NEW YORK STATE COURT OF APPEALS

People v. Diaz
81 N.Y. 2d 106 (1993)

HANCOCK, J.

The question is whether the warrantless search of defendant’s pocket was justified by information allegedly obtained by the police in conducting an authorized protective pat-down (see, Terry v. Ohio, 392 U.S. 1) which demonstrated that defendant was unarmed. The People urge that the warrantless search of the pocket was permissible under an extension of the plain view exception to the warrant requirement, sometimes referred to as the “plain touch” exception For reasons to be explained, we reject the People’s proposed extension of the plain view exception and conclude that justifying the warrantless search on the basis of the items felt during the protective pat-down would be contrary to both the State and Federal Constitutions (see, U.S. Const. 4th Amend: NY Const, Article I, Section 12). Accordingly, there should be a reversal.

I

There was evidence at the suppression hearing that on June 29, 1989, officers John Healey and Clark Gordon were patrolling the lower east side of Manhattan at about 4:30 a.m. when they observed several groups congregating on the sidewalks, apparently passing objects from hand to hand. During a 20 minute period, Healey and Gordon, in the course of patrolling the area, observed defendant at various times at the center of several of these groups. In their final pass through the area, the officers saw defendant standing next to a stopped automobile. When their squad car approached, defendant walked away down the sidewalk.

The police drove alongside defendant and called him over to the car. In walking toward the car, defendant repeatedly placed his hand in his pocket despite Officer Healey’s warnings against doing so. As defendant reached the car, Healey noticed a bulge in defendant’s pocket and again told defendant to remove his hand. Fearing a weapon, Healey grabbed defendant’s pocket. He felt no weapon but did detect what “appeared to be a bunch of vials”. Defendant then attempted to flea, but, according to Healey, he was able to grab hold of defendant through the car window and pull him partially into the car. While doing so, Healey reached into defendant’s pocket and removed 18 vials of crack cocaine. Defendant was then placed under arrest.

The trial court granted the motion to suppress the drugs seized from defendant’s pocket, holding that the initial stop and pat-down were not supported by reasonable suspicion. The appellate Division reversed and denied the motion, Contrary to the trial court, it found that there was reasonable suspicion to justify the stop and pat-down. The Appellate Division held, in addition, that the subsequent search and seizure of the drugs were permissible based on what Officer Healey felt during the pat-down. We disagree.

II

Preliminarily, we note that the Appellate Division’s determination that officer Healey had reasonable suspicion to stop defendant and conduct a protective pat-down is supported by evidence in the record and thus beyond this Court’s further review. The only legal issue before us is whether, as the Appellate Division held, the information allegedly obtained by Officer Healey through his sense of touch in conducting the pat-down justified the subsequent search of defendant’s pocket.

It is fundamental that warrantless searches and seizures are per se unreasonable unless they fall within one of the acknowledged exceptions to the Fourth Amendment’s warrant requirement (see, United States v. Place, 462 U.S. 696, 701; Katz v. United States, 389 U.S. 347, 357). Here, the question concerns the justification for a search extending beyond the degree of intrusion authorized by the exception to the warrant requirement for protective pat-downs under Terry.

There can be no question that the reaching into defendant’s pocket and seizing the drugs were not within the scope of the Terry pat-down. Under both the State and federal Constitutions, the protective pat-down exception to the warrant requirement authorizes a limited search of lawfully detained suspects to determine whether a weapon is present (see, Terry v. Ohio, 392 U.S. 1; People v. Cantor, 36 N.Y.2d 106, 110-111; People v. Rivera, 14 N.Y.2d 441). The narrow scope of the intrusion authorized during a protective pat-down may not exceed what is necessary to ascertaining the presence of weapons (Terry, supra, at 25 -26;). Once an officer has concluded that no weapon is present, the search is over and there is no authority for further intrusion (see, Ybarra v. Illinois, 444 U.S. 85, 92 – 94;. Therefore, in this case, because Officer Healey knew that defendant’s pocket did not contain a weapon, he was not authorized to search the pocket or seize its contents absent application of some other exception to the warrant requirement.

It is clear that the search did not come within the exception to the warrant requirement for searches incident to an arrest; defendant was arrested after a warrantless search. Rather, the People ask us to hold that the subsequent search of defendant’s pocket was justified by an extension of the plain view exception recognized in Arizona v. Hicks, 480 U.S. 321. In sum, the People urge that there should be a so-called “plain touch” exception to the warrant requirement — analogous to that for “plain view–for concealed articles incidentally felt through clothes or other covering during a lawful touching. We conclude that the claimed analogy to the plain view exception does not withstand analysis.

The theory underlying the justification for the plain view exception cannot logically be extended to concealed items which are discoverable only through touch. Here, the concern is not with an exception to the warrant requirement to seize items which are already in plain view, but with an exception to the warrant requirement to search for items not in plain view. Unlike the item in plain view in which the owner has no privacy expectation, the owner of an item concealed by clothing or other covering retains a legitimate expectation that the item’s existence and characteristics will remain private.

Accordingly, the order of the Appellate Division should be reversed, defendant’s motion to suppress physical evidence granted, and the indictment dismissed.

Dissenting opinion omitted.