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 BRIDGES, ) 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 & Reporter Memphis, Tennessee

Nashville, Tennessee

Michael E. Moore

Solicitor General

Nashville, Tennessee

Gordon W. Smith

Associate Solicitor General

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.
1Rule 37(b)(2)(I), Tenn. R. Crim. P., provides in pertinent part as follows:

(b) An appeal lies from any order or judgment in a criminal

proceeding where the law provides for such appeal, and from any

judg me nt of c onvic tion: (2 ) Upo n a ple a of g uilty or n olo

contendere if: (I) Defendant entered into a plea agreement under

Rule 11(e) but explicitly reserved with the consent of the state and

of the court the rig ht to a ppeal a ce rtified ques tion of law th at is

dispositive of the ca se. . . .

-2-

The primary issue in this appeal is whether the warrantless seizure of

cocaine from the defendant’s person during a detention and frisk was

constitutionally permissible under the “plain feel” or “plain touch” doctrine

expounded in Minnesota v. Dickerson, 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 pled guilty to possession of cocaine with

intent to sell, but reserved the right to appeal the constitutionality of the

warrantless seizure pursuant to Tenn. R. Crim. P. 37(b)(2).1 The Court of Criminal

Appeals affirmed the trial court’s denial of the motion to suppress. Thereafter, 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 articulable facts. 

However, a majority of this Court has also concluded that the evidence

preponderates against the trial court’s finding that the officer had probable cause

to believe the object felt during the frisk was contraband. Consequently, the

judgment of the Court of Criminal Appeals upholding the trial court’s denial of the

motion to suppress is reversed. 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 selling 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 sitting at a table inside

Preachers engaged in conversation. Aware that Bridges previously had been

convicted of felony assault and recently had been involved in an armed altercation

with police, Officer Blackwell identified himself and ordered Bridges to stand

against the wall. Officer Blackwell then patted down the outside of Bridges

clothing to ensure he was not carrying weapons. During the patdown, Officer

Blackwell felt a small object “in the shape of a pill bottle” in the defendant’s right

jacket pocket and, recognized it as “the kind that a lot of other crack dealers will

use to keep their crack in.” Officer Blackwell seized the bottle, and upon

inspection, determined that it contained crack cocaine, and he also found a knife

in the defendant’s right pants pocket. As a result, Bridges was arrested, and a

further search was conducted of the defendant’s person, during which Officer

Blackwell discovered a plastic bag of cocaine “in the same pocket” from which the

pill bottle containing crack had been removed. 
-4-

The trial court denied the defendant’s pretrial motion to suppress the

evidence, and, upon appeal, the Court of Criminal Appeals affirmed the denial. 

For the reasons hereafter explained, a majority of this Court now concludes that

seizure of the pill bottle violated the defendant’s constitutional rights. Accordingly,

the judgment of the Court of Criminal Appeals upholding the trial court’s denial of

the motion to suppress is reversed.

STANDARD OF REVIEW

This case involves the review of a trial court’s findings of fact and law in

disposing of a motion to suppress. In State v. Odom, 928 S.W.2d 18 (Tenn.

1996), this Court clarified 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 evidence, 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 legitimate view

of the evidence adduced at the suppression hearing as

well as all reasonable 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 shall be upheld. In other

words, a trial court’s findings of fact in a suppression

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 which this Court reviews 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 Fourteen th Am endm ent. 

Map p v. Ohio, 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 text 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 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.

Similarly, Article 1, Section 7 of the Constitution of Tennessee guarantees

that 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.

The purpose of the prohibition against unreasonable searches and seizures 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 Amendment.” State v.

Downey, 945 S.W.2d 102, 106 (Tenn. 1997), quoting Sneed v. State, 221 Tenn.

6, 13, 423 S.W.2d 857, 860 (1968).
-6-

Consequently, under both the federal and state constitutions, a warrantless

search or seizure is presumed unreasonable, and evidence discovered as a result

thereof is subject to suppression unless the State demonstrates that the search or

seizure was conducted pursuant to one of the narrowly 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 Officer Blackwell had probable

cause to arrest the defendant and that the search of the defendant’s person was

permissible as a search incident to an arrest, an exception to the warrant

requirement. Alternatively, 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 INCIDENT TO A LAWFUL ARREST

Because a search incident to a lawful arrest is an exception to the warrant

requirement which would independently support the warrantless search of the

defendant’s person and seizure of the pill bottle, we first determine whether the

search and seizure in this case was pursuant to a lawful arrest. See Chimel 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, 540 (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 warrant. 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 have probable cause to believe that the

arrestee has committed or is committing a felony). Probable cause for an arrest

without a warrant exists if, at the time of the arrest, the facts and circumstances

within the knowledge of the officers, and of which they had reasonably trustworthy

information, are “sufficient to warrant a prudent man in believing that the

[defendant] had committed or was committing 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 knowledge and the informant’s credibility must also be

established. State v. Jacumin, 778 S.W.2d 430, 432-436 (Tenn. 1989). In this

case, the officer acted in response to a informant’s tip; therefore we must apply

the two-pronged test to evaluate the reliability of the tip.

In the present case the informant who provided the tip about the

defendant’s criminal activity had assisted Officer Blackwell on a case

approximately eight years earlier in which an arrest and conviction were made on

a cocaine charge. Blackwell had known this informant for a number of years and

said this informant had “always been very straightforward and very honest and

very reliable” with him. These facts minimally satisfy the credibility prong of the

Jacumin test. 
-8-

However, the evidence is deficient as to the second prong of Jacumin. In

other words, there is no evidence of the basis of the informant’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 established by independent police investigative work that

corroborates the tip to such 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 reliable way. See Spinelli v. United States, 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 argues 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 Blackwell knew that

the defendant was a convicted drug dealer. Third, the State argues that Officer

Blackwell found the defendant at Preacher’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 officer’s knowledge of a suspect’s reputation is not alone 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 individual’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 police investigation, other than defendant’s reputation,

was that the defendant was present at Preacher’s place. While this fact may
-9-

indicate that the basis of the informant’s knowledge was eyewitness observation,

this corroboration is insufficient to establish the reliability 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 defendant was sufficient to establish

probable cause for a warrantless arrest of the defendant; therefore, the ensuing

search of the defendant’s person cannot be validated as a search incident to a

lawful arrest as the State argues. We must next determine whether 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, supported 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 (Tenn. 1992). Likewise, a frisk is warranted under Terry if the

police officer has a reasonable suspicion based on specific and articulable facts

that the suspect is armed. Id., 392 U.S. at 27, 88 S.Ct. at 1883.

As the United States Supreme Court recognized in Alabama v. White, 496 

U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed. 2d 301 (1990):

[r]easonable suspicion is a less demanding standard

than probable cause not only in the sense that

reasonable suspicion can be established with
-10-

information that is different in quantity or content than

that required to establish probable cause, but also in

the sense that reasonable suspicion 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 totality 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 includes,

but is not limited to, objective observations, information

obtained from other police officers or agencies,

information obtained from citizens, 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 to 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 reliable 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 which had been designated by the

informant only thirty minutes 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 finding of probable cause. 

However, the tip, in conjunction with Officer Blackwell’s independent

corroboration, was sufficiently reliable to provide reasonable suspicion.
-11-

An investigative stop may be based on the tip of an informant if the

information manifests “enough indicia 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 incident at or near the time of its occurrence, a court can often assume

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 source is an eyewitness is sufficient for further investigation. 

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 defendant 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,” where the informant had told him the defendant would be. Officer

Blackwell previously had received tips from other persons indicating that Bridges

routinely sold crack cocaine in that area. The corroboration of the tip, indicating

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 support 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 reasonable, particularized suspicion that the suspect is armed. 

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 limited search is not to discover 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 recently been charged with a

violent offense involving a weapon. In addition, Officer Blackwell was familiar with

the defendant’s armed attempt to flee police. This knowledge provided a

reasonable, particularized suspicion that the defendant was armed and

dangerous. For the protection of himself and others in the area, therefore, Officer

Blackwell was entitled to conduct a carefully limited search of the outer clothing of

the defendant in an attempt to discover weapons that 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. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed. 2d 334

(1993), the United States Supreme Court held that if an officer detects contraband

through the sense of touch during a valid Terry frisk, the officer may seize the

contraband. In that case, two police officers observed Dickerson 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 him, and the

community reputation of the building as a haven for cocaine traffic, the officers

stopped him and conducted a patdown search. During the search, one of the

officers felt a small lump in the front pocket of Dickerson’s jacket. After further

manipulation of the lump, the officer decided it was a “lump of crack cocaine in
-13-

cellophane.” The officer then removed from Dickerson’s pocket a small plastic

bag containing one fifth of one gram of crack cocaine. Dickerson was arrested

and charged with possession of a controlled substance. Before trial, he moved to

suppress the cocaine. Upon the trial court’s denial of his motion, Dickerson was

convicted of possession of a controlled substance. However, the conviction was

overturned upon the conclusion of the Minnesota Court of Appeals and Supreme

Court that the cocaine should have been suppressed. The United 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 through the sense of

touch during a valid patdown search may be admitted into evidence. In

enunciating the “plain feel” doctrine, the Court analogized to the “plain view”

doctrine. Specifically, the Court in Dickerson held that

If a police officer lawfully pats down a suspect’s outer clothing and

feels an object whose contour or mass makes its identity

immediately apparent, there has been no invasion of the 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 context. 

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

In rejecting the contention that “plain feel” is not comparable to “plain view”

because the sense of touch is inherently less reliable than the sense of sight, the

Court stated:
-14-

The very premise of Terry, after all, is that officers will

be able to detect the presence of weapons through the

sense of touch and Terry upheld precisely such a

seizure. Even if it were true that the sense of touch is

generally less reliable than the sense of sight, that only

suggests that officers will less often be able to 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 have 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 facts of Dickerson, the Court identified the dispositive

question, as “whether the officer who conducted the search was acting within the

lawful bounds marked by Terry at the time he gained probable cause to believe

the lump in respondent’s jacket was contraband.” 508 U.S. at ___, 113 S.Ct. at

2138. Finding that the police officer overstepped the bounds of a search for

weapons authorized by Terry, the Court stated:

Here, the officer’s continued exploration 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 evidentiary search

that Terry expressly refused to authorize, and that we

have condemned in subsequent cases. 

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

Based upon the decision in Dickerson then, seizure of contraband under

the “plain feel” doctrine is appropriate if 1) a prior valid reason exists for the

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

detected while the Terry search for weapons legitimately 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 seizure. Dickerson, 508 U.S. at ___, 113 S.Ct. at 2137; 

See also Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed. 2d 347 (1987); 

Texas v. Brown, 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 two prerequisites are met in this case. For the reasons

previously stated the patdown was permissible under Terry. In addition, nothing in

this record indicates that the officer exceeded the scope of a valid Terry search for

weapons in his patdown of the defendant’s person when he detected the bottle. 

Compare Minnesota v. Dickerson, supra; State v. Wonders, 929 P.2d 792 (Kan.

App. 1996)(officer continued pat down of defendant’s pocket after he determined

that it did not contain a weapon).

Legality of the seizure 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 was contraband before he

seized it. Probable cause exists when the facts and circumstances within the

officer’s knowledge are sufficient to warrant a person of reasonable caution in the

belief that the item may be contraband. Brown, 460 U.S. at 742, 103 S.Ct. at

1543. Probable cause “does not demand any showing that such 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 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). 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 expert and coming in and saying 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 circumstances known at the time of the

search. Trine, 673 A.2d at 1109. An officer’s testimony is a factor in determining

the legality of a seizure under the plain feel doctrine, but it is not dispositive and

does not end a court’s inquiry. Wonders, 929 P.2d at 799. 

Applying these principles to the record in this case, a majority of this Court

has determined that Officer Blackwell did not have probable cause to believe that

the object he felt was contraband, and that he did not have probable cause to

believe that the bottle contained contraband. In an affidavit filed as an exhibit to

the suppression hearing Officer Blackwell described the patdown of the defendant

as follows:

For my protection I immediately identified myself and

frisked Bridges for weapons. 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 crack 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 cocaine in the same pocket.
-17-

In addition, Officer Blackwell testified at the suppression 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 pill bottle and knew that it was the kind that a lot of

other dealers will use to keep their crack in.”

While Officer Blackwell said that he “immediately recognized” the item as a

pill bottle, unless he was clairvoyant, he could not have discerned the contents

from merely touching the container. Such a bottle, or one resembling it by touch,

may enclose legal medication, candy, pins, film or any number of other small

items. Officer Blackwell’s testimony does not specify the objective basis upon

which he relied for identification of the container itself or its possible contents as

contraband. The record contains little evidence of Officer 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 Blackwell that the bottle contained contraband until it was

removed from the defendant’s pocket. This, however, is the very type of further

manipulation forbidden by Dickerson. See United States v. Ross, 827 F.Supp. at

719 (matchbox); State v. Parker, 622 So.2d 791, 795 (La. App. 1993) (matchbox);

State v. Abrams, 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 canister); Davis v. State, 829
3Compare cases where the officer actually felt the contraband itself or felt the contraband

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 States

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 (Ill. 1995) (piece of

“rock” cocaine inside bag gie); State v. Wilson, 437 S.E.2 d 387 , 389 (N.C . App . 1993) (“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) (plastic bag

containin g coca ine in waistb and). 

4

The defendant did not contend that the Tennessee Constitution affords greater protection

against searches and seizures than does the federal constitution with regard to the plain feel

doctrine. The plain feel doctrine as formulated by the United States Supreme Court in Dickerson is

consis tent with princ iples enu nciated b y this Court in inte rpreting Article I, Section 7. See e.g., State

v. Roode, 643 S.W .2d 651, 653 (T enn. 1982). Consequently, th at doctrine , with its spec ific

limitations w ill be applied in ap propriate cases in this state. 

-18-

S.W.2d 218, 220 (Tex. Crim. App. 1992) (matchbox);3

contra Champion, 549

N.W.2d at 858-59 (pill bottle in groin); Rushing, 935 S.W.2d at 30 (cylindrical

medicine bottle). 

Over a quarter of a century 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 something incriminating at last emerges.” 

Coolidge, 403 U.S. at 466, 91 S.Ct. at 2038. This admonition applies equally to

the plain feel doctrine. Applying the plain feel doctrine with the exacting limitations

stated in Dickerson, it is clear that the warrantless 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 specific and articulable facts. 

However, a majority of this Court also concludes that the evidence preponderates

against the trial court’s finding that the officer had probable cause to believe the
-19-

object felt during the frisk was contraband. Consequently, the judgment of the

Court of Criminal Appeals upholding the trial court’s denial of the defendant’s

motion to suppress is reversed. The defendant’s conviction is vacated, and the

charge is dismissed.

PER CURIAM

Drowota, J. - Separate Concurring/Dissenting Opinion

Reid, J. - Separate Concurring/Dissenting Opinion

Holder, J. - Not Participating
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 BRIDGES, ) Hon. Julian P. Guinn,

) Judge

)

Defendant-Appellant. )

)

) No. 02S01-9606-CC-00053

) 

CONCURRING/DISSENTING OPINION

I agree with the majority that the initial stop 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). However, in my view, seizure of the

contraband also was constitutionally permissible in accordance with the “plain

feel” doctrine. Therefore, I respectfully dissent from the majority’s decision and

would affirm the Court of Criminal Appeals’ judgment upholding the trial court’s

denial of the defendant’s motion to suppress and his subsequent conviction.

PLAIN FEEL DOCTRINE

While the facts of this case and the parameters of the plain feel doctrine

are accurately stated in the majority opinion, I do not agree with the application 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 reasonable

caution in the belief that the item may be contraband, probable cause exists. 

Texas v. Brown, 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 belief be correct or

more likely true than false. A ‘practical, nontechnical’ 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 follows.

The process does not deal with hard certainties,

but with probabilities. Long before the law of

probabilities was articulated as such, practical people

formulated certain common-sense conclusions about

human behavior; jurors as factfinders are permitted to

do the same--and so are law enforcement officers. 

Finally, the evidence thus collected must be seen and
-22-

weighed not in terms of library analysis by scholars, but

as understood by those versed in the field of law

enforcement.

Brown, 460 U.S. at 742, 103 S.Ct. at 1543, 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 circumstances 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

routinely used to package or contain drugs is an issue upon which 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 under the plain feel doctrine if the officer has probable cause to believe

that the object contains contraband. 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 believe the item detected contained contraband. I

disagree with the majority’s finding and would hold that the officer had probable

cause to believe the object detected during the patdown contained contraband.

This is not a situation where an officer frisks an unknown person on the

street and senses an object shaped like a pill bottle. As the majority recognizes,
5

The record in this case is by no means a textbook example or a model of clarity. No

imp licit conclusion would hav e bee n nec essary ha d the State , at the supp ress ion he aring , sim ply

asked Officer Blackwell to describe his experience in prior drug cases.

-23-

pill bottles do not always 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 carrying

the drug on his person.” While conducting a lawful Terry frisk of the defendant,

Officer Blackwell detected an object which, according 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 contraband was based upon his prior

experience in drug cases.5 Had Officer Blackwell been acting without the

informant’s tip that the defendant was dealing crack cocaine 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, however. After carefully reviewing

the evidence in this record, I am of the opinion that, considering the facts and

circumstances, including the tip, Officer Blackwell had sufficient information to

warrant a person of reasonable caution in the belief that the item he detected

contained contraband. See Champion, supra (pill bottle in groin); Rushing, supra,

(Life Saver Hole candy container in front pants pocket); see also United States 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); 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)
-24-

(“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). 

CONCLUSION

Because I am of the opinion that seizure of the contraband was

constitutionally permissible under the plain feel doctrine, I respectfully dissent from

the majority decision. I would affirm the Court of Criminal Appeals’ decision

upholding the trial court’s denial of the defendant’s motion to suppress and the

defendant’s subsequent conviction.

______________________________

FRANK F. DROWOTA III,

JUSTICE
FILED

December 31, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

1

2 FOR PUBLICATION

3

4 IN THE SUPREME COURT OF TENNESSEE

5

6 AT JACKSON

7

8

9 STATE OF TENNESSEE, (

10 (

11 Plaintiff-Appellee, (

12 (

13 ( Henry Criminal

14 (

15 v . ( Hon. Julian P. Guinn, Judge

16 (

17 ( S. Ct. No. 02S01-9 606-CC-00053

18 RAY ANTHONY BRIDGES, (

19 (

20 Defendant-Appellant. (

21

22

23

24

25 CONCURRING AND DISSENTING OPINION

26

27

28
-26-

1 This case presents for review the judgment of the Court of

2 Criminal Appeals affirming the trial court’s order which overruled

3 the defendant’s motion to suppress evidence obtained during a stop

4 and frisk of the defendant. The defendant pleaded guilty to one

5 count of possession of cocaine with intent to sell. Pursuant to

6 Tenn. R. Crim. P. 37(b)(2), an order was entered reserving for

7 appeal the issue of the warrantless search, determined to be

8 dispositive of the case. The Court of Criminal Appeals affirmed the

9 defendant’s conviction. In reaching its decision, the court held

10 that the seizure of evidence found on the defendant was permissible

11 under the “plain feel” or “plain touch” doctrine expounded in

Minnesota v. Dickerson 12 , 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d

13 334 (1993). The Court granted the Rule 11 application to address

14 the legality of the seizure and particularly the “plain feel”

15 doctrine.

16

17 I

18

19 The proof at the suppression hearing shows that at 2:47

20 p.m. on December 23, 1993, Officer D.W. Blackwell of the Paris

21 Police Department made a telephone call to a confidential informant

22 who had provided reliable information in the past. The informant

23 told Officer Blackwell that the defendant, Ray Anthony Bridges, was

24 selling crack cocaine “right then” at a club called “Preacher’s” in

25 the “Bottom.” Officer Blackwell testified that he had previously

26 received “half a dozen or so” tips that the defendant was dealing in

27 drugs in that area. Blackwell was aware that the defendant had

28 previously been convicted of felony assault and had been involved in
-27-

1 a recent armed altercation with the police. Thirty minutes after

2 making the call, Officer Blackwell found the defendant seated at a

3 table in Preacher’s engaged in conversation. Blackwell identified

4 himself and ordered the defendant to stand against the wall where he

5 “patted him down” for weapons. During the pat down, Blackwell felt

6 a small object “in the shape of a pill bottle” in the defendant’s

7 right jacket pocket and, in his words, “knew that it was the kind

8 that a lot of other crack dealers will use to keep their crack in.” 

9 Blackwell seized the bottle which upon inspection was found to

10 contain crack cocaine. Blackwell also found a “knife,” not

11 otherwise described, in the defendant’s pants pocket. The record

12 contains no description of the pill bottle, or the characteristics

13 thereof, round, square, large, small, soft, hard, or other. The

14 defendant then was placed under arrest. As the result of a further

15 search of the defendant’s person, Officer Blackwell discovered a

16 plastic bag of cocaine “in the same pocket.”

17

18 I I

19

20 This case involves the review of a trial court’s findings

21 of fact and conclusions of law in disposing of a motion to suppress. 

In State v. Odom 22 , 928 S.W.2d 18 (Tenn. 1996), the Court restated the

23 standard to be applied by an appellate court when reviewing a trial

24 court’s findings of fact on suppression issues.

25

26 Questions of credibility of the witnesses,

27 the weight and value of the evidence, and

28 resolution of conflicts in the evidence are

29 matters entrusted to the trial judge as the

30 trier of fact. The party prevailing in the
-28-

1 trial court is entitled to the strongest

2 legitimate view of the evidence adduced at the

3 suppression hearing as well as all reasonable

4 and legitimate inferences that may be drawn from

5 that evidence. So long as the greater weight of

6 the evidence supports the trial court’s

7 findings, those findings shall be upheld. In

8 other words, a trial court’s findings of fact in

9 a suppression hearing will be upheld unless the

10 evidence preponderates otherwise.

11

12

13

I d 14 . at 23. However, the application of the law to the facts found

15 by the trial court is a question of law which this Court reviews de

16 novo. Beare Co. v. Tennessee Dept. of Revenue , 858 S.W.2d 906, 907

17 (Tenn. 1993).

18

19 III

20

21 I concur in the per curiam decision that there was not

22 probable cause to arrest the defendant. 

23

24 While the primary reason for granting the application in

25 this case was to address the ruling of the Court of Criminal Appeals

26 on the “plain feel” doctrine, this issue cannot be reached without

27 first addressing the challenge raised regarding the legality of

28 Officer Blackwell’s initial detention and frisk of the defendant. 

29 As is clear from the United States Supreme Court decision in

30 Dickerson , the plain feel doctrine is an extension of the plain view

31 doctrine and is based on the same rationale. Minnesota v.

32 Dickerson , 508 U.S. at _____, 113 S. Ct. at 2137. Before an officer

33 is authorized to seize evidence in plain view, the initial intrusion

34 that brings the police within plain view of the evidence must be
6

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-

1 constitutionally valid. See Coolidge v. New Hampshire , 403 U.S.

2 443, 465-466, 91 S. Ct. 2022, 2037-38, 29 L. Ed. 2d 564 (1971). 

3 Consequently, it is necessary to determine the validity of the

4 defendant’s detention and the “pat down” of his person before

5 reaching the question of the seizure under the “plain feel”

6 doctrine. 

7

8 Officer Blackwell acted without a warrant. The Fourth

Amendment to the United States Constitution 69 and Article I, Section

7 , 710 of the Tennessee Constitution prohibit unreasonable searches and

11 seizures. Warrantless searches are presumed to be unreasonable and

12 cannot be sustained unless they fall into one of the narrowly

defined exceptions to the warrant requirement. State v. Yeargan 13 ,

14 _____ S.W.2d _____ , _____ (Tenn. 199 5) (Reid, J., conc urring) [slip op. a t

15 7]; State v. Bartram , 925 S.W.2d 227, 229-230 (Tenn. 1996). The

16 defendant contends that no exceptions to the warrant requirement are

17 applicable in his case and that Officer Blackwell had no right to

18 detain or search him. The State, on the other hand, argues that

19 Officer Blackwell had probable cause to arrest the defendant and

20 that the search of the defendant’s person was permissible as a
8

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-

1 search incident to an arrest, an exception to the warrant

requirement. 8

2 In the alternative, the State contends that the

3 detention and search were valid as a stop and frisk under Terry v.

4 Ohio , 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The

5 Court of Criminal Appeals agreed with the State’s second argument

6 and found that the detention and search were valid under Terry .

7

8 The State’s first argument must be addressed because if

9 the Court finds that the search was incident to a lawful arrest,

10 this exception to the warrant requirement would independently

11 support the search of the defendant’s person and the seizure of the

12 container, and the “stop and frisk” and “plain feel” issues would be

moot. 9

13 See Chimel v. California , 395 U.S. 752, 762-63, 89 S. Ct.

14 2034, 2040, 23 L. Ed. 2d 685 (1969); State v. Marshall , 870 S.W.2d

15 532, 540 (Tenn. Cr. App. 1993). The Fourth Amendment and Article I,

16 Section 7, require the existence of “probable cause” for making an

17 arrest without a warrant. Beck v. Ohio , 379 U.S. 89, 91, 85 S. Ct.

18 223, 225, 13 L. Ed. 2d 142 (1964); State v. Melson , 638 S.W.2d 342,

19 350 (Tenn. 1982), cert. denied , 459 U.S. 1137, 103 S. Ct. 770, 74

20 L. Ed. 2d 983 (1983); see also Tenn. Code Ann. § 40-7-103(a)

21 (officers may make a warrantless arrest when they have probable

22 cause to believe that the arrestee has committed or is committing a
-31-

1 felony). In order to have probable cause for an arrest without a

2 warrant, at the time of the arrest the facts and circumstances

3 within the knowledge of the officers and of which they have

4 reasonably trustworthy information must be “sufficient to warrant a

5 prudent man in believing that the [defendant] had committed or was

6 committing an offense.” Beck , 379 U.S. at 91, 85 S. Ct. at 225;

7 State v. Melson , 638 S.W.2d at 350.

8

9 Here, the warrantless arrest was based upon information

10 provided by an informant. The test to determine probable cause to

11 make the arrest is the same as that used to determine whether there

12 is probable cause to issue a search warrant. See State v. Yeargan ,

13 _____ S.W.2d at _____ (Reid, J., concurring) [slip op. at 12]; see

14 e.g. , State v. Pully , 863 S.W.2d 29, 31 (Tenn. 1993). The officer

15 must know that the informant is credible or his information is

16 reliable and that the informant has a basis for the information that

17 the person was involved in criminal conduct. State v. Jacumin , 778

18 S.W.2d 430, 432 (Tenn. 1989). In the present case, Officer

19 Blackwell testified that the informant had provided reliable

20 information to him in a prior illegal drug case. Blackwell also

21 testified that he had known this informant for a number of years and

22 that this person had “always been very straightforward and very

23 honest and very reliable” with him. These facts may minimally

24 satisfy the first prong of the test in Jacumin . 

25

26 However, the record definitely is deficient as to the

27 second prong of Jacumin . The informant did not tell Officer

28 Blackwell the basis of his knowledge that the defendant was at
-32-

1 Preacher’s selling cocaine.

2

3 That the informant has demonstrated general

4 reliability in the past, is . . . no index of

5 the reliability of specific information he

6 passes on; he may have received it from a

7 totally unreliable source. There being no

8 presumption that the informant speaks with

9 personal knowledge, the basis of knowledge test

10 is, therefore, intended to weed out, as not of

11 sufficient quality, data received by the

12 informant from others who have not themselves

13 observed facts suggestive of criminal activity.

14 . . . Otherwise privacy and liberty may be

15 invaded by a warrantless search or arrest based

16 solely on the quality of the informant and not

17 at all on the quality of the information, i.e.,

18 its suggestiveness of criminal activity.

19

20

21

People v. Elwell 22 , 406 N.E.2d 471, 474-475 (N.Y. 1980) (citations

23 omitted).

24

25 Nonetheless, where a tip fails under either or both of the

26 two prongs, probable cause may still be established by independent

27 police investigative work that corroborates the tip to such an

28 extent that it supports the inference that the informant was

29 reliable and that the informant made the charge on the basis of

30 information obtained in a reliable way. See Spinelli v. United

31 States , 393 U.S. 410, 417-18, 89 S. Ct. 584, 589-90, 21 L. Ed. 2d

32 637 (1969); Jacumin , 778 S.W.2d at 436. Here, the State argues that

33 three pieces of information independently corroborated the tip

34 enough to overcome any deficiency. First, the State points out that

35 Blackwell received a half dozen prior tips that the defendant had

36 engaged in similar illegal activity at this location. Second, the

37 State argues that Blackwell knew that the defendant was a convicted
-33-

1 drug dealer. Third, the State argues that Officer Blackwell found

2 the defendant at Preacher’s soon after he received the tip. These

3 facts are insufficient corroboration to justify an arrest of the

4 defendant.

5

6 A basis of knowledge cannot be inferred from the

7 corroboration of facts related only to innocent activity or matters

8 open and obvious to anyone. See State v. Kimbro , 496 A.2d 498

9 (Conn. 1985); State v. Raheem , 464 So. 2d 293, 297 (La. 1985); State

10 v. Ruffin , 448 So. 2d 1274, 1278 (La. 1984); People v. Elwell , 406

11 N.E.2d at 475. Likewise, a police officer’s knowledge of a

12 suspect’s reputation is not enough to constitute probable cause to

13 arrest. State v. Kimbro , 496 A. 2d at 505. “Something more

14 substantial than a casual rumor . . . or an accusation based merely

15 on an individual’s general reputation” must be shown. Spinelli v.

16 United States , 389 U.S. at 416, 89 S. Ct. at 589. In the present

17 case, the only fact given by the informant and corroborated by

18 police investigation, other than defendant’s reputation, was that

19 the defendant was present at Preacher’s place. This fact does not

20 indicate that the defendant was engaging in any illegal activity

21 that would furnish probable cause for an arrest; nor does this fact

22 “permit the suspicions engendered by the informant’s report to ripen

23 into a judgment that a crime was probably being committed.” United

24 States v. Spinelli , 393 U.S. at 418, 89 S. Ct. at 590.

25

26 The information possessed by Officer Blackwell at the time

27 he confronted the defendant was insufficient to establish probable

28 cause for a warrantless arrest of the defendant; therefore, the
-34-

1 search of the defendant’s person cannot be validated as a search

2 incident to a lawful arrest.

3

4 I V

5

6 I dissent from the per curiam opinion finding that the

7 apprehension of the defendant was a valid investigative stop.

8

9 Probable cause is not the only basis on which a person may

10 be detained by a police officer without a warrant. If the facts and

11 circumstances do not warrant the reasonable belief that a crime has

12 been or is being committed and, therefore, there is not probable

13 cause for arrest, those facts and circumstances may be examined to

14 determine if they permit an investigative stop. This Court has

15 previously reviewed decisions in which the requirements for probable

16 cause and for investigative stops were discussed and noted the

17 distinction between the two principles. The distinction between an

18 arrest and an investigative stop is stated in State v. Pully , 863

19 S.W.2d 29, 30 (Tenn. 1993):

20

21 In general, although the Fourth Amendment

22 requires "probable cause" before an arrest is

23 deemed to be reasonable, the reasonableness of

24 seizures less intrusive than a full-scale arrest

25 is judged by weighing the gravity of the public

26 concern, the degree to which the seizure

27 advances that concern, and the severity of the

28 intrusion into individual privacy.

29

30

31

32 Consequently, under exigent circumstances, a police officer may make

33 an investigative stop when the officer has a reasonable suspicion,
-35-

1 supported by specific and articulable facts, that a criminal offense

2 has been or is about to be committed. I d .

3

4 Recognition that an investigative stop may be

5 constitutionally reasonable even though an arrest would not be

6 constitutionally reasonable was not intended to be a relaxation of

7 constitutional protection against intrusions by the state. Instead,

8 it is a recognition that a limited intrusion under exigent

9 circumstances may be justified as constitutionally reasonable. 

10 State v. Yeargan , _____ S.W.2d at _____ (Reid, J., concurring) [slip

11 op. at 9]. Two essential conditions characterize a valid

12 investigative stop, exigent circumstances and limited intrusion. 

13 After reviewing decisions from other jurisdictions in which

14 investigative stops were found to be justified, the Court in Pully

15 stated: "These cases show that the gravity of the perceived harm is

16 a crucial element in assessing the reasonableness of an

17 investigative Terry stop.” State v. Pully , 863 S.W.2d at 33. The

18 Court then approved this statement from a concurring opinion in

19 United States v. Mendenhall , 446 U.S. 544, 561, 100 S. Ct. 1870,

20 1881, 64 L. Ed. 2d 497 (1980) (Powell, J., concurring):

21

22 The reasonableness of a stop turns on the facts

23 and circumstances of each case. In particular,

24 the Court has emphasized (i) the public interest 

25 served by the seizure, (ii) the nature and scope

26 of the intrusion, and (iii) the objective facts

27 upon which the law enforcement officer relied in

28 light of his knowledge and experience. 

29

30

31

32 State v. Pully , 863 S.W.2d at 34. 

33 
-36-

1 Reasonable suspicion may justify a limited intrusion into

2 the defendant’s security where the circumstances require immediate

3 action by the police officer. The United States Supreme Court

4 stated in Alabama v. White , 496 U.S. 325, 330, 110 S. Ct. 2412,

5 2416, 110 L. Ed. 2d 301 (1990), that,

6

7 [r]easonable suspicion is a less demanding

8 standard than probable cause not only in the

9 sense that reasonable suspicion can be

10 established with information that is different

11 in quantity or content than that required to

12 establish probable cause, but also in the sense

13 that reasonable suspicion can arise from

14 information that is less reliable than that

15 required to show probable cause.

16

17 While the informant’s tip and Officer Blackwell’s own

18 knowledge and investigation are not sufficient to support a finding

of probable cause under Jacumin 19 , they may be sufficient to provide

20 that reasonable suspicion which is one requirement for an

21 investigative stop. Reasonable suspicion may be based on the tip of

22 a known informant; when the informer gives the officer information

23 “immediately verifiable at the scene,” ”the information may carry

24 ‘enough indicia of reliability’” to justify the stop where there is

25 “an immediate threat of danger.” State v. Pully , 863 S.W.2d at 31 

26 (quoting Adams v. Williams , 407 U.S. 143, 146-147, 92 S. Ct. 1921,

27 1923-1924, 32 L. Ed. 2d 612 (1972)). The test adopted by Jacumin is

28 helpful in determining whether “specific and articulable facts”

29 justify the reasonable suspicion necessary for an investigative

30 stop. Id. at 32. For example, under a reasonable suspicion

31 analysis, when an informant reports an incident at or near the time

32 of its occurrence, a court often can assume that the report is first
-37-

1 hand and thus reliable. I d . Furthermore, a hurried description

2 from a source who insists on immediate action suggests that the

3 source is an eyewitness and may be sufficient cause for further

4 investigation. I d .

5

6 In the present case, Officer Blackwell was told by the

7 informant that the defendant was at “Preacher’s” selling “crack

8 cocaine right then.” Soon after receiving the tip, Officer

9 Blackwell found the defendant at “Preacher’s,” where the informant

10 had told him the defendant would be. If there was “the need for

11 immediate police action in response to serious threats of harm,” the

12 informant’s tip would justify an investigative stop. Id. at 33. 

13 However, the informant did not report that the defendant was armed,

14 though the officer had reason to suspect he might be, nor did the

15 informant report that the defendant intended to do anything that

16 would create an immediate danger. The record shows that the

17 defendant was seated at a table in a public place engaged in

18 conversation. Despite prior incidents of violent conduct and even

19 though the officer suspected the defendant was in possession of

20 illegal drugs, the defendant was not at the time Officer Blackwell

21 entered the club engaged in any suspicious behavior or unusual

22 conduct which required or justified his immediate detention. The

23 evidence, considered in the light most favorable to the prosecution,

24 does not show that Officer Blackwell had specific and articulable

25 facts or inferences from facts sufficient to generate a reasonable

26 conclusion that a crime had been, was, or was about to be committed. 

27 And, further, the suspected criminal activity in this case,

28 possession of illegal drugs, is different in principle from the
-38-

1 suspected armed robbery in Terry and the aggravated assault or

2 murder anticipated in Pully . The criminal activity suspected did

3 not constitute an immediate threat of harm to the officer or others. 

4 There was no need for immediate police action. Consequently, the

5 initial detention of the defendant was not justified. 

6

7 Where the investigative detention is justified, the police

8 officer may pat a suspect’s outer clothing if the officer has a

9 reasonable, particularized suspicion that the suspect is armed. 

10 Terry v. Ohio , 392 U.S. at 27, 88 S. Ct. at 1883; Hughes v. State ,

11 588 S.W.2d 296, 304 (Tenn. 1979). “The purpose of this limited

12 search is not to discover evidence of crime, but to allow the

13 officer to pursue his investigation without fear of violence.” 

14 Adams v. Williams , 407 U.S. at 146, 92 S. Ct. at 1923. Officer

15 Blackwell knew that the defendant was a convicted felon and drug

16 dealer. He knew that the defendant had recently been charged with a

17 violent offense involving a weapon and was familiar with the

18 defendant’s armed attempt to flee police. Even though the defendant

19 was not in fact armed, this knowledge provided a reasonable,

20 particularized suspicion that the defendant was armed and dangerous. 

21 However, this particularized suspicion cannot be the basis for the

22 initial stop. 

23

24 A valid investigatory stop must be justified at

25 its inception and must be reasonably related in

26 scope to the circumstances that justified

27 interference by the police with a person’s

28 security. Justification must be based on an

29 objective manifestation that the person stopped

30 was or was about to be engaged in criminal

31 activity as judged by those versed in the field

32 of law enforcement when viewed under the
-39-

1 totality of the circumstances. The detaining

2 officer must have had a particularized and

3 objective basis for the suspicion of criminal

4 activity.

5

6

7 People v. Champion , 549 N.W.2d 849, 853 (Mich. 1996) (citations

8 omitted). 

9

10 The State at a suppression hearing has the burden of

11 showing by a preponderance of the evidence that the search was

12 conducted within a recognized exception to the warrant requirement. 

13 State v. Watkins , 827 S.W.2d 293, 295 (Tenn. 1992). The State has

14 failed to carry that burden in the present case. 

15

16 The conclusion is that since there was no valid basis for

17 Officer Blackwell’s initial detention of the defendant and,

18 consequently, there was no authority for the search which produced

19 the contraband, the trial court erred in not suppressing the

20 evidence. 

21

22 V

23

24 I concur in the per curiam decision that even if the

25 detention of the defendant was lawful, the evidence is not

26 admissible under the “plain feel” doctrine. The Court of Criminal

27 Appeals, after finding the initial detention was valid under Terry ,

28 upheld the seizure under the “plain feel” doctrine of Minnesota v.

29 Dickerson , 508 U.S. 366, 113 S. Ct. 2130 (1993). In that case the

30 United States Supreme Court held that if, within the confines of a
10The 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-

1 valid Terry frisk, an officer detects contraband through the sense

2 of touch, the officer may seize the contraband. Having found the

3 detention was not a valid Terry stop, the “plain feel” issue is moot

4 in this case. However, since the Rule 11 application was granted

5 for the purpose of discussing that issue, its consideration is not

6 inappropriate.

7

8 In Dickerson , two police officers observed Dickerson

9 leaving an apartment building known to be a “notorious ‘crack

10 house.’” Based on Dickerson’s suspicious behavior when he saw the

11 officers looking at him and the fact that he had left a building

12 associated with cocaine traffic, the officers stopped him and

13 conducted a patdown search, during which one of the officers felt a

small lump in the front pocket of Dickerson’s jacket. 1 0 14 The officer

15 manipulated the lump with his fingers and thought that it felt like

16 “a lump of crack cocaine in cellophane.” The officer then reached

17 into the pocket and retrieved a small plastic bag containing one

18 fifth of one gram of crack cocaine. Dickerson was arrested and

19 charged with possession of a controlled substance. Before trial, he

20 moved to suppress the cocaine. The trial court denied his motion

21 and he was convicted of possession of a controlled substance. The

22 Minnesota Court of Appeals and the Minnesota Supreme Court, however,

23 held that the cocaine should have been suppressed. The State

24 appealed to the United States Supreme Court, which affirmed the
-41-

1 Minnesota Supreme Court.

2

3 Although concluding that the evidence should have been

4 suppressed, the United States Supreme Court held that contraband

5 detected through the sense of touch during a pat down search may be

6 admitted into evidence. It based its decision adopting the so7 called “plain feel” doctrine upon an analogy to the “plain view”

8 doctrine.

9

10 The rationale of the plain view doctrine is that

11 if contraband is left in open view and is

12 observed by a police officer from a lawful

13 vantage point, there has been no invasion of a

14 legitimate expectation of privacy and thus no

15 “search” within the meaning of the Fourth

16 Amendment--or at least no search independent of

17 the initial intrusion that gave the officers

their vantage point. See Illinois v. Andreas 18 , 463

19 U.S. 765, 771, 103 S. Ct. 3319, 3324, 77 L. Ed.

20 2d 1003 (1983); Texas v. Brown , [460 U.S. 730,

21 740, 103 S. Ct. 1535, 1542, 75 L. Ed. 2d 502

22 (1983)]. The warrantless seizure of contraband

23 that presents itself in this manner is deemed

24 justified by the realization that resort to a

25 neutral magistrate under such circumstances would

26 often be impracticable and would do little to

27 promote the objectives of the Fourth Amendment. 

28 See [Arizona v. Hicks , 480 U.S. 321, 326-327, 107

29 S. Ct. 1149, 1153, 94 L. Ed. 2d 347 (1987)];

30 Coolidge v. New Hampshire , 403 U.S. 443, 467-468,

31 469-470, 91 S. Ct. 2022, 2028-2029, 2040, 29 L.

32 Ed. 2d 564 (1971)(opinion of Stewart, J.)]. The

33 same can be said of tactile discoveries of

34 contraband. If a police officer lawfully pats

35 down a suspect’s outer clothing and feels an

36 object whose contour or mass makes its identity

37 immediately apparent , there has been no invasion

38 of the suspect’s privacy beyond that already

39 authorized by the officer’s search for weapons;

40 if the object is contraband, its warrantless

41 seizure would be justified by the same practical

42 considerations that inhere in the plain view

43 context. 

44

45

46
-42-

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

2

3 In Dickerson , the United States Supreme Court rejected two

4 arguments against the plain feel doctrine. One was that touch is

5 more intrusive of one’s privacy than is sight. The Court responded

6 that this argument was “inapposite in light of the fact that the

7 intrusion . . . has already been authorized by the lawful search

8 for weapons.” I d ., 508 U.S. at ____, 113 S. Ct. at 2138. A second

9 argument against the plain feel doctrine was that the sense of touch

10 is inherently less immediate and less reliable than the sense of

11 sight. In response, the Court stated that Terry itself demonstrated

12 that the sense of touch is capable of revealing the nature of an

13 object with sufficient reliability to support a seizure.

14

15 The very premise of Terry , after all, is that

16 officers will be able to detect the presence of

17 weapons through the sense of touch and Terry

18 upheld precisely such a seizure. Even if it

19 were true that the sense of touch is generally

20 less reliable than the sense of sight, that only

21 suggests that officers will less often be able

22 to justify seizures of unseen contraband . 

23 Regardless of whether the officer detects the

24 contraband by sight or by touch, however, the

25 Fourth Amendment’s requirement that the officer

26 have probable cause to believe that the item is

27 contraband before seizing it ensures against

28 excessively speculative seizures.

29

30

31

32 I d . at ____, 113 S. Ct. at 2137 (emphasis added).

33

34 The Court then proceeded to apply the principles of the

35 plain view doctrine to the facts of Dickerson . The dispositive

36 question, the Court wrote, “is whether the officer who conducted the
-43-

1 search was acting within the lawful bounds marked by Terry at the

2 time he gained probable cause to believe that the lump in

3 respondent’s jacket was contraband.” I d . at ____, 113 S. Ct. at

4 2138. The Court found that the officer in Dickerson “overstepped

5 the bounds of the ‘strictly circumscribed’ search for weapons

6 allowed under Terry .” I d .

7

8 Where, as here, “an officer who is executing a

9 valid search for one item seizes a different

10 item,” this Court rightly “has been sensitive to

11 the danger . . . that officers will enlarge a

12 specific authorization, furnished by a warrant

13 or an exigency, into the equivalent of a general

14 warrant to rummage and seize at will.” Texas v.

15 Brown , 460 U.S., at 748, 103 S. Ct., at 1546-

16 1547 (Stevens, J., concurring in judgment). 

17 Here, the officer’s continued exploration of

18 respondent’s pocket after having concluded that

19 it contained no weapon was unrelated to “[t]he

20 sole justification of the search [under Terry : ]

21 . . . the protection of the police officer and

22 others nearby.” 392 U.S., at 29, 88 S. Ct., at

23 1884. It therefore amounted to the sort of

24 evidentiary search that Terry expressly refused

25 to authorize, see i d ., at 26, 88 S. Ct., at

26 1882, and that we have condemned in subsequent

27 cases. See Michigan v. Long , 463 U.S. [1032,

28 1049, n. 14, 103 S. Ct. 3269, 3480-3481, 77 L.

29 Ed. 2d 1201 (1983)]; Sibron [ v. New York , 392

30 U.S. 40, 65-66, 88 S. Ct. 1889, 1904, 20 L. Ed.

31 2d 917 (1968)].

32

33

34

35 I d . at ___, 113 S. Ct. at 2138-39.

36

37 Two prerequisites can be gathered from Dickerson for

38 allowing the seizure of contraband detected through a police

39 officer’s sense of touch during a protective pat down search of a

40 suspect. First, the scope of the search must be limited to that

41 necessary to determine if the suspect is armed. Second, the
-44-

1 incriminating character of the non-threatening contraband detected

2 during the limited search must be “immediately apparent.” United

3 State v. Ross , 827 F. Supp. 711, 718 (S.D. Ala. 1993), aff’d , 19

4 F.3d 1446 (11th Cir. 1994); D.D. v. State , 668 N.E.2d 1250, 1252

5 (Ind. App. 1996). In the instant case, assuming that the initial

6 seizure was justified, the first of these prerequisites is initially

7 met. Nothing in the record indicates that the officer went beyond

8 the boundaries of a Terry search for weapons in his patdown of the

9 defendant’s person until he seized the bottle. Compare Dickerson ,

10 508 U.S. at _____, 113 S. Ct. at 2138; State v. Wonders , 929 P.2d

11 792 (Kan. App. 1996) (officer continued pat down of defendant’s

12 pocket after he determined that it did not contain a weapon). It is

13 the latter of these two prerequisites that fails in the present

14 case.

15

16 To justify seizure of the pill bottle, its identity as

17 contraband must have been “immediately apparent.” The term

18 “immediately apparent” has been used synonymously with ”probable

19 cause.” As the United States Supreme Court wrote in Dickerson

20 itself, “[i]f . . . the police lack probable cause to believe that

21 an object in plain view is contraband without conducting some

22 further search of the object--i.e., if ‘its incriminating character

23 [is not] “immediately apparent,”’--the plain-view doctrine cannot

24 justify its seizure.” I d , 508 U.S. at ____, 113 S. Ct. at 2137

25 (citations omitted). See also Arizona v. Hicks , 480 U.S. at 329,

26 107 S. Ct. at 1154; Texas v. Brown , 460 U.S. at 741-742, 103 S. Ct.

27 at 1543 (1983); State v. Jones , 653 A.2d 1040, 1047-1050 (Md. App.

28 1995); see generally 3 Wayne R. LaFave, Search & Seizure § 7.5(b)
-45-

1 (3d ed. 1996). The question thus becomes whether Officer

2 Blackwell’s tactile perception of the pill bottle gave him, without

3 further searching, probable cause to believe the object felt was

4 contraband. 

5

6 An affidavit filed as an exhibit to the suppression

7 hearing gives the following account of Officer Blackwell’s pat down

8 of the defendant:

9

10 For my protection I immediately identified

11 myself and frisked Bridges for weapons. When I

12 touched his right jacket pocket I immediately

13 recognized a pill bottle, in that pocket, that

14 is used by the majority of crack dealers to hold

15 their crack cocaine. I continued the frisk and

16 found a knife in Bridges’ back pocket. The pill

17 bottle contained crack cocaine. I charged him

18 and also found a small bag of crack cocaine in

19 the same pocket.

20

21 Officer Blackwell also testified at the suppression hearing

22 regarding his discovery of the bottle:

23

24 Q. All right; what actually did you take into

25 possession regarding controlled substances?

26

27 A. Took crack cocaine which was in an amount--

28

29 Q. Well, you don’t have to give me the amount. 

30 Where was it located on the defendant?

31

32 A. It was in his right jacket pocket.

33

34 Q. In what kind of container?

35

36 A. Part of it was in a plastic bag, part of it

37 was in a pill bottle. That’s when I seized it. 

38 When I was frisking him I felt and immediately

39 felt the pill bottle and knew that it was the

40 kind that a lot of other dealers will use to

41 keep their crack in.
-46-

1

2

3 In summary, the evidence shows that Officer Blackwell felt an object

4 that he immediately recognized as a pill bottle when he touched the

5 defendant’s jacket in the course of the Terry weapons frisk. 

6

7 The courts must carefully scrutinize seizures supported by

8 the plain feel doctrine. As the United States Supreme Court

9 acknowledged in Dickerson , 508 U.S. ____, 113 S. Ct. at 2137, to the

10 extent that the sense of touch may be less reliable in certain

11 circumstances, officers will less often be able to justify seizures

12 of unseen contraband. Courts should not surrender their common

13 sense assessment of the sensory capacities of human touch to an

14 officer’s assertion that he or she “immediately knew” the nature of

15 the object touched. See , e.g. , Jones v. State , 682 A.2d 248, 252

16 (Md. 1996) (“it’s not just a question of being an expert and coming

17 in and saying the magic words”). The officer’s subjective belief

18 that the object is contraband is not sufficient unless it is

19 objectively reasonable in light of all the circumstances known at

20 the time of the search. State v. Trine , 673 A.2d 1098, 1109 (Conn.

21 1996). An officer’s testimony is a factor in determining the

22 legality of a seizure under the plain feel doctrine, but it is not

23 dispositive and does not end a court’s inquiry. State v. Wonders ,

24 929 P.2d at 799. 

25

26 Practical and constitutional concerns require that the

27 plain feel doctrine be applied with caution. The doctrine has been

28 criticized since it may easily allow

29
-47-

1 a law officer to seize anything as long as he is

2 able to contend that he could identify the

3 contraband by merely touching the suspect’s

4 clothing. Realistically, no matter how absurd

5 or unsupportable such a contention may be, a

6 defendant will not be able to successfully

7 challenge it. The “plain touch” doctrine will

8 encourage officers to investigate any lump or

9 bulge in a person’s clothing or pockets that

10 arouses their curiosity during the course of a

11 patdown search. If the item turns out to be

12 contraband, then its seizure can be

13 retrospectively justified. If it turns out to

14 be something else, then there is no case and the

15 matter ends there. In the interim, a citizen is

16 subject to an unwarranted intrusion into his

17 personal privacy far beyond the intrusion

18 contemplated by the weapons patdown search.

19

20

People v. Mitchell 21 , 650 N.E.2d 1014, 1025 (Ill. 1995) (Heiple, J.,

22 dissenting). Over a quarter of a century ago, the United States

23 Supreme Court similarly warned that “the ‘plain view’ doctrine may

24 not be used to extend a general exploratory search from one object

25 to another until something incriminating at last emerges.” Coolidge

26 v. New Hampshire , 403 U.S. at 466, 91 S. Ct. at 2038. This

27 admonition applies equally to the plain feel doctrine, which, if

28 loosely applied, could, as its critics predict, expand limited

29 protective searches for weapons under Terry into general exploratory

30 rummagings of suspects’ persons for contraband. See Barbara A.

31 Doty, Note, Minnesota v. Dickerson: Plain Touch Doctrine--

32 Authorizing a Terry Stop and Search for Drugs? , 1994 Wis. L. Rev.

33 1303 (1994). 

34

35 The defendant did not contend that the Tennessee

36 Constitution affords greater protection against searches and

37 seizures than does the federal constitution with regard to the plain
-48-

1 feel doctrine. The plain feel doctrine as formulated by the United

2 States Supreme Court in Dickerson is not inconsistent with

3 principles enunciated by this Court in interpreting Article I,

4 Section 7. See e.g. , State v. Roode , 643 S.W.2d 651, 653 (Tenn. 1982). 

5 Consequently, that doctrine, with the exacting limitations stated in

6 Dickerson , will be applied in appropriate cases in this state. 

7

8 However, the application of these principles to the record

9 in this case requires the finding that Officer Blackwell did not

10 have probable cause to believe that the object he felt was

11 contraband. Based on his testimony, he had a suspicion that the

12 bottle contained contraband, but even a reasonable suspicion is

13 insufficient to support a seizure under the plain view doctrine,

14 Arizona v. Hicks , 480 U.S. at 326-27, 107 S. Ct. at 1153, and thus,

15 by analogy, it is insufficient to support a seizure under the “plain

16 feel” doctrine. While Officer Blackwell testified that he

17 “immediately recognized” the item as a pill bottle, unless he was

18 clairvoyant the contents could not be determined from merely

19 touching the container. Such a bottle, or one resembling it by

20 touch, may enclose legal medication, candy, pins, film or any number

21 of other small items. Nothing in the officer’s testimony offers an

22 objective basis for identification of the container itself or its

23 possible contents as contraband. Nothing in the record explains how

24 his touching the container revealed its contents “so unquestionably”

25 that no warrant requirement existed “merely because there is a

26 container between the officer and the seizable object.” 3 LaFave,

Search & Seizure 27 § 5.5 (f). Although the Court of Criminal Appeals

28 writes that Officer Blackwell’s identification was based upon his
11Compare 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-

1 experience, the record contains little evidence of Officer

2 Blackwell’s experience in drug cases and no evidence as to how he

3 connected the container with the possession of cocaine. Compare ,

4 State v. Trine , 673 A.2d at 1111-12 (officer testified as to his

5 experience with narcotics); People v. Champion , 549 N.W.2d. 849, 859

6 (Mich. 1996) (officer’s testimony about 20 years of experience in

7 narcotics work). Under the proof in this record, it is evident that

8 it was not apparent to Officer Blackwell that the bottle contained

9 contraband until it was removed from the defendant’s pocket. This,

10 however, is the very type of further manipulation forbidden by

11 Dickerson . See United States v. Ross , 827 F. Supp. at 719

12 (matchbox); State v. Parker , 622 So. 2d 791, 795 (La. App. 1993)

13 (matchbox); State v. Abrams , 471 S.E.2d 716, 718 (S.C. App. 1996)

14 (Tylenol bottle); Campbell v. State , 864 S.W.2d 223, 226 (Tex. App.

15 1993) (film canister); Davis v. State , 829 S.W.2d 218, 220 (Tex. Cr.

App. 1992) (matchbox); 1 1 16 contra People v. Champion , 549 N.W.2d at

17 858-59 (pill bottle in groin); State v. Rushing , 935 S.W.2d 30 (Mo.

18 1996) (en banc) (cylindrical medicine bottle).

19

20

21

22 V I
-50-

1 In conclusion, I would hold that the defendant’s initial

2 detention was not a valid Terry stop and, further, because the

3 search cannot be sustained under the “plain feel” doctrine, the

4 search was not reasonable under the Fourth Amendment and Article I,

5 Section 7. 

6

7 ______________________________

8 Reid, J.