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State v. Lafond4/3/2003
nd removed two small purses from the vehicle, (2) her pockets were bulging, and (3) she wore baggy, layered clothing. We conclude that these circumstances, taken together, do not constitute "specific and articulable facts" such that "a reasonably prudent man . . . would be warranted in the belief that his safety or that of others was in danger." Terry, 392 U.S. at 21, 27, 88 S. Ct. at 1880, 1883. Although Officer Salis hypothesized that "there could have been weapons in the bags which [Lafond] removed from the vehicle," we are unpersuaded by such a statement absent additional facts. See People v. Dickey, 27 Cal. Rptr. 2d 44, 46 (Ct. App. 1994) (holding officer's testimony that he performed a patdown search because suspect "'potentially may have been armed' . . . add nothing" to the reasonable suspicion determination because " n every encounter with a citizen by the police, the citizen may potentially be armed").
Indeed, the facts of record are to the contrary. Officer Salis did not testify that there were any suspicious or distinctive bulges in the bags as he observed them in the car, nor did he testify that the size and/or shape of the bags were consistent with even the possibility that they contained weapons. In fact, Officer Salis's testimony, at least as to one of the bags, suggests the opposite, for he described it as "a small coin purse or cigarette purse." As to the other bag, Officer Salis described it as "a small purse-like . . . or some type of bag." The fact that these bags were pliable enough to be stuffed into Lafond's front pants pockets, as well as the fact that the bags were later determined to be empty, belie any inference that the bags would have looked as though they might well contain weapons.
As to the bulging pockets, they likely should not be viewed as any more suspicious than the bags themselves. Once Lafond had exited the vehicle, Officer Salis instructed her to "remove the bag" from her pocket, which indicates that he watched her transfer the bags from the front seat to her pockets as she moved from the vehicle to a position in front of it, as Officer Salis directed. If these particular pocket bulges were created under Officer Salis's watchful eye, this case is in a much simpler posture than the more common scenario in which an officer encounters a suspect with bulging pockets, the contents of which are completely unknown.
But even if Officer Salis was completely ignorant of the contents of Lafond's pockets, or if the bulges were of a configuration not fully explainable by the bags, he did not testify that the bulges were in any way suspicious or otherwise characteristic of pockets that contained weapons. Wallets, billfolds, keys, handkerchiefs, eyeglass cases, and a host of other common and innocuous items create bulges in pockets. Pockets were made to carry things, and we reject the proposition that an officer may conduct a Terry frisk merely because he observes that a pocket has something in it. See People v. Howard, 542 N.Y.S.2d 536, 539 (App. Div. 1989) ("This court has frequently held that the mere observation of an undefinable bulge in a person's pocket is insufficient as a basis for a frisk or search . . . [because u]nlike a waistband bulge which is a telltale of a weapon, a pocket bulge could be caused by any number of innocuous objects.") (citations omitted), appeal dismissed, 549 N.E.2d 477 (N.Y. 1989); Stanley v. Commonwealth, 433 S.E.2d 512, 515 (Va. Ct. App. 1993) ("An officer may not, simply by observing some item causing a 'bulge' in one's clothing, conduct a general frisk where the nature of the bulge or the surrounding circumstances do not reasonably support the conclusion that . . . the person is armed and dangerous."). Cf. People v. M
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