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Richardson v. Appeal From Madison Circuit Court3/6/1998
1994), the Kentucky Supreme Court examined the "plain feel" rule adopted by the United States Supreme Court in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). The Crowder court concluded that the plain feel rule does not violate Section 10 of the Kentucky Constitution and that a "narrowly drawn exception to the warrant requirement is appropriate when: (1) the requirements of Terry are otherwise complied with; and (2) the non-threatening contraband is immediately apparent from the sense of touch." Id. at 651. (Emphasis original). , Appellant concedes the validity of the stop and the limited pat-down search. However, he points out that Trooper Adams dispelled any notion that his pocket contained a weapon and that since the baggies contained only residue, not discernable to the touch, Adams cannot reasonably claim he felt an object he immediately identified as contraband. Accordingly, he argues the non-threatening contraband should have been suppressed. If the legitimacy of the search and seizure depended solely on the plain feel rule sanctioned in Dickerson and Crowder, we might agree. However, as the trial court determined, there was independent probable cause justifying the search.
When a pretrial suppression hearing is held to determine the admissibility of evidence obtained during a warrantless search, the trial court's findings of fact are conclusive if they are supported by substantial evidence. Ky. R. Crim. P. (RCr) 9.78; Canler v. Commonwealth, Ky., 870 S.W.2d 219 (1994). In Ornelas v. United States, ___ U.S. ___, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), the United States Supreme Court enunciated a new standard of appellate court review of a trial court's suppression rulings on investigative stops and warrantless searches. Rejecting a "clear error" or "abuse of discretion" standard, the Ornelas court concluded:
s a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. Having said this, we hasten to point out that a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident Judges and local law enforcement officers.
___ U.S. ___, 116 S.Ct. at 1663. See also United States v. Roark, 36 F.3d 14 (6th Cir. 1994). Cf. Clark v. Commonwealth, Ky. App., 868 S.W.2d 101 (1993).
The flexibility of the probable cause standard cannot be ignored. Ornelas recognized that police officers may draw inferences of illegal activity from facts that may appear innocuous to a layman and that reviewing courts should give due weight to the trial court's assessment of the officer's credibility and the reasonableness of the inference. Mindful of the applicable standard, we have examined the totality of the circumstances surrounding the appellant's detention, search, and arrest, and we conclude the trial court was correct in finding that probable cause existed to conduct a search of appellant's person. Moreover, there existed probable cause for an arrest. In fact, Adams maintained he already had decided to arrest the appellant. As noted by the trial court, a search and seizure incident to appellant's lawful arrest inevitably would have produced the contraband. The fact that Adams had not placed appellant under formal arrest prior to seizing the plastic baggie does not taint the validity of the seizure. See Rawlings v. Kentucky, 448 U.S. 109, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), and Baker v. Commonwealth, Ky., 860 S.W.2d 760 (1993).
The judgment is affirmed.
ALL CONCUR.
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