IN: Frisk was justified by RS, but “ball” in pocket wasn’t plain feel

The officer was observing defendant and suspected he’d be engaged in a drug transaction. Finally there was a patdown, and in defendant’s pocket was a small ball of something, which the officer reached for. It was obvious it was not a weapon, and the search exceeded the Terry stop. Johnson v. State, 2019 Ind. App. LEXIS 560 (Dec. 19, 2019):

P15 The testimony suggests alternative scenarios as to how Agent Wilkinson discovered the apparent contraband. The agent may have been conducting “a carefully limited search of outer clothing to detect weapons,” Granados, 749 N.E.2d at 1213, when he discerned characteristics consistent with contraband, notwithstanding the fabric barrier. Or Agent Wilkinson, having received information of an attempted sale of contraband, may have reached into Johnson’s pocket and examined the item before concluding it was likely contraband. In the first scenario, Agent Wilkinson would arguably have, without exceeding the scope of a Terry pat-down for weapons, developed probable cause for an arrest. In the second scenario, Agent Wilkinson would have conducted the search before having probable cause for an arrest and thus the seizure did not take place in a search incident to arrest. It is incumbent upon the State to prove that the measures it used to conduct a search and seize evidence were constitutional. Rager, 883 N.E.2d at 139. Here, the State failed to satisfy its burden; the evidence does not dispel concern that the ball of powder retrieved from Johnson’s pocket was obtained in violation of his Fourth Amendment right to be free from an unlawful search and seizure.

Considering the officer was expecting a drug transaction, what about plain feel? “Agent Wilkinson detected and removed from Johnson’s pocket an object that ‘felt like a ball of drugs.’ … He placed Johnson in handcuffs and provided a Miranda warning.” It wasn’t otherwise addressed.