                        COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Bumgardner
Argued at Richmond, Virginia


COMMONWEALTH OF VIRGINIA
                                            MEMORANDUM OPINION * BY
v.   Record No. 0131-01-1               JUDGE RUDOLPH BUMGARDNER, III
                                                 JUNE 11, 2001
DANTE RODRIQUEZ GAY, S/K/A
 DONTE GAY


             FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
                      Rodham T. Delk, Jr., Judge

             Shelly R. James, Assistant Attorney General
             (Mark L. Earley, Attorney General, on
             briefs), for appellant.

             Patrick A. Paciello (Robert O'Neill, Public
             Defender, on brief), for appellee.


     Dante Rodriquez Gay moved to suppress introduction of a

crack pipe taken from his person.     The trial court granted the

motion, and the Commonwealth appeals.     We conclude the

Commonwealth lawfully seized the item under the "plain feel"

doctrine and reverse its suppression.

     We review the evidence in the light most favorable to the

defendant.     Commonwealth v. Grimstead, 12 Va. App. 1066, 1067,

407 S.E.2d 47, 48 (1991).     While on routine patrol, a Franklin

City police officer observed a beer can on the roof of a parked



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
car.       He turned to investigate and saw the defendant put the

beer inside the car.      The officer parked his car near the

defendant and asked him about the beer.

       The defendant agreed to a pat-down search by the officer.

Having placed his hands on the roof of the car, but before the

pat-down began, the defendant thrust his hand to a side pocket

of his pants.      The movement made the officer believe the

defendant had a weapon or contraband in his pocket, so he patted

the pocket.      The officer immediately felt what he perceived to

be a crack pipe.      The experienced officer had felt similar

objects, and they always proved to be crack pipes. 1     He reached

into the defendant's pocket and extracted a brass tube burned on

the end that tested positive for cocaine.      The defendant

concedes the initial encounter and the pat-down were proper.

       The trial court found the officer immediately concluded on

patting the pants pocket that the object was a crack smoking

device.      That meant he also immediately concluded the object was

not a weapon.      The trial court ruled:   "In this particular case

I find that [the officer] exceeded the authority of Terry and

the similar cases."




       1
       Officer Harvey testified that in thirteen years as an
officer, he had handled approximately 230 drug arrests and that
he often found coke stems in pencil pockets. "In the past when
I felt an item like that in a pocket and I went in and got it,
it has always been a crack stem."


                                   - 2 -
     Minnesota v. Dickerson, 508 U.S. 366, 375 (1993), extended

the plain view doctrine of Coolidge v. New Hampshire, 403 U.S.

443, 466 (1971), to "tactile discoveries of contraband" and

approved the plain feel doctrine.   The Court stated the issue in

Dickerson:    "whether police officers may seize nonthreatening

contraband detected during a protective patdown search [for

weapons] of the sort permitted by Terry [v. Ohio, 392 U.S. 1

(1968)].   We think the answer is clearly that they may, so long

as the officer's search stays within the bounds marked by

Terry."    508 U.S. at 373.

     The officer immediately identified the object as a crack

pipe, which the defendant concedes has no use except to consume

crack cocaine.   It was drug paraphernalia, Code § 18.2-265.1, 2

and subject to seizure and confiscation.    Code § 18.2-265.4. 3   If

an officer discovers "contraband other than weapons [during a

search for weapons], he clearly cannot be required to ignore the

contraband, and the Fourth Amendment does not require its

suppression in such circumstances."     Michigan v. Long, 463 U.S.

1032, 1050 (1983).




     2
       "'[D]rug paraphernalia' means all . . . materials of any
kind which are . . . designed for use . . . in . . . ingesting,
inhaling, or otherwise introducing into the human body marijuana
or a controlled substance." Code § 18.2-265.1.
     3
       "All drug paraphernalia as defined in this article shall
be forfeited to the Commonwealth and may be seized . . . ."
Code § 18.2-265.4.

                                - 3 -
     Under the plain feel doctrine, the officer was not limited

to seizing weapons.   He seized the evidence lawfully.

Accordingly, we reverse its suppression.

                                           Reversed and remanded.




                               - 4 -
Benton, J., dissenting.

     Applying the usual standard of review, we must view the

evidence in the light most favorable to Dante Gay, the

prevailing party, and grant to that evidence all reasonable

inferences fairly deducible therefrom.   See Commonwealth v.

Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).

Moreover, "[i]n our review, 'we are bound by the trial [judge's]

findings of historical fact unless "plainly wrong" or without

evidence to support them.'"   Harris v. Commonwealth, 33 Va. App.

325, 330, 533 S.E.2d 18, 20 (2000) (citation omitted).

     The trial judge made the following findings in suppressing

the evidence:

             This particular case . . . involved an
          encounter between the officer and the
          defendant, [and] was triggered by a beer can
          on the roof of a car. There was
          conversation. It's not an issue that --
          whether this was a valid Terry stop or not
          is not an issue. The stop -- the encounter
          was proper. And the patdown for weapons was
          proper. But I'll note in the patdown,
          whether it was once or twice that the
          defendant moved, when he had his two hands
          on the car, the defendant, when the officer
          got on his side near his pencil pocket, the
          defendant once or twice moved his hand down
          to the pencil pocket.

             I did take this note. On December 12.
          And I specifically recall this testimony.
          The officer concluded that the defendant
          moved his arm to the pocket and I made this
          quote, that it was either a weapon or drugs.
          That was his comment.




                               - 5 -
             He patted down and immediately concluded
          that the object that he felt -- I don't
          think he used the word cylindrical. But it
          was round and about three inches long. Was
          a crack smoking device without even seeing
          it. This he concluded from his training and
          his experience in dealing with drugs.

             But the context of this entire matter was
          not about drugs. He was proper in making
          the patdown. But once he concluded in this
          particular case that -- and this was an
          immediate conclusion, not after pulling it
          out to see if it was a weapon or not. It
          was his immediate conclusion that it was not
          a weapon.

             In this particular case I find that he
          exceeded the authority of Terry and the
          similar cases. I've read a number of
          Virginia cases. I've even read Ruffin [v.
          Commonwealth, 13 Va. App. 206, 409 S.E.2d
          177 (1991), a case relied on by the
          prosecutor]. I don't find that Ruffin
          permits the seizure that occurred in this
          case under these facts. Therefore I hold
          that the seizure was in violation of the
          Fourth Amendment. I'll order that the
          evidence be suppressed. I'll note the
          Commonwealth's exception.

     In Harris v. Commonwealth, 241 Va. 146, 400 S.E.2d 191

(1991), a police officer stopped a vehicle for an equipment

violation after an informant had reported the vehicle would

contain drugs.   Id. at 148, 400 S.E.2d at 192.   During a frisk

of the passenger for weapons, the officer detected a film

container, which he removed and searched.   Id.   The Supreme

Court specifically noted that the officer "knew from his

personal experience of working 'plain clothes assignments' and

'making arrests' that certain people kept their narcotics and



                               - 6 -
drugs in film canisters."   Id. at 154, 400 S.E.2d at 196.

Nonetheless, the Court rejected the Commonwealth's argument that

the seizure of the canister and the search of it were lawful,

and the Court ruled as follows:

          Certainly, [the] Officer . . . was entitled
          to conduct a limited search of Harris to
          assure himself that Harris did not have any
          weapons in his possession which would have
          endangered the officer's safety. Indeed,
          the safety of the officer when conducting
          his duties is of paramount importance.
          However, [the officer's] seizure and search
          of the film canister during the weapon
          search was not permissible because the
          canister was not a weapon and he did not
          search the canister for a weapon. Rather,
          he had a "hunch" that the canister contained
          illegal drugs and therefore conducted a
          generalized search. [The officer] gave the
          following testimony during the evidentiary
          hearing on the motion to suppress:

          Question: [W]hen you patted him [Harris]
          down for weapons you indicated that you felt
          a film canister.

          Answer:   Yes, sir.

          Question: You knew that was not a weapon,
          didn't you?

          Answer:   That's correct.

          Question:   And what did you think that was?

          Answer:   I thought it was probably drugs
          . . . .

          Question: When you felt that film canister,
          that meant something to you.

          Answer: My first reaction was, 'this is
          drugs, it's not film, it's drugs.'




                                - 7 -
           Accordingly, [the officer's] search of
           Harris should have ceased once [the officer]
           assured himself that Harris possessed no
           weapons.

Id. at 151-52, 400 S.E.2d at 194-95.

     The evidence in this case is not significantly different.

The officer testified that Gay was wearing "jeans and they have

a long, skinny pocket down the side, down around the thigh

area," which the officer described as "like a handyman would

wear."   The officer testified that he frisked the "pencil pocket

on the right side of his pants" and "felt a hard metal item

around three inches long."   As in Harris, the officer in this

case testified that he knew the item he felt in Gay's pocket was

not a weapon.    Based on this testimony, the trial judge found

that "[i]t was [the officer's] immediate conclusion that it was

not a weapon."   Similarly, as in Harris, the officer in this

case testified that his experience and training led him to

believe the item he felt in Gay's pocket was used for smoking

cocaine.   Based on this testimony, the trial judge found that

the officer "immediately concluded that the object . . . he felt

. . . [w]as a crack smoking device without even seeing it."

     In short, the trial judge found that the officer's

detection of a metal item three inches long, which he knew not

to be a weapon and which he concluded was contraband without

seeing it, was an unlawful seizure.     The item was not

intrinsically contraband; it only could be considered


                                - 8 -
paraphernalia if it had a connection to controlled substances.

See Code §§ 18.2-265.1, 18.2-265.2, and 18.2-265.3.    Indeed, the

trial judge specifically found that "the context of this entire

matter was not about drugs."    He also implicitly found that the

incriminating character of the object, i.e., that it was "a

crack smoking device," could not have been immediately apparent

to the officer without seeing it.

            Where, as here, "an officer who is executing
            a valid search for one item seizes a
            different item," this Court rightly "has
            been sensitive to the danger . . . that
            officers will enlarge a specific
            authorization, furnished by a warrant or an
            exigency, into the equivalent of a general
            warrant to rummage and seize at will."
            Here, the officer's continued exploration of
            [the accused'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.

Minnesota v. Dickerson, 508 U.S. 366, 378 (1993) (citation

omitted).

     The trial judge's findings support his suppression order,

which was analogous to the Supreme Court's ruling in Harris

concerning the film canister.   The officer's sense of feel

objectively conveyed only an item that was consistent with a

dowel or rod that might be carried in the pencil pocket of jeans

"like a handyman would wear."   The trial judge correctly


                                - 9 -
concluded that the officer "exceeded the authority of Terry"

when he removed the item.    See Dickerson, 508 U.S. at 378

(noting that the officer's conduct "amounted to the sort of

evidentiary search that Terry expressly refused to authorize").

As the trial judge noted, the officer's conclusion that the item

had no legitimate use, "without even seeing [the item]," was a

mere hunch.    See Harris, 241 Va. at 154, 400 S.E.2d at 196

(noting that the officer's experience only permitted a "hunch"

that a film canister, which has a legitimate use, was actually a

storage container for cocaine).   After merely feeling the

object, the officer, at best, could only have had an ungrounded

suspicion that the item was cocaine paraphernalia.    Acting on

his hunch, the officer retrieved the item and determined that

the item was probably a device for using cocaine only after

seeing that it was hollow and contained a residue.    Because the

officer did not have probable cause to conclude that the item

was contraband and because he knew it was not a weapon, he had

no authority to remove it during a Terry detention for weapons.

       In Arizona v. Hicks, 480 U.S. 321 (1987), a police officer,

who was searching for weapons, saw an item he believed to be

stolen contraband and moved it to expose serial numbers.       Id. at

323.   Upholding an order suppressing the seizure, the Supreme

Court ruled as follows:

            But taking action, unrelated to the
            objectives of the authorized intrusion,
            which exposed to view concealed . . .

                               - 10 -
          contents, did produce a new invasion of
          respondent's privacy unjustified by the
          exigent circumstance that validated the
          entry. This is why . . . the "distinction
          between 'looking' at a suspicious object in
          plain view and 'moving' it even a few
          inches" is much more than trivial for
          purposes of the Fourth Amendment. . . . A
          search is a search, even if it happens to
          disclose nothing but the bottom of a
          turntable.

Id. at 325.   Significantly, the Court ruled that a police

officer must have probable cause, not merely reasonable

suspicion, to believe that the discovery of an item during a

search, which was not the focus of the search, is evidence of a

crime or is contraband.   Id. at 326.

     I believe that the trial judge's factual findings and the

reasonable inferences that flow from those findings support his

conclusion that the seizure of the item from Gay's pocket was

based upon an ungrounded suspicion and, therefore, was unlawful.

Accordingly, I dissent.




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