In 2001, Officer Oliver Mitchell of the Clarksdale Police Department was dispatched to check on a vehicle on Highway 61 South parked on the side of the highway with an individual allegedly slumped over the steering wheel. As Mitchell arrived at the edge of the city limits of Clarksdale, he had not yet spotted the vehicle.
Mitchell radioed that he was proceeding a bit further in search of the vehicle. Approximately a half mile outside of the city limits, Mitchell spotted a vehicle parked on the side of the road. Mitchell saw an individual slumped over the steering wheel. This individual was James Blake McFarlin.
Mitchell banged on the window of the vehicle, but McFarlin initially did not respond. Mitchell banged again and yelled loudly waking McFarlin. Mitchell testified that McFarlin began looking around like he was looking for someone else. Mitchell asked McFarlin what was wrong and if he had been drinking. McFarlin responded that he did have something to drink and that he had taken a pill.
Mitchell asked McFarlin to exit the vehicle and he then proceeded to pat him down in order to check for weapons. While patting McFarlin down, Mitchell testified that he felt a little “knot like nudge” in his pocket, which from the training he had received from the Clarksdale Police Department and the Attorney General’s narcotics team, he was able to identify as drugs. Mitchell had McFarlin empty his pocket and indeed found a little brown bag with a few pills inside.
Coahoma County Sheriff’s Deputy Eric Williams arrived on the scene shortly thereafter. Upon glancing in the vehicle, Williams testified that he noticed some hoses and brass pipe fittings which he identified as drug paraphernalia.
Investigator Billy Baker applied for a search warrant for the vehicle which was granted by a justice court judge. Inside the car and trunk, officers found a length of anhydrous ammonia hose, spray paint, an air tank, a propane tank, a gallon of camp fuel, four pseudoephedrine tablets, some brown glass tubing containing a white powder, and a four pack of lithium batteries.
McFarlin admitted that he had been drinking and taking pills that day, but that he had been riding with a friend and had passed out in the car. The friend allegedly woke him up and told him that the car was out of gas. While waiting for the friend to return, McFarlin passed out again in the driver’s seat. McFarlin admitted ownership of the pills but denied having any interest in or knowledge of the contents of the trunk of the vehicle.
McFarlin was convicted of one count of possession of methamphetamine less than .1 gram, one count of possession of alprazolam less than 100 dosage units, one count of possession of diazepam less than 100 dosage units, and one count of possession of two or more precursors to manufacture methamphetamine and sentenced to life as a habitual offender. On appeal, he argued that the search of his person was improper. MCOA agreed with McFarlin and reversed the convictions.
In Terry v Ohio, 392 U.S. 1 (1968), the U.S. Supreme Court said that a police officer may approach an individual for purposes of investigating possible criminal behavior, even in the absence of probable cause to arrest. Where the officer has a reasonable belief the individual may be armed and dangerous, the officer may conduct a very limited search of the outer clothing in order to determine whether the individual is, in fact, armed.
The State relies on Howell v. State, 300 So. 2d 774 (Miss. 1974) in which the MSC stated that finding an individual slumped over in a vehicle is enough to require an investigation to determine the cause. The court in Howell points out that the individual could be sick or injured, have suffered a heart attack, be drunk or under the influence of drugs, or be engaged in criminal activity, and it is the sheriff’s duty to keep an incapacitated person from driving a car on a public road and endangering the lives of others.
In Howell, a deputy spotted a gun on the floorboard of the car as he was attempting to rouse a passed out individual. After removing the individual from the vehicle and returning to secure the gun, the deputy found two cellophane bags containing amphetamines. The MSC held that it was reasonable for the deputy to secure the gun due to the plain view doctrine.
In this case, the State argues that McFarlin’s alleged statements and the officer’s training and experience gave him probable cause to believe the “knot like nudge” he felt in McFarlin’s pocket to be contraband under plain feel. We disagree.
A. Outside jurisdiction
Mitchell, an officer with the Clarksdale Police Department, proceeded outside the city limits of Clarksdale when he did not find a vehicle on the side of the road within the city limits as reported. It is without dispute that Mitchell did not have a warrant for McFarlin’s arrest, nor did Mitchell observe McFarlin commit any violation within his jurisdiction. The plain view doctrine only allows an officer who has a right to be in the position to have that view to seize objects and later introduce them in to evidence.
B. Plain feel improper
Even if Mitchell had been authorized to do a pat-down search for weapons under Terry, his identification of a small “knot like nudge” was unreasonable. The continued exploration of McFarlin’s pockets after determining that no weapon was present amounts to the sort of evidentiary search that Terry expressly refused to authorize.
Mitchell never testified that he thought the nudge was a weapon, but instead identified it directly as contraband. Any and all evidence seized as a result of an unlawful seizure should be suppressed. Because all of the evidence against McFarlin arose out of Mitchell’s initial unlawful search, we reverse and render judgment in favor of the appellant.