LA1: State failed to justify alleged plain feel of drugs after frisk for weapon

Frisk for weapons was justified, but the search of defendant’s pockets for drugs was not justified by “plain feel” because the state did not justify the justification. State v. Carter, 131 So. 3d 479 (La.App. 1 Cir. 2013):

During the frisk, the police discovered a plastic bag containing narcotics in Mr. Carter’s pants. As this constitutes evidence seized without a warrant, it is the State’s burden to prove its admissibility under La. C.Cr.P. art. 703 D. The officer that seized the evidence, Officer Buckle, did not testify at the hearing on the motions. The prosecution did not establish what he felt during the frisk, whether he construed the bag of drugs to be a weapon of some kind, or whether the bag’s illicit nature was immediately apparent. The state failed to meet its burden of proof by showing that this evidence should be admissible under the “plain feel” exception granted by Dickerson.

From the facts before us and viewing all of the evidence according to the totality of the circumstances, we find that the district judge did not abuse its discretion in granting Mr. Carter’s motion to suppress the evidence seized by Officer Buckle. While we find that the frisk performed by Officer Buckle was justified by an objectively reasonable belief that Mr. Carter posed a danger, the scope of that search exceeded the permissible boundaries of a limited weapons frisk. The frisk was an unreasonable search under the Fourth Amendment.