Friday, January 11, 2008

Is a Baggie Protruding From A Pocket Probable Cause To Conduct A Warrantless Search?

Apparently not. This case contrasts legal formalities against sharp police sense.

In State v. Sweeney, no. 07-0336 (Iowa Ct. App. Dec. 28, 2007), an Ames police officer stopped a van with inoperative headlights. The driver was arrested for driving while revoked, and the officer then turned her attention to the passenger, one Sweeney, to arrange for him to drive the van away. Sweeney was asked to get out of the vehicle so that a search incident to arrest could be conducted.
As Sweeney exited, two inches of a plastic baggie was seen protruding from his pocket but the contents were not visible. Sweeney denied knowledge of the baggie and its contents and tried to push it farther into his pocket. The officer directed him to remove his hand, and then retrieved the baggie which contained a small amount of marijuana. In Sweeney's other pocket was a bag containing a half pound brick of marijuana.
Sweeney moved to suppress the evidence as a product of an illegal search, and the district court agreed. This appeal followed.

The court found that the sole determinative question was whether the protrusion of the baggie from the pocket constituted evidence that would warrant a reasonable person to believe the baggie contained contraband.

The court held that a baggie in a pocket was not such an unusual thing that it could trigger exigent circumstances, in the absence of any other evidence that Sweeney was up to no good.

In fact, the officer testified that she did not have probable cause. Because there was no probable cause, there could be no exigent circumstances. Warrantless searches require both.

The takehome's clear. Get a warrant, find probable cause, or call the dog if you can. On the other hand, drugs were taken off the street, and a drug trader was identified for future reference and put to a great deal of trouble, which is no small satisfaction, when you come to think about it.


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