Facts
In 2010, Biloxi P.D. stopped a car for crossing a fog line on I-10. The driver could not produce a drivers license and a Terry frisk revealed drugs in his pants which he admitted. The passenger, David May, who had a suspended drivers license, was asked to exit the car so an inventory search could be conducted.
Officer Doug DeGeorge noticed that May was extremely nervous and fidgety and looking down while holding his right shoe. DeGeorge asked him if he would mind taking off his shoe and May complied. A zippo lighter fell out of the shoe and DeGeorge then pulled the center of the zippo out and found marijuana and cocaine.
May was convicted of possession of cocaine and sentenced to life as a habitual offender. He argued on appeal that agreeing to take off his shoe did not allow the officer to search the lighter that fell out. MCOA agreed with May and reversed.
Analysis
A. Consent
To provide an exception to the warrant requirement, a person’s consent to search must be knowing and voluntary. For consent to be given knowingly, the person searched must be aware he has the legal right to refuse.
Voluntariness is determined from the totality of the circumstances. Factors to consider are whether the circumstances were coercive, occurred while in the custody of law enforcement or occurred in the course of a station house investigation. The court must also look to the individual’s maturity, impressionability, experience and education. Further, the court should consider whether the person was excited, under the influence of drugs or alcohol, or mentally incompetent. If the consent occurred while the defendant was being generally cooperative, the consent is more likely to be voluntary; however, if the defendant agreed and then changed his mind, the consent should be suspect.
Based on the facts presented, we find May voluntarily consented to the removal of his shoe. The state argued that May’s agreement to remove his shoe extended his consent to search all items that fell from the shoe and cited Gales.
In Gales, a convenience store was robbed at gunpoint and police saw a man running that fit the description. He stopped him and performed a terry frisk and felt an unknown bulge in his pocket and asked him what it was. Gales pulled out a wad of money. MSC ruled because Gales voluntarily showed the officer the money, Gales no longer had a reasonable expectation of privacy as to the money and the seizure was legal.
This case differs in that when Gales pulled the money out it was immediately incriminating because of the facts. Here, only a lighter was revealed which was not incriminating or illegal. The scope of consent is examined for objective reasonableness. We must ask ourselves: What would the typical reasonable person have understood by the exchange between the officer and the suspect?
We cannot find that a typical reasonable person would have understood a request to remove a person’s shoes as a request to search the contents of any object contained in the shoes. Rather, we find the scope of May’s consent only extended to the contents of the shoe that were plainly viewable as incriminating or dangerous.
B. Plain view/Plain feel
If police are lawfully in a position from which they view/feel an object, if its incriminating character is immediately apparent (probable cause), and if the officers have a lawful right of access to the object, they may seize it without a warrant.
In Anderson, police conducted a traffic stop and officers saw a plastic bag sticking out of Anderson’s pants. He pulled Anderson’s pants away from his body and then discovered the bag had cocaine. The evidence was suppressed as an illegal search because the plastic bag was not immediately apparent as contraband.
In another case named Anderson, a Terry frisk revealed a pill bottle in his pants pocket. Upon removing the pill bottle and observing the contents through its transparent container, Deputy Truett believed that the bottle contained methamphetamine. The evidence was suppressed as an illegal search because the pill bottle was not immediately apparent to be contraband before it was removed and examined further.
Here, like the foregoing cases, DeGeorge could not articulate anything more than speculation that May might have had something illegal in his possession. When the lighter fell from May’s shoe, nothing illegal came into plain view or could be inferred from the lighter’s outward appearance.
Nor did the testimony show that there was anything inherently dangerous about the lighter that would have justified a search for officer safety. Finally, there was no testimony that DeGeorge’s handling of the lighter led him to believe under the plain feel doctrine that something illegal may be inside.
Thoughts
If the officer had asked May if he could search his shoe instead of just remove his shoe, the outcome might have been different. It would then sound similar to Buford.