KS: Torn or knotted plastic baggie was PC for drugs in the car

A torn or knotted plastic baggie was probable cause for drugs in the car, although the question here is admittedly close. The officer’s experience was what made the difference. Plastic bags alone are meaningless. State v. Howard, 2014 Kan. App. LEXIS 96 (December 5, 2014):

Many cases have discussed whether the mere presence of plastic bags provides probable cause for a drug search. Courts have found that an officer observing an intact plastic baggie, on its own, can’t justify a warrantless search. State v. Runge, 8 Neb. App. 715, 723, 728, 601 N.W.2d 554 (1999); State v. Neth, 165 Wash. 2d 177, 184-85, 196 P.3d 658 (2008); State v. Sweeney, No. 07-0336, 2007 Iowa App. LEXIS 1317, 2007 WL 4553475, at *2-5 (Iowa App. 2007) (unpublished opinion). And possession of packaging commonly used to conceal drugs generally does not create probable cause to conduct a search. See Sweeney, 2007 Iowa App. LEXIS 1317, 2007 WL 4553475, at *3-4; 2 LaFave, Search and Seizure, A Treatise on the Fourth Amendment § 3.6(b), pp. 396-98 (5th ed. 2012) & pp. 11-13 (2013-14 Supp.).

But the Kansas Supreme Court has stated that torn or knotted baggies, which are associated with illegal drugs, might raise a reasonable suspicion (a less demanding standard than probable cause) to expand a traffic stop. See State v. Jones, 300 Kan. ___, 333 P.3d 886, 891, 896-97 (2014); State v. Coleman, 292 Kan. 813, 817-18, 257 P.3d 320 (2011). In addition, many courts, including our Kansas Supreme Court, have found that torn or knotted plastic baggies create probable cause when the circumstances of the case include other factors beyond a police officer’s knowledge and training suggesting that a crime had occurred. See State v. Ramirez, 278 Kan. 402, 407-08, 100 P.3d 94 (2004) (defendant acting nervous, located in bar known for drug activity, and clenching a torn plastic baggie); State v. Parker, 318 P.3d 1019, 2014 Kan. App. Unpub. LEXIS 95, 2014 WL 702564, at *6-7 (Kan. App. 2014) (in a high-crime area, officer observed a torn plastic baggie on the passenger’s seat of defendant’s car, and passenger had glassy eyes and was laughing inappropriately), rev. denied 299 Kan. ___, 2014 Kan. LEXIS 370 (June 20, 2014); see also People v. Hilt, 298 Ill. App. 3d 121, 125-26, 698 N.E.2d 233, 232 Ill. Dec. 395 (1998) (officer observed torn baggie in defendant’s possession in the early morning in an area known for drug trafficking); Coley v. State, 215 Md. App. 570, 583-86, 81 A.3d 650 (2013) (officer observed torn baggie and knew the suspect had previously been a heroin user and that torn baggies are often used to store heroin).

A few courts have found that packaging that is rarely used for legal purposes—along with an officer’s training and experience—can be the basis for probable cause to seize an item. The Illinois Supreme Court found that an officer had probable cause to seize a small wooden “one-hitter” box of a type officer knew was commonly used to store marijuana, People v. Jones, 215 Ill. 2d 261, 271-75, 830 N.E.2d 541, 294 Ill. Dec. 129 (2005); the Nebraska Supreme Court found that an officer had probable cause to seize brown packages with certain markings the officer knew to indicate cocaine, State v. Prahin, 235 Neb. 409, 419, 455 N.W.2d 554 (1990); and the Florida Supreme Court found that detectives in a high-drug-traffic area had probable cause to seize a baseball-shaped object wrapped in brown tape based on their training and experience with narcotics packaging and the fact that people do not frequently carry tape-wrapped baseballs. Cross v. State, 560 So. 2d 228, 230-31 (Fla. 1990).

Like one-hitter boxes or tape-wrapped baseballs, people don’t often carry baggies with torn corners, and Howard hasn’t cited a common, legal use for baggie corners. In the absence of another purpose, the torn corner in this case indicates that the baggie had been used to store illegal drugs, even though the police didn’t smell marijuana or observe that Howard or his passenger appeared to be under the influence of drugs.

We acknowledge that whether probable cause exists is a close call here because only two factors—the torn corner on a baggie and the officer’s training and experience—support the probable-cause finding. But we find the combination of the two sufficient in this case.

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