Exclusionary Rule Legal Brief

Issues- Whether the "plain touch" doctrine recognized by the United States Supreme Court in Minnesota v. Dickerson violates article I, section 6, of the Illinois Constitution.

Facts- July 1992, Officer Edward King observed defendant, Curtis Mitchell, driving a 15-year-old Oldsmobile southbound in the alley of Orleans Street in Chicago. The car's lights were not on, and King could not see any license plate. After being followed for a few blocks, defendant pulled over and parked the car. Defendant exited the vehicle as King approached. King identified himself to defendant and began questioning him concerning ownership of the car and his reason for driving with out lights. As King stood next to the vehicle, he was able to observe that the steering column on the car had been "peeled." He also saw "crack pipes" and small pieces of copper scouring pads on the front seat of the car. King conducted a pat down search of defendant "primarily" for weapons. During the pat down, he felt a foreign object inside defendant's shirt pocket. King reached inside defendant's pocket and pulled out the object. He observed it to be what he believed was rock cocaine. King then placed defendant under arrest for possession of narcotics.

Table of Authorities- Dickerson, 508 U.S. 113 S.Ct. at 2137, 124 L.Ed.2d at 346.

In Dickerson, the Supreme Court granted certiorari to resolve a conflict among the State and Federal courts over a whether contraband detected through the sense of touch during a pat down search is proper and admissible evidence. The court noted that under certain circumstances, police officers may seize contraband detected during the lawful execution of a Terry search. And it reasons that if a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons. We caution that the officer's belief must be objectively reasonable, in light of his past experience and training, and capable of verification. However, probable cause is probable cause, regardless of whether it develops from sight or touch. Because the fourth amendment requires that officers have probable cause to believe that an object is contraband before seizing it, excessively speculative seizures will e prevented.

Horton v. California (1990), 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112.

In Horton, the Court noted that an inadvertency requirement has been earlier offered as necessary to avoid a violation of the constitutional requirement that a valid warrant particularly describe the things to be seized. In now rejecting the requirement, the Court noted that if an officer expects to find an item in the course of a search, his expectation should not serve to invalidate a subsequent seizure of that item. The relevant consideration is whether the search had gone beyond the area and duration defined by the terms of the warrant or a valid exception to the warrant requirements. In the case of a warrant less search, the extent of the search is circumscribed by the exigencies, which justify its initiation. If the scope of the search exceeds that permitted by the terms of the warrant or the character of the relevant exception from the warrant requirement, the subsequent seizure is unconstitutional without more.

Commonwealth v.Marconi 408 Pa.Super. at 615 n. 17, 597 A.2d at 639 n. 17.

In Marconi the court rejected "plain touch" on the particular set of facts before it; the court announced no wholesale rejection of the doctrine. The court stated that it was not holding that under certain circumstances the sense of touch could not be used as an accurate technique of identity. The court acknowledged that at times, perception through touch is a tool as definitive as perception through the other senses.

United States v. Williams (D.C.Cir. 1987), 822 F.2d 1174.)

In Williams when objects have a distinctive and consistent shape that an officer has had previous experience in detect and that officer has had previous trained to detect and that officer has had previous experience in detecting such object, his tactile perceptions can provide him with the same recognition that his sight would have provided.

Decision and Analysis-

The Defendant first argued that the Court, in adopting the "plain feel" doctrine, failed to consider the individual's reasonable expectation of privacy in those items, which he seeks to keep private. The Court looked to Dickerson and reasons that if a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons. Dickerson, 508 U.S. 113 S.Ct. at 2137, 124 L.Ed.2d at 346.

The Defendant next argues that the doctrine conflicts with the inadvertency requirement of the "plain view" doctrine in which he asserts that under so only items, which are inadvertently discovered during an otherwise lawful search, may be seized. He maintains that the inadvertency requirement is not met when the police know in advance the location of the evidence and thus intend to seize it. Any inadvertency requirement for

"plain view" purposes were rejected in Horton v. California (1990), 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112. In Horton, the Court noted that an inadvertency requirement has been earlier offered as necessary to avoid a violation of the constitutional requirement that a valid warrant particularly describe the things to be seized. In now rejecting the requirement, the Court noted that if an officer expects to find an item in the course of a search, his expectation should not serve to invalidate a subsequent seizure of that item. The relevant consideration is whether the search had gone beyond the area and duration defined by the terms of the warrant or a valid exception to the warrant requirements. In the case of a warrant less search, the extent of the search is circumscribed by the exigencies, which justify its initiation. If the scope of the search exceeds that permitted by the terms of the warrant or the character of the relevant exception from the warrant requirement, the subsequent seizure is unconstitutional without more. Consistent with Horton and the "plain view" doctrine, no inadvertency requirement is articulated in Dickerson for "plain touch" purposes.

Defendant raises additional questions