CA7: An unidentifiable hard object found in a pat down may be removed

A patdown finding a hard object permits removal to insure that it is not a weapon where a feel could not tell. United States v. Richardson, 2011 U.S. App. LEXIS 18323 (7th Cir. September 2, 2011):

Richardson does not dispute that Deputy Smythe lawfully initiated a stop and pat-down of Richardson’s person. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Rather, he claims Deputy Smythe’s pat-down became an impermissible exploratory search when Deputy Smythe removed the cocaine base from Richardson’s right pants pocket and inspected it. Richardson’s argument misapplies Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993). Richardson focuses on Dickerson’s pronouncement that an officer cannot go beyond a protective pat-down to manipulate an object concealed in a pocket unless “the incriminating character of the object [is] immediately apparent.” 508 U.S. at 379. But that restriction does not apply until the officer concludes that the object at issue is not a weapon. Dickerson, 508 U.S. at 378; see United States v. Muhammad, 604 F.3d 1022, 1026-27 (8th Cir. 2010) (seizure and inspection of object not unlawful under Dickerson because officer was uncertain whether object was a weapon). Deputy Smythe testified that, after the protective patdown, he “wasn’t sure what [the object] was. It was just an unfamiliar lump, [a] hard lump.” Based on this testimony, the district court found Deputy Smythe was unsure whether the hard object in Richardson’s pocket was a weapon. That finding was not clearly erroneous. See United States v. Swann, 149 F.3d 271, 275 (4th Cir. 1998) (deferring to district court’s finding that the officer had not determined whether the object was a weapon when testimony was “entirely ambiguous” as to whether the officer “suspected or did not suspect a weapon”).