By Ken Wallentine
An officer saw a car slow at an intersection, as if to turn. Then the driver paused and drove straight ahead. The officer checked the license plate and learned that the car had been reported as stolen. The officer followed the car, but lost it after a turn. He cruised through the neighborhood looking for the car.
Just a few minutes later, the officer saw Craddock walking down the street. Driving past Craddock, the officer found the stolen car nearby. The officer turned his car and drove back toward Craddock, who was now standing in a front yard about 50 feet from the stolen car.
The officer approached Craddock and asked what he was doing. Craddock appeared nervous and said he was going home, but he couldn’t give his address. Believing that Craddock had just exited the stolen car, the officer handcuffed Craddock and frisked him.
The officer did not find a weapon, but he did feel a car key fob. He took the keys from Craddock’s pocket. The officer found that the key fit the stolen car, and he found a gun in the car. After Craddock’s DNA was found on the steering wheel, he was charged with being a felon in possession of a firearm.
Craddock claimed that the officer exceeded the scope of a weapons frisk when he removed the key fob from Craddock’s pocket. The prosecution argued that the key fob was lawfully seized as the result of a “plain feel.” The court disagreed that the “plain feel” doctrine applied, opining that the incriminating nature of the key fob was not immediately apparent because the officer didn’t have any evidence connecting Craddock to the stolen car.
In Minnesota v. Dickerson (508 U.S. 366 (1993)), the Supreme Court laid out the requirements of the plain feel doctrine. An officer lawfully frisking a suspect’s outer clothing may seize any “object whose contour or mass makes its identity immediately apparent” as incriminating evidence. For an officer to seize an item felt during a frisk, the officer must be lawfully in the position from which he/she touched the item, its incriminating nature must be immediately apparent to the touch, and the officer must be lawfully able to access the item. For example, if an officer pats down a suspect during a search warrant and is immediately able to identify a set of lock picks or a package of marijuana, the officer can reach into the pocket and retrieve the item. However, if further manipulation of the object to identify it is necessary, the plain feel doctrine will not apply.
In this case, the court held that the officer did not have probable cause to connect Craddock to the stolen car at the time of the frisk. The officer did not see who was driving the car and he didn’t see Craddock get out of the car. The key fob, therefore, wasn’t immediately apparent as evidence of a crime: “Key fobs are extremely common items carried in the pockets of a large portion of the population on a daily basis.” Thus, the key fob was unlawfully seized and could not be used as evidence against Craddock.
United States v. Craddock, 2016 WL 6595967 (8th Cir. 2016)
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CHIEF KEN WALLENTINE is a Special Agent who directs the Utah Attorney General Training Center, overseeing use of force training and investigation and cold case homicide investigations. He is also a consultant and Senior Legal Advisor for Lexipol. Ken formerly served as Chief of Law Enforcement for the Utah Attorney General, serving over three decades in public safety before a brief retirement. He also serves as the Chairman of the Peace Officer Merit Commission of Greater Salt Lake County.