Mississippi Bureau of Narcotics Agents Richard Sistrunk and Grant Myers (both in plain clothes) received two separate anonymous tips alerting them to suspicious and possible criminal activity. The complaint was related to the mobile home residence of Thomas Walden in a rural area near the House community in Neshoba County.
According to the anonymous tips, people with flashlights were in the woods at night, and people walked in the roads at all hours. In 2006, Agents Sistrunk and Myers, along with Deputy Barry Truett of the Neshoba County Sheriff’s Department, responded to the tips and went to Walden’s home to investigate.
Agents Sistrunk and Myers saw Daniel Day through the storm door, who appeared to be asleep on a sofa. Agents Sistrunk and Myers knew that Day had been convicted of a felony, and they saw a pistol on a table near Day. Despite knocking loudly on the storm door, Agents Sistrunk and Myers were not able to wake Day. Consequently, Agents Sistrunk and Myers entered the home and secured Day and the pistol.
As Agent Sistrunk was about to search the house for any other occupants, he noticed Jamie Anderson sitting in a chair behind the front door of the home. Day and Anderson were the only occupants of the mobile home. Anderson was escorted onto the front porch where Truett conducted a pat down search of him for weapons.
Although he did not feel a weapon during the pat down search, Truett felt what he knew to be a pill bottle in Anderson’s pants’ pocket. Upon removing the pill bottle and observing the contents through its transparent container, Truett believed that the bottle contained methamphetamine.
Anderson was convicted of possession of methamphetamine and sentenced to 12 years. On appeal, he argued the search of the pill bottle was improper. MCOA agreed with Anderson and reversed the conviction.
The U.S. Supreme Court in Minnesota v Dickerson, 508 U.S. 375 (1993), explained the plain feel exception as follows:
If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that were in the plain view context.
In Edwards, we said that since the Dickerson plain feel exception for the discovery of contraband during a pat down search for weapons is the tactile equivalent of the plain view doctrine, it requires probable cause.
In this case, there was sufficient probable cause to arrest Day, a known convicted felon who was in constructive possession of a firearm. However, Day is not the subject of this case.
Having just plainly observed a handgun illegally in the presence of a known convicted felon, it is apparent that the officers had the reasonable suspicion necessary to conduct a pat down search for weapons on all individuals present to ensure their own safety and to secure the scene.
The issue that follows then is whether Truett had probable cause to believe that what he felt in Anderson’s pants at the time of the pat down search actually contained contraband. Truett said he felt what he knew was a pill bottle in his pocket. He knew it because he had “felt a gazillion pill bottles.” However, not until the pill bottle was removed from Anderson’s pants and held up for viewing were the contents recognized by Truett as potential contraband.
In McFarlin, we found that an officer conducting a Terry frisk lacked the requisite probable cause to assume that the small knot like nudge in the defendant’s pants’ pocket was contraband.
In Ferrell v. State, 649 So. 2d 831 (1995), the seized drugs were only found after the officers removed a common matchbox that had been covering the drugs underneath it. In that case, the MSC found that because the drugs themselves were not in plain view, the contraband did not meet the plain view exception to a warrantless search.
We find, just as the MSC found in Ferrell, that the mere presence of a pill bottle in a person’s pocket cannot be termed an incriminating object in plain view.
The dissent would find based on the totality of the circumstances that Truett had probable cause to believe the pill bottle contained contraband. There was no evidence presented that:
- Truett knew that narcotics were frequently sold at the location at issue;
- Through his experience, Truett had probable cause to suspect that a pill bottle contained narcotics;
- Truett never testified that he had ever found contraband inside a pill bottle.
Furthermore, the record shows that no illegal narcotics were found in or around the trailer, nor were any illegal narcotics found in the possession of any other occupant of that trailer.
It is not illegal to be in possession of a pill bottle. Just as the law enforcement officer in Ferrell could not ascertain the contents of the matchbox by sight, Truett could not ascertain the contents of the pill bottle by touch.
It was only through the speculative subsequent investigation by reaching inside Anderson’s pocket, removing the pill bottle, and visually inspecting its contents that Truett was able to determine that the pill bottle may have contained narcotics.