Facts
In 2000, Carl Vester Anderson was stopped in his vehicle by Marion County Deputy Sheriff David Smith while driving on a main thoroughfare of Columbia, Mississippi. Smith had been following Anderson for an undisclosed distance. It was Smith’s opinion that when Anderson stopped at a stop sign with the marked sheriff’s car behind him, he paused for a suspiciously long time, approximately thirty seconds, before making a right turn.
The new route formed a loop and returned the driver to the same main road. Smith did not follow Anderson onto this road but did observe him drive the loop without stopping or altering his speed, then turn back onto the main street and drive back in the direction from whence he came.
Smith stopped Anderson and asked him to step out of the vehicle. Anderson was noticeably nervous. Smith testified at trial that he could see part of a clear plastic bag protruding from the top of Anderson’s pants. The deputy stepped very close to Anderson, pulled the pants away from Anderson’s body, shone his flashlight down into the pants and saw the contents of the bag, which appeared to be crack cocaine.
Smith then removed the bag from Anderson’s pants and placed him under arrest. The contents of the bag were 1.7 grams of crack cocaine. Anderson was convicted of possession of cocaine and sentenced to life as a habitual offender. On appeal, he argued that the search was unreasonable. MCOA agreed with Anderson and reversed the conviction.
Analysis
A. Plain View
In Minnesota v Dickerson, 508 U.S. 366 (1993), the U.S. Supreme Court said that if police are lawfully in a position from which they view 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.
Smith admitted at trial that the plastic bag itself did not cause him to believe that he was in danger because of something indicated by the bag. Neither could he see what was within the bag until he pulled on Anderson’s pants. Only during cross-examination at trial, but once is enough, was he clear about whether he could see the drugs before pulling Anderson’s pants away from his body: “I didn’t see the crack cocaine until after I had pulled the pants back.”
Smith testified that when he saw “the plastic bag I got up on his body, because I was not sure exactly, you know, what it was. It could have been a plastic bag. It was definitely out of place, whatever it was was definitely out of place.”
Though crack cocaine may quite often be carried in plastic bags, and though having a plastic bag inside one’s pants may be unusual, neither consideration creates probable cause to believe that there was cocaine. It took a look after pulling open Anderson’s pants before probable cause existed. Only had the bag been hanging on the outside of the pants where the contents could be seen and identified without a search, might Smith have been justified in his actions. The use of the flashlight is not the search; it is the pulling on the pants.
In Hicks v Arizona, 480 U.S. 321 (1986), the U.S. Supreme Court held that a lesser degree of suspicion than probable cause was insufficient to permit police officers’ moving potentially stolen electronic equipment in order to read identifying numbers that otherwise were not visible under plain view doctrine.
B. Traffic Stop
The officer was suspicious because Anderson was driving a little below the speed limit, stayed too long at a stop sign, and went on a street that looped through a neighborhood without stopping. A collection of actions which, individually, are subject to innocent explanation may be sufficient to create reasonable suspicion under the totality of the circumstances.
However, mere hunches or “looking suspicious” is not sufficient to establish reasonable suspicion.
The collection of circumstances which led the officers to stop Anderson in the first place are of questionable value to create reasonable suspicion. The officers indicated that it was the absence of illegal behavior, such as speeding, which made Anderson suspicious to them, as well as his presence in a commercial part of town late at night. Since we find that the search was illegal, we do not need to decide whether the stop was justified. The justification certainly was weak. We simply do not resolve the question.