This is another Fourth and Fifth Amendment “combo” case with search and seizure issues as well as Miranda issues.
In this case, an officer pulled a van over for driving without headlights on. The driver (Manley) was unable to produce a driver’s license, registration, or insurance but she produced a rental agreement. The passenger (Greene) told the officer the name of the person on the rental agreement (Hurtudo-Moreno) was his brother. During this traffic stop, the officer smelled unburnt marijuana in the vehicle. Greene then began acting suspiciously by “repeatedly seeking to leave, and attempting to leave, the scene of the traffic stop . . . initially standing up and then sitting back down in the passenger seat when ordered out of the vehicle; and standing up and reaching for his waistband, as though trying to conceal something on his person.” As a result of this behavior, the officer conducted a Terry Frisk and patted Greene down and felt a bulge, the seal of a plastic baggie, and the texture of the contents which he immediately recognized as a bag of marijuana without manipulation. The officer removed the baggie and placed Greene under arrest. The officer searched the van incident to arrest and found .40 caliber bullets in the glove box and Manley’s purse. Manley was then arrested. Another officer arrived on the scene and did a search incident to arrest of Greene and found a stolen gun in his groin area. At the station, Greene asked if Manley would get in trouble. When the officers told him Greene would be charged for “headlight violations, no license, marijuana, Greene volunteered that he would “take the hit” for the gun and bullets.
Greene filed a motion to suppress Greene’s post-arrest statement arguing he was interrogated without being Mirandized. He also sought to exclude the firearm and the bullets as fruits of an unlawful pat-down search. The Third circuit held that the post-arrest statements were not the functional equivalent of interrogation since the officer only truthfully answered questions being asked by Greene and therefore Miranda was not triggered. The court noted that “Coercion is the touchstone for identifying circumstances that make an inculpatory statement excludable” and stated that the officer’s remark “did not constitute the functional equivalent of interrogation because Greene’s response was unforeseeable” and the officer’s truthful responses to Greene’s questions did not coerce Greene into responding. Regarding the pat-down search, the court held that under the “Plain-Feel Doctrine” (from the Supreme Court decision in Minnesota v. Dickerson, 508 U.S. 366 (1993)) the officer was able to seize the baggie since the identity of it contents were “immediately apparent.”
Editor’s Note: The “plain-feel doctrine” (also called the “plain-touch exception”) permits an officer to seize an object when, given his training and experience, he develops probable cause to believe it is contraband (1) by the time he concludes it is not a weapon and (2) “in a manner consistent with a routine frisk.” The court noted the officer in this case had “extensive experience” and that he did not manipulate the object in any way. These two points were key elements of the decision. Had the officer manipulated the object to determine was it was, or if the officer did not have “extensive experience,” this decision would very likely have gone the other way.
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