MN: Search of a baby wipes box during traffic stop patdown was justified in looking for a potential weapon

Plain feel justified seizure of a glass pipe during a patdown, and a baby wipes box could be searched for a weapon. State v. Krenik, 774 N.W.2d 178 (Minn. App. 2009)*:

Reski’s testimony demonstrates that it was immediately apparent to her that the glass tube in Krenik’s pocket was contraband. Reski testified that when she patted down the outside of Krenik’s pocket, she “could feel a smoking glass tube” and recognized it as contraband from her prior experience. Although Reski admitted during cross-examination that she could not be certain that the object was a glass pipe and it “could have been something else,” the “immediately apparent” standard does not require absolute certainty. Brown, 460 U.S. at 741, 103 S. Ct. at 1543. Reski’s testimony adequately supports the district court’s finding that Reski had a “basis to suspect that [the item] was a crack pipe” when she felt it. Therefore, Reski’s warrantless seizure of the pipe was permitted under the plain-feel exception to the warrant requirement.

Krenik also argues that “the retrieval of the unopened baby wipes box … is not justifiable under the ‘plain-feel’ doctrine [because] this item could not have been recognized as … any kind of contraband.” But Krenik’s argument ignores Reski’s other reason for seizing the box, to confirm that it did not contain a weapon. The scope of a pat search extends to all “concealed objects which might be used as instruments of assault.” Sibron v. New York, 392 U.S. 40, 65, 88 S. Ct. 1889, 1904, 20 L. Ed. 2d 917 (1968). The Minnesota Supreme Court has held that during a valid pat search for weapons, an officer may remove a “hard object of substantial size, [even though] the precise shape or nature of [the object] is not discernible through outer clothing.” State v. Bitterman, 304 Minn. 481, 486, 232 N.W.2d 91, 94 (1975). The supreme court reasoned that because “weapons are not always of an easily discernible shape, a mockery would be made of the right to frisk if the officers were required to positively ascertain that a felt object was a weapon prior to removing it.” Id.

Reski felt a box-shaped object. Although she did not know what it was, she testified that she was concerned for her safety because the box could have contained a weapon. She specifically stated that “[d]ue to its size, [the box] could be used to hold any form of weapon in [it], a smaller caliber handgun, [or] a knife.” Because the box could have contained a weapon, Reski was justified in removing it from Krenik’s pocket. After removing the box, Reski opened it, and discovered the methamphetamine. Because the Terry frisk of Krenik was valid, the warrantless seizure of the box was justified because the box might have contained a weapon. The pipe and methamphetamine found in Krenik’s pocket established probable cause for her arrest, and Krenik does not challenge the impoundment or the inventory search of her vehicle that followed her arrest. See State v. Camp, 590 N.W.2d 115, 118 (Minn. 1999) (probable cause to arrest exists when person of ordinary care and prudence would entertain honest and strong suspicion that a crime has been committed).