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Univ. of San Diego School of Law

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Thursday, January 27, 2005

New Case: Terry Pat Downs

The Eighth Circuit held yesterday in U.S. v. Hanlon that a police officer did not exceed the scope of a Terry patdown when the officer reached into the suspect's pocket after feeling a hard, cylinder-shaped object one-half inch to an inch in length and with the diameter of a penny.  Not surprisingly, the object turned out to be a vial of meth rather than a weapon.  Of course, the rule is that officers are only allowed to reach into the clothing during a Terry patdown if they are able to determine during the patdown that a weapon is present, or if they develop probable cause based on the "plain feel" doctrine that contraband is present.  The Eighth Circuit upheld the search because the officer in question had testified at the suppression hearing that he had not yet "ruled out" the possibility that the object was a weapon.  The officer argued that the object could have been a very small pocketknife.

Unless I'm missing something, the argument that the object in question could have been a one-half inch long, cylinder-shaped pocketknife strains credulity.  Any reasonable police officer would have concluded that such an object was probably a vial of narcotics and not a weapon.  This case demonstrates that we need to develop some type of standard which holds that officers can reach into the clothing only if a "reasonable officer" would have concluded that a weapon may have been present based on what he felt during the patdown.  Otherwise, Terry's promise that Terry searches must be "confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer" is illusory.  [Mark Godsey]

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