Object found during frisk could be removed from pocket

State v. Steve C. Deterding, 2015AP195-CR, 3/10/16, District 3 (not recommended for publication); case activity (including briefs)

A police officer lawfully removed the object he felt in Deterring’s pants pocket during a lawful pat-down for weapons.

After reports of a vehicle driving erratically and striking a barrier wall on an Interstate highway, an officer located the vehicle on a freeway shoulder and encountered Deterding, who was changing a flat tire. While the officer questioned Deterding about the reports of erratic driving Deterding was “pacing around” and “couldn’t stand still.” The officer noticed that Deterding had a knife clipped into his pants pocket, so he took the knife from Deterding and conducted a pat-down to determine whether Deterding was armed. During the pat-down the officer felt a “large” and “hard” object in one of Deterding’s pants pockets. He couldn’t tell what the object was, so he  removed it from Deterding’s pocket. It was a plastic bottle containing a yellowish liquid, which turned out to be Deterding’s urine and became part of the basis for his conviction for operating under the influence of controlled substances. (¶¶2-6).

Deterding concedes the pat-down was legal, but argues that removing the bottle from his pocket exceeded the lawful scope of a pat-down, which must be strictly limited to what is necessary for the discovery of weapons that might be used to harm the officer or others nearby. Minnesota v. Dickerson, 508 U.S. 366, 373 (1993); State v. McGill, 2000 WI 38, ¶34, 234 Wis. 2d 560, 609 N.W.2d 795. The circuit court found the officer acted reasonably because the object could have been a can of mace or other type of weapon, and the court of appeals agrees.

While the officer here didn’t subjectively believe the object was a weapon, that isn’t required; instead, all that is required is an objectively reasonable belief, based on all of the facts available to the officer at the time, that the object might be a weapon. McGill, 234 Wis. 2d 560, ¶¶35-37. (¶¶10, 16). That objective test is met here:

¶12     It is significant that the officer felt a large, hard object that the officer was unable to identify. As the State points out, this view finds support in a leading treatise:

[….] If the object felt is hard, then the question is whether its “size or density” is such that it might be or contain a weapon. But because “weapons are not always of an easily discernible shape,” it is not inevitably essential that the officer feel the outline of a pistol or something of that nature. Somewhat more leeway must be allowed upon “the feeling of a hard object of substantial size, the precise shape or nature of which is not discernible through outer clothing,” most likely to occur when the suspect is wearing heavy clothing. [….]

4 Wayne R. LaFave, Search and Seizure § 9.6(c), at 910-12 (5th ed. 2012) (footnotes omitted).

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¶14     The circuit court aptly surmised, based on the officer’s description, that the object could have been a can of mace. To this, we add that the same evidence supports a suspicion that the object might have been capable of propelling a similarly dangerous liquid such as pepper spray.

¶15     Thus, we agree with the circuit court and the State that the officer could have formed a reasonable belief that the object he felt might be a weapon. Therefore, the officer was justified in removing the object from Deterding’s pants pocket.

The court also rejects Deterding’s argument based on United States v. Lemons, 153 F. Supp. 2d 948, 958-59 (E.D. Wis. 2001), that even if the officer reasonably removed the bottle from Deterding’s pants pocket, questioning Deterding about the bottle’s contents exceeded the permissible scope of a pat-down because the officer could see the bottle was not a weapon. Unlike Lemons, “here that the officer had ample reason to suspect that Deterding was driving while under the influence of a drug or intoxicant, and that the bottle of urine, once in plain view, was suspicious in a way that reasonably related to investigation of this suspected crime. Thus, questioning about the bottle was reasonable as part of the officer’s ongoing investigation of suspected intoxicated driving.” (¶¶18-19).