Plain feel is subject to totality of circumstances test and officer’s experience is a factor

“Plain feel” is determined by the totality of circumstances. A felt pill bottle has innocent uses, but an officer could legitimately believe it contains contraband. Hallcy v. State, 2007 OK CR 2, 153 P.3d 66 (February 15, 2007):

[*P11] We find the totality of the circumstances analysis for determining probable cause in “plain feel” cases is the better approach to apply. Such analysis does not limit the conclusion drawn to information garnered from the officer’s tactile perception of the object, but allows that touch to be considered in light of the officer’s training and experience and other attendant circumstances. For instance, a medicine bottle is a container with obvious legitimate uses for prescription medication or other small objects, but which can also be put to an illicit use. “An officer’s tactile identification of a pill bottle, standing alone, does not give rise to probable cause to seize the bottle or open it to reveal its contents.” Ball, 803 A.2d at 980. When, however, an officer is presented with a readily recognizable object that has innocent as well as illicit uses, such as the medicine bottle in this case, the officer’s training and experience and other attendant circumstances can inform his perception. Id. at 981.

[*P12] Hallcy relies on several cases from this Court (decided before Dickerson) in arguing that under Oklahoma law an officer’s discerning touch of a legal item gives rise to no more than a reasonable suspicion that the item contains contraband. He asserts that once the officer has assured himself that the item felt was not a weapon the search must end. These cases were decided before Dickerson and to the extent they are inconsistent with the holding in this case, they are overruled.

Defendant on house arrest was technically in custody, but it was only the custody of his probation officer. The facts of his consent show that it was truly voluntary. “And while the defendant was not legally free to leave his property, he could have asked the police officers to leave and obtain a warrant before returning, at least up until the officers had independent probable cause to act.” United States v. Cano, 2007 U.S. Dist. LEXIS 11107 (W.D. N.C. February 9, 2007).*

A fair reading of the affidavit for a search warrant for defendant’s home computer showed probable cause based on reports from citizen informants who saw it when using the computer. The trial court and state court of appeals concluded that it did not. State v. Koen, 152 P.3d 1148 (February 16, 2007).* (Comment: The only surprise about this case is the fact that the trial judge and the court of appeals did not find probable cause. The facts recounted in the affidavit are more compelling than many I have read, and it had citizen informers relating having recently seen child porn on defendant’s home computer when they were visiting his house. To not find probable cause would be to subject the affidavit to a hypertechnical reading, and, even then, the good faith exception should have saved it.)