dissenting. I would reverse and remand for a new trial in this case because Terry v. Ohio, 392 U.S. 1 (1968), does not authorize an officer to search a suspect’s pockets to retrieve an item that the officer knows is not a weapon. As noted by the majority, the purpose of a Terry search is to allow an officer to feel the outer portions of a suspect’s clothing to determine if the suspect has any weapons. However, a protective pat-down may not be used as a guise for a general search for evidence of criminal activity. See id. Once the officer determines that a suspect does not have any weapons, the protective search must end. See id.
Consistent with Terry, Arkansas Rule of Criminal Procedure 3.4 provides that:
If a law enforcement officer who has detained a person under Rule 3.1 reasonably suspects that the person is armed and presendy dangerous to the officer or others, the officer . . . may search the outer clothing of such person and the immediate surroundings for, and seize, any weapon or other dangerous thing which may be used against the officer or other dangerous thing which may be used against the officers or others. In no event shall this search be more extensive than is reasonably necessary to ensure the safety of the officer or others.
(Emphasis added.)
It is true that pursuant to Minnesota v. Dickerson, 508 U.S. 366 (1993), a police officer during the course of a protective search may seize nonthreatening contraband if its incriminating character is immediately apparent, as long as the officer’s search stays within the bounds marked by Terry. However, here, the officer’s search exceeded the scope of a Terry frisk.
The majority notes that Willey stated that when he felt the object, it was obvious to him, based on his experience and the way the object felt, that the object was a crack pipe. He further testified that he sees “lots of them,” and that he did not believe the object was anything else when he retrieved it. However, I disagree that the credibility issue in this case turns on Willey’s assertion that he immediately recognized that the object was a crack pipe. Rather, the credibility issue begins and ends with the reason for the patdown: to protect the officer’s safety.
Certainly, if the officer mistakenly thought that object was a weapon and it turned out to be contraband, the plain-feel doctrine would apply and the search would be proper. However, that is not the case here. To the contrary, it is clear that Willey knew the object was not a weapon when he searched appellant’s pocket. Nonetheless, the protective search continued, as demonstrated by Willey’s testimony. With regard to whether the search at that point was pursuant to arrest or for officer safety, Willey stated:
At that time it was pretty much, after I found the crack pipe I went ahead and patted him the rest of the way down and all the way down his legs after I found the crack pipe. It is correct that at the time I arrested him for the crack pipe there was no other accompanying felony, possession of drugs or anything of that nature.
Thus, when Willey felt the object in appellant’s pockets, he knew that it was not a weapon. Further, he was not in any danger because appellant had been handcuffed. At that point, the officer was authorized to continue with the protective pat-down of appellant’s outer clothing and to ask appellant for consent to search his pocket if he believed the object was contraband, but he was not authorized to search appellant’s pockets when he knew that the object was not a weapon.
The facts of this case are similar to the facts in Bell v. State, 68 Ark. App. 288, 7 S.W.3d 343 (1999). In that case, the officer, while performing a protective frisk, noticed a bulge in the defendant’s left rear pants pocket. The officer felt of the bulge, which he stated felt like a plastic bag containing a vegetable-like substance in the pocket. The Bell court reversed, noting that 1) it was clear from the officer’s testimony that he had to manipulate the bulge in order to determine that it was contraband and 2) that when the initial frisk yielded no weapons, the search should have ended.
The majority attempts to distinguish Bell on the ground that the officer had to manipulate the object to determine that it was contraband. It is true that the officer in the instant case was not required to manipulate the object to determine that it was contraband. However, this same nonmaniupulative touch also immediately assured the officer that the object was not a weapon. As in Bell, it is precisely because the nonthreatening nature of the object in appellant’s pocket was immediately apparent that the officer should not have retrieved the object.
Therefore, I would reverse this case and remand for a new trial.