The opinion of the court was delivered by: ROBERTSON
U.S. Park Police Officer Robert McLean was on duty, in uniform, driving a marked cruiser, at 4:50 p.m. on September 27, 1995 when a vehicle driven by defendant crossed his path. Officer McLean noticed that the vehicle had no inspection sticker on the lower passenger side windshield. Officer McLean activated his flashing lights and stopped the vehicle on Jefferson Street, N.W., at the corner of 13th Street. He left his police cruiser and walked to the driver's side of the vehicle. The vehicle was moving backwards toward the police cruiser, and Officer McLean noticed the driver looking both directions on 13th Street as if seeking an opportunity to leave the scene. He ordered the defendant, who was the driver, to stop and give him the car keys. The defendant said, "Wait a minute." Officer McLean then opened the driver's door and grabbed the defendant's left arm. The defendant then gave the keys to the officer, who placed them on top of the car, closed the car door because he thought the defendant was trying to flee, and stepped back to check the license plate. At some point (the testimony does not establish exactly when) Officer McLean asked the defendant for his license and registration; the defendant turned over his license but said he had no registration -- that the registration was "messed up." The defendant appeared to Officer McLean to be nervous. Using police radio communications, Officer McLean soon learned that the VIN number on the car did not match the records for the license.
By this time, Officer Paul Richard had arrived in another police cruiser. Richard approached the subject vehicle from the passenger side and observed that the ignition lock appeared to have been tampered with. Officer McLean then asked the defendant to step out of the vehicle. As the defendant complied, he reached for a black jacket that lay on the console between the driver and passenger seats. Officer McLean directed the defendant to leave the jacket, but the defendant reached for it two more times. Officer McLean then grabbed the defendant's arm and "escorted him" out of the vehicle. He patted the defendant down, found nothing, and took him to the back of the police car. He then sat in the driver's seat and felt the black jacket. He felt a hard object and, thinking this might be a weapon, picked up the jacket. A brown paper lunch bag dropped from the jacket onto the seat. Officer McLean picked up the bag. He realized immediately that it did not contain a gun, but he also concluded immediately that the bag contained crack cocaine. He then opened the bag and saw two clear plastic sandwich bags containing a substance he recognized as crack cocaine. At that point, he gave the signal "10-95" to Officer Richard, indicating that the defendant should be handcuffed.
Officer Richard handcuffed the defendant and walked him to the rear of his (Officer Richard's) vehicle. As Officer Richard opened the rear door of the vehicle to put the defendant inside, the defendant stated, "I don't usually deal in drugs," and went on to say that he needed money because he had two children [Statement 1]. This statement, according to Officer Richard, was not made in response to any question, but Officer Richard then asked the defendant the quantity of drugs that were in the car. The defendant responded, "Two 62's" [Statement 2]. Officer Richard asked whether the car was "legit"; the defendant responded in the affirmative [Statement 3]. Later, at the police station, Officer Richard advised the defendant of his Miranda rights. The defendant declined to answer any questions after that point. Defendant did, however, ask to make a telephone call, whereupon Officer Richard produced a telephone, sat with the defendant, dialed the number for him, and then listened while the defendant stated to the person who answered that he was in big trouble, that his brother was with him, and that "we had a lot of drugs with us" [Statement 4].
The government then advances two arguments in support of the seizure of the crack cocaine: that it was taken during a lawful "Terry frisk" and satisfied the "plain touch" doctrine; and that it was discovered in a search incident to a lawful arrest.
I find Officer McLean's testimony about the the traffic stop, the detention of the defendant and the recovery of the crack cocaine, mostly credible. That credible testimony makes out a borderline case of a lawful search and seizure under the principles established by Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), and its progeny. See e.g., Adams v. Williams, 407 U.S. 143, 32 L. Ed. 2d 612, 92 S. Ct. 1921 (1972); United States v. Brignoni-Ponce, 422 U.S. 873, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975); Michigan v. Summers, 452 U.S. 692, 69 L. Ed. 2d 340, 101 S. Ct. 2587 (1981); United States v. Sharpe, 470 U.S. 675, 84 L. Ed. 2d 605, 105 S. Ct. 1568 (1985).
The facts of this case are very close to those of Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993). That decision articulates the principle -- upon which the government relies here -- that the "plain view" doctrine announced in Michigan v. Long, 463 U.S. 1032, 77 L. Ed. 2d 1201, 103 S. Ct. 3469 (1983), "has an obvious application by analogy to cases in which an officer discovers contraband through the sense of touch during an otherwise lawful search," 113 S. Ct. at 2137. On the facts of the case before it, however, the Supreme Court found an unlawful search. The Court observed that the officer had determined that a "small, hard object wrapped in plastic" in respondent's pocket was contraband only after "squeezing, sliding and otherwise manipulating the contents of the defendant's pocket," 113 S. Ct. at 2138. The Court's holding was that the officer's continued exploration of respondent's pocket after concluding that it contained no weapon was unrelated to "'the sole justification of the search [under Terry:]. . . the protection of the police officer and others nearby.'" Id. at 2139.
Other courts will have to decide whether the Supreme Court's rationale in Minnesota v. Dickerson -- that warrantless seizures during a Terry frisk of objects recognized by touch is "justified by the same practical considerations that inhere in the plain view context," 113 S. Ct. at 2137 -- is indeed "practical" enough for working application by police officers on the street or by trial judges hearing suppression motions. In this case, the government's effort to apply the rule led inexorably to a microscopic examination of exactly what Officer McLean thought he felt in the closed paper bag, which fingers he used to hold the bag, what his training had been in recognizing crack cocaine wrapped in paper bags (as distinct from cocaine contained in clothing), and whether the instant when he realized that the bag did not contain a gun was the same instant when he realized that it did contain crack cocaine.
The evidence in this record supports a finding, which I hereby make, that Officer McLean had an intuition that the paper bag contained crack cocaine as soon as he felt it -- an intuition that was reasonably supported, not only by the feel of the bag, but by the defendant's nervousness, his apparent interest in fleeing, his reluctance to turn over the car keys, his three grabs for the jacket before he exited the car, and the profile established by the mismatch between the license plate and the vehicle and the apparently damaged ignition lock. Still, there is a difference -- yet to be explored in the case law -- between "recognition" of an object by feel and an intuitive judgment about what the object probably is. The description given by Officer McLean of what he actually felt inside the bag could as well have applied to peanut brittle.
Less credible than the rest of his testimony are Officer McLean's statement about what he would have done (given on redirect), and his rather self-serving resort to the "totality of the circumstances" label to describe his own thinking. The question of whether defendant's arrest was lawful is to be answered not by what Officer McLean said he was thinking, but rather by an objective analysis of the totality ...