Academic journal article Journal of Criminal Law and Criminology

Fourth Amendment - the Plain Touch Exception to the Warrant Requirement

Academic journal article Journal of Criminal Law and Criminology

Fourth Amendment - the Plain Touch Exception to the Warrant Requirement

Article excerpt


In Minnesota v. Dickerson,(1) the United States Supreme Court unanimously adopted the plain touch doctrine, thereby allowing officers to seize evidence recognized through the sense of touch during a lawful patdown without a warrant. Analogizing to the plain view doctrine developed in Coolidge v. New Hampshire(2) and its progeny, Justice White's opinion held plain touch seizures constitutional when three conditions are met: (1) a lawful patdown has occurred under Terry v. Ohio,(3) (2) the character of the item as contraband or evidence of a crime is immediately apparent, and (3) the officer has a lawful right of access to the item.(4)

The Supreme Court held that officers must stop examining an object as soon as they are satisfied that the item is not a weapon. At that point, it is impermissible for officers to further examine the item in order to determine if it is some other contraband.(5) In the case at bar, Justice White found that the officer exceeded the bounds of Terry by continuing to examine the object when it was clear that it was not a weapon.(6) Consequently, the Court affirmed the Minnesota Supreme Court's decision to reverse the conviction.(7)

Justice Scalia, in his concurrence, concluded that Terry was incorrect in holding that a protective patdown is constitutional, because patdowns were not an accepted part of police procedure when the Fourth Amendment was adopted.(8) Nevertheless, he concurred in the decision because the constitutionality of the patdown in the instant case was not challenged.(9)

In a separate opinion, Chief Justice Rehnquist joined in the majority opinion with respect to the establishment of the plain touch doctrine.(10) He dissented, however, with respect to the treatment of the instant case. Because the findings of fact were imprecise about the extent to which the officer examined the object in Respondent's pocket, the Chief Justice would have remanded the case.(11)

This Note examines the Court's treatment of the plain view doctrine and concludes that the Court properly held that the plain touch doctrine is analogous to the plain view doctrine. This Note argues, however, that the Court provided a vague outline of the requirements of this newly recognized exception to the warrant requirement. The Court wavered between two different standards of certainty, referring to both "probable cause" and "immediately apparent." This Note argues that probable cause is the proper standard of certainty. Additionally, the Court required that the officer have lawful access to the object before seizing it, without explaining how this requirement functions in the plain touch context.(12)

This Note further argues that the Court improperly upheld the lower court's reversal. Relying on a misquote of the trial transcript, the Court determined that the officer in the instant case overstepped the boundaries of Terry.(13) The Court should have satisfied any doubt about the scope of the search by remanding the case for further proceedings, as Chief Justice Rehnquist suggested in his separate opinion.(14) This Note contends, however, that a proper application of the plain touch doctrine did permit seizure in the instant case.


The Fourth Amendment to the United States Constitution prohibits only "unreasonable" searches.(15) It is a well established rule of Fourth Amendment jurisprudence, however, that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specially established and well-delineated exceptions."(16) This warrant requirement is primarily based on the premise that a neutral and detached magistrate is a better judge of probable cause than the officer or prosecutor who is actively involved in a specific case.(17)

These considerations led the Court to conclude in Weeks v. …

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