# FILED

December 31, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COURT OF TENNESSEE AT JACKSON

STATE OF TENNESSEE, ) FOR PUBLICATION ) Plaintiff-Appellee, ) Filed: December 31, 1997 ) v. ) HENRY CRIMINAL ) RAY ANTHONY BRIDGE S, ) Hon. Julian P. Guinn, ) Judge ) Defendant-Appellant. ) ) ) No. 02S01-9606-CC-00053 )

For Plaintiff-Appellee: For Defendant-Appellant: John Knox Walkup Larry E. Fitzgerald Attorney General & Repor ter Memphis, Tennessee Nashville, Tennessee Michael E. Moore Solicitor General Nashville, Tennessee Gordon W. Smith Associate Solicitor Gener al Nashville, Tennessee G. Robert “Gus” Radford District Attorney General Huntingdon, Tennessee



### O P I N I O N

JUDGMENT OF COURT OF CRIMINAL APPEALS REVERSED; CONVICTION VACATED; CHARGE DISMISSED. PER CURIAM.1 Rule 37(b)(2) (I), Tenn. R. Crim. P., p rovides i n pertinen t part as f ollows: (b) An appeal l ies from any or der or judgment i n a criminal proceeding where the law provides for such ap peal, and f rom any judg me nt of c onvic tion: (2 ) Upo n a ple a of g uilty or n olo contendere i f: (I)Defendant enter ed into a pl ea agreement under Rule 11(e) but

explicitly

reserved with the consent of the state and of the cour t the rig ht to a ppe al a ce rtified ques tion o f law th at is dispositive of the ca se. . . . -2- The primary issue in this appeal is whether the w arrantless seizure of cocaine from the defendant’s person duri ng a detention and frisk w as constitutionally permissible under the “plain feel” or “plain touch” doctri ne expounded in Minnesota v. Dicker son , 508 U.S. 366, 113 S.Ct. 2130, 124 L. Ed.2d 334 (1993). In this case, the trial court denied the defendant’s motion to suppress, and thereafter, the defendant pl ed guilty to possession of cocaine with intent to sell, but reserv ed the right to appeal the cons titutionality of the warrantless seizure pursuant to Tenn. R. Crim. P. 37(b)(2). 1 The Court of Criminal Appeals affirm ed the tri al court’ s denial o f the mo tion to su ppress. T hereaf ter, we granted permission to appeal.

A majority of this Court has determined that the initial stop and frisk was based upon reasonable suspicion supported by specific and ar ticulable facts. However, a majority of this Court has also concluded that the evidence preponderates against the trial court’s finding that the off icer had probable cause to believe the object felt dur ing the frisk was contraband. Consequently, the judgment of the Court of Criminal Appeals upholding the tri al court’s denial of the motion to suppress is rev ersed. The defendant’s conviction is vacated, and the charge is dismissed.-3- BACKGROUND The proof at the suppression hearing showed that at 2:47 p.m. on December 23, 1993, Officer D.W. Blackwell of the Paris Police Department had a phone conversation with a confidential informant who had provided reliable information in the past leading to a conviction on a cocaine charge. According to the informant, the defendant, Ray Anthony Bridges, was sell ing crack cocaine “right then” at a club called “Preacher’s.” The informant further said that Bridges, was carrying cash and drugs on his person. Officer Blackwell had previously received “half a dozen or so” tips regarding

the defendant’s dealing crack cocaine in that area. Officer Blackwell proceeded to Preacher’s, arrived approximately thirty minutes later at

3:21 p.m, and found Bridges sitti ng at a table inside Preachers engaged in conv ersation. Aware that Br idges previously

had been convicted of felony assault and recently had been inv olved in an armed altercation with police, Officer Blac kwell identified himself and ordered Bridges to stand against the wall. Officer Blackwell then patt ed down the outside of Bridges clothing to ensure he w as not carrying w

eapons. During the patdow n, Officer Blackwell felt a small

object “in the shape of a pill bottle” in the defendant’s rig ht jacket pocket and, recognized it as “the kind that a lot of other crack dealers will use to keep their crack i n.” Officer Blackwell seized the bottle, and upon inspection, det

ermined that it contain ed crack cocai ne, and h e also fo und a knife in the defendant’s right pants pocket. As a result, Bridges was arrested, and a further search was conduct ed of the defendant’s person, during w hich Officer Blackwell discov

ered a plastic bag of cocaine “in the same pocket” from w hich the pill bottle containing crack had been removed.-4- The trial court denied the defendant’s pretrial motion to suppr ess the evidence, and, upon appeal, the C ourt of Criminal Appeals affirmed the denial. For the reasons hereafter ex plained, a majority of this Court now concludes that seizure of the pill bo ttle viola ted the d efenda nt’s cons titution al rights. Accordin gly, the judgment of the Court of Crimi nal Appeals upholding the tr ial court’s denial of the motion to suppress is rev ersed.

STANDARD OF REVIEW This case involves the review of a trial court’s findings of fact and law in disposing of a motion to suppres s. In State v. Odom , 928 S.W.2d 18 (Tenn. 1996), this Court clari

fied the standard to be applied by an appellate court when reviewing a trial court’s findings of fact on suppression issues.

Questions of credibility of the witnesses, the weight and value of the ev idence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact. The party prevailing in the trial court is entitled to the strongest leg itimate view of the evidence adduced at the suppr ession hearing as well as all reasonabl e and legitimate inferences that may be drawn from that evidence. So long as the greater weight of the evidence supports the trial court’s findings, those findings shal l be upheld. In other words, a trial cour

t’s findings of fact in a suppres sion hearing will be upheld unless the evidence preponderates otherwise.

Id . at 18. However, the application of the law to the facts found by the trial court is a question of law whi ch this Court review s de novo. State v. Yeargan , ___ S.W.2d ___, ___ (Tenn. 1997).2 The F ourth Am endm ent is app licable to the s tates throu gh the F ourteen th Am endm ent. Map p v. O hio , 367 U.S. 643, 655, 81 S. Ct. 1684, 1691, 6 L.Ed.2d 1 081 (1961). -5- CONSTITUTIONAL PROVISIONS We begin our analysis of the issue in this appeal with the tex t of the applicable constitutional provisions. The Fourth Amendment 2 to the United States Constitution provides:

Unreasonable searches and seizures. - The right of the people to be secure in their persons, houses, papers, and effects, against unreas onable searches and seizures, shall not

be violated, and no war rants shall issue, but upon probabl e cause, supported by oath or affirmation, and particular ly describing the place to be searched, and the pers ons or things to be seized. Similarly, Articl e 1, Section 7 of the Constitution of Tennessee guarantees

that the people shall be secure in their persons, houses, papers and possessions, from unreaso nable searches and seizures; and that general warrants, whereby an officer may be commanded to search suspected places, without evidence of the fact committed, or to seize any person or persons not named, whose offences are not particularly described and supported by evidence,are dangerous to liberty and ought not to be granted. The purpose of the prohibition agai nst unreasonable searches and s eizures under the Fourth Amendment is to “safeguard the privacy and security of individuals against arbitrary invasions of government officials.” Camara v. Municipal Court , 387 U.S. 523, 528, 87 S.Ct. 1727, 1730,18 L.Ed.2d 930 (1967). “[A]rticle I, section 7 is identical in intent and purpose with the Fourth Amendmen t.” State v. Downey , 945 S.W .2d 102, 106 (T enn. 1997), quo ting Sneed v. State , 221 Tenn. 6, 13, 423 S.W.2d 85 7, 860 (1968).-6- Consequently, under both the federal and state constitu tions, a warrantless search or seizure is presumed unreasonable, and evidence discovered as a result thereof is subject to suppress ion unless the State demonstrates that the search or seizure was conduct

ed pursuant to one of the narrowl y defined exceptions to the warrant requirement. Coolidge v. New Hampshire , 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971); State v. Bartram , 925 S.W.2d 227, 229-30 (Tenn. 1996).

The defendant contends that no exceptions to the warrant requirement are applicable in this case and that Officer Blackwell had no right to detain or search him. The State, on the other hand, argues that Of ficer Blackwell had probable cause to arrest the defendant and that the search of the defendant’s person w as permissible as a search i ncident to an arrest, an ex ception to the warrant requirement. Alternativ ely, the State contends that the initial detention and patdown search were valid as a stop and frisk under Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and the seizure of the evidence permissible under the plain touch doctrine

.

SEARCH INCI DENT TO A LA WFUL ARREST Because a search incident to a lawful arrest is an ex

ception to the warrant requirement which w

ould independently support th e warrantless searc h of the defendant’s person and seizure of the pill bottle, we firs t determine whether the search and seizure in this case was pursuant t o a lawful arrest. See Chim el v. California , 395 U.S. 752, 762-63, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969); State v. Marshall , 870 S.W.2d 532, 54 0 (Tenn. Crim. App. 1993).-7- Both the Fourth Amendment and Article I, Section 7, require the existence of “probable cause” for making an arrest without a w arrant. Beck v. Ohio , 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L .Ed. 2d 142 (1964); State v. Jacumin , 778 S.W.2d 430, 431 (Tenn. 1989); see also Tenn. Code Ann. § 40-7-103(a)(officers may make a warrantless arrest when they hav

e probable cause to believe that the arrestee has committed or is committing a felony). Probable cause f or an arrest without a warrant ex

ists if, at the time of the arres t, the facts and circumstances within the knowledge of the officers, and of which they had reasonably trustw orthy information, are “sufficient to w arrant a prudent man in believ ing that the [defendant] had committed or was committ ing an offense.” Beck , 379 U.S. at 91, 85 S.Ct. at 225; State v. Melson , 638 S.W.2d 342, 350 (Tenn. 1982). In addition, before a finding of probable cause may be based upon an informant’s tip, the basis of the informant’s knowl edge and the informant’s credibi lity must also be established. State v. Jacumin , 778 S.W.2d 430, 43 2-436 (Tenn. 1989). In this case, the officer acted in response to a info rmant’s tip; therefore we must apply the two-pronged test to evaluate the reliabili ty of the tip.

In the present case the informant w ho provided the tip about the defendant’s criminal activity had assisted Officer Blackwell on a case approximately eight

years earlier in w

hich an arrest and convi ction were made on a cocaine charge. Black well had known this

informant for a number of years and said this informant had “alw ays been very str

aightforward and ver

y honest and very reliable” with him. These facts minimal ly satisfy the credi bility prong of the Jacumin test.-8- Howev er, the e videnc e is defi cient as

to the second pro ng of Jacumin . In other words, there is

no evidence of the basis of the infor mant’s knowledge, that is, how the informant knew that Bridges was at Preacher’s selling cocaine. Nonetheless, where a tip fails under either or both of the two prongs, probable cause may still be establ ished by independent police investigative w ork that corroborates the tip to suc h an extent that it supports the inference that the informant was reliable and that the informant made the charge on the basis of information obtained in a reliabl e way. See Spinelli v. United St ates , 393 U.S. 410, 417-18, 89 S.Ct. 584, 589-90, 21 L.Ed. 2d 637 (1969); Jacumin , 778 S.W.2d at 436. Here, the State argu es that the tip was sufficiently corroborated to overcome any deficiency. First, the State points out that Officer Blackwell had received a half dozen prior tips that the defendant had engaged in similar illegal activity at this specific location. Second, the State argues that Blackw ell knew that the defendant was a convicted drug dealer. Third, the St ate argues that Officer Blackwell found the defendant at Pr eacher’s exactly as

the informant had said he would be soon after Blackwell received the tip. These facts, however, are insufficient corroboration to allow an arrest under the circumstances of this case

.

A police offi cer’s knowledge of a suspect’s repu tation is not alo ne enough to constitute probable cause to arrest. State v. Kimbro , 496 A. 2d 498, 505 (Conn. 1985). “Something more substantial than a casual rumor . .. or an accusation based merely on an indiv idual’s general reputation” should be shown. Spinelli , 389 U.S. at 416, 89 S.Ct. at 589. In the present case, the only fact given by the informant corroborated by pol ice investigation, other than defendant’s reputation, was that the defendant was pr esent at Preacher’s place. While this fact may-9-

indicate that the basis of the infor mant’s knowledge wa

s eyewitness observ

ation, this corroboration is i nsufficient to establish the rel iability of the informant’s tip and therefore, probable cause.

The State has failed to establish that the information possessed by Officer Blackwell at the time he confronted the defend ant was sufficient to establish probable cause for a warrantless arrest of the defendant; therefor e, the ensuing search of the defendant’s person cannot be validated as a search i ncident to a lawful arrest as the Stat e argues. We must next determine whethe r the initial detention and frisk was valid under Terry

.

REASONABLE SUSPICION It is well-established that a police officer may make an investigatory

stop when the officer has a reasonable suspicion, supporte d by specific and articulable facts, that a criminal offense has been or is about to be committed. Terry , 392 U.S. at 21, 88 S.Ct. at 1880; Yeargan , __ S.W.2d at __; State v. Watkins , 827 S.W.2d 293, 294 (T enn. 1992). Likewise, a frisk is warranted under Terryif the police officer has a reasonable s uspicion based on specific and ar ticulable facts that the suspect is armed. Id ., 392 U.S. at 27, 88 S.Ct. at 188 3. As the United States Supreme Cour t recognized in Alabama v. White , 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.E d. 2d 301 (1990):

[r]easonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be es tablished with-10- information that is different in qu antity or content than that required to establish probable cause, but also in the sense that reasonable suspi cion can arise from information that is less reliable than that required to show probable cause. (Emphasis added.)

In determining whether a police officer’s reasonable suspicion is supported by specific and articulable facts, a court must consider the total ity of the circumstances. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed. 2d 621, 629 (1981). This includ es, but is not limited to, objective observations, i nformation obtained from other police officers or agencies, information obtained from citize ns, and the pattern of operation of certain offenders. Id ., 449 U.S. at 418, 101 S.Ct. at 694, 66 L.Ed. 2d at 629. A court must also consider the rational inferences and deductions that a trained police officer may draw from the facts and circumstances known t o him. Terry , 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed. 2d at 906

. Watkins , 827 S.W.2d at 294.

In this case, the officer’s decision to initiate an investigatory stop and frisk of the defendant was based upon 1) information obtained from a confidential informant who had provided r eliable information in the past,2) “half a dozen or so” other tips regarding Bridges dealing drugs in the same area, and 3) the officer’s own observation of Bridges at the location whi ch had been designated by the informant only thirty mi nutes earlier. The informant’s tip did not strictly satisfy the basis of knowledge portion of the two-prong test of reliability under Jacumin , 778 S.W.2d at 436, and was insufficient to support a findi ng of probable cause. However, the tip, i n conjunction with Officer Blackwell’s independent corroboration, was sufficiently reliable to pr ovide reasonable suspicion.-11- An investigative stop may be based on the tip of an informant if the information manifests “enough indi cia of reliability” to justify the stop. State v. Pully , 863 S.W.2d 29, 31 (Tenn. 1993); Adams v. Williams , 407 U.S. 143, 146- 147, 92 S.Ct. 1921, 1923-1924, 32 L.Ed. 2d 612 (1972). When an informant reports an i ncident at or near the time

of its occur

rence, a cour

t can often ass ume that the report is first hand and thus reliable. Pully , 863 S.W.2d at 32. Furthermore, a hurried description from a source who insists on immediate action suggesting the sourc

e is an eyewitness is sufficient for further investi gation. Lawson v. United States , 360 A.2d 38, 40 (D.C. App. 1976). In the present case Officer Blackwell was told by the informant that the defenda nt was at “Preacher’s” selling “crack cocaine right then,” and that Bridges was carrying the drug on his person. Very soon after receiving the tip, Officer Blackwell found the defendant at “Preacher’s,” wher

e the informant had told him the defendant w ould be. Officer Blackwell previously had received ti ps from other persons indicati ng that Bridges routinely sold crack

cocaine in that area. The cor roboration of the tip, indicati ng an eye-witness basis of knowledge, and the informant’s demonstrated past credibility are sufficient to satisfy the two-pronged test of reliability. In addition, these “specific and articulable facts” are sufficient to suppor t a finding of reasonable suspicion justifying the investigatory stop under Terry

.

Once a valid stop has been made,police may pat a suspect’s outer clothing if the police have a reasonabl e, particularized suspicion that the suspect is a rmed. Terry , 392 U.S. at 27, 88 S.Ct. at 1883; Hughes v. State , 588 S.W.2d 296, 304 (Tenn. 1979). “The purpose of this l imited search is not to dis cover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.”-12-

Adams , 407 U.S. at 146, 92 S.Ct. at 1923.Officer Blackwell knew that Bridges was a convicted felon and drug dealer who had rec ently been charged with a violent offense involvi ng a weapon. In addition, O fficer Blackwell was

familiar with the defendant’s armed attempt to flee polic e. This knowledge prov ided a reasonable, particulariz ed suspicion that the defendant w as armed and dangerous. For the protec tion of himself and others in the are a, therefore, Officer Blackwell was entitled to conduct a carefully limited search of the outer clothing of the defendant in an attempt to discover weapons tha t might be used to assault him. See Terry , 392 U.S. at 30, 88 S.Ct. at 1884- 1885. Accordingly, a majority of this Court holds that the “stop and frisk” of Bridges was justified under Terry

. Having so determined, we must next consider the legality of the seizure of the pill bottle containing cocaine.

PLAIN FEEL DOCTRINE In Minnesota v. Dicker

son , 508 U.S. 366, 113 S.Ct. 2130, 124 L. Ed. 2d 334 (1993), the United States Supr eme Court held that if an officer detects contraband through the sense of touch during a valid Terryfrisk, the officer may seiz e the contraband. In that case, two police officers observed Dicker son leaving an apartment building known to be a “notorious ‘crack house.’” As a result of Dickerson’s suspicious behavior when he saw the officers observing hi m, and the community reputation of the building as a haven for cocaine traf fic, the officers stopped him and conducted a patdown search. During the sear ch, one of the officers felt a small lump in the front pocket of Dickerson’s jacket. After further manipulation of the lump, the off icer decided it was a “lump of crack cocaine in-13-

cellophane.” The officer then removed f rom Dickerson’s pocket a small plastic bag containing one fifth of one gr am of crack cocaine. Dicker son was arrested and charged with posses sion of a controlled substance. Before trial, he moved to suppress the cocaine. Upon the trial court’s denial of his motion, Dickerson w as convicted of possession of a controlled substance. How ever, the conviction was overturned upon the conc lusion of the Minnesota C ourt of Appeal s and Supreme Court that the cocaine should have been suppressed. The Unit ed States Supreme Court granted certiorari review and affirmed the decision of the Minnesota Supreme Court.

Although concluding that the evidence should have been suppressed, the United States Supreme Court held that contraband detected throug h the sense of touch during a valid patdown search may be admit ted into evidence. In enuncia ting the “p lain fee l” doctrin e, the Cou rt analog ized to the “plain view” doctrine. Specifically, the Court in Dickersonheld that If a police officer lawfully pats down a suspect’s out er clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of th e suspect’s privacy beyond that

already authorized by

the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain view contex

t.

Id ., 508 U.S. at ___, 113 S.Ct. at 2137 (footnot e omitted).

In reject ing the co ntentio n that “pl ain feel ” is not com parable to “plain view” because the sense of touch is inher ently less reliable

than the sense of sight, the Court stated:-14- The ver y premise of Terry , after all, is that officers will be able to detect the presence of w eapons through the sense of touch and Terryupheld precisely such a seizure. Even if it were true that the sense of touch is generally less r

eliable than the sense of sight , that only sugges ts that o fficers will l ess often

be able t

o justify seizures of unseen contraband . Regardless of whether the officer detects the contraband by sight or by touch, however, the Fourth Amendment’s requirement that the officer hav e probable cause to believe that the item is contraband before seizing it ensures against excessively speculative seizures. 508 U.S. at ___, 113 S.Ct. at 2137 (emphasis added ).

Based upon the fac

ts of Dickerson , the Cour t identif ied the d ispositi ve question, as “whether

the officer who conducted the sear ch was acting wi

thin the lawful bo unds mar ked by Terryat the tim e he gaine d probab le cause t o believe the lump in respondent’s jack et was contraband.” 508 U .S. at ___, 113 S.Ct. at 2138. Finding that the poli ce officer overstepped the bounds of a s earch for weapons a uthorized by Terry , the Court stated:

Here, the officer’s continued ex ploration of respondent’s pocket after having concluded that it contained no weapon was unrelated to ‘[t]he sole justification of the search [under Terry :] . . . the protection of the police officer and others nearby.” It therefore amounted to the sort of evident iary search that Terryexpressly re fused to authorize , and tha t we have condemned in subsequent ca ses.

Id. , 508 U.S. at ___, 113 S.Ct. at 2139 (internal citations omitte d).

Based upon the decision in Dickerson then, seizure of contraband under the “plain feel” doctrine is appropriate if 1) a prior valid reason exis

ts for the intrusion, i.e., the patdown must be permissible under Terry ; 2) the contraband is-15-

detected while the Terrysearch for weapons legi timately is still in progress; and, 3) the incriminating nature of the object perceived by the officer’s sense of touch is immediately apparent giving the officer probable cause to believe the object is contraband prior to its s eizure. Dickerson , 508 U.S. at ___, 113 S.Ct. at 2 137; See also Arizona v. Hicks , 480 U.S. 321, 107 S.Ct. 1149, 94 L. Ed. 2d 347 (1987); Texas v. Bro wn , 460 U.S. 730, 741-742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983); State v. Jones , 653 A.2d 1040, 1047-1050 (Md. App. 1995); see generally 3 LaFave, Search & Seizure § 7.5(b) (3d ed. 1996).

Clearly the first tw

o prerequisites are met in this case. For the r easons previously stated the patdown was permissible under Terry . In addition, nothing in this record indicates th at the officer exceeded the scope of a v alid Terrysearch for weapons in his patdown of the defendant’s person when he detect ed the bottle. Compare Minnesota v. Dicker son , supra ; State v. Wonders , 929 P.2d 792 (Kan. App. 1996)(officer continued pat dow n of defendant’s pocket after he determined that it did not contain a weapon).

Legality of the seizur

e in this case turns on the third prerequisite. The dispositive issue is whether Officer Blackwell’s tactile perception of the pill bottle gave him probable cause to believe the object he felt w as contraband before he seized it. Probable cause exists when the facts and circumstances within the officer’s knowledge are sufficient to warrant a pers on of reasonable caution in the belief that the item may be contr aband. Brown , 460 U.S. at 742, 103 S.Ct. at 1543. Probable cause “does not demand any showing that s uch a belief be correct or more likely true than false.” Id . In determining whether probable cause-16-

exists, courts must consider the totality of the circumstances including the off icer’s testimony and factual knowl edge based upon prior law enforcement experience. See State v. Rushing , 935 S.W.2d 30, 33 (Mo.banc. 1996); see also State v. Trine , 673 A.2d 1098, 1100 (Conn. 1996). Courts should not surrender their common sense assessment of the sensory capacities of human touch to an officer’s assertion that he or she “immediately knew” the nature of the object touched. See e.g. , Jones v. State , 682 A.2d 248, 252 (Md. 1996) (“it’s not just a question of being an exper t and coming in and sayin g the magic words” ). The officer’s subjective belief that the object is contraband is not sufficient unless it is objectively reasonable in light of all the ci rcumstances known at the ti me of the search. Trine , 673 A.2d at 1109. An officer’s testi mony is a factor in determini ng the legality of a seizure under the plain feel doctri ne, but it is not dispositi ve and does not end a court’s inqui ry. Wonders , 929 P.2d at 799.

Applying these principles to the record in this case, a majority of this Court has determined that Officer Blackw ell did not have probable c ause to believe that the object he felt was contr aband, and that he did not have probable cause to believe that the bottle cont ained contraband. In an affidavit fil ed as an exhibit to the suppression hearing Officer Blackwell descri bed the patdown of the defendant as follows: For my protection I immedi ately identified myself and

frisked Bridges for we

apons. When I touched his right jacket pocket I immediately recognized a pill bottle, in that pocket, that is used by the majority of crack dealers to hold their cra ck cocaine. I continued the frisk and found a knife in Bridges’ back pocket. The pill bottle contained crack cocaine. I charged him and also found a small bag of crack cocai ne in the same pocket.-17-

In addition, Officer Blackw ell testified at the suppress ion hearing, recounting the discovery of the pill bottle during the patdown as follows: “[w]hen I was frisking him I felt and immediately felt the pi ll bottle and knew that i t was the kind that a lot of other dealers will use to keep their crack i n.”

While Officer Blackwell said that he “imm ediately recognized” the item as a pill bottle, unless he w

as clairvoyant, he could not have discerned th e contents from merely touching the container. Such a bottle, or one resembling it by touc h, may enclose legal medication, candy, pins, film or any number of other sm all items. Officer Blackwell ’s testimony does not speci fy the objective basis upon which he relied for identification of the container itsel f or its possible contents as contraband. The record contains little evidence of Of ficer Blackwell’s experience in drug cases and no evidence as to how he connected the container with the possession of cocaine. Compare , Trine 673 A.2d at 1111-12 (officer testified as to his experience with narcotics); People v. Champion , 549 N.W.2d 849, 859 (Mich. 1996) (officer’s testimony about 20 years of experience in narcotics work).

Under the proof in this record, it is evident that it was not immediately apparent to Officer Blackwel l that the bottle contained contr aband until it was removed from the defendant’s pocket. This, however, is the very type of further manipul ation fo rbidden by Dickerson

. See United States v. Ross , 827 F.Supp. at 719 (matchbox); State v. Parker , 622 So.2d 791, 795 (La. App. 1993) (matchb ox); State v. Abr

ams , 471 S.E.2d 716, 718 (S.C. App 1996) (Tylenol bottle); Campbell v. State , 864 S.W.2d 223, 226 (Tex. App. 1993) (film canis ter); Davis v. State , 8293 Compare cases where the offi cer actuall y felt the contraban d itself or fel t the cont raband through packa ging that did not conc eal the co ntents’ na ture, e.g., United States v. Craft , 30 F.3d 1044, 10 45 (8th C ir. 1994) (b ulges of heroine p acka ges aro und de fendan t’s ankles ); United Stat es v. Hughes , 15 F.3d 798, 802 (8th Cir. 19 94) (“sm all lumps ” of crac k coc aine); Trine , 673 A.2d at 1111 (ro ck of c ocaine in pocke t); Peo ple v. M itche ll , 650 N.E.2d 1014,1024 (Il l. 1995) (piece of “rock” cocaine inside bag gie); State v. Wilson , 437 S.E.2 d 387 , 389 (N.C . App . 199 3) (“lu mp s” in pack age in bre ast poc ket); Comm onwealth v.Dorsey , 654 A.2d 1086, 1087 (Pa. Super. 1995) (“lump ” in plastic ba g); State v. Buchanan , 504 N.W.2d 400, 404 (Wis. App. 1993)(plasti c bag containin g coca ine in waistb and).

4 The defendant did not contend t hat the Tennessee Consti tutionaffords great

er protect ion against sear

ches and seizur

es than does the f

ederal const itution with rega rd to the plain feel doctrine.The plain feel doctri ne as formulated by the United States Supreme Court i n Dickerson is consis tent with princ iples enu nciated b y this Court in inte rpreting A rticle I, Section 7. See e.g. , State v. Roode , 643 S.W .2d 6 51, 6 53 (T enn . 198 2). C ons equ ently, th at do ctrine , with its spec ific limitations w ill be applied in ap propriate cases in this state. -18- S.W.2d 218, 220 (T ex. Crim. App. 1992) (matchbox); 3 contra Champion , 549 N.W.2d at 858-59 (pill bottle in groi n); Rushing , 935 S.W.2d at 30 (cylindrical medicine bottle).

Over a quarter of a centur y ago, the United States Supreme Court warned that “the ‘plain view’ doctrine may not be used to extend a general exploratory search from one object to another until someth ing incriminating at last emerges.” Coolidge , 403 U.S. at 466, 91 S.Ct. at 20 38. This admonition applies eq ually to the plain feel doctrine. Apply ing the plain feel doctrine with the exacting limitations stated in Dickerson , it is clear that the w arrantless seizure in this case was not constitutionally permissible. 4

CONCLUSION A majority of this Court has determined that the initial stop and frisk was justified by reasonable suspicion supported by speci fic and articulable facts. However, a majorit

y of this Court also conc ludes that the evidence preponderates against the trial cour

t’s finding that the officer had pr obable cause to believe the-19-

object felt during the frisk was contraband. Conseq uently, the judgment of the Court of Criminal Appeals upholding the trial court’s denial of the def endant’s motion to suppress is rev ersed. The defendant’s conviction is vacated, and the charge is dismissed.

PER CURI AM

Drowota, J. - Separate

Concurring/Dissenting Opinion Reid, J. - Separate Concur ring/Dissenting Opinion Holder, J. - Not Parti cipating

# FILED

December 31, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

STATE OF TENNESSEE, ) FOR PUBLICATION ) Plaintiff-Appellee, ) Filed: December 31, 1997 )

v. ) HENRY CRIMINAL ) RAY ANTHONY BRIDGE S, ) Hon. Julian P. Guinn, ) Judge ) Defendant-Appellant. ) ) ) No. 02S01-9606-CC-00053 )

CONCURRING/DISSENTING OPINION

I agree with the major

ity that the initial s

top and frisk of this defendant was-21-

constitutionally permissible under Terry v. Ohio , 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968). How ever, in my view, seizure of the contraband also was constitutionally permissible in accordance with the “plain feel” doctrine. Therefore, I respectfully dissent from the major ity’s decision and would affirm the Court of Criminal Appeals’ judgment upho lding the trial court’s denial of the defendant’s motion to suppres s and his subsequent conv iction.

PLAIN FEEL DOCTRINE While the facts of this case and the parameters of the pl ain feel doctrine are accurately stated i n the majority opinion, I do not agree with the appl ication of the doctrine to the facts. As the majority recognizes, legality of the seizure in this case turns on whether Officer Blackwell had probable cause to believe the object he felt was contraband before he seized it. When the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasona ble caution in the belief that the ite m may be contraband, probable caus e exists. Texas v. Bro wn , 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L .Ed.2d 502 (1983). Probable cause “does not demand any showing that such a bel ief be correct or more likely true than fals e. A ‘practical, nontechni cal’ probability that incriminating evidence is involved is all that is required.” Id . The United States Supreme Court has explained the assessment of probable cause as f ollows.

The process does not deal with hard certainties, but with probabilitie

s. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conc lusions about human behavior; jurors as factfinders are permitted to do the same--and so are law enforcement officers. Finally, the eviden ce thus collected must be seen and-22- weighed not in terms of li brary analysis by scholars, but as understood by those ve rsed in the field of law enforcement.

Brown , 460 U.S. at 742 , 103 S.Ct. at 15 43, quoting United States v. Cortez , 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). In evaluating probable cause, therefore, courts must consider the totality of the c ircumstances including the officer’s testimony and factual knowledge based upon prior law enforcement experience. See State v. Rushing , 935 S.W.2d 30, 33 (Mo.banc. 1996); see also State v. Trine , 673 A.2d 1098, 1100 (Conn. 1996).

Whether, under the plain feel doctrine, an officer may seize an object routinel y used to pa ckage or co ntain dru gs is an issu e upon whi ch courts have split. Some courts hold that only contraband or evidence which is itself recognized by the officer may be seized. See e.g. , Commonwealth v. Stackfield , 651 A.2d 558, 562 (Pa. Super. 1994). Other courts have held that objects may be seized un der the pl ain feel doctrine if the of ficer ha s probab le cause t o believe that the object contains contr aband. See Trine , 673 A.2d at 1103; State v. Champion , 549 S.W.2d 849, 860 (Mich. 1996); Rushing , 935 S.W.2d at 33. The majority adopts the second approach, but concludes that Officer Blackwell did not have probable cause to beli eve the item detected contained c ontraband. I disagree with the majority’s finding and would hold that the officer had probable cause to believe the object detected during the patdow n contained contraband.

This is not a situation w here an officer frisks an unknow n person on the street and senses an object shaped like a pill bottle. As the majority recognizes,5 The rec ord i n this case is by

no means a tex

tboo k exampl e or a

model of cl ari ty . No imp licit co nclu sion wou ld hav e bee n nec ess ary ha d the State , at the supp ress ion he aring , sim ply asked Officer Bl ackwell to describe hi s experience i n prior drug cases. -23- pill bottles do not alw

ays contain contraband, and may contain legal substances. However, in this case, Officer Blackwell had received information from a reliable informant that Bridges was selling crack cocaine, “ and that Bridges was c arrying the drug on his person .” While conducting a lawful Terryfrisk of the defendant, Officer Blackwell detected an object which, accor ding to his testimony, he “immediately recognized” to be a pill bottle of the type ordinarily used by crack dealers to store their product. Though he does not explicitly say so, the implicit conclusion to be drawn from his testimony is that his recognition of the pill bottle as one ordinarily used to store illegal contr aband was based upon his pri or experience in drug cases. 5 Had Officer Blackwell been acting without the informant’s tip that the defendant w as dealing crack cocai ne and was carrying the drug on his person, the seizure of the pill bottle, perhaps, would be constitutionally suspect. We do not have that case before us, how ever. After carefully r

eviewing the evidence in this rec ord, I am of the opinion that, consi dering the facts and circumstances, including the tip, Officer Blackwel l had sufficient information to warrant a person of reasonabl e caution in the belief that the item he detected contained contraband. See Champion , supra (pill bottle in gr oin); Rushing , supra , (Life Saver Hole candy container in front pants pocket ); see also United St ates v. Craft , 30 F.3d 1044, 1045 (8th Cir. 1994) (bulges of heroine pack ages around defendant’s ankles); United States v. Hughes , 15 F.3d 798, 802 (8th Cir. 1994) (“small lumps” of crack cocaine); Trine , 673 A.2d at 1111 (rock of cocaine in pocket); People v. Mitchell , 650 N.E.2d 1014, 1024 (Ill. 1995) (piece of “rock” cocaine inside baggie) ; State v. Wilson , 437 S.E.2d 387, 389 (N.C. App. 1 993)-24-

(“lumps” in package i n breast pocket); Commonwealth v. Dorsey, 654 A.2d 1086, 1087 (Pa. Super. 1995) (“lump” in plastic bag); State v. Buchanan , 504 N.W.2d 400, 404 (Wis. App. 1993) (plastic bag c ontaining cocaine in w

aistband).

CONCLUSION Because I am of the opinion that seizure of the contraband was constitutionally permissible under the plain feel doc trine, I respectfully dissent from the majority decision. I would affirm the Court of Cr iminal Appeals’ decision upholding the trial cour t’s denial of the defendant’s motion to s uppress and the defendant’s subsequent convic tion.

______________________________ FRANK F. DROWOTA III, JUSTICE

# FILED

December 31, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk 1
FOR PUBLICATION 2 3
IN THE SUPREME COURT OF TENNESSEE 4 5
AT JACKSON 6 7 8 STATE OF TENNESSEE, ( 9 ( 10 Plaintiff-Appellee, ( 11 ( 12 ( Henry Criminal 13 ( 14

v . ( Hon. Julian P. Guinn, Judge 15 ( 16 ( S. Ct. No. 02S01-9 606-CC-00053 17 RAY ANTHONY BRIDGES, ( 18 ( 19 Defendant-Appellant. ( 20 21 22 23 24
CONCURRING AND DISSENTING OPINION 25 26 27 28-26- This case presents for review the judgment of the Court of 1 Criminal Appeals affirming the trial court’s order which overruled 2 the defendant’s motion to suppress evidence obtained during a stop 3 and frisk of the defendant. The defendant pleaded guilty to one 4 count of possession of cocaine with intent to sell. Pursuant to 5 Tenn. R. Crim. P. 37(b)(2), an order was entered reserving for 6 appeal the issue of the warrantless search, determined to be 7 dispositive of the case. The Court of Criminal Appeals affirmed the 8 defendant’s conviction. In reaching its decision, the court held 9 that the seizure of evidence found on the defendant was permissible 10 under the “plain feel” or “plain touch” doctrine expounded in 11 Minnesota v. Dickerson , 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 12 334 (1993). The Court granted the Rule 11 application to address 13 the legality of the seizure and particularly the “plain feel” 14 doctrine. 15 16

I 17 18 The proof at the suppression hearing shows that at 2:47 19 p.m. on December 23, 1993, Officer D.W. Blackwell of the Paris 20 Police Department made a telephone call to a confidential informant 21 who had provided reliable information in the past. The informant 22 told Officer Blackwell that the defendant, Ray Anthony Bridges, was 23 selling crack cocaine “right then” at a club called “Preacher’s” in 24 the “Bottom.” Officer Blackwell testified that he had previously 25 received “half a dozen or so” tips that the defendant was dealing in 26 drugs in that area. Blackwell was aware that the defendant had 27 previously been convicted of felony assault and had been involved in 28-27-

a recent armed altercation with the police. Thirty minutes after 1 making the call, Officer Blackwell found the defendant seated at a 2 table in Preacher’s engaged in conversation. Blackwell identified 3 himself and ordered the defendant to stand against the wall where he 4 “patted him down” for weapons. During the pat down, Blackwell felt 5 a small object “in the shape of a pill bottle” in the defendant’s 6 right jacket pocket and, in his words, “knew that it was the kind 7 that a lot of other crack dealers will use to keep their crack in.” 8 Blackwell seized the bottle which upon inspection was found to 9 contain crack cocaine. Blackwell also found a “knife,” not 10 otherwise described, in the defendant’s pants pocket. The record 11 contains no description of the pill bottle, or the characteristics 12 thereof, round, square, large, small, soft, hard, or other. The 13 defendant then was placed under arrest. As the result of a further 14 search of the defendant’s person, Officer Blackwell discovered a 15 plastic bag of cocaine “in the same pocket.” 16 17

I I 18 19 This case involves the review of a trial court’s findings 20 of fact and conclusions of law in disposing of a motion to suppress. 21

In State v. Odom , 928 S.W.2d 18 (Tenn. 1996), the Court restated the 22 standard to be applied by an appellate court when reviewing a trial 23 court’s findings of fact on suppression issues. 24 25 Questions of credibility of the witnesses, 26 the weight and value of the evidence, and 27 resolution of conflicts in the evidence are 28 matters entrusted to the trial judge as the 29 trier of fact. The party prevailing in the 30-28- trial court is entitled to the strongest 1 legitimate view of the evidence adduced at the 2 suppression hearing as well as all reasonable 3 and legitimate inferences that may be drawn from 4 that evidence. So long as the greater weight of 5 the evidence supports the trial court’s 6 findings, those findings shall be upheld. In 7 other words, a trial court’s findings of fact in 8 a suppression hearing will be upheld unless the 9 evidence preponderates otherwise. 10 11 12 13 I d . at 23. However, the application of the law to the facts found 14 by the trial court is a question of law which this Court reviews de 15

novo. Beare Co. v. Tennessee Dept. of Revenue , 858 S.W.2d 906, 907 16 (Tenn. 1993). 17 18

III 19 20 I concur in the per curiam decision that there was not 21 probable cause to arrest the defendant. 22 23 While the primary reason for granting the application in 24 this case was to address the ruling of the Court of Criminal Appeals 25 on the “plain feel” doctrine, this issue cannot be reached without 26 first addressing the challenge raised regarding the legality of 27 Officer Blackwell’s initial detention and frisk of the defendant. 28 As is clear from the United States Supreme Court decision in 29 Dickerson , the plain feel doctrine is an extension of the plain view 30 doctrine and is based on the same rationale. Minnesota v. 31 Dickerson , 508 U.S. at _____, 113 S. Ct. at 2137. Before an officer 32 is authorized to seize evidence in plain view, the initial intrusion 33 that brings the police within plain view of the evidence must be 346 The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fourth Amendment is applicable to the states through the Fourteenth Amendment. Mapp v. Ohio , 367 U.S. 643, 655, 81 S. Ct. 1684, 1691, 6 L. Ed. 2d 1081 (1961).

7 Article I, Section 7, of the Tennessee Constitution provides “[t]hat the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures; and that general warrants, whereby an officer may be commanded to search suspected places, without evidence of the fact committed, or to seize any person or persons not named, whose offences are not particularly described and supported by evidence, are dangerous to liberty and ought not to be granted.”

-29- constitutionally valid. See Coolidge v. New Hampshire , 403 U.S. 1 443, 465-466, 91 S. Ct. 2022, 2037-38, 29 L. Ed. 2d 564 (1971). 2 Consequently, it is necessary to determine the validity of the 3 defendant’s detention and the “pat down” of his person before 4 reaching the question of the seizure under the “plain feel” 5 doctrine. 6 7 Officer Blackwell acted without a warrant. The Fourth 8 Amendment to the United States Constitution 6 and Article I, Section 9 7 , 7 of the Tennessee Constitution prohibit unreasonable searches and 10 seizures. Warrantless searches are presumed to be unreasonable and 11 cannot be sustained unless they fall into one of the narrowly 12 defined exceptions to the warrant requirement. State v. Yeargan , 13 _____ S.W.2d _____ , _____ (Tenn. 199 5) (Reid, J., concurring) [slip op. a t 14 7]; State v. Bartram , 925 S.W.2d 227, 229-230 (Tenn. 1996). The 15 defendant contends that no exceptions to the warrant requirement are 16 applicable in his case and that Officer Blackwell had no right to 17 detain or search him. The State, on the other hand, argues that 18 Officer Blackwell had probable cause to arrest the defendant and 19 that the search of the defendant’s person was permissible as a 208 The State did not present this argument in the Court of Criminal Appeals; however, this was the primary argument made to the trial court, which found the “ arrest and frisk” of the defendant supported by “articulable facts.” The trial court made no finding concerning the application of the “plain feel” doctrine.

9 When an arrest is made, an officer may search the person arrested in order to remove any weapons that the arrestee might try to use to resist arrest or effect an escape. In addition, the officer may “search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.” Chimel v. California , 395 U.S. at 762- 63, 89 S. Ct. at 2040.

-30- search incident to an arrest, an exception to the warrant 1 requirement. 8 In the alternative, the State contends that the 2 detention and search were valid as a stop and frisk under Terry v. 3 Ohio , 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The 4 Court of Criminal Appeals agreed with the State’s second argument 5 and found that the detention and search were valid under Terry . 6 7 The State’s first argument must be addressed because if 8 the Court finds that the search was incident to a lawful arrest, 9 this exception to the warrant requirement would independently 10 support the search of the defendant’s person and the seizure of the 11 container, and the “stop and frisk” and “plain feel” issues would be 12

moot. 9 See Chimel v. California , 395 U.S. 752, 762-63, 89 S. Ct. 13 2034, 2040, 23 L. Ed. 2d 685 (1969); State v. Marshall , 870 S.W.2d 14 532, 540 (Tenn. Cr. App. 1993). The Fourth Amendment and Article I, 15 Section 7, require the existence of “probable cause” for making an 16 arrest without a warrant. Beck v. Ohio , 379 U.S. 89, 91, 85 S. Ct. 17 223, 225, 13 L. Ed. 2d 142 (1964); State v. Melson , 638 S.W.2d 342, 18 350 (Tenn. 1982), cert. denied , 459 U.S. 1137, 103 S. Ct. 770, 74 19 L. Ed. 2d 983 (1983); see also Tenn. Code Ann. § 40-7-103(a) 20 (officers may make a warrantless arrest when they have probable 21 cause to believe that the arrestee has committed or is committing a 22-31-

felony). In order to have probable cause for an arrest without a 1 warrant, at the time of the arrest the facts and circumstances 2 within the knowledge of the officers and of which they have 3 reasonably trustworthy information must be “sufficient to warrant a 4 prudent man in believing that the [defendant] had committed or was 5 committing an offense.” Beck , 379 U.S. at 91, 85 S. Ct. at 225; 6 State v. Melson , 638 S.W.2d at 350. 7 8 Here, the warrantless arrest was based upon information 9 provided by an informant. The test to determine probable cause to 10 make the arrest is the same as that used to determine whether there 11 is probable cause to issue a search warrant. See State v. Yeargan , 12 _____ S.W.2d at _____ (Reid, J., concurring) [slip op. at 12]; see 13

e.g. , State v. Pully , 863 S.W.2d 29, 31 (Tenn. 1993). The officer 14 must know that the informant is credible or his information is 15 reliable and that the informant has a basis for the information that 16 the person was involved in criminal conduct. State v. Jacumin , 778 17 S.W.2d 430, 432 (Tenn. 1989). In the present case, Officer 18 Blackwell testified that the informant had provided reliable 19 information to him in a prior illegal drug case. Blackwell also 20 testified that he had known this informant for a number of years and 21 that this person had “always been very straightforward and very 22 honest and very reliable” with him. These facts may minimally 23 satisfy the first prong of the test in Jacumin

. 24 25 However, the record definitely is deficient as to the 26 second prong of Jacumin . The informant did not tell Officer 27 Blackwell the basis of his knowledge that the defendant was at 28-32-

Preacher’s selling cocaine. 1 2 That the informant has demonstrated general 3 reliability in the past, is . . . no index of 4 the reliability of specific information he 5 passes on; he may have received it from a 6 totally unreliable source. There being no 7 presumption that the informant speaks with 8 personal knowledge, the basis of knowledge test 9 is, therefore, intended to weed out, as not of 10 sufficient quality, data received by the 11 informant from others who have not themselves 12 observed facts suggestive of criminal activity. 13 . . . Otherwise privacy and liberty may be 14 invaded by a warrantless search or arrest based 15 solely on the quality of the informant and not 16 at all on the quality of the information, i.e., 17 its suggestiveness of criminal activity. 18 19 20 21 People v. Elwell , 406 N.E.2d 471, 474-475 (N.Y. 1980) (citations 22 omitted). 23 24 Nonetheless, where a tip fails under either or both of the 25 two prongs, probable cause may still be established by independent 26 police investigative work that corroborates the tip to such an 27 extent that it supports the inference that the informant was 28 reliable and that the informant made the charge on the basis of 29 information obtained in a reliable way. See Spinelli v. United 30
States , 393 U.S. 410, 417-18, 89 S. Ct. 584, 589-90, 21 L. Ed. 2d 31 637 (1969); Jacumin , 778 S.W.2d at 436. Here, the State argues that 32 three pieces of information independently corroborated the tip 33 enough to overcome any deficiency. First, the State points out that 34 Blackwell received a half dozen prior tips that the defendant had 35 engaged in similar illegal activity at this location. Second, the 36 State argues that Blackwell knew that the defendant was a convicted 37-33-

drug dealer. Third, the State argues that Officer Blackwell found 1 the defendant at Preacher’s soon after he received the tip. These 2 facts are insufficient corroboration to justify an arrest of the 3 defendant. 4 5 A basis of knowledge cannot be inferred from the 6 corroboration of facts related only to innocent activity or matters 7 open and obvious to anyone. See State v. Kimbro , 496 A.2d 498 8 (Conn. 1985); State v. Raheem , 464 So. 2d 293, 297 (La. 1985); State 9 v. Ruffin , 448 So. 2d 1274, 1278 (La. 1984); People v. Elwell , 406 10 N.E.2d at 475. Likewise, a police officer’s knowledge of a 11 suspect’s reputation is not enough to constitute probable cause to 12

arrest. State v. Kimbro , 496 A. 2d at 505. “Something more 13 substantial than a casual rumor . . . or an accusation based merely 14 on an individual’s general reputation” must be shown. Spinelli v. 15 United States , 389 U.S. at 416, 89 S. Ct. at 589. In the present 16 case, the only fact given by the informant and corroborated by 17 police investigation, other than defendant’s reputation, was that 18 the defendant was present at Preacher’s place. This fact does not 19 indicate that the defendant was engaging in any illegal activity 20 that would furnish probable cause for an arrest; nor does this fact 21 “permit the suspicions engendered by the informant’s report to ripen 22 into a judgment that a crime was probably being committed.” United 23 States v. Spinelli , 393 U.S. at 418, 89 S. Ct. at 590. 24 25 The information possessed by Officer Blackwell at the time 26 he confronted the defendant was insufficient to establish probable 27 cause for a warrantless arrest of the defendant; therefore, the 28-34-

search of the defendant’s person cannot be validated as a search 1 incident to a lawful arrest. 2 3

I V 4 5 I dissent from the per curiam opinion finding that the 6 apprehension of the defendant was a valid investigative stop. 7 8 Probable cause is not the only basis on which a person may 9 be detained by a police officer without a warrant. If the facts and 10 circumstances do not warrant the reasonable belief that a crime has 11 been or is being committed and, therefore, there is not probable 12 cause for arrest, those facts and circumstances may be examined to 13 determine if they permit an investigative stop. This Court has 14 previously reviewed decisions in which the requirements for probable 15 cause and for investigative stops were discussed and noted the 16 distinction between the two principles. The distinction between an 17 arrest and an investigative stop is stated in State v. Pully , 863 18 S.W.2d 29, 30 (Tenn. 1993): 19 20 In general, although the Fourth Amendment 21 requires "probable cause" before an arrest is 22 deemed to be reasonable, the reasonableness of 23 seizures less intrusive than a full-scale arrest 24 is judged by weighing the gravity of the public 25 concern, the degree to which the seizure 26 advances that concern, and the severity of the 27 intrusion into individual privacy. 28 29 30 31 Consequently, under exigent circumstances, a police officer may make 32 an investigative stop when the officer has a reasonable suspicion, 33-35-

supported by specific and articulable facts, that a criminal offense 1 has been or is about to be committed. I d

. 2 3 Recognition that an investigative stop may be 4 constitutionally reasonable even though an arrest would not be 5 constitutionally reasonable was not intended to be a relaxation of 6 constitutional protection against intrusions by the state. Instead, 7 it is a recognition that a limited intrusion under exigent 8 circumstances may be justified as constitutionally reasonable. 9 State v. Yeargan , _____ S.W.2d at _____ (Reid, J., concurring) [slip 10 op. at 9]. Two essential conditions characterize a valid 11 investigative stop, exigent circumstances and limited intrusion. 12 After reviewing decisions from other jurisdictions in which 13 investigative stops were found to be justified, the Court in Pully 14 stated: "These cases show that the gravity of the perceived harm is 15 a crucial element in assessing the reasonableness of an 16 investigative Terrystop.” State v. Pully , 863 S.W.2d at 33. The 17 Court then approved this statement from a concurring opinion in 18 United States v. Mendenhall , 446 U.S. 544, 561, 100 S. Ct. 1870, 19 1881, 64 L. Ed. 2d 497 (1980) (Powell, J., concurring): 20 21 The reasonableness of a stop turns on the facts 22 and circumstances of each case. In particular, 23 the Court has emphasized (i) the public interest 24 served by the seizure, (ii) the nature and scope 25 of the intrusion, and (iii) the objective facts 26 upon which the law enforcement officer relied in 27 light of his knowledge and experience. 28 29 30 31 State v. Pully , 863 S.W.2d at 34. 32 33-36- Reasonable suspicion may justify a limited intrusion into 1 the defendant’s security where the circumstances require immediate 2 action by the police officer. The United States Supreme Court 3 stated in Alabama v. White , 496 U.S. 325, 330, 110 S. Ct. 2412, 4 2416, 110 L. Ed. 2d 301 (1990), that, 5 6 [r]easonable suspicion is a less demanding 7 standard than probable cause not only in the 8 sense that reasonable suspicion can be 9 established with information that is different 10 in quantity or content than that required to 11 establish probable cause, but also in the sense 12 that reasonable suspicion can arise from 13 information that is less reliable than that 14 required to show probable cause. 15 16 While the informant’s tip and Officer Blackwell’s own 17 knowledge and investigation are not sufficient to support a finding 18 of probable cause under Jacumin , they may be sufficient to provide 19 that reasonable suspicion which is one requirement for an 20 investigative stop. Reasonable suspicion may be based on the tip of 21 a known informant; when the informer gives the officer information 22 “immediately verifiable at the scene,” ”the information may carry 23 ‘enough indicia of reliability’” to justify the stop where there is 24 “an immediate threat of danger.” State v. Pully , 863 S.W.2d at 31 25 (quoting Adams v. Williams , 407 U.S. 143, 146-147, 92 S. Ct. 1921, 26 1923-1924, 32 L. Ed. 2d 612 (1972)). The test adopted by Jacumin is 27 helpful in determining whether “specific and articulable facts” 28 justify the reasonable suspicion necessary for an investigative 29 stop. Id. at 32. For example, under a reasonable suspicion 30 analysis, when an informant reports an incident at or near the time 31 of its occurrence, a court often can assume that the report is first 32-37-

hand and thus reliable. I d . Furthermore, a hurried description 1 from a source who insists on immediate action suggests that the 2 source is an eyewitness and may be sufficient cause for further 3 investigation. I d

. 4 5 In the present case, Officer Blackwell was told by the 6 informant that the defendant was at “Preacher’s” selling “crack 7 cocaine right then.” Soon after receiving the tip, Officer 8 Blackwell found the defendant at “Preacher’s,” where the informant 9 had told him the defendant would be. If there was “the need for 10 immediate police action in response to serious threats of harm,” the 11 informant’s tip would justify an investigative stop. Id. at 33. 12 However, the informant did not report that the defendant was armed, 13 though the officer had reason to suspect he might be, nor did the 14 informant report that the defendant intended to do anything that 15 would create an immediate danger. The record shows that the 16 defendant was seated at a table in a public place engaged in 17 conversation. Despite prior incidents of violent conduct and even 18 though the officer suspected the defendant was in possession of 19 illegal drugs, the defendant was not at the time Officer Blackwell 20 entered the club engaged in any suspicious behavior or unusual 21 conduct which required or justified his immediate detention. The 22 evidence, considered in the light most favorable to the prosecution, 23 does not show that Officer Blackwell had specific and articulable 24 facts or inferences from facts sufficient to generate a reasonable 25 conclusion that a crime had been, was, or was about to be committed. 26 And, further, the suspected criminal activity in this case, 27 possession of illegal drugs, is different in principle from the 28-38-

suspected armed robbery in Terryand the aggravated assault or 1 murder anticipated in Pully . The criminal activity suspected did 2 not constitute an immediate threat of harm to the officer or others. 3 There was no need for immediate police action. Consequently, the 4 initial detention of the defendant was not justified. 5 6 Where the investigative detention is justified, the police 7 officer may pat a suspect’s outer clothing if the officer has a 8 reasonable, particularized suspicion that the suspect is armed. 9 Terry v. Ohio , 392 U.S. at 27, 88 S. Ct. at 1883; Hughes v. State , 10 588 S.W.2d 296, 304 (Tenn. 1979). “The purpose of this limited 11 search is not to discover evidence of crime, but to allow the 12 officer to pursue his investigation without fear of violence.” 13 Adams v. Williams , 407 U.S. at 146, 92 S. Ct. at 1923. Officer 14 Blackwell knew that the defendant was a convicted felon and drug 15 dealer. He knew that the defendant had recently been charged with a 16 violent offense involving a weapon and was familiar with the 17 defendant’s armed attempt to flee police. Even though the defendant 18 was not in fact armed, this knowledge provided a reasonable, 19 particularized suspicion that the defendant was armed and dangerous. 20 However, this particularized suspicion cannot be the basis for the 21 initial stop. 22 23 A valid investigatory stop must be justified at 24 its inception and must be reasonably related in 25 scope to the circumstances that justified 26 interference by the police with a person’s 27 security. Justification must be based on an 28 objective manifestation that the person stopped 29 was or was about to be engaged in criminal 30 activity as judged by those versed in the field 31 of law enforcement when viewed under the 32-39- totality of the circumstances. The detaining 1 officer must have had a particularized and 2 objective basis for the suspicion of criminal 3 activity. 4 5 6 People v. Champion , 549 N.W.2d 849, 853 (Mich. 1996) (citations 7 omitted). 8 9 The State at a suppression hearing has the burden of 10 showing by a preponderance of the evidence that the search was 11 conducted within a recognized exception to the warrant requirement. 12 State v. Watkins , 827 S.W.2d 293, 295 (Tenn. 1992). The State has 13 failed to carry that burden in the present case. 14 15 The conclusion is that since there was no valid basis for 16 Officer Blackwell’s initial detention of the defendant and, 17 consequently, there was no authority for the search which produced 18 the contraband, the trial court erred in not suppressing the 19 evidence. 20 21

V 22 23 I concur in the per curiam decision that even if the 24 detention of the defendant was lawful, the evidence is not 25 admissible under the “plain feel” doctrine. The Court of Criminal 26 Appeals, after finding the initial detention was valid under Terry , 27 upheld the seizure under the “plain feel” doctrine of Minnesota v. 28 Dickerson , 508 U.S. 366, 113 S. Ct. 2130 (1993). In that case the 29 United States Supreme Court held that if, within the confines of a 3010 The validity of the initial detention in Dickerson was not contested. However, Justice Scalia stated, “My problem with the present case is that I am not entirely sure that the physical search-the “frisk”- that produced the evidence at issue here complied with [the] constitutional standard.” Dickerson , 508 U.S. at _____, 113 S. Ct. at 2139 (J. Scalia, concurring).

-40- valid Terryfrisk, an officer detects contraband through the sense 1 of touch, the officer may seize the contraband. Having found the 2 detention was not a valid Terrystop, the “plain feel” issue is moot 3 in this case. However, since the Rule 11 application was granted 4 for the purpose of discussing that issue, its consideration is not 5 inappropriate. 6 7

In Dickerson , two police officers observed Dickerson 8 leaving an apartment building known to be a “notorious ‘crack 9 house.’” Based on Dickerson’s suspicious behavior when he saw the 10 officers looking at him and the fact that he had left a building 11 associated with cocaine traffic, the officers stopped him and 12 conducted a patdown search, during which one of the officers felt a 13 small lump in the front pocket of Dickerson’s jacket. 1 0 The officer 14 manipulated the lump with his fingers and thought that it felt like 15 “a lump of crack cocaine in cellophane.” The officer then reached 16 into the pocket and retrieved a small plastic bag containing one 17 fifth of one gram of crack cocaine. Dickerson was arrested and 18 charged with possession of a controlled substance. Before trial, he 19 moved to suppress the cocaine. The trial court denied his motion 20 and he was convicted of possession of a controlled substance. The 21 Minnesota Court of Appeals and the Minnesota Supreme Court, however, 22 held that the cocaine should have been suppressed. The State 23 appealed to the United States Supreme Court, which affirmed the 24-41-

Minnesota Supreme Court. 1 2 Although concluding that the evidence should have been 3 suppressed, the United States Supreme Court held that contraband 4 detected through the sense of touch during a pat down search may be 5 admitted into evidence. It based its decision adopting the so6 called “plain feel” doctrine upon an analogy to the “plain view” 7 doctrine. 8 9 The rationale of the plain view doctrine is that 10 if contraband is left in open view and is 11 observed by a police officer from a lawful 12 vantage point, there has been no invasion of a 13 legitimate expectation of privacy and thus no 14 “search” within the meaning of the Fourth 15 Amendment--or at least no search independent of 16 the initial intrusion that gave the officers 17 their vantage point. See Illinois v. Andreas , 463 18 U.S. 765, 771, 103 S. Ct. 3319, 3324, 77 L. Ed. 19 2d 1003 (1983); Texas v. Brown , [460 U.S. 730, 20 740, 103 S. Ct. 1535, 1542, 75 L. Ed. 2d 502 21 (1983)]. The warrantless seizure of contraband 22 that presents itself in this manner is deemed 23 justified by the realization that resort to a 24 neutral magistrate under such circumstances would 25 often be impracticable and would do little to 26 promote the objectives of the Fourth Amendment. 27 See [Arizona v. Hicks , 480 U.S. 321, 326-327, 107 28 S. Ct. 1149, 1153, 94 L. Ed. 2d 347 (1987)]; 29 Coolidge v. New Hampshire , 403 U.S. 443, 467-468, 30 469-470, 91 S. Ct. 2022, 2028-2029, 2040, 29 L. 31 Ed. 2d 564 (1971)(opinion of Stewart, J.)]. The 32 same can be said of tactile discoveries of 33 contraband. If a police officer lawfully pats 34 down a suspect’s outer clothing and feels an 35 object whose contour or mass makes its identity 36 immediately apparent , there has been no invasion 37 of the suspect’s privacy beyond that already 38 authorized by the officer’s search for weapons; 39 if the object is contraband, its warrantless 40 seizure would be justified by the same practical 41 considerations that inhere in the plain view 42 context. 43 44 45 46-42-

I d . at ____, 113 S. Ct. at 2137 (emphasis added) (footnote omitted). 1 2

In Dickerson , the United States Supreme Court rejected two 3 arguments against the plain feel doctrine. One was that touch is 4 more intrusive of one’s privacy than is sight. The Court responded 5 that this argument was “inapposite in light of the fact that the 6 intrusion . . . has already been authorized by the lawful search 7 for weapons.” I d ., 508 U.S. at ____, 113 S. Ct. at 2138. A second 8 argument against the plain feel doctrine was that the sense of touch 9 is inherently less immediate and less reliable than the sense of 10 sight. In response, the Court stated that Terryitself demonstrated 11 that the sense of touch is capable of revealing the nature of an 12 object with sufficient reliability to support a seizure. 13 14 The very premise of Terry , after all, is that 15 officers will be able to detect the presence of 16 weapons through the sense of touch and Terry 17 upheld precisely such a seizure. Even if it 18 were true that the sense of touch is generally 19 less reliable than the sense of sight, that only 20 suggests that officers will less often be able 21 to justify seizures of unseen contraband

. 22 Regardless of whether the officer detects the 23 contraband by sight or by touch, however, the 24 Fourth Amendment’s requirement that the officer 25 have probable cause to believe that the item is 26 contraband before seizing it ensures against 27 excessively speculative seizures. 28 29 30 31 I d . at ____, 113 S. Ct. at 2137 (emphasis added). 32 33 The Court then proceeded to apply the principles of the 34 plain view doctrine to the facts of Dickerson . The dispositive 35 question, the Court wrote, “is whether the officer who conducted the 36-43-

search was acting within the lawful bounds marked by Terryat the 1 time he gained probable cause to believe that the lump in 2 respondent’s jacket was contraband.” I d . at ____, 113 S. Ct. at 3 2138. The Court found that the officer in Dickerson “overstepped 4 the bounds of the ‘strictly circumscribed’ search for weapons 5 allowed under Terry .” I d

. 6 7 Where, as here, “an officer who is executing a 8 valid search for one item seizes a different 9 item,” this Court rightly “has been sensitive to 10 the danger . . . that officers will enlarge a 11 specific authorization, furnished by a warrant 12 or an exigency, into the equivalent of a general 13 warrant to rummage and seize at will.” Texas v. 14 Brown , 460 U.S., at 748, 103 S. Ct., at 1546- 15 1547 (Stevens, J., concurring in judgment). 16 Here, the officer’s continued exploration of 17 respondent’s pocket after having concluded that 18 it contained no weapon was unrelated to “[t]he 19 sole justification of the search [under Terry : ] 20 . . . the protection of the police officer and 21 others nearby.” 392 U.S., at 29, 88 S. Ct., at 22 1884. It therefore amounted to the sort of 23 evidentiary search that Terryexpressly refused 24 to authorize, see i d ., at 26, 88 S. Ct., at 25 1882, and that we have condemned in subsequent 26 cases. See Michigan v. Long , 463 U.S. [1032, 27 1049, n. 14, 103 S. Ct. 3269, 3480-3481, 77 L. 28 Ed. 2d 1201 (1983)]; Sibron[ v. New York , 392 29 U.S. 40, 65-66, 88 S. Ct. 1889, 1904, 20 L. Ed. 30 2d 917 (1968)]. 31 32 33 34 I d . at ___, 113 S. Ct. at 2138-39. 35 36 Two prerequisites can be gathered from Dickerson for 37 allowing the seizure of contraband detected through a police 38 officer’s sense of touch during a protective pat down search of a 39 suspect. First, the scope of the search must be limited to that 40 necessary to determine if the suspect is armed. Second, the 41-44-

incriminating character of the non-threatening contraband detected 1 during the limited search must be “immediately apparent.” United 2
State v. Ross , 827 F. Supp. 711, 718 (S.D. Ala. 1993), aff’d , 19 3 F.3d 1446 (11th Cir. 1994); D.D. v. State , 668 N.E.2d 1250, 1252 4 (Ind. App. 1996). In the instant case, assuming that the initial 5 seizure was justified, the first of these prerequisites is initially 6 met. Nothing in the record indicates that the officer went beyond 7 the boundaries of a Terry search for weapons in his patdown of the 8 defendant’s person until he seized the bottle. Compare Dickerson , 9 508 U.S. at _____, 113 S. Ct. at 2138; State v. Wonders , 929 P.2d 10 792 (Kan. App. 1996) (officer continued pat down of defendant’s 11 pocket after he determined that it did not contain a weapon). It is 12 the latter of these two prerequisites that fails in the present 13

case. 14 15 To justify seizure of the pill bottle, its identity as 16 contraband must have been “immediately apparent.” The term 17 “immediately apparent” has been used synonymously with ”probable 18 cause.” As the United States Supreme Court wrote in Dickerson 19 itself, “[i]f . . . the police lack probable cause to believe that 20 an object in plain view is contraband without conducting some 21 further search of the object--i.e., if ‘its incriminating character 22 [is not] “immediately apparent,”’--the plain-view doctrine cannot 23 justify its seizure.” I d , 508 U.S. at ____, 113 S. Ct. at 2137 24 (citations omitted). See also Arizona v. Hicks , 480 U.S. at 329, 25 107 S. Ct. at 1154; Texas v. Brown , 460 U.S. at 741-742, 103 S. Ct. 26 at 1543 (1983); State v. Jones , 653 A.2d 1040, 1047-1050 (Md. App. 27 1995); see generally3 Wayne R. LaFave, Search & Seizure § 7.5 (b) 28-45-

(3d ed. 1996). The question thus becomes whether Officer 1 Blackwell’s tactile perception of the pill bottle gave him, without 2 further searching, probable cause to believe the object felt was 3 contraband. 4 5 An affidavit filed as an exhibit to the suppression 6 hearing gives the following account of Officer Blackwell’s pat down 7 of the defendant: 8 9 For my protection I immediately identified 10 myself and frisked Bridges for weapons. When I 11 touched his right jacket pocket I immediately 12 recognized a pill bottle, in that pocket, that 13 is used by the majority of crack dealers to hold 14 their crack cocaine. I continued the frisk and 15 found a knife in Bridges’ back pocket. The pill 16 bottle contained crack cocaine. I charged him 17 and also found a small bag of crack cocaine in 18 the same pocket. 19 20 Officer Blackwell also testified at the suppression hearing 21 regarding his discovery of the bottle: 22 23 Q. All right; what actually did you take into 24 possession regarding controlled substances? 25 26 A. Took crack cocaine which was in an amount-- 27 28 Q. Well, you don’t have to give me the amount. 29 Where was it located on the defendant? 30 31 A. It was in his right jacket pocket. 32 33 Q. In what kind of container? 34 35 A. Part of it was in a plastic bag, part of it 36 was in a pill bottle. That’s when I seized it. 37 When I was frisking him I felt and immediately 38 felt the pill bottle and knew that it was the 39 kind that a lot of other dealers will use to 40 keep their crack in. 41-46- 1 2 In summary, the evidence shows that Officer Blackwell felt an object 3 that he immediately recognized as a pill bottle when he touched the 4 defendant’s jacket in the course of the Terry weapons frisk. 5 6 The courts must carefully scrutinize seizures supported by 7 the plain feel doctrine. As the United States Supreme Court 8 acknowledged in Dickerson , 508 U.S. ____, 113 S. Ct. at 2137, to the 9 extent that the sense of touch may be less reliable in certain 10 circumstances, officers will less often be able to justify seizures 11 of unseen contraband. Courts should not surrender their common 12 sense assessment of the sensory capacities of human touch to an 13 officer’s assertion that he or she “immediately knew” the nature of 14 the object touched. See , e.g. , Jones v. State , 682 A.2d 248, 252 15 (Md. 1996) (“it’s not just a question of being an expert and coming 16 in and saying the magic words”). The officer’s subjective belief 17 that the object is contraband is not sufficient unless it is 18 objectively reasonable in light of all the circumstances known at 19 the time of the search. State v. Trine , 673 A.2d 1098, 1109 (Conn. 20 1996). An officer’s testimony is a factor in determining the 21 legality of a seizure under the plain feel doctrine, but it is not 22 dispositive and does not end a court’s inquiry. State v. Wonders , 23 929 P.2d at 799. 24 25 Practical and constitutional concerns require that the 26 plain feel doctrine be applied with caution. The doctrine has been 27 criticized since it may easily allow 28 29-47- a law officer to seize anything as long as he is 1 able to contend that he could identify the 2 contraband by merely touching the suspect’s 3 clothing. Realistically, no matter how absurd 4 or unsupportable such a contention may be, a 5 defendant will not be able to successfully 6 challenge it. The “plain touch” doctrine will 7 encourage officers to investigate any lump or 8 bulge in a person’s clothing or pockets that 9 arouses their curiosity during the course of a 10 patdown search. If the item turns out to be 11 contraband, then its seizure can be 12 retrospectively justified. If it turns out to 13 be something else, then there is no case and the 14 matter ends there. In the interim, a citizen is 15 subject to an unwarranted intrusion into his 16 personal privacy far beyond the intrusion 17 contemplated by the weapons patdown search. 18 19 20 People v. Mitchell , 650 N.E.2d 1014, 1025 (Ill. 1995) (Heiple, J., 21 dissenting). Over a quarter of a century ago, the United States 22 Supreme Court similarly warned that “the ‘plain view’ doctrine may 23 not be used to extend a general exploratory search from one object 24 to another until something incriminating at last emerges.” Coolidge 25 v. New Hampshire , 403 U.S. at 466, 91 S. Ct. at 2038. This 26 admonition applies equally to the plain feel doctrine, which, if 27 loosely applied, could, as its critics predict, expand limited 28 protective searches for weapons under Terryinto general exploratory 29 rummagings of suspects’ persons for contraband. See Barbara A. 30 Doty, Note, Minnesota v. Dickerson: Plain Touch Doctrine-- 31 Authorizing a Terry Stop and Search for Drugs? , 1994 Wis. L. Rev. 32 1303 (1994). 33 34 The defendant did not contend that the Tennessee 35 Constitution affords greater protection against searches and 36 seizures than does the federal constitution with regard to the plain 37-48-

feel doctrine. The plain feel doctrine as formulated by the United 1 States Supreme Court in Dickerson is not inconsistent with 2 principles enunciated by this Court in interpreting Article I, 3 Section 7. See e.g. , State v. Roode , 643 S.W.2d 651, 653 (Tenn. 1982). 4 Consequently, that doctrine, with the exacting limitations stated in 5 Dickerson , will be applied in appropriate cases in this state. 6 7 However, the application of these principles to the record 8 in this case requires the finding that Officer Blackwell did not 9 have probable cause to believe that the object he felt was 10 contraband. Based on his testimony, he had a suspicion that the 11 bottle contained contraband, but even a reasonable suspicion is 12 insufficient to support a seizure under the plain view doctrine, 13 Arizona v. Hicks , 480 U.S. at 326-27, 107 S. Ct. at 1153, and thus, 14 by analogy, it is insufficient to support a seizure under the “plain 15 feel” doctrine. While Officer Blackwell testified that he 16 “immediately recognized” the item as a pill bottle, unless he was 17 clairvoyant the contents could not be determined from merely 18 touching the container. Such a bottle, or one resembling it by 19 touch, may enclose legal medication, candy, pins, film or any number 20 of other small items. Nothing in the officer’s testimony offers an 21 objective basis for identification of the container itself or its 22 possible contents as contraband. Nothing in the record explains how 23 his touching the container revealed its contents “so unquestionably” 24 that no warrant requirement existed “merely because there is a 25 container between the officer and the seizable object.” 3 LaFave, 26 Search & Seizure § 5.5 ( f). Although the Court of Criminal Appeals 27 writes that Officer Blackwell’s identification was based upon his 2811 Compare cases where the officer actually felt the contraband itself or felt the contraband through packaging that did not conceal the contents’ nature, e.g., United State v. Craft , 30 F.3d 1044, 1045 (8th Cir. 1994) (bulges of heroine packages around defendant’s ankles); United States v. Hughes , 15 F.3d 798, 802 (8th Cir. 1994) (“small lumps” of crack cocaine); State v. Trine , 673 A.2d at 1111 (rock of cocaine in pocket); People v. Mitchell , 650 N.E.2d 1014, 1024 (Ill. 1995)(piece of “rock” cocaine inside baggie); State v. Wilson , 437 S.E.2d 387, 389 (N.C. App. 1993) (“lumps” in package in breast pocket); Commonwealth v. Dorsey , 654 A.2d 1086, 1087 (Pa. Super. 1995) (“lump” in plastic bag); State v. Buchanan , 504 N.W.2d 400, 404 (Wis. App. 1993) (plastic bag containing cocaine in waistband).

-49- experience, the record contains little evidence of Officer 1 Blackwell’s experience in drug cases and no evidence as to how he 2 connected the container with the possession of cocaine. Compare , 3 State v. Trine , 673 A.2d at 1111-12 (officer testified as to his 4 experience with narcotics); People v. Champion , 549 N.W.2d. 849, 859 5 (Mich. 1996) (officer’s testimony about 20 years of experience in 6 narcotics work). Under the proof in this record, it is evident that 7 it was not apparent to Officer Blackwell that the bottle contained 8 contraband until it was removed from the defendant’s pocket. This, 9 however, is the very type of further manipulation forbidden by 10 Dickerson

. See United States v. Ross , 827 F. Supp. at 719 11 (matchbox); State v. Parker , 622 So. 2d 791, 795 (La. App. 1993) 12 (matchbox); State v. Abrams , 471 S.E.2d 716, 718 (S.C. App. 1996) 13 (Tylenol bottle); Campbell v. State , 864 S.W.2d 223, 226 (Tex. App. 14 1993) (film canister); Davis v. State , 829 S.W.2d 218, 220 (Tex. Cr. 15 App. 1992) (matchbox); 1 1 contra People v. Champion , 549 N.W.2d at 16 858-59 (pill bottle in groin); State v. Rushing , 935 S.W.2d 30 (Mo. 17 1996) (en banc) (cylindrical medicine bottle). 18 19 20 21

V I 22-50- In conclusion, I would hold that the defendant’s initial 1 detention was not a valid Terrystop and, further, because the 2 search cannot be sustained under the “plain feel” doctrine, the 3 search was not reasonable under the Fourth Amendment and Article I, 4 Section 7. 5 6

______________________________ 7 Reid, J. 8