New York Law Review

Tag: Plain Touch Doctrine

  • In re Marrhonda G., 81 N.Y.2d 942 (1993): Warrantless Searches and the Plain Touch Doctrine

    In re Marrhonda G., 81 N.Y.2d 942 (1993)

    The ‘plain touch’ exception to the warrant requirement is not recognized in New York; therefore, feeling the shape of a weapon inside a bag, without more, does not justify a warrantless search of the bag.

    Summary

    A juvenile, Marrhonda G., was observed by a Port Authority police officer in the bus terminal. Based on her behavior and responses to questioning, the officer suspected she was a runaway and took her to the Youth Services Unit office. After she placed her bag on the floor, another officer picked it up to move it and felt what he believed to be a gun. The officers opened the bag and found weapons. The New York Court of Appeals held that while the initial detention was justified, the search of the bag was not, because New York does not recognize the ‘plain touch’ exception to the warrant requirement. The Court reversed the Appellate Division’s order and granted the motion to suppress the evidence.

    Facts

    On April 5, 1990, a Port Authority Police Officer observed Marrhonda G. standing alone in the Port Authority Bus Terminal with a large knapsack-type bag. After several hours, the officer approached and questioned her. The officer concluded she might be a runaway because she was traveling alone, initially lied about her age, had no identification, appeared nervous, could not contact her mother, and could not provide a local address or telephone number for the relative she claimed to be waiting for.

    Procedural History

    Family Court denied Marrhonda’s motion to suppress the weapons, holding the detention proper and the search justified under a ‘plain-touch’ exception. The court determined she committed acts that would constitute criminal possession of a weapon if committed by an adult. The Appellate Division affirmed, finding the detention proper and the search permissible because the discovery of the weapons was inadvertent. The New York Court of Appeals reversed.

    Issue(s)

    Whether the warrantless search of the respondent’s bag was justified under a ‘plain-touch’ exception to the warrant requirement, given that an officer felt what he believed to be a gun inside the bag.

    Holding

    No, because New York does not recognize a ‘plain-touch’ exception to the warrant requirement. Therefore, the warrantless search of the bag was unjustified.

    Court’s Reasoning

    The Court agreed with the lower courts that the detention of the juvenile was proper under Family Court Act § 718, which allows police to detain a juvenile who “in the reasonable opinion of the officer, appears to have run away from home without just cause.” The Court found the circumstances provided probable cause to believe the juvenile was a runaway.

    However, the Court disagreed with the lower courts’ conclusion that the warrantless search was justified under a ‘plain-touch’ exception. The Court had rejected that exception in People v. Diaz, 81 N.Y.2d 106, decided the same day. The Court stated that “[i]n the absence of some other applicable exception to the warrant requirement, the warrantless search of respondent’s bag was unjustified.”

    The Court noted several other possible exceptions that could have applied. These include searching the bag if it had been within the juvenile’s “grabbable area,” if the juvenile had consented to the search, or if the juvenile had been placed under arrest and the bag then searched incident to that arrest. The Court also suggested that the police could have detained the bag while obtaining a warrant or simply asked the juvenile about the bag’s contents. The court referenced Arkansas v. Sanders, 442 U.S. 753, 766, regarding detaining the bag while a warrant is obtained. The key takeaway is the rejection of the plain touch doctrine; absent another exception, a warrant is required.

  • People v. Diaz, 81 N.Y.2d 106 (1993): “Plain Touch” Doctrine and Warrantless Searches

    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.