M.D.N.C.: Plain feel justified seizure of a pack of credit cards as contraband

Defendants were suspected of serious credit card fraud by loss prevention at a Wal-Mart, and they were seen in the store again the next day. The store had even determined which car they came in from reviewing the video. The police were called, and they saw the same car in parking lot, and the officer approached. Defendant appeared not to understand English and the officer got him out of the car for a patdown. By plain feel, the officer found what he suspected was large pack of credit card in his pocket, which he could remove and seize. United States v. Chen, 811 F. Supp. 2d 1193 (M.D. N.C. 2011):

Under the “plain view” or “plain feel” doctrine, courts have found probable cause to seize seemingly innocuous items when determined to be contraband in the context of the crime being investigated. In United States v. Bruce, 109 F.3d 323 (7th Cir. 1997), for example, the United States Court of Appeals for the Seventh Circuit concluded that shotgun ammunition, while not contraband in and of itself, “assume[d] an incriminating nature in connection with the search for items such as assault rifles.” Id. at 328-29 (upholding denial of defendant’s motion to suppress the ammunition under plain view doctrine). Similarly, in United States v. Cervantes, 19 F.3d 1151 (7th Cir. 1994), the Seventh Circuit held that “although a wad of cash is not in itself a suspicious object,” when the police have good reason to believe the cash on a defendant’s person was just obtained in exchange for illegal drugs, it is “suspicious.” Id. at 1153 (finding that the police had probable cause to seize the wad of cash under the “plain view” doctrine). Accord State v. Washington, 134 Wis. 2d 108, 396 N.W.2d 156, 162 (Wis. 1986), abrogated on other grounds by State v. Swanson, 164 Wis. 2d 437, 475 N.W.2d 148 (Wis. 1991) (finding that during a Terry stop police officers lawfully seized wristwatches from the occupant of a vehicle implicated in a jewelry store burglary where the wristwatches were known to have been stolen from the store); 4 Wayne R. LaFave, Search and Seizure § 9.6(d) n.251 (4th ed. 2004) (collecting cases).

In the present case, Sgt. Davis had probable cause to believe that the bundle of cards in Chen’s pocket was contraband. Although Chen rightly points out that gift cards are not suspicious in themselves, the large bundle of cards in his pocket gave rise to probable cause to believe they were contraband in the context of the ongoing credit-card fraud inside the immediately adjacent Wal-Mart. …