May arrest on 4. See Sibron v. New validity stop- defense counsel conceded the suppression hearing, and-frisk under at the Waugh, supra; Johantgen, supra. propriety patdown so that the is not in Commonwealth, appeal. Ky., issue on Todd v. armed, suspect it is no them, respondent officers followed will alley longer him to a valid and its fruits into the and ordered to submit under York, weap- suppressed. search. The search revealed no Sibron New ons, 40, 65-66, patdown lump front search noticed a small *3 nylon suspect’s jacket. the He Dickerson, -, at at 113 S.Ct. 508 U.S. suspect’s pocket and then reached into the 2136. bag containing one- plastic a small retrieved exam- Supreme then went on to The Court gram fifth of one of crack cocaine. might be “plain feel” rule ine whether a held, Supreme as The United States Court contraband applicable police discovers the Minnesota, Supreme that did the Court of “through the of touch an other- sense exploration suspect’s pock- further of the the The concluded lawful search.” Court wise determining that no ets after contained exception war- narrowly a drawn to the that
weapon “over-stepped
the bounds
(1)
requirement
appropriate when:
rant
is
‘strictly
weapons
circumscribed’ search for
Terry
requirements of
otherwise
the
are
”
Terry
under
and
allowed
the
(2)
with;
non-threatening
complied
and
protection against
Amendment’s
unreason-
immediately apparent
is
from
contraband
Supreme
able searches and seizures.5 The
Supreme
sense of
The
Court
touch.
Court reiterated the narrow limits on
by analogy to the
its decision
based
permissibility
Terry patdown
as
search
cases,
that
noting
view
either
requirement:
an
requirement
that an
Fourth Amendment’s
justified
believing
an officer is
“[W]hen
cause
probable
have
to believe that
“officer
suspicious
individual whose
behav-
seizing
is
it en-
the item contraband before
investigating
range
ior he is
at
is
close
excessively
sei-
against
speculative
sures
presently dangerous
armed and
offi-
to the
113
zures.”
508 U.S. at
others,”
a
cer or to
the officer
conduct
Supreme
noted
at
Court
S.Ct.
patdown search
“to
whether
premise
is that an officer
person
carrying
a weapon.”
is
fact
presence
able
detect
will be
U.S.,
24,
S.Ct.,
pur-
at
at
“The
through
weapon
the sense
touch when
pose of this
is
limited search
not to discov-
clothing
suspect’s
police “pats
outer
down
crime,
er evidence of
to allow the
an
or mass
and feels
whose contour
pursue
investigation
officer to
without
identity immediately apparent,
its
makes
[v.
fear
violence....”
Adams
suspect’s
been no invasion of the
there has
146,
supra
143],
]
Williams
at
[407
already
by
beyond
privacy
[1921],
[32
S.Ct.
at 1923
weapons;
if the
the officer’s search
(1972) Rather, protective
per-
].
search —
contraband,
would
its warrantless seizure
is
without
and
mitted
a warrant
on the basis
justified by
practical consider-
the same
suspicion
less
of reasonable
than
view context.”
ations that inhere
strictly
to that
cause —must be
“limited
(foot-
Dickerson, at-,
tion being in Dickerson as violative Kentucky 10 of the Constitution. To be LAMBERT, J., separate concurring files a sure, this Court has held that REYNOLDS, J., opinion joins. in may, circumstances, Constitution in certain
provide greater protection infringe- WINTERSHEIMER, J., dissents in a ment of individual liberties than the federal separate SPAIN, J., opinion joins. in which Wasson, constitution. Commonwealth v. Ky., STUMBO, J., sitting. not supra. See n. LAMBERT, Justice, Terry patdown proper in a concurring. conduct a ease, prohibits but of contraband dis- seizure hereinafter, expressed Despite the views in the course of the search unless covered distinguish being meaningfully to unable apparent immediately as such.2 contraband is between the case at bar and the decision Thus, justify to seizure under the Dickerson Court in Minne United States must, on dis- requirements, the U.S.-, sota person covery of item or an which con- simultaneously that the ob- suspect, conclude the Fourth Amendment to the Consti- strued weapon and that it is contraband ject is not a States, compelled tution of the United I am weapon. must other than a Such decisions by Article YI the Constitution the Unit- part instantaneously and as a be of. by ed States to concur result reached inquiry thought process. No further as same Nevertheless, majority. sepa- I write permitted. nature express my rately disagreement with superhu- require It is unrealistic to such A far more rule would stated, man conduct. rational Simply the issue is whether a officer, permit item of contra- seizure rightfully engaged Terry1 pat- in a search, band discovered course down seize an item encountered *5 course, per- be no search would reasonably known to be search. Of believed mitted after it was determined sus- contraband. unarmed, suspected item of pect was conceptual is no There difference between in being contraband and discovered “plain-feel” the plain-view and the so-called of weapons course the search for instance, In each doctrine. the information subject process and the convoluted to seizure gained by sensory only perception required by entirely avoided. Dickerson degree certainty, any, of It would differ. long engaged has been law that an officer
in a
of
lawful search
seize
item
J.,
REYNOLDS,
joins
concurring
this
Michigan
contraband within his
view.
opinion.
1032,
3469,
Long
v.
463
77
U.S.
(1983).
recognizes
1201
L.Ed.2d
This
that WINTERSHEIMER,
Justice, dissenting.
one
sworn
enforce
law should not be
respectfully
majority
I
dissent from the
required
eye
to turn a blind
to the commis-
in
do not
opinion
facts
this case
because
presence
sion
in
simply
of a crime
be-
permit a
of
court to be based on
decision
this
something
cause the initial search
was
Dickerson,
the case Minnesota v.
508 U.S.
of
other than
It
the contraband discovered.
(1993).
2130,124
113
L.Ed.2d 334
S.Ct.
recognizes
prohi-
also
that the constitutional
against
bitions
search and sei-
unreasonable
police
officer never be-
protect
zure do not
from seizure those items
jacket
lump Dickerson’s
lieved the
unintentionally
of
encountered
course
weapon
immediately recognize it
and did not
otherwise,
a lawful search. Said
there is
The officer determined that
as cocaine.
nothing
of
unreasonable about
seizure
only
squeezed
and oth-
was cocaine
after
when the search which
items
pock-
manipulated the contents of
erwise
brought
discovery
about the
was lawful.
Supreme
The
Court held
et.
U.S.
Dickerson, supra,
beyond
far
Supreme
decision of the
went
The
Court
pat-down
hair-
search as
Minnesota v. Dickerson amounts to
a mere extension
Ohio,
1,
opinion
by Terry
ac-
392 U.S.
88
splitting v.
the extreme.
(1968).
1868,
knowledges
right
officers
20 L.Ed.2d
S.Ct.
1868,
Ohio,
manipulating
the defen-
wise
the contents of
pocket’
al-
dant's
which the officer
—a
weapon.”
ready
no
Minnesota
knew contained
improper
conduct
to be
was when
held
at-,
S.Ct.
508 U.S.
lump
con-
“the officer determined that the
The Federal have courts cause for warrantless search SPAIN, J., joins in this dissent. sight.
can be based on other than senses See Brown, 730,103
Texas v. 460 U.S. S.Ct. U.S., (1983); Johnson v. 92 L.Ed. S.Ct. Johns,
United States v. Kentucky
Section 10 of the Constitution and the Fourth Amendment to the United Kentucky, COMMONWEALTH very States Constitution similar in both Appellant, language purpose. Crayton v. Com monwealth, Ky., 846 S.W.2d POTTS, apply rigorous Phillip Appellee. Court refused to a more stan- J. Court, than dard the United States No. 93-SC-582-DG. finding little textual difference between Sec- tion 10 of the Constitution and the Kentucky. First Amendment of the United States Con- *6 Sept. philosophy stitution. A similar should be applied in instance. Con- suppression
stitution require does not .
the evidence in this case.
A experienced trained and through
can observe his sense of touch what only through sight.
others can observe
“plain touch” doctrine should be
in Kentucky.
Eight other states have held that an subject seizure, to search and as a result touching,
of lawful develops cause to State,
is contraband. See v. Jackson Ark.
App. (1991); People v.
Chavers, Cal.Rptr. Cal.3d (1983); People Hughes,
P.2d 1201 State v. 391 (Mo.App.1988); Vasquez,
S.W.2d
State v.
(App.1991);
112 N.M.
fin Richardson, (1991); S.E.2d 177 State
Wis.2d N.W.2d State
Bearden, (La.Ct.App.1984). So.2d join
I must with Justice Lambert
suggestion that a rational rule would be to
permit seizure of item of contraband