Hallcy v. State

• Decision Date: 15 February 2007
• Docket Number: No. F-2005-490.,F-2005-490.
• Parties: Robert Keith HALLCY, Appellant v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

153 P.3d 66

2007 OK CR 2

Robert Keith HALLCY, Appellant v. STATE of Oklahoma, Appellee.

No. F-2005-490.

Court of Criminal Appeals of Oklahoma.

February 15, 2007.

Spencer Schroeder, Chickasha, OK, attorney for appellant at trial.

Bret Burns, First Asst. District Attorney, Chickasha, OK, attorney for the state at trial.

Patti J. Palmer, Pawhuska, OK, attorney for appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Jennifer B. Miller, Asst. Attorney General, Chief, Criminal Division, Oklahoma City, OK, attorneys for appellee on appeal.

OPINION

A. JOHNSON, Judge.

¶ 1 Robert Keith Hallcy was tried in a nonjury trial before the Honorable Richard G. Van Dyck in the District Court of Grady County, Case No. CF-2004-147, and convicted of Possession of a Controlled Dangerous Substance in violation of 63 O.S.2001, § 2-402. The district court sentenced Hallcy to five years imprisonment with all but the first 45 days suspended. From this Judgment and Sentence, he appeals.

Facts

¶ 2 On April 16, 2004, two Chickasha police officers stopped a car in which Hallcy was a passenger because it had been reported stolen. Hallcy and the female driver were ordered out of the car. While one officer spoke to the driver, the other officer frisked Hallcy for possible weapons. The officer felt an object which he recognized by touch as a medicine bottle. The officer testified that at no time did he believe the pill bottle was a weapon. He asked Hallcy what it was, and Hallcy told him that the bottle was not his; that the driver had given it to him when the officers turned on their emergency lights, and that he did not know what the bottle contained. When the officer took the bottle from Hallcy's pocket and opened it, he discovered three rocks of crack cocaine and arrested Hallcy.

¶ 3 Hallcy moved to suppress the crack cocaine discovered inside the pill bottle. The only witness at the suppression hearing was the arresting officer. The district court denied the motion to suppress finding the officer was justified in seizing the pill bottle during the pat-down search because Hallcy was an occupant of a stolen vehicle and because he disclaimed ownership of the pill bottle and its contents. After the judge's ruling, a non-jury trial was held and the State incorporated the evidence from the hearing without presenting further evidence or argument. Hallcy again raised his motion to suppress to preserve the issue. The trial court denied the motion a second time and found Hallcy guilty as charged.

¶ 4 Hallcy does not challenge the lawfulness of the stop of the vehicle or the frisk for weapons; rather, he argues his motion to suppress should have been sustained because the officer, who knew the pill bottle was not a weapon, did not have probable cause to go beyond the protective search for weapons and exceeded the legitimate scope of the search when he removed the bottle from Hallcy's pocket and opened it. The limited question before this Court is whether the officer's tactile perception of the medicine bottle while patting the outer surface of Hallcy's pants, when considered in connection with the surrounding circumstances, provided probable cause for his belief that the bottle contained contraband before he reached into Hallcy's pocket to retrieve it.

¶ 5 When reviewing a trial court's ruling on a motion to suppress evidence based on an illegal search and seizure, we defer to the trial court's findings of fact unless they are not supported by competent evidence and are therefore clearly erroneous. See Lee v. State, 1983 OK CR 41, ¶ 6, 661 P.2d 1345, 1349-50. This Court independently reviews the trial court's legal conclusions based on those facts.

¶ 6 The Supreme Court has recognized the existence of a "plain feel" exception to the Fourth Amendment's warrant requirement, analogous to the "plain view" exception, which permits warrantless seizures of obvious contraband discovered during the course of a lawfully conducted frisk or search. See Minnesota v. Dickerson, 508 U.S. 366, 374-76, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334 (1993). "If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context." Id. at 375-76, 113 S.Ct. at 2137. (Emphasis added). This Court recognized the "plain feel" exception in Abraham v. State, 1998 OK CR 29, ¶ 4, 962 P.2d 647, 647-48.

¶ 7 For a seizure of contraband to be justified under the "plain feel" exception to the warrant requirement: 1) the pat-down must be permissible under Terry;¹ 2) the contraband must be detected in the course of the Terry search; and 3) the incriminating nature of the object perceived to be contraband must be immediately apparent to the officer. See Dickerson, 508 U.S. at 375-76, 113 S.Ct. at 2136-37.

¶ 8 "Immediately apparent" for purposes of plain feel analysis does not mean that an officer must know for certain that the item felt is contraband, only that there is probable cause to associate the item with criminal activity. See Texas v. Brown, 460 U.S. 730, 741, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983) ("[T]he use of the phrase `immediately apparent' was very likely an unhappy choice of words, since it can be taken to imply that an unduly high degree of certainty as to the incriminatory character of evidence is necessary for an application of the `plain view' doctrine.").

¶ 9 Courts have split on whether under the plain feel doctrine an officer may seize a container that is not in itself contraband and does not conform to the shape of contraband (such as a medicine bottle or matchbook), yet is routinely used to package or contain drugs. "The difference between the approach of the courts which have found probable cause when considering the officer's tactile perception of an object that has both legitimate and illicit uses, and those which have concluded that the officer's touch of a legal item gives rise to only a reasonable suspicion that the item might contain contraband, is that the latter courts focus on the tactile perception of the felt object to the exclusion of other attendant circumstances which may inform the officer's belief of what he is touching." Ball v. United States, 803 A.2d 971, 976-78 (D.C.Cir.2002)(s omitted).

¶ 10 The overarching test for judging the existence of probable cause is whether a reasonably prudent police officer, considering the totality of the circumstances confronting him and drawing from his experience, would be warranted in the belief that an offense has been or is being committed. See Washington v. State, 1999 OK CR 22, ¶ 28, 989 P.2d 960, 971. Probable cause is a flexible, common-sense standard, requiring that the facts available to the officer would warrant a man of reasonable caution in the belief that certain items may be contraband or useful as evidence of a crime; it does not demand any showing that such a belief be correct. Brown, 460 U.S. at 742, 103 S.Ct. at 1543; Bland v. State, 2000 OK CR 11, ¶ 45, 4 P.3d 702, 717. A practical, nontechnical probability based on factual and practical considerations that incriminating evidence is involved is all that is required. See Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93...