People v. Diaz
81 N.Y.2d 106, 595 N.Y.S.2d 940, 612 N.E.2d 298 (1993)
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Rule of Law:
Information obtained by an officer's sense of touch during a lawful protective pat-down for weapons does not justify a further, warrantless search for contraband once the officer concludes the suspect is unarmed. The 'plain view' doctrine does not extend to a 'plain touch' exception under the Fourth Amendment or the New York Constitution.
Facts:
- At approximately 4:30 a.m., police officers John Healey and Clark Gordon were on patrol and observed several groups of people passing objects hand-to-hand.
- Over a 20-minute period, the officers observed the defendant at the center of several of these groups.
- As the officers' car approached the defendant, who was standing next to a stopped automobile, he walked away down the sidewalk.
- The officers drove alongside the defendant and called him over to their vehicle.
- While walking toward the police car, the defendant repeatedly placed his hand in his pocket despite Officer Healey’s warnings not to do so.
- When the defendant reached the car, Officer Healey noticed a bulge in the defendant's pocket.
- Fearing a weapon, Officer Healey grabbed the outside of the defendant's pocket and felt no weapon, but did detect what he described as 'a bunch of vials'.
- The defendant then attempted to flee.
Procedural Posture:
- The defendant was arrested and charged with criminal possession of a controlled substance.
- The defendant filed a motion to suppress the physical evidence in the trial court.
- The trial court granted the defendant's motion to suppress.
- The People (prosecution) appealed the trial court's decision to the Appellate Division, an intermediate appellate court.
- The Appellate Division reversed the trial court's order and denied the motion to suppress.
- The defendant was granted leave to appeal to the Court of Appeals, New York's highest court.
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Issue:
Does the 'plain touch' doctrine, as an extension of the plain view exception, permit an officer who feels an object that is not a weapon but is believed to be contraband during a lawful protective pat-down to conduct a further warrantless search and seize that object?
Opinions:
Majority - Hancock, Jr., J.
No. A warrantless search of a suspect's pocket based on information obtained from a protective pat-down is unconstitutional once the officer determines the pocket does not contain a weapon, as there is no 'plain touch' exception to the warrant requirement. A Terry pat-down is a limited search for weapons, and its scope may not be exceeded once the officer is assured no weapon is present. The logic of the plain view exception cannot be extended to touch, because viewing an exposed object is not a search and does not invade a privacy interest, whereas feeling a concealed object is a search, and reaching into a pocket to retrieve it constitutes a further, more intrusive search requiring a separate justification. Unlike sight, touch is inherently less reliable for identifying contraband, and creating a 'plain touch' exception would invite pretextual weapons searches and erode Fourth Amendment protections.
Dissenting - Simons and Bellacosa, JJ.
Yes, the search was valid, not under a 'plain touch' theory, but as a search incident to a lawful arrest. A search can be considered 'incident to arrest' even if it occurs immediately before the formal arrest, provided the two are contemporaneous and probable cause to arrest existed before the search. The dissent argues that based on the totality of the circumstances—including the defendant's suspicious activities, his behavior when approached by police, and the officer feeling what he believed to be drug vials—the officer had probable cause to arrest the defendant before reaching into his pocket. Therefore, the subsequent intrusion was a valid search incident to arrest, and the court need not address the 'plain touch' doctrine at all.
Analysis:
This decision firmly rejects the 'plain touch' doctrine in New York, establishing a strong protection for privacy interests under both the state and federal constitutions. It reinforces the narrow scope of Terry frisks, preventing them from becoming general exploratory searches for evidence beyond weapons. The court creates a clear bright-line rule: once an officer determines an object felt during a pat-down is not a weapon, the justification for the intrusion ends. This ruling contrasts with the subsequent U.S. Supreme Court decision in Minnesota v. Dickerson (1993), which did adopt a limited 'plain touch' doctrine, making this New York case an important example of a state high court providing greater protection under its own constitution.
