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State v. Lafond2/21/2003
that possibility "defendant's heavy coat could be concealing weapons" was insufficient to justify frisk).
Because we hold that Officer Salis had no reasonable suspicion that Lafond was armed and dangerous so as to justify a Terry frisk, it necessarily follows that he had no probable cause to justify an outright search of Lafond. Our holding also forecloses the State's argument that the search of Lafond can be justified under the "plain feel" doctrine. That doctrine requires that the officer is lawfully in a position to feel the contraband, see Minnesota v. Dickerson, 508 U.S. 366, 379, 113 S. Ct. 2130, 2139 (1993), and, as we have concluded, in this case Officer Salis simply had no right "'to touch the person questioned.'" Terry, 392 U.S. at 11 n.5, 88 S. Ct. at 1874 n.5 (citation omitted). See also Ybarra v. Illinois, 444 U.S. 85, 93 n.5, 100 S. Ct. 338, 343 n.5 (1979) ("Since we conclude that the initial patdown of [defendant] was not justified under the Fourth and Fourteenth Amendments, we need not decide whether or not the presence on [defendant's] person of 'a cigarette pack with objects in it' yielded probable cause to believe that [defendant] was carrying any illegal substance.").
CONCLUSION
Even if Officer Salis's questioning beyond what was necessary for the traffic stop was proper, and even if Lafond's consent to search the vehicle was untainted by any improper prolonging of the detention, the patdown and search of Lafond's person was illegal under the Fourth Amendment. Given the inherent nature of the crimes being investigated, and in the absence of reasonable suspicion suggesting the presence of weapons, there simply was no occasion to frisk Lafond. The district court's denial of the motion to suppress is reversed, and the case is remanded for such further proceedings as may now be appropriate.
Gregory K. Orme, Judge
WE CONCUR:
Norman H. Jackson, Presiding Judge
Pamela T. Greenwood, Judge
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