Bill of Rights.

Recently during a suppression hearing in a drug case, the police officer testified that controlled dangerous substances fell to the ground from my client’s pants as the cop conducted a pat down for weapons, on the cop’s claimed belief that this was a valid Terry stop.

During cross examination at the suppression hearing, I asked the cop to show how my client was frisked, by putting me into the role of the client, which gave the judge a good belly laugh as he proclaimed that I would be responsible for any contraband found during the cop’s pat down of me in court. This so-called pat down demonstration revealed the very manipulation that is prohibited with Terry pat downs. The judge later indicated he tended to agree with me that the cop had demonstrated an unlawful Terry pat down, but the judge had concluded that the officer had probable cause to search based on the alleged odor of unburnt marijuana (I join the argument here that unburnt marijuana ordinarily is too hard to distinguish from lawful substances). Probable cause does in fact permit squeezing and sliding of suspected contraband, but a Terry stop does not allow that.

About the limits of a Terry  frisk, in Minnesota v. Dickerson, 508 U.S. 366, 378 (1993), the Supreme Court upheld the suppression of the drugs seized from Mr. Dickerson’s pocket, the Supreme Court explained: “Where, as here, ‘an officer who is executing a valid search for one item seizes a different item,’ this Court rightly ‘has been sensitive to the danger . . . that officers will enlarge a specific authorization, furnished by a warrant or an exigency, into the equivalent of a general warrant to rummage and seize at will.’ Texas v. Brown, 460 U.S. at 748 (STEVENS, J., concurring in judgment). Here, the officer’s continued exploration of respondent’s pocket after having concluded that it contained no weapon was unrelated to ‘the sole justification of the search [under Terry:] . . . the protection of the police officer and others nearby.’ 392 U.S. at 29. It therefore amounted to the sort of evidentiary search that Terry expressly refused to authorize,  see id at 26, and that we have condemned in subsequent cases. See Michigan v. Long, 463 U.S. at 1049, n.14; Sibron, 392 U.S. at 65-66.” Dickerson, 508 U.S. at 378.

How, then, can a proper Terry frisk — which is not permitted to involve manipulation, sliding or squeezing — determine the presence of crack cocaine in one’s pocket? If the crack rock is the typical small one-dose size, it sounds particularly farfetched. Nevertheless, in one Virginia criminal case, a police officer claimed to have felt apparent crack cocaine in Mr. Dickerson’s pocket during a Terry pat down. The trial judge refused to suppress, and so did Virginia’s intermediate appellate court, the Court of Appeals. See Bandy v, Virginia, __ Va. App. ___ (August 12, 2008). Something sounds seriously wrong here, and I hope the defense seeks appellate relief. Jon Katz.