Baggie protruding from defendant’s pocket plus a drug related prior record is not probable cause

The fact the defendant, who the officer knew had a drug record, had a baggie protruding from his pocket was not probable cause for a search of his person. There are legitimate things that could be in a baggie. State v. Sweeney, 2007 Iowa App. LEXIS 1317 (December 28, 2007):

The State argues that Officer Johnson had probable cause to conduct a warrantless search of Sweeney because (1) she knew Walton’s license had been revoked for a drug-related offense, (2) she saw a plastic baggie protruding from Sweeney’s coat pocket, (3) when she asked about the baggie, Sweeney claimed to have no idea what it was and then pushed it back in his pocket, from which she could reasonably believe that Sweeney was lying about the baggie, and (4) she knew that illegal drugs are commonly carried in plastic baggies. We hold that an officer’s observation of an inch or two of a plastic baggie protruding from an individual’s pocket, under the facts and circumstances known to Officer Johnson, was insufficient to warrant a person of reasonable prudence to believe that the baggie contained contraband, and therefore does not constitute probable cause to conduct a warrantless search.

. . .

We find the facts in this case to be distinguishable from those in Carter. A baggie in an individual’s pocket is not necessarily an unusual setting. Individuals have baggies (generically known as sandwich bags) in their pockets to carry a variety of legitimate items, e.g., single doses of medication, litter, snacks, or even a sandwich. Further, unlike the driver in Carter, there was nothing in Sweeney’s behavior to justify a belief that he possessed drugs.

We also find that Officer Johnson’s knowledge that the van driver’s license had been revoked for a drug-related offense insufficient to justify the warrantless search. The State argues that the officer’s knowledge that Walton’s license had been revoked was an important factor giving rise to probable cause, yet cites no case authority where knowledge of the companion’s criminal background, under circumstances similar to this case, was found to support probable cause.

Indiana search warrant applications must also include evidence that negatives probable cause, but that is moot here because the affidavit for the search warrant was so lacking in showing probable cause that the good faith exception cannot even save it. All the officer could show was that the defendant was around others at the time the others might have been committing an offense, and nothing was shown that the defendant did. Eaton v. State, 878 N.E.2d 481 (Ind. App. 2007):

Here, the Affidavit is so lacking in indicia of probable cause as to render any official belief in its existence entirely unreasonable. Again, the Affidavit’s only reference to Eaton concerned his arrival at the shop. The Affidavit provided no reasonable basis to establish a fair probability either that Eaton was engaged in illicit activity or that a search of Eaton’s residence would uncover such illicit activity. Thus, the good faith exception cannot apply.