People v. Mitchell

eighth not require propor amendment does strict tionality but “forbids extreme only sentences are (Harmelin, ’grossly disproportionate’ to the crime” U.S. at 115 L. Ill Ct. at Ed. 2d S. J., (opinion Souter, Kennedy, joined O’Connor JJ.)). correct, sentencing Even if latter is view inherently impose scheme here does not penalties which grossly are disproportionate the offense. Thus no eighth violation of the amendment has been shown.

CONCLUSION foregoing reasons, For the we reverse the orders of the circuit court of Livingston County declaring the penalties possessing for contraband in penal institu- tion to be unconstitutional. The causes are remanded Livingston court of circuit County further proceedings. Myers’ Defendant cross-appeal dismissed. 76152, 76153, 76154,

Nos. 76272— Reversed and remanded. No. Appeal dismissed. 76155— (No. 76722.

THE ILLINOIS, PEOPLE OF THE STATE OF Appel

lee, MITCHELL, v. CURTIS Appellant.

Opinion April 1995. filed HEIPLE, J., dissenting. Defender, (Evelyn of G. Chicago

Rita A. Public Fry, counsel), Baniewicz, Defender, of Assistant Public appellant. General, and Burris, Attorney Springfield,

Roland (Arleen C. Attorney, Chicago O’Malley, Jack State’s General, Chicago, Anderson, Attorney Assistant Burtzos, R. Goldfarb, Susan G. Theodore Fotios Renee At- Bertucci, State’s A. Assistant Schierl and Laura counsel), for the torneys, People. opinion

JUSTICE FREEMAN delivered court: appeal

This lies to this court on a certificate of (Ill. 1970, importance appellate from the court Const. 316). VI, 4(c); issue, by art. 134 Ill. 2d R. as framed § court, is whether touch” doc appellate recognized trine Supreme the United States Court 366, Minnesota v. Dickerson 508 U.S. 124 L. Ed. I, 6, 2d 113 S. Ct. violates article section the Illinois Constitution.

FACTUAL AND PROCEDURAL BACKGROUND July King Officer Edward observed defen- dant, Mitchell, driving a 15-year-old Curtis Oldsmobile southbound in the alley Chicago. of Orleans Street on, lights King The car’s were not any could not see plates. license Because that area of city high had a theft, King incidence of auto kept the Oldsmobile under surveillance. being blocks,

After followed for a few defendant pulled parked over and the car. Defendant exited the King approached. King vehicle as identified himself to began defendant and questioning concerning him owner- ship of the car and his driving lights. reason for without King vehicle,

As stood next to the he was able to steering observe that the column on the car had been "peeled.” He also pipes” pieces saw "crack and small copper scouring pads on the front seat of In the car. King’s officer, experience police he had seen pipes used to smoke scouring pads cocaine and used as filters inside those pipes.

King patdown conducted a "pri- search of defendant marily” weapons. During the patdown, he felt a foreign object King inside defendant’s shirt pocket. did felt, believe that what felt a weapon; was it instead, piece like a baggie. rock inside a small

King reached inside pocket pulled defendant’s object. out the He observed it to be what he believed King rock then defendant under ar- placed was cocaine. possession rest for of narcotics. trial, quash

Prior to defendant filed a motion to the motion, arrest and to the In his de- suppress evidence. fendant maintained the officer’s seizure of the Terry patdown. the of a See beyond scope cocaine went (1968), 1, 889, Terry v. Ohio U.S. 20 L. Ed. 2d 88 S. Ct. 1868. Terry stop patdown

The trial court found the However, held that seizure proper. have been court Terry. court, drugs The scope of the exceeded therefore, granted motion and entered an defendant’s the arrest and the evidence. quash suppress order to a motion for In its The State filed reconsideration. motion, argued search and seizure the State either as incident to an arrest or under upheld could be was touch” doctrine. The State’s motion denied. During State the trial court’s order. appealed

The Supreme the United States pendency appeal, Dickerson Court decided Minnesota v. 508 U.S. 2130, in which the 124 L. Ed. 2d 113 S. Ct. touch” doctrine did not Court held against un- proscription amendment violate fourth Noting this court’s and seizures. reasonable searches the Illinois Bill of interpret section 6 of predisposition interpre- Court’s Rights consistently Supreme amendment, appellate court tation of the fourth court, Dickerson’s The touch” doctrine. adopted doctrine, reversed finding the seizure under proper the circuit court. granted defen subsequently court appellate this importance to issue a certificate

dant’s motion 4(c); VI, 134 Ill. 2d R. 316. Ill. Const. art. court. § v. DICKERSON MINNESOTA granted certiorari Dickerson, Supreme Court and Federal courts among resolve a conflict the State through detected the sense of over whether contraband during patdown proper touch search is admissible The Court noted that under certain circum- evidence. stances, police may officers seize contraband detected during Terry the lawful execution of a search. In its particular the Court reliance on its de- analysis, placed 1032, 463 U.S. 77 L. Michigan Long cision 1201, 3469, Ed. 2d 103 S. Ct. which sanctioned than in the weapons view” seizures of items other Terry context of a search of automobiles. " stated, Specifically, conducting the Court 'If while legitimate Terry search of the interior of the automo- bile, should, here, the officer discover contraband other than weapons, clearly required cannot be contraband, ignore the and the Fourth Amendment does ” require suppression its in such circumstances.’ Dickerson, 374, 345, 508 U.S. at 124 L. Ed. 2d at 113 S. 2136, quoting 1050, Ct. at Long, 463 U.S. at 77 L. Ed. 2d 103 S. Ct. at 3481. doctrine, on Expounding view” the Court that, if police lawfully stated officers are in a position they from which if object, incriminating view its character and if immediately apparent, the officers right have a lawful object, they may access to the If, however, seize it without a police warrant. lack probable cause to that an object plain believe view is conducting contraband without some further search of " object i.e., incriminating if 'its character [is not] — ’ "immediately apparent” plain-view doc [citation] —the justify Dickerson, trine cannot its seizure.” 508 U.S. at 124 L. Ed. 2d at 113 S. Ct. at 2137. The Court noted that doctrine has view” application by analogy obvious to cases in which an of- through ficer discovers contraband the sense of touch during police an otherwise lawful search. "If a officer lawfully pats clothing down a outer and feels suspect’s im identity contour or mass makes its object whose there has been no invasion of the mediately apparent, already authorized suspect’s privacy beyond that contraband, object if the weapons; officer’s search for by the same justified its warrantless seizure would be inhere in the practical plain-view considerations Dickerson, 375-76, U.S. at 124 L. Ed. 2d at context.” 345-46, 113 S. Ct. at 2137. it, to the facts before

Applying principles these of the crack cocaine Court held that the officer’s seizure Terry. held that al- the bounds of The Court exceeded lawfully position in a to feel the though the officer was deter- pocket, in the defendant’s the court below lump incriminating object character of the mined that Rather, to him. the of- immediately apparent was not af- only item was contraband ficer determined sliding conducting squeezing, ter further search — the contents of the defendant’s manipulating otherwise search of the defendant’s pocket. Because further invalid, the seizure of the constitutionally was pocket Dickerson, followed was unconstitutional. cocaine 377, 347-48, 113 Ct. at 124 L. Ed. 2d at S. 508 U.S. 2138-39.

DISCUSSION Dickerson resolves The Court’s decision Supreme concerning feel” doc whether any conflict guarantees. ques amendment The trine offends fourth is whether the doc tion for our resolution presented I, 6, Illinois’ article section comports trine court, although presented appellate protections. the va upon uphold basis which to with an alternative seizure, decision on the rested its lidity (see Although we need not do so doctrine. & Co. Refining (1973), 54 Ill. 2d v. Union Starch Nowicki (certification (Goldenhersh, J., dissenting) does 93, 100 to be the find the certified require question that we case)), analysis we confine our controlling issue in application of the doctrine. the consideration and however, outset, defendant’s At we must address Supreme required that we are not follow assertion protections "lock interpretation of Federal Court’s are not bound to follow step.” acknowledge that we We interpretation of Federal constitu Supreme Court’s we Indeed, this has often stated that tional law. court constitution may provisions of our State construe the compara than protections more provide expansive (See May In re provisions. ble Federal constitutional Ill. (1992), 152 2d Jury Grand County 1991 Will 436; 390; (1992), v. People 147 Ill. 2d People Perry 243.) judicially Ill. 2d Certain Tisler however, limitations, define the exercise of crafted right. 245, Tisler, response to the Ill. 2d at in of our entreaty for broader construction

defendant’s court stated that provision, "[w]e search and seizure this constitution, or in the language must find in the of our reports and the committee the constitutional debates convention, pro something which will indicate be visions our constitution are intended to construed than in the Federal differently provisions are similar (1994), See, Fitzpatrick v. e.g., People constitution.” 360; Ill. 2d 414. People McCauley Ill. 2d Rights mir 1970, section 6 of our Bill of Prior cur rored amendment. As it language fourth reads, "The have rently provides: people shall section 6 houses, right persons, papers, to be in their secure searches, against unreasonable possessions and other seizures, com interceptions or privacy invasions by eavesdropping devices or other means.” munications 6.) (Ill. I, express pro art. The addition of Const. § interceptions of com privacy for invasions of visions product is a of the 1970 Constitutional munication provisions expressed Convention. No similar are in the respects, Federal fourth amendment. In all other language however, nearly, continues, section 6 parallel that of the Federal fourth amendment. U.S. Cf. Const., IV; Tisler, amend. see 103 Ill. 2d at 235-36. language

Defendant views the additional in section evidencing 6 as the drafters’ intent that Illinois’ search provide expansive protections and seizure clause more counterpart. attempt than its Then, Federal as a further satisfying requirements Tisler, announced in transcript offers the verbatim of the convention debates on section 6. expansiveness

This issue of the of section 6 was correctly considered and decided in Tisler and no purpose is served our reconsideration. We would simply add that the Dvorak, comments of committeeman proposed changes in his address to the convention on the particularly pertinent point. to section are on this Dvorak stated: nothing

"There is new or no new concepts that the Bill of Rights Committee provide intended to only insofar as the search and seizure section —or the search and seizure concept if, fact, concerned we break [section 6] down —is concepts three I originally stated.” 3 Record of —as Proceedings, Sixth Illinois Constitutional Convention 1523-24. express Given the intent of the drafters to leave unaltered the search and seizure clause of section language provides additional in our section 6 no basis interpretation for an different from the Federal search and seizure clause.

In the face of Dvorak’s clear statement of the draft- support intent, defendant, ers’ nonetheless, seeks for his argument by focusing on other of Dvorak’s comments. Specifically, defendant cites to Dvorak’s statement that any way legalize the committee "did not intend in to or legally deal with or make constitutional —or constitu- frisk’ 'stop the and question, tionally constitutional —a Proceedings, Il- of Sixth instance.” 3 Record concept, for linois Constitutional Convention 1524. clear. entirely is not import

The of this statement Nevertheless, negate to Dvorak’s we do not understand it concerning of intent statement the drafters’ prior seizure clause. search and Tisler, nothing, in the with we find either

Consistent debates, in to language provision support or 6 search and divergence interpretation in our section amendment in from the Federal fourth seizure clause Indeed, in af court Tisler stated that terpretation. having accepted pronouncements Supreme ter ap deciding fourth amendment cases as the Court provi construction of the search seizure propriate so many years, sions of Illinois constitution for should sud grounds, absent some substantial we not Tisler, 103 Ill. at 245. denly change course. 2d concept next that of search Defendant asserts right incorporates privacy. Proceed seizure ing argues police premise, from that he conduct case, is, touching body, involved in this his 6 as personal privacy falls within the clause section opposed to the search and seizure clause. Defendant constitution, then our unlike the fourth notes that amendment, right makes express provision Grand privacy. Relying May County on In re 1991 Will Ill. he Jury 2d asserts that section beyond re goes guarantees Federal constitutional right. It entitled spect is his contention that greater right-to- our protections to the afforded under privacy clause. right-to-privacy initially responds State that the protections provide greater

clause of section does than does the fourth amendment. Consistent with language position, urges the State our reevaluation 220 County Jury

Will Grand Alternatively, to that effect. argues the personal State that 6 privacy section right is confined to invasions highly personal into mat- ters and does not to apply the conduct at issue here.

firstWe consider under which clause of section conduct involved here do disagree falls. We not with premise concerning defendant’s basic the relationship of right search seizure and the privacy. Clearly, to not seizure, just search and but of each the three clauses commonality included section 6 shares a purpose— of protection of an privacy individual’s interests. Notwithstanding commonality, each differs clause respect designed prohibit. conduct it was of Terry, scope doctrine, as well as the view” born, out which traditionally of was has against been tested the bounds of the search and seizure of clause section We do perceive 6. not the recent of a right-to-privacy change addition clause effected any regard. Thus, in that even though trig- conduct here gers generally, concerns right-to-privacy such conduct particularly more a search and seizure issue. concerning privacy Dvorak’s comments clause provide insight of perceptions into drafters’ of the conduct covered He com- by nature clause. mented: concept general have now bank

"We information whereby government government the state or federal take pertinent can information about each and certain on, instance, every security one of us based our social weight, ages, height, family various number —know our things acceptable this not about us—and is not to—was acceptable theory thought thing—a or the of such —or acceptable majority to the was our committee approving section 6.”

Later, specifically when asked what is meant invasions Dvorak into privacy, peeping added through peephole be the women’s washroom could (3 privacy. considered invasion one’s Record Convention Constitutional Illinois Proceedings, Sixth 1530.) interpreted been subsequently has The clause evi physical head hair or pubic seizure of cover the ap nature, in-person as an such of a noninvasive dence (see palmprints or fingerprints lineup, in a pearance 381), well as Ill. 2d Jury, Grand County Will (see breath, King and urine blood tests of chemical 449). v. Lurie People See also Ill. 2d Ryan to cover (1968), (right extended 39 Ill. 2d 331 records). in and books privacy individual’s merely [it] "felt Rights Committee The Bill of thorough very and very and very progressive would be 6 into section theories include all three proper [to] Il- Proceedings, Sixth 3 rights.” Record bill [the] (comments of com- Convention 1525 linois Constitutional Con, for the Il- Dvorak); Con Issues see also mitteeman (V. Ranney ed. Constitutional Convention linois 1970). the debates is from the convention

Apparent categorization change no drafters intended and seizure traditionally by covered the search conduct clause, draft- adding right-to-privacy By clause. a more our constitution intended to make merely ers note ad- document. We contemporary progressive privacy held that generally it is not ditionally that in the protection an additional source clauses are afforded rights already beyond context those criminal and seizure. J. governing search by specific more clauses (1994). Law 2—4 n.4 Friesen, State Constitutional right-to-privacy the section We conclude Rather, at issue here. not cover the conduct clause does fall within the conduct, always, continues Having so and seizure clause. bounds of the search reconsider concluded, invitation to we decline State’s concerning the Jury Grand language County Will now return to clause. We right-to-privacy of our breadth court. appellate to us question presented light of this court’s stated election to construe our guarantees section consistently the Supreme Court’s interpretation amendment, of the fourth answer question to the certified to us seems clear. The "plain touch” doctrine does not violate our section 6 guarantees.

In so concluding, that, we are mindful in interpret ing the warrant requirement of our constitution, State charged we are with the duty to "carefully balance the legitimate aims of law against enforcement the interest of all our citizens in preventing unreasonable intrusions (People Smith on their privacy.” (1983), 95 Ill. 2d 422.) Significantly, Supreme Court charged is with a comparable mandate with respect to its interpretation (See United States v. of fourth guarantees. amendment Place 696, 703, 462 U.S. 110, 118, 77 L. Ed. 2d 2642.) 103 S. Ct. accept We adop the Court’s tion of the "plain touch” doctrine strikes the proper bal ance between competing Also, relevant interests. significant acceptance, to our is that "plain touch” a newly exception created to the require warrant ment. The merely doctrine existing flows out of the "plain view” been, doctrine which form, has in some operational in this State since this court’s decision in v. Exum People (1943), 382 Ill. 204.

Heretofore, when confronted with a question con cerning search and guarantees seizure on which the Supreme spoken, Court has we have not done substan tially more than reiterate our election to follow the Tisler, e.g., (See, Court’s interpretation. 103 Ill. 2d 245; Smith, People v. 422; Jackson (1961); 95 Ill. 2d at 387.) 382, Ill. 2d In light of the comparable Court’s Place, (see mandate to competing balance the interests 703, 118, 2642), 462 U.S. at 77 L. Ed. 2d at 103 S. Ct. at approach such has been both expedient appropri and not, however, ate. We are precluded engaging from in when analysis, particularly independent our own here, issues not addressed confronted, are as we Thus, having concluded opinion. Dickerson the Court’s doctrine, we nev- constitutionality of the concerning the of the doctrine the nature ertheless consider challenges propriety. to its defendant’s several "Plain Touch” Doctrine seizures under upheld have Generally, courts which by analogy, so have done exception touch” of touch for substituting officer’s sense merely rejected courts which have sight. of Those officer’s sense however, improper expansion doctrine, view it as (See Note, The rationale. supporting and its Terry Amendment Rendi- Fourth Exception ”Plain Feel” —A Dickerson, 62 State v. and the Pea: tion the Princess therein).) (and cited 321, cases Cinn. L. Rev. 331-34 U. however, rejection of holding in Long, the Court’s Given insupportable. that basis is the doctrine on extended opinion, Long in this As stated earlier than of items other the seizure Terry permit to scope (See 3 searches. of automobile in the context weapons (2d 1987).) 9.4(f) No ed. LaFave, & Seizure W. Search § Il Terry read this court prior Long, tably, even seizures. holding permit such of its linois’ codification 272; Ill. Rev. (1971), Ill. see also v. Lee 2d See People 108—1.01. pars. ch. Stat. 107— foreign to Illinois. is not The notion 170, 174, the court (1968), 41 Ill. 2d Wright v. People admitting evidence propriety with the was confronted and hear of vision an officer’s use through discovered discussion, court noted ing. In its an of which anything applied has been view doctrine while of his senses aware of use ficer becomes five added.) People also See (Emphasis position.” a lawful of (holding that an 2d 359 91 Ill. Eichelberger knowl- when presence in an officer’s committed fense is edge acquired through of the commission of an offenseis senses). any of his

Subsequent Wright, this Lee, court decided 48 Ill. parties 2d 272. The Yet, have not is, cited Lee. Lee in ef early application fect, an of what has now come to be characterized as the Lee, touch” doctrine. In upheld police court officers’tactile identification and shotgun gun seizure of shells and a shoulder holster as properly Terry. within the bounds of

Specifically, subjected Lee, in the defendants were "pat search.” The search revealed that one defendant wearing empty was shoulder holster beneath his carrying shotgun outer coat and shell in his coat pocket. The other defendants were then searched purpose locating gun which the officers possession gun believed was in the of one of them. No gun posses- found, was but shells were discovered in the sion of some of the defendants. The defendants were subsequently possession convicted of unlawful of fire- arms ammunition. presaged, analysis by

As if now articulated purposes parallels in Court Dickerson for analysis upholding Specifi- the Lee court’s in the seizure. cally, required Lee, Dickerson, as the court first propriety stop pat determined the search Terry. required by Next, under Dickerson, is also court in Lee considered whether the search exceeded scope Terry. doing, In so the court determined detecting pat that, after the holster and shell from the search, the officer had reached inside the defendant’s Significantly, outer coat and seized the items. the court objects "[t]he appreciable stated, were hard and of size presence apparent touching and their clothing. from the outer reasonably The shell could be identified pat object capable being officerin his search as some weapon. shape used as a of the holster and the loca- Lee, 48 Ill. 2d at ready its identification.” permitted tion 278. category of cases that fits within that neatly

Lee to by analogy "plain view.” "plain touch” adopted have However, without simply accepted, court in Lee the rationale, the tactile that officers’ supporting to resort Because we proper. both reliable and perceptions were Dickerson, adopt we now its agree in with the rationale holding in Lee. reasoning to reaffirm the Challenges to the Doctrine Defendant’s doctrine challenges to the Defendant’s support- to further set out the opportunity us the afford and, the neces- extent ing rationale for doctrine sary, clarify in Illinois. operation its Court, adopting argues first that

Defendant doctrine, individu- failed to consider the feel” in those items expectation privacy al’s reasonable keep private. which he seeks to that apparently portion has overlooked Defendant this issue. opinion the Dickerson which addressed Dickerson, if a officer police Court that reasoned clothing a and feels lawfully pats suspect’s down outer identity im- or mass makes its object whose contour has no of the mediately there been invasion apparent, by already authorized privacy beyond that suspect’s Dickerson, 508 U.S. at See weapons. officer’s search for 346, S. at 376, L. 113 Ct. 2137. 124 Ed. 2d doctrine conflicts argues next Defendant inadvertency requirement view” with the "plain view” doc- He that under doctrine. asserts inadvertently discovered trine, only which are items (See may seized. search be during an otherwise lawful 443, (1971), L. 403 U.S. Coolidge Hampshire New 2022.) He maintains 2d 91 S. Ct. Ed. police met when the inadvertency is not requirement and thus of the evidence in advance the location know to seize it. intend

Any inadvertency requirement "plain view” purposes was rejected in Horton v. California U.S. Ed. 2d Horton, L. 110 S. Ct. 2301. In the Court that an requirement noted inadvertency had been earlier offered as necessary to avoid a violation requirement constitutional valid warrant particularly things describe the to be In now seized. rejecting requirement, the Court noted that if an of- expects search, ficer find an item in the course of a expectation his should not serve to invalidate subse- quent seizure item. The relevant consideration is gone whether the search had beyond the area and dura- tion defined the terms of the warrant or a excep- valid tion to the requirement. warrant

Additionally, the Court Horton noted that inadvertency requirement necessary prevent police conducting general so, from searches. This the is held, Court because are already those concerns ad- by requiring dressed that no warrant issue unless it particularly place describes the to be searched and search, persons to be seized. In the case of a warrantless exigen- the extent of the search by is circumscribed the scope cies which its If justify initiation. the of the search permitted by exceeds that the of the warrant or terms the character of the war- exception relevant from the requirement, subsequent rant is seizure unconstitu- tional without more.

Consistent and doc- with Horton view” trine, inadvertency no is in requirement articulated for "plain purposes. Dickerson touch” concerning Defendant raises questions additional reliability urges of tactile He perceptions. that further, and, sense of touch less inherently is reliable sight. it is more intrusive than This issue also in Dick- was addressed the Court Incidentally, challenges erson. we note that of all of the doctrine, this to the touch” opposition in asserted As the Court Dicker frequently asserted. one is most out, however, upon based itself was pointed Terry son capable of of touch is the sense supposition enough with reli revealing identity object of an Dickerson, 508 weapon’s a seizure. See ability justify 113 S. Ct. at 2137. Ed. 2d at U.S. at L. easily are of weapons all note also that not even We by layer a when covered shape, particularly discernable Terry of a However, in the context clothing. of heavy and frisk, training experi an officer’s stop and where reasonably led to conclude ence have him object has object of that perceived weapon, is a seizure (See, People v. Gunsaullus upheld e.g., been valid. 440; Pieczynski, Il Ill. 3d also L. App. see (1989).) the officer’s seq. Practice 13.1 et It is linois § his object which elevates reason might armed able be suspicion suspect suspect probable cause to believe that necessary Holtz, The Touch” Cor concealing weapon. See "Plain Consequence A Natural Foreseeable ollary: (1991). Doctrine, 95 Dick. L. Rev. 521 Plain View percep- same be said of the officer’s tactile may have objects tion of contraband. When a distinctive shape has consistent that an officer been trained previous experience and that has had detect officer can detecting objects, perceptions such his tactile recognition sight him that his provide same (See (C.D. provided. Pace would have United States v. 1989), 948; also Supp. Cal. 709 F. see United States (D.C. 1174.) 1987), F.2d We caution Williams Cir. 822 reasonable, objectively that belief be the officer’s must and light past experience training, capable of his 948.) (See However, Pace, Supp. of verification. 709 F. cause, probable regardless cause of whether probable is sight it from or develops touch.

228

Further, reasoned, as the Dickerson Court if in fact touch is less sight, reliable than that only means that justified fewer seizures will by "plain be touch.” Because requires fourth amendment prob officers have able object cause believe is contraband before it, seizing excessively speculative seizures will be (See prevented. Dickerson, 377, 124 at U.S. L. Ed. 2d 2137.) 346, 113 S. Ct. at an object Where not readily is identifiable, probable absent, cause is provides no support for its seizure.

Finally, we note tactile evidence be pre- can served for trial assure courts an opportunity to the object evaluate the officer justified claims See, e.g., seizure. Commonwealth Marconi (in Pa. Super. rejecting 597 A.2d 616 "plain touch” of drugs, basis seizure court held that minute drugs amount of found could not have been identified touch; through sense of object was as consistent feel- ing a an aspirin button or itas was with metham- phetamine).

Regarding greater of "plain intrusiveness touch,” Dickerson noted that the concern was inap- propriate because the feared intrusion already would be by Terry. authorized "The of an seizure item whose identity is known already occasions no further invasion of privacy,” suspect’s and the are privacy interests not aby banning enhanced rule the seizure of contraband "plainly through detected sense touch.” Dicker- son, 346-47, U.S. at L. Ed. 2d at 113 S. Ct. at 2137-38. not permit doctrine does the search exceed

the initial As soon as the is intrusion. officer satisfied object that an is weapon, further search to identity determine or object nature impermissible.. Dickerson, See 508 U.S. at 124 L. (where 347-48, Ed. 2d at 113 S. Ct. at 2138-39 officer

229 identity, to its manipulated object determine such conduct a further permissible constituted search not Terry). under argues impermis- next "plain

Defendant that touch” sibly scope permit the expands Terry to the search for evidence and blurs clear its limits. operation misperceives

Defendant the of the doc- already stated, trine. As we have the scope of the search is Terry. defined Once the that officer determines the object weapon, felt is not a is he not authorized proceed with a further search. The doctrine neither countenances nor promotes unfettered searches the suspect’s person beyond permissible that which is in the search for weapons.

In a argument, related defendant contends that "plain touch” constitutes an unwarranted extension of Terry underlying because the State interest which the promotes doctrine preservation is search for and evidence. Such justification, he argues, also is not outweighed by an privacy individual’s interests.

When operates touch” in the context of a stop frisk, Terry justification interest or for the is, nonetheless, intrusion the protection investigat ing True, preservation officer. fact, of evidence may, result from an application However, of "plain touch.” the State’s is interest to be legal found the prior justification supporting that, It simply intrusion. under doctrine, touch” where in the conduct Terry frisk, stop the officer discovers contraband, he is required to avert his attention from such evidence. The same practical considerations justify view” justify "plain doctrine also (See 467-68, touch.” 403 Coolidge, U.S. at Ed. 29 L. 2d at 583-84, 2038-39; Macintosh, S. 91 Ct. at see also Fourth Amendment —The Plain Touch Exception to War Requirement, rant 84 J. Crim. L. & Criminology (1994).) merely supplement operates "Plain Coolidge, legal justification. U.S. prior Cf. S. at 2038. 29 L. Ed. 2d at Ct. is that it challenge final to the doctrine

Defendant’s serve as the improperly allows the fruit the search to In sup- of the contraband. justification seizure appellate reasoning notes the court’s when port, he baggie probable had cause plastic felt officer and, object he felt was contraband believe therefore, proper. Defendant maintains seizure was with reasoning faulty is and conflicts deci- that such defining scope search incident to arrest. sions of may whether seizure We do not here consider this resulting a to a justified be as from search incident valid therefore, We, this issue. decline consideration of arrest. "Plain Touch” Doctrine Application remaining our consideration is only The matter for facts of this particular doctrine to the application a court’s rul proceeding, we note that trial case. Before subject is ing suppress a evidence on motion De novo review only manifestly reversal if erroneous. here, however, when, is as nei appropriate, this court is credibility ques nor of witnesses ther the facts People Foskey (1990), Ill. 2d 76. tioned. necessary analysis those facts to our reiterate We Initially, note that the doctrine. we application and stop or the frisk is no contention that either there Terry. Thus, as improper under this defendant was a prior there was purposes, required "plain touch” for the intrusion. legal justification Terry stop, then, of the Proceeding, from the time pipes King observed crack that record reveals He seat of the automobile. scouring pads on the front starting the defendant’s as patdown described upper body, making up his defendant’s way wrists chest, by his feeling.” felt defendant’s "just When he pockets, object felt a shirt foreign pocket. inside his felt rock object King piece like inside a small baggie. seizing object, King Prior to it believed substance, was a controlled "more specifically [he] felt that it was rock probably nothing cocaine.” There suggest King record to manipulated object identity. order to determine its

King police has been a Chicago officer for about 17 years. experience police his officer he has seen pipes used to smoke crack cocaine one over hundred times and has also recovered narcotics. facts, upon

Based these we find that the require- ments for seizure under the touch” doctrine have been met and illegal was, seizure of the contraband therefore, proper. however, argues, Defendant given the size of the substance recovered from his person, possible it was not King could im- have mediately object identified the as a narcotic. He relies on Commonwealth v. Super. 601, Marconi 408 Pa. 597 A.2d as support proposition given for the the size object, any claimed identification of the object could not be certain.

We disagree with impossibility defendant’s argu- ment. King Given that drug observed the paraphernalia on the car, seat of the likely he suspected drugs that were present, either on person defendant’s or in the ve- Thus, hicle. it is that King’s police conceivable prior ex- perience drugs, coupled with his observation of drug paraphernalia on the seat and percep- his tactile object tions of the pocket, defendant’s enabled his ready tactile object. identification of

Further, we although note that the court in Marconi rejected "plain particular touch” on the set of facts it, before the court rejection announced no wholesale of the doctrine. In a footnote to the opinion, court holding stated that it was not that certain under cir- 232

cumstances could not be used as sense touch acknowledged technique The court identity. accurate times, a as perception touch tool "[a]t through through the See perception other senses.” definitive n.17, Marconi, A.2d at 623 Super, 408 Pa. at 615 597 n.17. additionally appellate argues that

Defendant King readily was able erroneously court assumed that from his "search” presence to discern the of narcotics He record does not pocket. defendant’s maintains it im- felt the was King object, show that when clearly him was apparent object to contra- mediately Thus, probable cause to seize King band. did have the item. the phrases use appears

The Court in Dickerson to "probable cause” inter "immediately apparent” notwithstanding, notice that changeably. we That touch,” "plain the Court fashioning the for requirements requirements view” doctrine. adopted the probable permit to requires "Plain cause view” (See 326, 321, U.S. v. Hicks 480 seizure. Arizona 1153; 355, 1149, also 347, Ct. see 94 L. Ed. 2d S. 730, 502, (1983), 460 L. Ed. 2d Brown U.S. Texas v. "im phrase (acknowledging Ct. 1535 S. purposes view” was mediately apparent” words).) Thus, and consis it is reasonable poor choice cause is sufficient probable conclude that tent (See context. seizure in the justify MacIn tosh, Exception Plain Touch Amendment —The Fourth L. & Criminol 84 J. Crim. Requirement, to the Warrant (1994).) the officer Regardless of whether ogy 760-63 touch, must or by sight detects the contraband item is contra probable have cause believe Dickerson, U.S. at See seizing it. band before 113 S. Ct. at 2137. 124 Ed. 2d L. " knowledge 'have police exists when Probable cause of facts which would lead a reasonable man to believe that a crime has occurred and that it has been commit ” by Wright (1985), ted (People defendant.’ v. 111 Ill. 128, 145, 2d quoting (1984), People Eddmonds 101 Ill. 60.) 2d to Relevant this determination is the officer’s factual based knowledge, prior on his law enforcement experience. v. Smith 95 Ill. 2d People 419-20. facts, above,

Those we have as recited them would lead a drugs reasonable person pres- believe that were ent either in or person the vehicle on the of the defen- Further, King’s dant. it testimony was that when he felt object it to King’s believed be crack cocaine. vi- observation, along sual rocky his touch substance, properly support a that King conclusion had probable object cause to believe that he felt was rock cocaine. sum, King was justified Terry to stop and and, further,

frisk defendant probable as he had cause to believe the object pocket felt in defendant’s was rock cocaine, seizure of the proper substance was under the Thus, touch” doctrine. we conclude defen- suppress dant’s motion to should been have denied. We affirm judgment therefore of the appellate court, which the trial reversed court and remanded the cause for further proceedings.

Affirmed. HEIPLE, JUSTICE dissenting: Because I believe the so-called touch” I, doctrine violates article section Hlinois Con- stitution, against which citizens protects unreasonable searches, I respectfully dissent. turning

Before the merits of the doctrine, my disagreement I majority’s note with the Court, conclusion that Supreme interpret- the Hlinois ing the search seizure clause of the Hlinois Consti- tution, is bound follow the decisions the United Supreme interpret Court which the search States no the Federal Constitution. There is seizure clause of in this inter- reason for deference area of constitutional sug- to similarly unsupportable It be pretation. would Court, interpret- States gest Supreme the United Constitution, by bound ing provision a of the Federal is Supreme interpret Illinois Court which decisions the Regard- Constitution. provision a similar Illinois documents, in the two language employed less of the The States are and distinct. United they separate interpret to responsibility Court has the Supreme Constitution; has Supreme Court Federal Illinois to its State constitution. responsibility interpret nondelegable These are duties. doctrine, "plain purported

The touch” a extension doctrine, scrutiny. withstand "plain view” cannot a law officer to seize permits The view” doctrine doctrine, contraband view. The plain hand, permits other a law officer seize contra- on the during the through of touch band detected the sense It allows a patdown a search. thus weapons course long as is able to anything law officer to seize merely identify by the contraband contend that he could no matter touching suspect’s clothing. Realistically, be, may such a contention unsupportable how absurd or successfully challenge it. not be able to a defendant will encourage will officers touch” doctrine clothing or person’s in a investigate lump bulge or any during course of curiosity their arouses pockets contraband, the item out to be If turns patdown search. If it justified. retrospectively can be then its seizure something else, there is no case then turns out be interim, subject citizen matter ends there. personal privacy into his unwarranted intrusion to an weapons contemplated beyond far the intrusion search. patdown Every expansion

Governance involves choices. government power liberty. ais of individual diminution A balance must be struck between lawlessness and personal liberty freedom. Some restrictions on are nec- essary society relatively in order to have a that is free predation. from crime and The current obsession is to drug question, eliminate illicit however, use. There is no drugs, personal that under the so-calledwar on freedoms being trampled. may deplore and liberties are While I marketing drugs, and use of illicit as well as the un- personal problems desirable and social that flow there- pendulum swung from, I believe that the has too far in the area of law enforcement and that the assault on our by government basic liberties and freedoms itself has potentially become a far more serious and destructive problem. social

(No. 77252. THE Appel PEOPLE OF THE ILLINOIS, STATE OF Appellant.

lee, v. PAUL DUNIGAN, Opinion April 1995. filed

Case Details

Case Name: People v. Mitchell

Court Name: Illinois Supreme Court

Date Published: Apr 20, 1995

Citation: 650 N.E.2d 1014

Docket Number: 76722

Court Abbreviation: Ill.