State v. Trine

BERDON, J., with whom KATZ, J., joins,

dissenting. The Terry patdown,1 unknown to the common law,2 is *243tolerated for the sole purpose of protecting our police officers in the performance of their investigatory duties from serious injury as a result of concealed weapons. State v. Williams, 157 Conn. 114, 249 A.2d 245 (1968), cert. denied, 395 U.S. 927, 89 S. Ct. 1783, 23 L. Ed. 2d 244 (1969) (Terry patdown is permissible under state constitution); see Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972) (“purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence”). It is a harrowing and humiliating experience3 that severely infringes on a person’s right of privacy and must be circumscribed in view of its sole purpose. Therefore, once a police officer has determined that an individual does not possess a weapon, the search is over and there is no authority for further intrusion. Ybarra v. Illinois, 444 U.S. 85, 92-94, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979); Sibron v. New York, 392 U.S. 40, 65-66, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968).

Today, the majority expands the Terry search, by validating a “plain touch” exception for nonthreatening *244contraband. In my view, this plain touch exception constitutes an unreasonable search and seizure under our state constitution thereby unconstitutionally infringing on the right of privacy, which is so sacred to our freedom.

The majority, without any independent analysis of the reliability of “plain touch,” its reasonableness or its effects upon the privacy rights of our citizens, adopts the holding of Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993), when construing the constitution of Connecticut, article first, § 7. “Although we have often relied upon decisions of the United States Supreme Court interpreting the fourth amendment to define the protections provided by related provisions of our state constitution, we have at times determined that the state constitution affords greater protections to the citizens of Connecticut than does the federal constitution, as interpreted by the United States Supreme Court.” State v. Oquendo, 223 Conn. 635, 649, 613 A.2d 1300 (1992) (“seizure” was defined more expansively under state constitution than in California v. Hodari, 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 [1991]); State v. Joyce, 229 Conn. 10, 23, 639 A.2d 1007 (1994) (under state constitution individuals have reasonable expectation of privacy in their clothing); State v. Miller, 227 Conn. 363, 630 A.2d 1315 (1993) (holding that warrantless searches of impounded automobiles violate Connecticut constitution, despite United States Supreme Court holding in Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 [1970]); State v. Geisler, 222 Conn. 672, 695, 610 A.2d 1225 (1992) (evidence derived from unlawful warrantless entry into home must be excluded unless taint of illegal entry is attenuated by passage of time or intervening circumstance, despite New York v. Harris, 495 U.S. 14, 110 S. Ct. 1640, 109 L. Ed. 2d 13 [1990]); State v. Marsala, 216 Conn. 150, 151, 579 A.2d 58 (1990) *245(rejecting under state constitution good faith exception to exclusionary rule adopted in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 [1984]). “We have stated, moreover, that the Connecticut constitution is an instrument of progress, it is intended to stand for a great length of time and should not be interpreted too narrowly or too literally so that it fails to have contemporary effectiveness for all of our citizens. . . . Thus, the law of the land may not, in the state constitutional context, also be the law of the state of Connecticut.” (Citations omitted; internal quotation marks omitted.) State v. Oquendo, supra, 649.

My analysis of whether the state constitution allows this further intrusion into the privacy rights of our citizens begins with the requirements for an investigatory stop under Terry that could trigger a patdown. A police officer needs only a “reasonable and articulable suspicion” that an individual is engaged in criminal activity in order to justify a Terry stop. State v. Gant, 231 Conn. 43, 65, 646 A.2d 835 (1994), cert. denied, U.S. 115 S. Ct. 1404, 131 L. Ed. 2d 291 (1995). Simply because a Terry stop is permitted, however, does not necessarily mean that there is a justification for a patdown. Before an individual may be patted down, which is far more intrusive of a person’s privacy,4 the officer must also have a reasonable belief that the individual is armed and dangerous. Minnesota v. Dickerson, supra, 508 U.S. 373. For the purposes of this dissent, I assume that both of these requirements have been met.5

*246Extending the Terry patdown under the state constitution to allow a police officer’s “plain touch” to form the basis for probable cause to conduct a full blown search and seizure is easily subject to abuse. The impact of this extension will fall the hardest on the poor, underprivileged and minority members of our society who are economically compelled to live in neighborhoods that are infested with crime and drugs. It is in this setting that police are more apt to claim a fear of weapons in order to engage in a Terry patdown when their true motivation is to search for contraband. “The ‘plain touch’ doctrine will encourage officers to investigate any lump or bulge in a person’s clothing or pockets that arouses their curiosity during the course of a patdown search. If the item turns out to be contraband, then its seizure can be retrospectively justified. If it turns out to be something else, then there is no case and the matter ends there. In the interim, a citizen is subject to an unwarranted intrusion into his personal privacy far beyond the intrusion contemplated by the weapons patdown search.” People v. Mitchell, 165 Ill. 2d 211, 650 N.E.2d 1014, 1025 (1995) (Heiple, J., dissenting); see *247State v. Miller, supra, 227 Conn. 370 (similarly, because no evidence flowed from Terry stop, court had no cause to determine whether stop was constitutional, thereby ignoring possible invasion into individual’s privacy).

Both the United States Supreme Court’s analysis in Dickerson and the majority’s analysis in this case hinge on a flawed premise: contraband may possess distinctive “tactile characteristics.” It does not take much experience, either on the part of a police officer or a judge, to be able to determine accurately the existence of a gun, knife, billy club or other weapon by the sense of touch. This is because weapons possess distinctive physical characteristics that lend themselves to being identified by touch.6 Contraband, such as drugs, however, does not possess such distinguishing tactile characteristics. Contraband takes the form of the container in which it is kept. Unless an individual is clairvoyant, the contents of a package cannot be determined from merely touching the container.

For example, in a similar case recently before the Court of Appeals of Michigan, a police officer, while conducting a Terry patdown, “felt a pill bottle in [the] defendant’s groin. He claimed that he recognized this as a method by which cocaine was transported. However, in order to make the determination that this particular pill bottle contained cocaine, he had to remove it from [the] defendant’s person and visually inspect it.” People v. Champion, 205 Mich. App. 623, 631, 518 N.W.2d 518 (1994). The court held that the contraband should have been suppressed at trial because “it [is] impossible to conclude that the incriminating nature of a pill bottle is immediately apparent. . . . Merely from feeling the contours of a pill bottle, the officer was able *248to conclude that [the] defendant carried a pill bottle, not that he carried contraband.” Id., 631-32.

Similarly, in this case, Sergeant Lawrence Pagan of the Connecticut state police concluded that the defendant was not armed7 but felt “a hard object” and heard “a sound made by plastic.” From this information alone, the trial court concluded that the object’s “incriminating character [was] ‘immediately apparent.’ ”Horton v. California, 496 U.S. 128, 136, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990); State v. Reddick, 207 Conn. 323, 335, 541 A.2d 1209 (1988). Such a conclusion is speculative and defies logic. Dozens of items, such as a Tootsie Roll, a Snickers bar or cough drops, possess the two characteristics described by Pagan. Indeed, one commentator analogized the “plain feel” exception to a fourth amendment rendition of “the princess and the pea.”8 Consequently, the officer’s patdown could not have given him probable cause to arrest the defendant and engage in a search of his person.

The Supreme Court of the United States in Minnesota v. Dickerson, supra, 508 U.S. 366, depended heavily on an analogy between plain view and plain touch. Such an analogy is flawed. “The plain view doctrine, it must be emphasized, establishes an exception to the requirement of a warrant not to search for an item, but to seize it. Because [an] item is already in the open where it may be seen, the owner can have no expectation of privacy in its concealment and, thus, its viewing cannot be a search under [either the federal or state constitu*249tion] .... The theory underlying the justification for the plain view exception cannot logically be extended to concealed items which are discoverable only through touch. . . . Unlike the item in plain view in which the owner has no privacy expectation, the owner of an item concealed by clothing or other covering retains a legitimate expectation that the item’s existence and characteristics will remain private. . . . For, even if the intrusion inherent in the initial act of touching is entirely authorized, the discovery and seizure of the items will entail a further intrusion.” (Citations omitted; emphasis in original.) People v. Diaz, 81 N.Y.2d 106, 110-11, 612 N.E.2d 298, 595 N.Y.S.2d 940 (1993).

“Indeed, the very concept of ‘plain touch’ is a contradiction in terms: the idea of plainness cannot logically be associated with information concerning a concealed item which is available only through the sensory perceptions of someone who touches it. . . . While in most instances seeing an object will instantly reveal its identity and nature, touching is inherently less reliable and cannot conclusively establish an object’s identity or criminal nature . . . .” (Citations omitted.) Id., 112. Moreover, unlike “plain touch,” the “plain view” doctrine does not provide law enforcement officers with an incentive to subject an individual to a Terry patdown.

Furthermore, the very issue before us today was addressed twenty-five years ago by the Connecticut Circuit Court. In State v. Anonymous 1971-20, 6 Conn. Cir. Ct. 583, 587-88, 280 A.2d 816 (1971), Judge David Jacobs wrote: “Where, as in the case at bar, the officer does not feel an object which seems to be a weapon, but feels a package which he believes might be evidence of some crime, such as the possession of narcotics, the question arises whether he must terminate his search or whether he may reach into the person’s pocket and bare whatever it holds. ‘The sole justification of the search in the present situation is the protection of the *250police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.’ Terry v. Ohio, [392 U.S. 1, 29, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)]. In other words, an extended search, exceeding the purpose of the frisk, would be constitutionally unreasonable, and any evidence thereby obtained must be excluded. ‘Such a search violates the guarantee of the Fourth Amendment, which protects the sanctity of the person against unreasonable intrusions on the part of all government agents.’ Sibron v. New York, [supra, 392 U.S. 65].”

I agree with both Judge Jacobs and the Appellate Court. “[T]he sense of touch is far more unreliable and touching [is] far more intrusive into the right of personal privacy expected by our citizens and [consequently] the concept of [plain touch] fails to comport with the mandate of article first, § 7, of the Connecticut constitution.” State v. Trine, 37 Conn. App. 561, 572, 657 A.2d 675 (1995).

Accordingly, I dissent.

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The Terry patdown is sometimes referred to as the Terry frisk.

In his concurrence in Minnesota v. Dickerson, 508 U.S. 366, 380-81, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993), Justice Scaiia noted that the constitutional basis for a Terry patdown cannot be found in the common law: “I am not entirely sure that the physical search — the ‘frisk’ — that produced the evidence at issue here complied with that constitutional standard. . . .

“There is good evidence, I think, that the ‘stop’ portion of the Terry ‘stop- and-frisk’ holding accords with the common law — that it had long been considered reasonable to detain suspicious persons for the purpose of demanding that they give an account of themselves. . . .
*243“I am unaware, however, of any precedent for a physical search of a person thus temporarily detained for questioning. . . .
“I frankly doubt, moreover, whether the fiercely proud men who adopted our Fourth Amendment would have allowed themselves to be subjected, on mere suspicion of being armed and dangerous, to such indignity . . . .” (Citations omitted; emphasis in original.)

In describing the invasiveness and the indignity of a Terry patdown, Justice Scalia, in his concurring opinion in Minnesota v. Dickerson, 508 U.S. 381-82,113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993), quoted from a standard police manual recommending that the following procedure be used: “ ‘Check the subject’s neck and collar. A check should be made under the subject’s arm. Next a check should be made of the upper back. The lower back should also be checked.

“ ‘A check should be made of the upper part of the man’s chest and the lower region around the stomach. The belt, a favorite concealment spot, should be checked. The inside thigh and crotch area also should be searched. The legs should be checked for possible weapons. The last items to be checked are the shoes and cuffs of the subject.’ J. Moynahan, Police Searching Procedures 7 (1963) . . . .” (Emphasis added.)

See footnotes 2 and 3.

In this case, the defendant, who was on the premises when the search warrant was executed, was unknown to the police. Other than the fact that he was present, there is nothing in the record that would have justified the police to be suspicious of him. Indeed, when the police entered, they demanded that the defendant put his hands on his head and lie face down on 1he floor. He immediately complied. The defendant was then handcuffed by the police. Subsequently, while lying face down with his hands handcuffed behind his back, the defendant was subjected to a Terry patdown. It is well established that “[a]n individual may [not] be frisked based upon nothing *246more than an unfortunate choice of associates.” United States v. Bell, 762 F.2d 495, 499 (6th Cir. 1985). All the Terry requirements must be satisfied “even though [a] person happens to be on premises where an authorized narcotics search is taking place.” Ybarra v. Illinois, supra, 444 U.S. 94; see State v. Coons, 627 A.2d 1064 (N.H. 1993) (as a threshold matter, police officer must reasonably believe person to be frisked is armed and dangerous). In order to justify the patdown of the defendant, the majority depends solely on the application for the search warrant, which indicated, in boilerplate language, that there may be weapons at the location to be searched. The application alleged that “based on [the general training and experience of the police officers] . . . [f]irearms that are to be seized are commonly possessed and used by the drug dealer for the intimidation of his customers to collect payment for their drug debts and protection from theft of his drugs and monies by competitors.” (Emphasis added.) The boilerplate nature of this assertion is apparent given the fact that the person to be searched under the warrant was a woman, not a man. Under the circumstances of this case, therefore, it is not evident whether a reasonably prudent person could be warranted in believing that the officers were in danger. Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

There may be certain weapons that do not possess such distinctive tactile characteristics, but we indulge in this belief nonetheless because of the possible danger to the police officer.

If, of course, during the patdown, a gun is found, this may very well furnish a police officer with probable cause to arrest. See, e.g., General Statutes § 53-206 (permit required to carry dangerous weapons). This, of course, would trigger the right to a full search incident to a lawful arrest. State v. Waller, 223 Conn. 283, 292, 612 A.2d 1189 (1992). For all practical purposes, the “plain touch” doctrine that the majority embraces arises only in a situation, such as this case, where no weapon is found on the defendant.

Note, “The ‘Plain Feel’ Exception — A Fourth Amendment Rendition of the Princess and the Pea: State v. Dickerson," 62 U. Cin. L. Rev. 321 (1993).