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State v. Lafond4/3/2003
iles, 242 Cal. Rptr. 107, 110 (Ct. App. 1987) (holding that officer had reasonable suspicion to conduct patdown search when he saw "'an exaggerated bulge' in defendant's left jacket pocket and that . . . . ecause of the bulge and the manner in which the jacket swung, the officer 'knew it was some type of heavy object, possibly a gun'"); People v. May, 109 Cal. Rptr. 396, 397-98 (Ct. App. 1973) (holding weapons search was justified when " efendant had a bulge in his right rear pants' pocket," the bulge was consistent with that made by a handgun, and the officer "concluded that . . . the object [may be] a handgun"); Byrd v. United States, 579 A.2d 725, 729 (D.C. 1990) (" olice had reasonable grounds to order [defendant] out of car and to frisk him upon seeing a bulge in [defendant's] pocket that was thought by the police officer possibly to be a gun."); State v. Schneider, 389 N.W.2d 604, 604-05 (N.D. 1986) (holding Terry frisk was justified when officer, while issuing traffic ticket, "noticed a bulge under [defendant's] leather coat that appeared to be a revolver in a shoulder holster"); Commonwealth v. Wascom, 344 A.2d 630, 631-32 (Pa. Super. Ct. 1975) (holding frisk was lawful when "the officer noticed what appeared to be a knife protruding from the [defendant's] coat pocket").
The State does not cite any authority to suggest that an otherwise innocuous-looking pocket bulge may constitute the basis for a Terry frisk. For example, in State v. Carter, 707 P.2d 656 (Utah 1985), a case relied upon by the State, the Court upheld the legality of a Terry frisk based in part on the fact that "the defendant had a large bulge in his front pocket," but more importantly, because the defendant was suspected of being involved in a burglary, which, as we have stated, is one of the crimes that, by its very nature, is likely to involve a weapon. Id. at 660. Similarly, in State v. Rochell, 850 P.2d 480 (Utah Ct. App. 1993), we upheld a Terry frisk in part because (1) "[the defendant] had a bulge in his pocket"; (2) "the officer believed the bulge could have been a weapon"; and (3) "when asked whether he had any weapons, [the defendant] 'was hesitant in answering no.'" Id. at 483 (footnote omitted). And while we have stated that reasonable suspicion may be generated by "a suspect with a bulge in his clothing that appears to be a weapon," Warren, 2001 UT App 346 at (emphasis added), we have not extended this rationale to include amorphous bulges that are not suspicious or in any other way characteristic of bulges created by weapons. Indeed, such a holding would effectively validate the use of an "unparticularized suspicion or hunch" to justify the physical intrusion of a weapons pat-down, a practice that Terry forbids. Carter, 707 P.2d at 659.
We are similarly unpersuaded by the State's argument that Lafond's layered clothing contributed to a reasonable suspicion that she was armed. We see nothing particularly unusual about such dress given the fact that the incident occurred in March at approximately ten o'clock in the evening. See White, 856 P.2d at 658, 661 (holding 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
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