81 N.Y.2d 106 (1993)
The “plain touch” doctrine, an extension of the plain view exception to the Fourth Amendment warrant requirement, is not recognized in New York; tactile impressions during a Terry frisk, absent reasonable suspicion a weapon is present, cannot justify a warrantless search.
Summary
Robert Diaz was observed by police officers in an area known for drug activity. After observing Diaz participating in several groups and walking away from a stopped car, officers stopped and frisked him. During the frisk, an officer felt what he believed to be vials of crack cocaine in Diaz’s pocket. The officer then reached into Diaz’s pocket, seized the vials, and arrested Diaz. The New York Court of Appeals held that the search of Diaz’s pocket was unconstitutional. The Court reasoned that because the officer knew Diaz’s pocket did not contain a weapon, the search was not justified under the Terry stop-and-frisk exception. Further, the court declined to adopt a “plain touch” exception to the warrant requirement, distinguishing it from the plain view doctrine.
Facts
Officers Healey and Gordon were patrolling an area known for drug activity. They observed several groups of people on the sidewalks, appearing to exchange objects. Over 20 minutes, the officers saw Diaz at the center of several of these groups. They later saw Diaz standing next to a stopped car. When the police car approached, Diaz walked away.
The officers called Diaz over to the car. Diaz repeatedly put his hand in his pocket, despite Officer Healey’s warnings. Healey noticed a bulge in Diaz’s pocket and again told him to remove his hand. Fearing a weapon, Healey grabbed Diaz’s pocket, feeling what he thought were vials. Diaz attempted to flee. Healey reached into Diaz’s pocket and removed 18 vials of crack cocaine. Diaz was then arrested.
Procedural History
The trial court granted Diaz’s motion to suppress the drugs, finding the stop and frisk lacked reasonable suspicion.
The Appellate Division reversed, finding reasonable suspicion for the stop and frisk. It further held that the seizure of the drugs was permissible based on what Officer Healey felt during the pat-down.
The New York Court of Appeals reversed the Appellate Division.
Issue(s)
Whether information allegedly obtained by an officer through a protective pat-down that reveals the suspect is unarmed justifies a subsequent warrantless search of the suspect’s pocket based on a “plain touch” exception to the warrant requirement.
Holding
No, because the “plain touch” doctrine is rejected as an unconstitutional extension of the plain view exception to the Fourth Amendment’s warrant requirement.
Court’s Reasoning
The Court held that the search of Diaz’s pocket was not within the scope of a Terry pat-down because Officer Healey knew the pocket did not contain a weapon. Under Terry v. Ohio, a protective pat-down is limited to what is necessary to ascertain the presence of weapons. Once an officer determines that no weapon is present, the search is over.
The Court declined to adopt a “plain touch” exception to the warrant requirement. The Court distinguished this from the plain view doctrine, which allows seizure of an object if (1) the police are lawfully in the position from which the object is viewed; (2) the police have lawful access to the object; and (3) the object’s incriminating nature is immediately apparent. The Court emphasized that the plain view doctrine addresses seizures, not searches. Because an item in plain view is already exposed, there is no further invasion of privacy in viewing it.
The Court reasoned that the “plain touch” doctrine, however, concerns items not in plain view and thus justifies a further search, not just a seizure. “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.”
The Court also expressed practical concerns about the “plain touch” exception. It noted that tactile impressions are inherently less reliable than visual observations in determining an object’s identity and criminal nature. Moreover, the Court worried that the exception could lead to officers exceeding the limited scope of a Terry search and using weapons searches as a pretext for unwarranted searches. As the court stated, “the proposed ‘plain touch’ exception could thus invite a blurring of the limits to Terry v Ohio searches and the sanctioning of warrantless searches on information obtained from an initial intrusion which, itself, amounts to an unauthorized warrantless search”.
The dissent argued that the search was justified as incident to a lawful arrest. Because the officer had probable cause to arrest Diaz after feeling the vials, they argued that the search was valid, regardless of a “plain touch” theory.