In 2003, Officer James Ramsey, a City of Meridian police officer, used his radar gun to clock Kirby Tate driving 45 MPH in a 30 MPH zone. Tate was driving a small pickup truck with a built-in refrigeration unit on the back. Ramsey also noticed that the truck had a broken brake light and that Tate had not been wearing his seat belt.
Ramsey discovered that the proof of insurance he was given was expired. Tate offered to look further for proof of insurance and got back inside his truck. Ramsey returned to the patrol car to await Tate’s proof of insurance and to write the traffic citations.
The dispatcher then told Ramsey that Tate was a semi pro boxer and to be careful because Tate was bad about sucker punching. Ramsey requested that Officer Ron Payton come to the scene for backup. At some point, the dispatcher stated that the East Mississippi Drug Task Force was on their way to the scene.
Payton arrived, followed by Officer Artis Johnson. Officer Ramsey stated, “Something ain’t quite right here. He may be 1055-other. Task Force just called and he has hidden compartments and is a known transporter. They are on their way right now.”
Ramsey testified that “1055-other” means that a suspect is intoxicated with a substance other than alcohol. Ramsey testified at the suppression hearing that he had not smelled alcohol on Tate, but Tate seemed very jumpy and nervous, spoke rapidly, and was sweating profusely. This led Ramsey to suspect that Tate was under the influence of some type of drug. Ramsey testified that, from his experience, Tate exhibited an abnormally high level of nervousness for someone stopped for a traffic violation.
Agent Greg Lea with the East Mississippi Drug Task Force testified that he and Agent Anthony Ball heard over the radio dispatch that Tate had been stopped for traffic violations. Lea stated that the Task Force decided to respond to the stop to investigate because Lea had intelligence from confidential informants that Tate was presently using the truck to deliver marijuana. Lea had a pending case against Tate for possession and delivery of a large amount of marijuana that had been hidden in the truck. And, Lea knew that Tate recently had been caught with marijuana hidden on his person.
Lea and Ball arrived while Ramsey was filling out Tate’s tickets for the traffic violations and Tate sat inside his truck. When officers approached the truck, Tate was positioned with his legs open, and Lea observed an unusually large bulge in Tate’s crotch area. Lea noticed that Tate appeared nervous and that his hands were shaky.
Tate exited the truck and refused to consent to the search of his vehicle. The officers noticed Tate had a pocket knife on his belt and requested that he hand it over. Tate complied. During the patdown, Ramsey raised Tate’s T- shirt above his waistband and felt around his waist. Ramsey was in the midst of this when Lea, standing in front of Tate, again observed the unusually large bulge in the area of Tate’s crotch.
Lea stated, “what’s that right there.” Lea testified that, due to Tate’s nervous behavior and Tate’s defensive stance before the search, he was afraid that the bulge was a weapon. Lea asked Ramsey to handcuff Tate, stating that they had experienced problems with Tate in the past.
With Tate handcuffed, Lea touched the bulge. Lea stated that, from palpating the bulge, he could feel stems and seeds and concluded from his experience that the bulge was a bag of marijuana. Tate stated that the bulge was his genitals. Lea stated, “I’m going to reach in here and get this bag of weed that you got. I just don’t believe your [genitals are] that big, you understand?” Then, Lea reached into Tate’s shorts and extracted a bag containing a substance that was determined to be 133.7 grams of marijuana.
The agents had a drug sniffing dog walk around the outside of Tate’s truck. The dog strongly alerted to the truck’s cab, and the agents opened the cab. The agents found more marijuana under the seat of the truck and three Oxycodone tablets in the glove compartment.
Tate was convicted of possession of marijuana with intent to distribute and possession of schedule II controlled substance and sentenced to 60 years. On appeal, he argued the detention exceeded the scope under Terry. MCOA affirmed.
A. Detention reasonable at time of frisk
Traffic stops are considered to be seizures within the meaning of the Fourth Amendment. Because a traffic stop more closely resembles an investigative detention than a formal arrest, this court analyzes a traffic stop for Fourth Amendment purposes under the standard articulated in Terry.
Under Terry v. Ohio, 392 U.S. 1 (1968), the U.S. Supreme Court held that a detention is lawful if the officer can point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the search and seizure. Terry requires a two-tiered reasonable suspicion inquiry: 1) whether the officer’s action was justified at its inception, and 2) whether the search or seizure was reasonably related in scope to the circumstances that justified the stop in the first place.
During a lawful detention, an officer may legally frisk the suspect for weapons for the officer’s protection, if the officer has reason to believe that he is dealing with an armed and dangerous individual.
In Lee, the federal 5th said that if, during a proper investigative stop, the officer develops reasonable, articulable suspicion of some criminal activity in addition to than that initially suspected, the permissible scope of the stop expands to include the officer’s investigation of the newly suspected criminal activity.
Ramsey testified that, though he initially stopped Tate for speeding, his observance of Tate led him to suspect that Tate had been driving under the influence of a drug. Ramsey was able to articulate specific facts about Tate’s behavior that led him to suspect Tate had been driving under the influence of a drug.
Ramsey was unwilling to further investigate Tate’s suspicious behavior without backup due to the dispatcher’s warning that Tate might sucker punch him. During the time before the arrival of the Task Force, Ramsey filled out Tate’s three traffic tickets while waiting upon Tate to produce valid proof of insurance and upon other officers to arrive to enable him to safely further investigate Tate’s suspicious behavior.
Ramsey did not complete the tickets until after the pat down search, and he testified that 15 minutes was not an inordinate amount of time for filling out three tickets. Thus, prior to the pat down search, Ramsey had not completed his activities incident to the traffic stop nor allayed his reasonable suspicion that Tate had been driving under the influence of a drug.
Prior to the pat down, Ramsey had reasonable suspicion that Tate was under the influence of drugs and had not finished writing the traffic tickets at the time that the pat down search was conducted. Therefore, Tate was being legally detained at the time of the pat down search.
B. Officers do not exceed scope of pat down for weapons
In Minnesota v. Dickerson, 508 U.S. 366 (1993), the U.S. Supreme Court said that the purpose of the limited search for weapons allowed under Terry is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.
This protective search must be strictly limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby. If a protective search exceeds what is necessary to ascertain whether the suspect is armed, the search is invalid and its fruits must be suppressed.
Tate contends that, at the time the marijuana was discovered, Ramsey and Lea had exceeded the scope of a protective search for weapons and were undertaking an exploratory search of his body for contraband. We disagree. Ramsey testified that he had not completed his weapons pat down but was in the midst of it at the time that Lea noticed the bulge in Tate’s shorts.
This testimony was supported by the videotape of Tate’s detention. Lea testified that the bulge was unusually large and that, given Tate’s erratic behavior, defensive posturing, and possession of a pocket knife, he believed that the bulge could be a weapon. Therefore, at the time Lea proceeded to pat the bulge, the officers had not extended their search of Tate beyond what was necessary to determine whether he was armed and dangerous.
C. Plain feel
In Edwards, this court discussed the plain feel exception to the warrant requirement. We said that, when an officer, during a lawful pat down search, 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.
Accordingly, if the object is contraband, its warrantless seizure would be justified. While an officer may extract a weapon during a pat down search based on reasonable suspicion, the plain feel exception to the warrant requirement for the discovery of contraband during a pat down search requires that the officer have probable cause to believe that the object is contraband.
Probable cause exists where the facts and circumstances within the arresting officer’s knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.
We find that the court properly found that Lea obtained a plain enough feel to establish probable cause to believe that the bulge in Tate’s shorts was marijuana. Lea stated that, when he touched the bulge, he could feel stems and seeds through the fabric of Tate’s shorts that he thought was marijuana. Lea stated that the stems and seeds felt like marijuana to him based upon his six years of experience as a narcotics agent.
The testimony established that it was immediately apparent to Agent Lea that the bulge was, in fact, marijuana.