If it feels like a drug, police are allow to seize it — even if they don't know what drug it is
If it sounds like a drug and feels like a drug, police are allowed to seize it, even if they don't know exactly which drug it is.
That's the gist of a ruling from the Iowa Court of Appeals, which upheld a search that resulted in charges of possession with intent to deliver against a Dubuque County man. A district court judge had ruled the search and resulting evidence were inadmissible, but the appellate court sided with prosecutors on appeal, allowing the case to move forward.
As summarized in the Nov. 3 opinion, Dubuque police stopped a car on Christmas Day 2019 to speak with a passenger, Earnest Hunt Jr., who they considered a "person of interest" in a recent shooting. An officer observed Hunt seeming very nervous and feared he might have a gun, so the officer placed him in handcuffs and patted him down over his clothing.
The pat-down didn't turn up a gun, but the officer did feel something else: a plastic bag containing small, hard balls. The officer, an investigator with the city's drug task force, testified he recognized the item by sound and feel as a bag of drugs packaged for sale. He removed the bag, which later proved to contain crack cocaine, from Hunt's pocket and placed him under arrest.
Was that legal?
The U.S. Supreme Court in 1993 established what is known as the "plain-feel exception," allowing officers to seize anything found during a weapon pat-down that is "immediately apparent" to the touch to be contraband or otherwise evidence of a crime without a warrant.
The district judge in Hunt's case, however, ruled that exception didn't apply. The problem was that multiple drugs, including heroin, crack and powder cocaine, are packaged in similar ways.
"As evidenced by his testimony and the body camera footage of officers on the scene, (the officer) was not sure of the nature of the substance in the bags even after he had removed them and was examining them by feel and sight," the district court wrote, finding that the illegality of the bag was not "immediately apparent" to the touch.
The appellate court disagreed.
"We agree with the State that (the officer) did not need to pinpoint the specific type of drug to rely on the plain-feel exception," Judge Gina Badding wrote for the court. "Immediately apparent is not synonymous with absolute certainty."
From last week: Sentence vacated for man convicted as a teenager in violent 2018 Kelley home invasion
The initial evidentiary ruling presented a "slam dunk" appeal for prosecutors, said David McCord, a Drake University law professor who teaches search and seizure law.
"If (police) feel those things, and they have good reason to believe they are contraband, or fruits, evidence or instrumentalities of a crime, then they can take them out and look at them," McCord said, adding that the drugs in Hunt's pocket could fit several of those categories.
Hunt's criminal case had been stayed while the state's appeal was pending. The new ruling will allow the case to proceed toward trial.
William Morris covers courts for the Des Moines Register. He can be contacted at wrmorris2@registermedia.com, 715-573-8166 or on Twitter at @DMRMorris.
This article originally appeared on Des Moines Register: Iowa appeals court rules police can seize drugs felt through clothes
