Question: May an officer remove a package from a suspect’s clothing based on an assumption that it contains contraband?
Quick Answer: Yes, if it appears to be a weapon or if the suspect admits that it is contraband.
Facts: Police received numerous complaints about drug sales in the same area where other officers made drug arrests. While patrolling in that area, officers observed a car turn without signaling. Before conducting a traffic stop, officers ran the license plate and discovered that the owner previously was arrested for cocaine possession. During the traffic stop, officers noticed that the passenger, Jerry Whitten, was leaning over and making unnatural movements. A peace officer opened the passenger’s side door and observed an open 40-ounce can of beer. The officer asked Whitten to step out of the vehicle, and he conducted a pat-down. Officers asked Whitten if he had any weapons on him, and he lied. (Officers saw the outline of a knife in his pocket.) During the pat-down, the officer felt a hard cigarette pack. The officer asked Whitten if he had any drugs on him, and Whitten responded that he did have crack cocaine on his person. Officers then removed the hard cigarette pack from Whitten’s pants and discovered crack cocaine.
Why this case is important: Generally an officer cannot remove a package from a suspect’s clothing based on an assumption that it contains contraband. However, here, Whitten admitted to possessing crack cocaine, and this admission gave the officer probable cause to conduct a search incident to arrest, including a search of the cigarette pack.
Keep in mind: If Whitten had not admitted that he had drugs on his person — and if the officer had not developed any articulable reasonable suspicion that the cigarette pack contained drugs — the officer would not have been justified in removing the pack. Whitten’s lie regarding the knife in his pocket gave the officer reasonable, articulable suspicion to conduct a pat-down for additional weapons. Whitten’s admission that he possessed crack cocaine gave the officer probable cause to arrest him for drug possession, to seize the cigarette package, and to look inside.
Visit the
Second District Court of Appeals website to read the entire opinion.