Ohio Court Recognizes Limit On "Plain Feel" Exception

July 18, 1997

The officer must have probable cause to believe that the object is contraband.

Most police officers are familiar with the "plain feel" exception to the Fourth Amendment's search warrant requirement. Although this exception was created only a few years ago, it is now applied in pat-down searches on a daily basis. Officers should be aware that the courts are examining these searches very closely.

The purpose of a pat-down search is officer safety. In the past, an officer was not allowed to proceed beyond the initial pat-down without a search warrant unless the officer felt what appeared to be a weapon. Then, in Minnesota v. Dickerson (1993), the United States Supreme Court created the "plain feel" exception. Under that rule, a police officer who pats down a suspect for weapons may proceed to a warrantless search and seizure of other property only if:

Must the officer be certain that the object is contraband? No. However, one Ohio appellate court has recently held that the officer must have probable cause to believe that the object is contraband. It is not enough if the officer only suspects that the item might be contraband.

In State v. Woods (1996), the Montgomery County Court of Appeals reviewed decisions of the Ohio Supreme Court and the United States Supreme Court involving the "plain view" doctrine. It then applied those decisions to the "plain feel" exception and held that an officer must have probable cause to believe that the object felt is contraband. In other words, certainty is not required, but mere suspicion is not enough.

Applying that rule to the facts, the Woods court upheld the suppression of a single unit dose of crack cocaine found during a pat-down search. The trial court had refused to believe that the officer "could determine that the [defendant's] pocket probably contained crack cocaine with the palm of his hands." The appellate court accepted that finding, perhaps believing that the officer had stretched his credibility a little too far.

The lesson here is a simple one. Police officers may extend a pat-down search into a full, warrantless search and seizure if they have probable cause to believe that they feel contraband on the suspect's person, but the courts are only willing to believe what is reasonable. Unless you can prove that you have X-ray vision, you should not make "plain feel" claims that you cannot support!

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