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Frisk – “Plain Touch” – Contraband: Plastic Baggies

State v. Aaron E. Applewhite, 2008 WI App 138, PFR filed 9/19/08
For Applewhite: Pamela Moorshead

Issue/Holding:

¶12      The next question before us is whether Bastil’s discovery of contraband in Applewhite’s pockets is supported by the “plain touch” doctrine. When the pat-down itself is based on reasonable suspicion, the “plain feel” or “plain touch” exception to the warrant requirement may apply, and “when an officer touches or feels an object during a pat[-]down which his or her training and experience lead the officer to believe may be contraband, the officer is justified in retrieving the item.” State v. Ford, 211 Wis. 2d 741, 746, 565 N.W.2d 286 (Ct. App. 1997) (citing State v. Guy, 172 Wis. 2d 86, 100-02, 492 N.W.2d 311 (1992)).

¶14      The “plain touch” exception to the warrant requirement is an extension of the “plain view” doctrine. Buchanan, 178 Wis. 2d at 449. To pass constitutional muster, three factors must be present:

(1) the evidence must be in plain view; (2) the officer must have a prior justification for being in the position from which [he or] she discovers the evidence in “plain view”; and (3) the evidence seized “in itself or in itself with facts known to the officer at the time of the seizure, [must provide] probable cause to believe there is a connection between the evidence and criminal activity.”

Id. (citation omitted).

[¶¶16-17: Officer’s training and experience: baggies he felt in suspect’s pocket = packages of narcotics]

¶19      Bastil testified that he had been with the Sheboygan Police Department for two years and had previously worked as a police officer in Atlanta. He explained that he had worked as a street level narcotics and beat officer and had trained in the handling of controlled substances and their packaging at the City of Atlanta Police Academy. We are satisfied that Bastil had the knowledge and experience to immediately recognize that the objects in Applewhite’s pocket were likely packaged narcotics.

 

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