M.D.La.: “Plain feel” of suspected drugs wasn’t justified

Defendant was subjected to a patdown because of the smell of marijuana coming from his vehicle. No weapon was found, and the officer manipulated a bulge thinking it was drugs. The officer searched for it as a “plain feel.” This was an “evidentiary search” in violation of Dickerson. United States v. Banks, 2012 U.S. Dist. LEXIS 111762 (M.D. La. August 8, 2012):

Once Officer Collins determined that the item was not contraband, a further search of Defendant’s person must have been justified by a warrant or some other exception to the warrant requirement. At the hearing, Officer Collins was unable to articulate any independent reasons for the search and subsequent seizure of the oxycodone. For instance, no testimony was provided: (1) suggesting Officer Collins smelled marijuana on Defendant’s person (thus creating a “plain smell” exception to the warrant requirement), (2) indicating that a reliable source may have informed Officer Collins that Defendant had contraband on his person, or (3) indicating that Defendant’s independent action that may have led Officer Collins to believe drugs that were on his person. Thus, in seizing the oxycodone from Defendant’s person, under the circumstances presented here, officers conducted the type of search that “amounted to the sort of evidentiary search that Terry expressly refused to authorize.” Accordingly, the Court orders the suppression of the oxycodone.