MANNHEIMER, Judge, concurring.
I join in the decision to reverse Joubert's conviction.
All of the charges against Joubert stem from the fact that a police officer searched Joubert's clothing after feeling two pea-sized rocks of cocaine in the watch pocket of Joubert's jeans. The resolution of this case thus hinges on the answer to the following question: When a police officer conducts a pat-down search for weapons and feels a small, hard object in the suspect's clothing — an object too small to be a normal weapon — may the officer lawfully remove the object and inspect it?
Based on this court's decision in Jackson v. State and the California Supreme Court's decision in People v. Collins , I conclude that such an intrusion is permitted only under certain circumstances: The officer may remove and inspect the small object only if the officer has articulable reason to suspect that the person being searched is armed with an atypical weapon, a weapon that would feel like the small object the officer has felt during the pat-down.
791 P.2d 1023 (Alaska App. 1990).
463 P.2d 403 (Cal. 1970).
In Joubert's case, the State failed to offer specific and articulable facts to support a reasonable belief that Joubert was carrying an atypically small weapon. I therefore conclude that the superior court should have granted Joubert's suppression motion.
The facts of the case, and Judge Souter's ruling
As described in Judge Stewart's opinion, Joubert's parole officer detained Joubert on suspicion of driving a stolen vehicle. The police arrived a few minutes later, and they assumed custody of Joubert. One of these officers, Officer Kantor, patted down Joubert's outer clothing, looking for weapons. Through Joubert's sweatshirt, Kantor felt two solid, pea-sized objects in the watch pocket of Joubert's jeans. Kantor lifted Joubert's sweatshirt, looked at the pocket, and saw what appeared to be a rock of cocaine. He seized this object, and he then conducted a more intensive search of Joubert's person, discovering other drugs in the process.
When Officer Kantor was questioned about this search, he offered lukewarm reasons for his initial intrusion into Joubert's clothing:
KANTOR: [W]hen I came up to [Joubert's] right top front pocket, I just felt something hard.
DEFENSE ATTORNEY: "Something hard." Did it feel like a gun?
KANTOR: No.
DEFENSE ATTORNEY: Did it feel like a knife?
KANTOR: Don't know. Razor blade, [I] don't know. Something small. Don't know.
. . .
DEFENSE ATTORNEY: [D]id you feel that this object was an explosive. . .?
KANTOR: I didn't know; I don't know. Probably not, but you never know.
DEFENSE ATTORNEY: You were concerned, essentially, that it was a razor blade?
KANTOR:
My concern, essentially, was that I didn't know what it was.
Following this exchange, the prosecuting attorney asked a series of questions designed to bolster the foundation for the search:
PROSECUTOR: Why did you look at [Joubert's] pocket after you felt those hard objects?
KANTOR: Because I wanted to see what it was. [sic]
PROSECUTOR: Okay. And what was your concern?
KANTOR: Weapon. Safety.
PROSECUTOR: [Is there any] weapon you can think of that would have been consistent with what you felt?
KANTOR: It could have been a small pocket knife. It could have been a typical razor, or the sheathing that goes on top of a razor. It could have been something.
Judge Souter initially dismissed this testimony as incredible. The judge declared that nothing in Joubert's pocket suggested the presence of a weapon.
THE COURT: [Joubert's pocket contained] two tiny little rocks, little pebbles of what apparently turned out to be cocaine. I cannot believe that these felt like a weapon. [It is ludicrous to suggest that] any reasonable person . . . would have ever reasonably suspected that those two little pebbles were somehow a weapon. . . . There's no way that that was a weapon[.]
Nevertheless, Judge Souter concluded that the search was legal even though the officer had no reason to believe that Joubert was armed. The judge upheld the search as incident to a parole arrest.
Then, weeks later (during Joubert's trial), it became apparent that Joubert's parole officer had never arrested him, nor had the parole officer ordered the police officers to arrest Joubert on his behalf. Judge Souter thus had to reconsider his ruling on Joubert's suppression motion.
This time, Judge Souter concluded that Kantor had conducted a valid pat-down search of Joubert's clothing for weapons. The judge decided that, under the circumstances, Kantor reasonably suspected that the "two little pebbles" in Joubert's pocket "might be a small knife or razor blade. . . . A small pistol [or] a small knife, either one."
Alaska's Restriction on Pat-Down Searches: the limitations suggested by the Alaska Supreme Court in Zehrung v. State and adopted by this court in Jackson v. State
Joubert's case is simply one instance of a more general problem: balancing an individual's interest in personal privacy against the twin law enforcement interests of protecting police officers and discovering evidence of a crime. In Terry v. Ohio and Sibron v. New York , the United States Supreme Court held that, because of society's interest in protecting police officers from violence, police officers are authorized to conduct a warrantless pat-down search for weapons during an investigative stop if there is reason to believe that the suspect may be armed. Thirty years later, no one disputes that police officers may pat down a suspect's clothing in search of firearms, knives, or other weapons if there is ground for apprehension. The problem has been to find a way to limit these "pat-down" searches, so that a police officer's authority to look for weapons does not become an implicit authority to conduct a full body search.
392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).
See Free v. State, 614 P.2d 1374, 1378-79 (Alaska 1980).
The authority to conduct a pat-down search, like all exceptions to the warrant requirement, is founded on practical necessity. As Justice Rabinowitz noted in his dissenting opinion in McCoy v. State ,
491 P.2d 127, 140 (Alaska 1971).
Possession of cocaine is a serious violation of our laws. . . [.] Yet . . . the fundamental rights expressed in [the search and seizure clause] of the Alaska Constitution must be considered. . . . What is involved in this appeal [is] the constitutionally protected . . . security of the persons, papers, and effects of all citizens, including [this defendant], against unreasonable governmental searches and seizures.
It is a fundamental premise of search and seizure law that warrantless searches — searches conducted without prior judicial approval —
are
per se unreasonable under the Fourth Amendment [except for] a few specifically established and well-delineated exceptions. [These] exceptions are jealously and carefully drawn. . . .
Coolidge v. New Hampshire, 403 U.S. 443, 454-55;
91 S.Ct. 2022, 2032;
29 L.Ed.2d 564, 576 (1971) (footnotes and internal quotations omitted). As Justice Rabinowitz elaborated in his
McCoy dissent,
The basic protection afforded by [the federal and state] constitutional guarantees [against unreasonable search and seizure] is to shield the individual's privacy against generalized exploratory intrusions by government officials. Unless all exceptions to the search warrant provisions are carefully drawn to require a showing of necessity for any departure from the warrant requirement, these constitutional prohibitions will be rendered ineffectual. The need to draw these exceptions carefully is of paramount significance because the great bulk of searches, both of the person and of premises, are warrantless searches. . . .
McCoy, 491 P.2d at 141.
Twenty years ago, in Zehrung v. State , the Alaska Supreme Court took a step toward limiting the scope of warrantless searches. Rejecting federal law on this subject, the Alaska Supreme Court ruled that the Alaska Constitution limits the intensity of the search that police officers can perform on an arrestee. The court held that, absent articulable facts warranting a greater intrusion, police officers conducting a search incident to an arrest can only search the arrestee for weapons or for evidence of the suspected crime (if the suspected crime is the type of offense that would normally generate evidence that could be concealed on the arrestee's person).
569 P.2d 189 (Alaska 1977).
569 P.2d at 199-200.
Although Zehrung dealt with searches incident to arrest (rather than pat-down searches during investigative stops), footnote 39 of the Zehrung opinion is important to the resolution of Joubert's case. In this footnote, the supreme court indicated that even though the Alaska Constitution authorizes police officers to search an arrestee for weapons, there are limitations on the intensity of a weapons search. The court stated that,
See id.
as to the permissible extent and limitations on the scope of such a warrantless search [for weapons],
see People v. Brisendine, . . .
531 P.2d 1099, 1107-09 ([Cal.] 1975).
See also,
People v. Collins, . . .
463 P.2d 403, 406-08 ([Cal.] 1970).
The two California cases cited in this footnote are instructive regarding the limits placed on investigative searches for weapons.
In Collins, a police officer conducting a pat-down search felt a "lump" in the suspect's pocket. "Thinking it was a weapon", the officer reached into the pocket and pulled out the "lump" — which turned out to be a baggie of marijuana. The California Supreme Court held that this search was illegal:
See Collins, 463 P.2d at 405.
In balancing the safety of police officers against the Fourth Amendment's proscription of unreasonable intrusions, . . . a police officer [conducting a pat-down search for weapons] must be limited to "a careful exploration of the outer surfaces of [the] person's clothing" (
Terry v. Ohio, . . . 392 U.S. [1,] 16, 88 S.Ct. [1868,] 1877 [(1968)]) until and unless [the officer] discovers specific and articulable facts reasonably supporting [the] suspicion [that the person is armed]. Only then may an officer exceed the scope of a pat-down and reach into the suspect's clothing for the limited purpose of recovering the object thought to be a weapon.
Collins, 463 P.2d at 406. The court continued:
Feeling a soft object in a suspect's pocket during a pat-down . . . [normally] does not warrant an officer's intrusion into a suspect's pocket to retrieve the object. . . . To permit officers to exceed the scope of a lawful pat-down . . . by relying upon mere speculation that the object might be a razor blade concealed in a handkerchief, a "sap," or any other atypical weapon would be to hold that possession of any object . . . invites a plenary search of an individual's person. Such a holding would render [the limitations on pat-down searches] meaningless.
Id. The California Supreme Court accordingly held that an officer conducting a pat-down for weapons may delve into a suspect's clothing or possessions only when (1) the pat-down discloses an object "which feels reasonably like a knife, gun, or club", or (2) when the officer is aware of "specific and articulable facts which reasonably support [the] suspicion that the particular suspect is armed with an atypical weapon which would feel like the object felt during the pat-down."
Id. at 406.
The California court had occasion to visit this issue again in Brisendine. In Brisendine, police officers opened a suspect's backpack during a search for weapons; they discovered an opaque plastic bottle and a pair of envelopes. They then opened these objects and found drugs. The California Supreme Court held that the search of these objects was illegal. In particular, the California court rejected the government's argument that these opaque objects might have contained weapons:
See People v. Brisendine, 531 P.2d 1099, 1102 (Cal. 1975).
In the ordinary
Terry-type pat-down, . . . an intrusion further than the outer clothing of the suspect is allowable only if the initial limited exploration discloses potential instruments of assault. To properly exceed the scope of a pat-down[,] the officer must be able to point to "specific and articulable facts reasonably supporting [the] suspicion" that the suspect is armed. . . .
[The search in Brisendine's case cannot be justified] by the assertion that the bottle and envelopes might possibly have contained unusual or atypical weapons. In
People v. Collins, . . . we rejected that [same] contention as applied to a "little lump" felt during the course of a pat-down. . . .
Collins [established] the rule that "an officer who exceeds [the normal scope of] a pat-down without first discovering an object which reasonably feels like a knife, gun, or club must be able to point to specific and articulable facts which reasonably support a suspicion that the particular suspect is armed with an atypical weapon which would feel like the object felt during the pat-down."
Brisendine, 531 P.2d at 1107-08 (citations omitted).
This court adopted these limitations on pat-down searches in Jackson v. State. In Jackson, a police officer arrested the defendant on an outstanding warrant and then conducted a pat-down search of his clothing. During this pat-down, the officer located a wallet in Jackson's breast pocket; the wallet measured 3 inches by 2 inches by a half-inch. The officer removed this wallet from Jackson's pocket and then proceeded to search it, ostensibly for weapons. But instead of weapons, the officer found a small baggie of white powder (which proved to be cocaine). The officer testified that he performed this search because he had previously encountered razor blades, stiletto knives, and other small sheathed knives that could be concealed inside a container the size of Jackson's wallet.
791 P.2d 1023 (Alaska App. 1990).
See id. at 1024.
See id.
See id.
In analyzing — and ultimately rejecting — this offered rationale for the search of Jackson's wallet, this court discussed the Collins and Brisendine cases at length. We also noted that "[n]o Alaska appellate decision has permitted a search of a container so small that it could hold only a razor blade, small pen knife, needle, or safety pin." Ultimately, we held that when the police search an arrestee for weapons, the officers may search only "the person of the arrestee and any containers associated with the arrestee's person which [reasonably] may contain a gun, a large knife, or a club." Police officers are not authorized to search "smaller containers which could only contain atypical weapons such as a razor blade, a small knife, a safety pin, or a needle" unless the government can point to "specific and articulable facts which would lead a reasonable person to believe that such an atypical weapon was in the small container".
See id. at 1026-28.
Id. at 1028.
Id.
Id.
Returning to the facts of Joubert's case, Officer Kantor felt something small and hard in the watch pocket of Joubert's jeans, so he decided to seize this object and examine it. Given this court's holding in Jackson, this type of warrantless seizure must be examined closely.
One obvious distinction between Joubert's case and Jackson is that Jackson involved two searches: the pat-down search that yielded the wallet, then the seizure and further search of this wallet to see if it contained weapons. In Jackson, the incriminating evidence was discovered during the search of Jackson's wallet, and thus the Jackson court did not have to consider the validity of the officer's initial decision to remove Jackson's wallet from his clothes. Technically speaking, this court only invalidated the second search — the intrusion into the wallet. One might therefore argue that Jackson has little to say about Joubert's case — because, in Joubert's case, there was no second intrusion: the officer conducted the pat-down and then, based on what he felt, he lifted Joubert's sweatshirt, thus revealing a rock of cocaine to plain view.
Despite this distinction, I conclude that Jackson governs Joubert's case. Although the Jackson court never addressed the legality of the officer's initial decision to remove Jackson's wallet from his breast pocket, Jackson's holding strongly suggests that even this initial intrusion was illegal. Jackson holds that a pat-down search for weapons must be confined to a search for "normal" or "typical" weapons in the absence of a reasonable suspicion that atypical weapons are present. This being the law, it is difficult to justify the officer's seizure of the wallet from Jackson's pocket. The wallet was not big enough to hold a typical weapon — "a gun, a large knife, or a club" — and the wallet did not feel like a weapon itself.
The California Supreme Court has invalidated the seizure of evidence under similar circumstances. One example is the Collins case, discussed above. In Collins, the police officer seized a "lump" from the suspect's pocket — a lump that turned out to be a baggie of marijuana. As explained above, the California court held that the officer violated the state constitution when the officer "intru[ded] into [the] suspect's pocket to retrieve the object".
To permit officers to exceed the scope of a lawful pat-down . . . by relying on mere speculation that the object might be a razor blade concealed in a handkerchief, a "sap," or any other atypical weapon would be to hold that possession of any object . . . invites a plenary search of an individual's person. Such a holding would render [the limitations on pat-down searches] meaningless.
Collins, 463 P.2d at 406. Similarly, in
People v. Leib , an officer conducting a pat-down search felt a "small round object" in the defendant's pants pocket; the object was "two inches long and a half inch in diameter". To the officer, this object felt like a plastic bottle.
The California court held that the officer acted illegally when he seized this object from the pants pocket.
548 P.2d 1105 (Cal. 1976).
See id. at 1106.
See id. at 1108-09.
In Francis v. State , an officer conducting a pat-down seized a "medium" hard, round object "slightly larger than a human forefinger". This object turned out to be a bag of heroin. Despite the officer's testimony that the object "possibly could have been a knife", the Oklahoma court held that the officer acted illegally when he seized this object, since no reasonable person would have believed the object to be a weapon.
584 P.2d 1359 (Okla.Crim.App. 1978).
Id. at 1363.
Id. at 1363-64.
This approach to pat-down searches and seizures is endorsed by Professor Wayne R. LaFave in his work, Search and Seizure: A Treatise on the Fourth Amendment (3rd ed. 1996), § 9.5(c), Vol. 4, pp. 276-280. As Professor LaFave notes, "it `will be a rare case in which . . . an officer [conducting a pat-down search] will not come upon some object . . . secreted in the apparel of the suspect.'" And because "something of the size and flexibility of a razor blade could be concealed virtually anywhere", a pat-down search for weapons could potentially become the pretext for a complete search of the suspect's person and clothing. To prevent pat-down searches from becoming "plenary search[es] of an individual's person", LaFave endorses the rule that an intrusion into the suspect's clothing should be permitted only when the object felt during the pat-down has a size, shape, and density consistent with a weapon.
LaFave, p. 276 (quoting Cook, "The Art of Frisking", 40 Fordham L.Rev. 789, 796 (1972)).
Id., p. 277 (quoting United States v. Del Toro, 464 F.2d 520 (2nd Cir. 1972)).
Collins, 463 P.2d at 406.
See LaFave, pp. 278-79.
Of course, if the initial pat-down inspection reveals something that feels like a weapon, further intrusion and inspection is justified. For instance, in People v. Mosher , the California Supreme Court upheld a further intrusion when, during the initial pat-down, the officer felt a "sharp object like a knife blade". Even though the object turned out to be a watchband, the court concluded that the seizure was reasonable because the object felt like a weapon when touched through the suspect's clothing. But although the court upheld the seizure of the watchband, the court was careful to distinguish the watchband (which could reasonably be taken for a knife blade) from "[a] box of matches, . . . a container of pills, a wallet, coins, folded papers, and . . . other small items . . . [that] do not ordinarily feel like weapons."
461 P.2d 659, 668-69 (Cal. 1969).
Id. at 668.
This is not to say that courts uniformly scrutinize pat-down searches carefully. Some courts have been quite ready to sustain a pat-down seizure on what can only be deemed speculative grounds. For instance, in People v. Day the court upheld an officer's seizure of a rectangular object measuring approximately 1 1/2 inches square by 1/4 inch deep, based on the officer's speculation that this object might have been (or might have contained) a wrapped razor blade. The Illinois court stated:
560 N.E.2d 482 (Ill.App. 1990).
While this court respects the opinions of Professor LaFave and the justices cited in the
Collins case, we simply do not agree that police officers should be subjected to danger of injury . . . merely because some judges and commentators may lack the imagination of criminals.
Day, 560 N.E.2d at 488.
The Illinois court's decision probably represents a respectable school of Fourth Amendment philosophy. But this accommodating attitude toward pat-down searches and seizures is inconsistent with Zehrung and Jackson. Under Jackson (and the California cases that Zehrung and Jackson cite with approval), police officers conducting a pat-down search for weapons are not authorized to retrieve and inspect all objects that might conceivably be an atypical weapon or that might conceivably house an atypical weapon. When officers conduct a pat-down and find nothing that feels like a typical weapon, the officers are not authorized to intrude further into the suspect's clothes unless they can "point to specific and articulable facts" to support a reasonable belief that the person being searched is armed with an atypical weapon.
Applying these limitations to Joubert's case
In Joubert's case, the officer conducting the pat-down search felt two small objects in the watch pocket of Joubert's jeans. Judge Souter referred to these objects as "two tiny little rocks, [two] little pebbles". Judge Souter ultimately concluded that the seizure of these "tiny little rocks" was justified because, felt through Joubert's clothing, these two small objects "might [have been] a small knife or razor blade. . . . A small pistol [or] a small knife, either one."
Judge Souter's remark about a "small pistol" is obviously hyperbole. Even if the hidden objects had completely filled the watch pocket of Joubert's jeans, they could scarcely have approached the size of a "small pistol" — at least, not any normal pistol. Moreover, Joubert's attorney asked Officer Kantor directly if the objects in Joubert's pocket felt like a firearm; the officer replied "no". Thus, even if Judge Souter truly found that the objects in Joubert's pocket felt like a small pistol, that finding was clearly erroneous.
See Bobby v. State, 950 P.2d 135, 138 (Alaska App. 1997) (noting that the trial court's factual determinations will stand unless clearly erroneous).
Given the dimensions of the watch pocket in a pair of jeans, it is conceivable that a small knife or a razor blade could be placed in this pocket. But, as just explained, the fact that the small object in Joubert's pocket was conceivably a small knife or razor blade is not sufficient to justify Kantor's search. Under Jackson, Kantor's search for an atypical weapon of this sort would be permissible only if the State presented specific and articulable facts to support a reasonable belief that Joubert in fact had such a weapon in his pocket.
Even viewing Kantor's testimony in the light most favorable to the State, this testimony failed to establish the "articulable and specific facts" required by Jackson. Not only did Kantor fail to provide articulable reasons for supposing that the object in Joubert's pants was an atypical weapon; he never even asserted that he believed the object in Joubert's pocket was an atypical weapon.
Kantor was repeatedly asked what he thought was in Joubert's pocket; over and over, Kantor's response was, "Don't know." Kantor speculated that the object in Joubert's pocket
could have been a small pocket knife, [or it] could have been a typical razor, or the sheathing that goes on top of a razor. It could have been something.
The statement that appears to best summarize Kantor's testimony is the answer he gave when Joubert's attorney asked him if he was concerned that Joubert might have a razor blade in his pocket. Kantor answered that his essential concern "was that I didn't know what [the object] was."
This testimony fails to satisfy Jackson. Instead of the "articulable and specific facts" required by Jackson, the State's evidence consisted of "could have been" and "don't know". In essence, Kantor testified that he searched Joubert's pocket because he could not definitively rule out the possibility that the pocket contained a razor blade, a small pen knife, or some other small, atypical weapon. This is precisely what Jackson prohibits.
Jackson singles out razor blades and small pen knives as "atypical" weapons. Jackson, 791 P.2d at 1028.
In Jackson, we held that the State can not justify an intrusion into a suspect's clothing by showing merely that the object felt by the officer "could have been" an atypical weapon that the presence of an atypical weapon could not be ruled out. Jackson requires the State to present an affirmative reason to believe that the suspect's clothing contained an atypical weapon. Even viewing Kantor's testimony in the light most favorable to the State, it is clear that he offered no articulable and specific facts to support a reasonable suspicion that the object in Joubert's pocket was an atypical weapon. Thus, the search of Joubert's pocket was impermissible under Alaska law.
For these reasons, the cocaine found in Joubert's pocket must be suppressed, and Joubert's conviction must be reversed.
COATS, Chief Judge, dissenting.
This case involves a search incident to arrest. Under the leading federal case of United States v. Robinson, once a suspect is arrested based upon probable cause, the police may conduct a full search of the suspect's person for weapons and evidence. Alaska law differs. If a person is arrested for a crime where evidence of that crime could be concealed on the suspect, the police can search for evidence of the crime for which the person was arrested. Where no evidence of the crime for which the suspect was arrested could exist on their person, the police may conduct a search for weapons. Under Alaska law, the police can certainly conduct a pat-down search for typical weapons such as a knife, gun, or club. The case before us raises the question of the authority of the police to conduct a search incident to a lawful arrest for atypical weapons.
414 U.S. 218, 235 (1973).
See Jackson v. State, 791 P.2d 1023, 1028 (Alaska App. 1990).
See id.
We last visited this question in Jackson v. State. In Jackson, the suspect was arrested under authority of an arrest warrant which had been issued for failure to appear on shoplifting and driving while license suspended charges. However, the arresting officer was not aware of the underlying charges supporting the warrant. While placing Jackson under arrest, the arresting officer conducted a search of Jackson which included a search of Jackson's wallet. The officer stated that the reason he searched Jackson's wallet was to ensure that the wallet did not contain razor blades or other atypical weapons. During the wallet search, the officer discovered cocaine. Jackson was charged with cocaine possession. Jackson moved to suppress the evidence. The trial court denied the motion. On appeal, this court explored the authority of police officers to search for weapons under Alaska law in conducting a search incident to arrest.
Id.
See at 1024.
This court recognized a crucial distinction between a pat-down search conducted during an investigative stop and a search incident to arrest. The court quoted from Justice Thurgood Marshall's dissent in United States v. Robinson:
[An investigative] stop involves a momentary encounter between officer and suspect, while an in-custody arrest places the two in close proximity for a much longer period of time. If the individual happens to have a weapon on his person, he will certainly have much more opportunity to use it against the officer in the in-custody situation. The prolonged proximity also makes it more likely that the individual will be able to extricate any small hidden weapon which might go undetected in a weapons frisk, such as a safety pin or razor blade. In addition, a suspect taken into custody may feel more threatened by the serious restraint on his liberty than a person who is simply stopped by an officer for questioning, and may therefore be more likely to resort to force.
We noted Justice Marshall's observation that the police discovered the contraband on Robinson during the search of a cigarette package. Justice Marshall concluded that, if the police were concerned about safety, they always had the option to impound the cigarette package. A search was therefore unnecessary.
See id.
In Jackson we also relied on a California Supreme Court case, People v. Brisendine. In Brisendine, the defendant was arrested at a remote campsite on a minor charge. The officer searched the arrestee's knapsack, ostensibly for weapons, and found drugs. We quoted the following language:
531 P.2d 1099 (Cal. 1975).
[An] officer who exceeds a pat-down without first discovering an object which feels reasonably like a knife, gun, or club must be able to point to specific and articulable facts which reasonably support a suspicion that the particular suspect is armed with an atypical weapon which would feel like the object felt during the pat-down.
. . .
Typically in cases of warrantless weapons searches the police must be able to point to specific and articulable facts which reasonably justify a belief that the suspect is armed. In the ordinary citation situation the fact of the arrest alone will not supply this justification and additional facts must be shown. In the case of transportation in the police vehicle, however, or in the analogous circumstances here, the necessity of close proximity will itself provide the needed basis for a protective pat-down of the person. To intrude further than a pat-down, the officer must provide additional specific and articulable facts necessitating the additional intrusion.
In Jackson we stated our holding as follows:
We therefore conclude that a search incident to an arrest, where no evidence of the crime charged could exist on the person, may extend to the person of the arrestee and any containers associated with the arrestee's person which may contain a gun, a large knife, or a club. Search of smaller containers which could only contain atypical weapons such as a razor blade, a small knife, a safety pin, or a needle must be supported by specific and articulable facts which would lead a reasonable person to believe that such an atypical weapon was in the small container.
Applying this analysis, we suppressed the evidence which the officer found in Jackson's wallet.
Thus, Jackson clearly stands for the proposition that an officer cannot search a wallet, backpack, or other closed container for atypical weapons without "specific and articulable facts which would lead a reasonable person to believe that such an atypical weapon was in the small container." But the law is less clear about how to treat a search for atypical weapons on the suspect's person which are not in a container.
Id.
It seems to me that an atypical weapon in a container such as a wallet or a backpack can be distinguished from a razor blade or other atypical weapon which is on the suspect's person. First, a person generally has a higher expectation of privacy in a container such as a wallet. Second, as Justice Marshall pointed out in his dissent in Robinson, if the police suspect a razor blade in a wallet or backpack, they do have the option of seizing the item and keeping it away from the suspect. If a suspect has a razor blade in his wallet or in his backpack, a search for that item would involve a major invasion of privacy. If we were to allow that sort of intrusion, there seems little reason not to adopt the federal rule stated in Robinson. Yet, when the razor blade is located on the suspect, the balance is less clear. There is a stronger case for allowing a search to promote officer safety.
In analyzing the testimony in the present case, we are to look at the facts in the light most favorable to the prevailing party, the state. Officer Kantor's testimony is set out on pages 4-6 of Judge Stewart's majority opinion. As I read Officer Kantor's testimony, he felt something small and hard in the suspect's pocket which he could not identify. He stated he was concerned that the object might be a weapon, similar to a small knife or a razor blade. Officer Kantor conceded that he did not know what the item was, but he testified he was concerned that it might be a small weapon.
Judge Souter originally concluded that Officer Kantor's conclusion that the two rocks of cocaine could feel like a knife or razor blade was preposterous. Yet after actually examining the rocks of cocaine, Judge Souter arrived at a different conclusion. He stated:
[A]t the time of the suppression hearing, relying on what I saw and heard but without the opportunity to feel the evidence which is a big difference, I ruled that Officer Kantor's stated suspicion that these two rocks of cocaine might be a small knife or razor was ludicrous. That's wrong. Considering that the defendant was wearing jeans[,] that these two so-called rocks of cocaine were in his watch pocket and that they were also covered by the thickness of his sweatshirt, there is no doubt in my mind at this point after having myself felt these two rocks of cocaine, physically, for the first time, there's no doubt in my mind that Officer Kantor's suspicion that this might be a small knife or a razor blade was reasonable. That's a reasonable suspicion based on articulable facts.
Upon examining the evidence and evaluating Officer Kantor's testimony, Judge Souter concluded that Officer Kantor had reasonable suspicion that Joubert might have had a small knife or razor blade in his pocket. In my view this finding would support Officer Kantor's search of Joubert's pocket to make sure that he did not have such a weapon. I accordingly dissent from the decision to suppress the evidence seized as a result of that search.