The question is whether the warrantless search of defendant's pocket was justified by information allegedly obtained by the police in conducting an authorized protective pat-down (see, Terry v Ohio, 392 U.S. 1) which demonstrated that defendant was unarmed. The People urge that the warrantless search of the pocket was permissible under an extension of the plain view exception to the warrant requirement, sometimes referred to as the "plain touch" exception. For reasons to be explained, we reject the People's proposed extension of the plain view exception and conclude that justifying the warrantless search on the basis of the items felt during the protective pat-down would be contrary to both the State and Federal Constitutions (see, US Const 4th Amend; NY Const, art I, § 12). Accordingly, there should be a reversal.
There was evidence at the suppression hearing that on June 29, 1989, Officers John Healey and Clark Gordon were patrolling the lower east side of Manhattan at about 4:30 A.M. when they observed several groups congregating on the sidewalks, apparently passing objects from hand to hand. During a 20-minute period, Healey and Gordon, in the course of patrolling the area, observed defendant at various times at the center of several of these groups. In their final pass through the area, the officers saw defendant standing next to a stopped automobile. When their squad car approached, defendant walked away down the sidewalk.
The police drove alongside defendant and called him over to the car. In walking toward the car, defendant repeatedly placed his hand in his pocket despite Officer Healey's warnings against doing so. As defendant reached the car, Healey noticed a bulge in defendant's pocket and again told defendant to remove his hand. Fearing a weapon, Healey grabbed defendant's pocket. He felt no weapon but did detect what "appeared to be a bunch of vials". Defendant attempted to flee, but, according to Healey, he was able to grab hold of defendant through the car window and pull him partially into the car. While doing so, Healey reached into defendant's pocket and removed 18 vials of crack cocaine. Defendant was then placed under arrest.
The trial court granted the motion to suppress the drugs seized from defendant's pocket, holding that the initial stop and pat-down were not supported by reasonable suspicion. The Appellate Division reversed and denied the motion. Contrary to the trial court, it found that there was reasonable suspicion to justify the stop and pat-down. The Appellate Division held, in addition, that the subsequent search and seizure of the drugs were permissible based on what Officer Healey felt during the pat-down. We disagree.
Preliminarily, we note that the Appellate Division's determination that Officer Healey had reasonable suspicion to stop defendant and conduct a protective pat-down is supported by evidence in the record and is thus beyond this Court's further review. The only legal issue before us is whether, as the Appellate Division held, the information allegedly obtained by Officer Healey through his sense of touch in conducting the
It is fundamental that warrantless searches and seizures are per se unreasonable unless they fall within one of the acknowledged exceptions to the Fourth Amendment's warrant requirement (see, United States v Place, 462 U.S. 696, 701; Katz v United States, 389 U.S. 347, 357). Here, the question concerns the justification for a search extending beyond the degree of intrusion authorized by the exception to the warrant requirement for protective pat-downs under Terry.
There can be no question that reaching into defendant's pocket and seizing the drugs were not within the scope of the Terry pat-down. Under both the State and Federal Constitutions, the protective pat-down exception to the warrant requirement authorizes a limited search of lawfully detained suspects to determine whether a weapon is present (see, Terry v Ohio, 392 U.S. 1, supra; People v Cantor, 36 N.Y.2d 106, 110-111; People v Rivera, 14 N.Y.2d 441). The narrow scope of the intrusion authorized during a protective pat-down may not exceed what is necessary to ascertaining the presence of weapons (Terry, supra, at 25-26; People v Torres, 74 N.Y.2d 224, 229-231). Once an officer has concluded that no weapon is present, the search is over and there is no authority for further intrusion (see, Ybarra v Illinois, 444 U.S. 85, 92-94; Sibron v New York, 392 U.S. 40, 65-66; People v Roth, 66 N.Y.2d 688, 690; 3 LaFave, Search and Seizure § 9.4 [c], at 524 [2d ed]). Therefore, in this case, because Officer Healey knew that defendant's pocket did not contain a weapon, he was not authorized to search the pocket or seize its contents absent application of some other exception to the warrant requirement.
It is clear that the search did not come within the exception to the warrant requirement for searches incident to an arrest; defendant was arrested after the search.
Under the plain view doctrine, if the sight of an object gives the police probable cause to believe that it is the instrumentality of a crime, the object may be seized without a warrant if three conditions are met: (1) the police are lawfully in the position from which the object is viewed; (2) the police have lawful access to the object; and (3) the object's incriminating nature is immediately apparent (see, Horton, supra, at 136-137; Hicks, supra, at 326-327). The plain view doctrine, it must be emphasized, establishes an exception to the requirement of a warrant not to search for an item, but to seize it. Because the item is already in the open where it may be seen, the owner can have no expectation of privacy in its concealment and, thus, its viewing cannot be a search under article I, § 12 or the Fourth Amendment. As stated by the Supreme Court in Horton:
Thus, the fundamental justification for the plain view doctrine is that when the police are already lawfully in a position to make the observation, the discovery and seizure of contraband in plain view involve no intrusion on the individual's constitutional rights beyond that already authorized by the warrant or some exception to the warrant requirement (see, Horton, supra, at 134-137; Coolidge v New Hampshire, 403 U.S. 443, 465).
The theory underlying the justification for the plain view exception cannot logically be extended to concealed items which are discoverable only through touch. Here, the concern is not with an exception to the warrant requirement to seize items which are already in plain view, but with an exception to the warrant requirement to search for items not in plain view. Unlike the item in plain view in which the owner has no privacy expectation, the owner of an item concealed by clothing or other covering retains a legitimate expectation that the item's existence and characteristics will remain private. The physical characteristics of the concealed objects are immediately apparent to no one and are discernible through touch, if at all, only to the person who touches. Because the identity and nature of the concealed item cannot be confirmed until seen, what must be justified by the People's proposed exception is a further search. This, of course, is not true for an item in plain view where no justification for a search is required and the additional intrusion, if there is one, is to the owner's possessory interest, not to a privacy expectation (see, Coolidge, supra, at 465-466; Horton, supra, at 136-137).
The fundamental premise of the plain view exception — i.e., that items in plain view may be seized without an intrusion greater than that already authorized — is an invalid assumption if the plain touch exception is applied. For, even if the intrusion inherent in the initial act of touching is entirely authorized, the discovery and seizure of the items will entail a further intrusion. Indeed, it is for this further intrusion that justification is sought.
Thus, the essential conditions which justify an exception to the requirement of a warrant to seize an object in the plain view of the police, simply cannot exist to justify an exception to the warrant requirement for a search for a concealed object
Our determination to reject the People's proposed extension of the plain view exception is compelled by practical considerations as well as logic. The identity and criminal nature of a concealed object are not likely to be discernible upon a mere touch or pat within the scope of the intrusion authorized by Terry. While in most instances seeing an object will instantly reveal its identity and nature, touching is inherently less reliable and cannot conclusively establish an object's identity or criminal nature (see, State v Dickerson, 481 N.W.2d 840 [Minn 1992], cert granted ___ US ___, 121 L Ed 2d 22; State v Broadnax, 98 Wn.2d 289, 654 P.2d 96 ). Moreover, knowledge concerning an object merely from feeling it through an exterior covering is necessarily based on the police officer's expert opinion — a type of knowledge which cannot be equated with information obtained by seeing it.
Finally, an opinion of a police officer that the object touched is evidence of criminality will predictably, at least in some circumstances, require a degree of pinching, squeezing or probing beyond the limited intrusion allowed under Terry. The proposed "plain touch" exception could thus invite a blurring of the limits to Terry searches and the sanctioning of warrantless searches on information obtained from an initial intrusion which, itself, amounts to an unauthorized warrantless search (see, State v Collins, 139 Ariz. 434, 438, 679 P.2d 80, 84  [a "plain touch" exception would "invite the use of weapons' searches as a pretext for unwarranted searches, and thus to severely erode the protection of the Fourth Amendment"]). We do not believe that such a "bootstrapping" justification for warrantless searches can be countenanced under the State or Federal Constitution.
Accordingly, the order of the Appellate Division should be reversed, defendant's motion to suppress physical evidence granted, and the indictment dismissed.
SIMONS and BELLACOSA, JJ. (dissenting).
We conclude that the seizure of drugs from defendant's pocket was a search incident to arrest and therefore it was valid even in the absence of a warrant. Accordingly, we dissent.
As the majority concludes, defendant was lawfully subjected to a Terry frisk by the police. During that frisk, the officer felt what he believed to be drug vials. The officer then proceeded to search defendant's pocket, discover the drugs and arrest defendant. The sole question presented is whether the intrusion into defendant's pocket in the circumstances of this case falls within any of the established exceptions to the warrant requirement.
No warrant is required when a search is conducted incident to a lawful arrest (Sibron v New York, Peters v New York, 392 U.S. 40). Whether the arrest comes before or after the search is not dispositive, provided that it is contemporaneous with the search and that no evidence from the search is used to justify the arrest (Rawlings v Kentucky, 448 U.S. 98, 111; see also, Sibron v New York, Peters v New York, supra, at 76-77 [Harlan, J., concurring]; see generally, 2 LaFave, Search and Seizure § 5.4 [a] [2d ed]).
That is precisely what happened here. The touch alone did not give the officer justification to search, as would be the case if the "plain touch" doctrine applied, and the Appellate Division did not so hold. Instead, its finding was based upon all the circumstances known to the officer at the time of the search. Based upon these circumstances, it found that "[o]nce the officer felt the vials * * * he had probable cause to arrest" (181 A.D.2d 597, 599-600 [emphasis added]). Probable cause is a mixed question of law and fact and inasmuch as there is evidence in the record to support that finding, it is beyond our power of review (see, CPL 450.90; People v Brockington, 176 A.D.2d 743, appeal dismissed 80 N.Y.2d 855). Because the officer had probable cause to arrest defendant and needed no warrant to search under the incident-to-arrest exception, we need not consider the "plain touch" theory as a basis for justifying the search.
While we are expressing our views on the merits, we note that this appeal should be dismissed at the threshold because the Appellate Division reversal is "on the law and facts" and the disposition does not qualify for an appeal under CPL 450.90 (2) (a) (see, People v Brockington, supra).
Order reversed, etc.