On the “plain feel” doctrine in Ford v. US

Absent a valid exception, “searches and seizures” without a warrant are presumptively unreasonable under the Fourth Amendment.

As one exception to the warrant requirement, the “plain view” doctrine allows police officers to seize evidence without a warrant if (1) the officers are lawfully present in a location, (2) they observe the contraband in plain sight, and (3) the incriminating nature of the contraband is immediately apparent.

The “plain feel” doctrine extends the principles of “plain view” to the sense of touch.  Specifically, as articulated in the U.S. Supreme Court case, Minnesota v. Dickerson, 508 U.S. 366 (1993), the “plain feel” exception provides that if, during a lawful pat down for weapons, an officer feels an object whose contour or mass makes its identity as contraband “immediately apparent,” the object can be seized without a warrant.  The requirement that the identity of the item is immediately apparent is applied strictly:  the officer is not allowed to manipulate, squeeze or further investigate the object to determine its identity.

Of course, as with any doctrine, there are applications and issues that can arise.  For example, in Marcus Ford v. United States, __ A.3d __ (D.C. 2025), the D.C. Court of Appeals looked at the distinction between a case in which the object itself is contraband (e.g., crack cocaine rocks or a weapon) and when the object is merely associated with contraband or illegal activity (e.g., a glass container known to contain drugs).

In this case, there are both innocent and unlawful uses of the glass vial that was found in Ford’s pocket.  As a result, the Court applied the “contextual approach” of a previous case, Ball v. United States, 803 A.2d 971, 974 (D.C. 2002).  According to this approach, “the court may consider the officer’s training and experience and other attendant circumstances in evaluating the officer’s tactile perception of the immediately apparent incriminating nature of the object in question.” 

In Ball, we applied the plain feel doctrine and affirmed the denial of a motion to suppress where an officer felt a medicine bottle in the defendant’s pants pocket.  Among the circumstances supporting the probable-cause determination was the officer’s testimony that he had “arrested numerous people who have hidden narcotics in medicine bottles” and that the defendant had tried to cover his abdomen immediately upon encountering the officer.  But the “most important” consideration was the defendant’s repeated efforts to reach into his right front pocket – the extra place where the officer ultimately detected the medicine bottle – “in derogation of the officer’s specific orders to keep his hand out of the pocket.”

 Here, like in Ball, the trial court based its probable-cause determination in part on Mr. Ford’s gesture towards his pocket, characterizing the gesture  as a fact that “confirm[ed]” Officer Branson’s belief that the container he felt in Mr. Ford’s pocket was in fact “a glass vial of PCP.”  But where in Ball, the suspicious gesture was in defiance of specific orders, in the present case, the evasive move was Mr. Ford’s effort to revoke his consent to the search – evidence that was not properly considered as part of the probable cause calculation.”  (Internal citations omitted.)

In short, there was an entirely different purpose for the defendant’s actions in Ford than in Ball, and this different purpose undercut the trial court’s finding of probable cause.  The Court therefore overturned Mr. Ford’s convictions.