Circuit Court of the City of Norfolk, Robert W. Stewart, Judge.
Willis, J. Baker, J., and Barrow, J., concurred.
The appellant, Calvin Fletcher Ruffin, contends that the trial court erred in receiving into evidence contraband recovered upon the warrantless search of his person. We find no error and affirm.
On September 25, 1987, Investigator James Stevens and other officers executed a search warrant on the premises located at 937 Trice Terrace, Apartment B, Norfolk, Virginia. The warrant commanded a search for illegal drugs and was based on an affidavit stating that Joseph Bonner was selling cocaine there. The affidavit stated that Bonner, whom the officers did not know, was armed and dangerous. As they entered the premises, the officers encountered the appellant leaving a bedroom. Pushing him back into the bedroom, they found there another man and, in plain view, a large sheet of glass, some razor blades and white powdery residue which they believed to be cocaine. The appellant fit Bonner's general description. After the other man attempted to draw a weapon, the officers removed him and the appellant to another room, where Officer Stevens placed the appellant against a wall and frisked him for weapons. Officer Stevens felt on the appellant's right foot, inside his sock, an object about an inch square and a quarter of an inch thick. Because the search authorized by the warrant was for cocaine, because the officers had found evidence of cocaine, and
because he thought the appellant might be Bonner, Officer Stevens believed that the object in appellant's sock might be a controlled substance. Officer Stevens pulled open the sock and discovered a package of marijuana. He then arrested the appellant for possession of marijuana, and upon searching him pursuant to that arrest, found a straw containing cocaine residue.
The appellant first argues that his mere presence in the room did not authorize the warrantless frisk of his person. We disagree. Officer Stevens had before him evidence that he had discovered a cocaine distribution operation. The appellant was on the scene in plain view of the contraband. This rendered inescapable the suspicion that he was involved in that operation and possessed drugs. This suspicion was enhanced by the appellant's similarity to the reported description of Bonner, a man known to be armed and dangerous. The other man tried to pull a weapon. Under these circumstances, Officer Stevens was justified in detaining the appellant for inquiry and in frisking him for weapons. See Terry v. Ohio, 392 U.S. 1 (1968).
The appellant next argues that Officer Stevens was without authority to remove and examine the packet which the frisk revealed under his sock. He argues that even were the frisk permissible, it was limited to a search for weapons, and the packet plainly was not a weapon. He argues that the further intrusion of removing the packet exceeded the scope and authorization of Terry and was unlawful in the absence of a warrant. We hold that the seizure of the packet fell within the plain view exception to the warrant requirement as articulated in Coolidge v. New Hampshire, 403 U.S. 443 (1971).
(1) The plain view doctrine, articulated by Coolidge, permits the warrantless seizure of private possessions where three requirements are met. First, the "initial intrusion" of the police officer must be lawful or he must otherwise properly be in a position from which he can view the location of the seizure. Id. at 465-68. Second, the discovery of the item seized must be inadvertent. Id. at 470. Third, it must be "immediately apparent" to the police officer that the item he observes may be evidence of a crime, contraband, or otherwise subject to seizure. Id. at 466. In Horton v. California, U.S. , 110 S. Ct. 2301, 2304 (1990), the Supreme Court eliminated the necessity of the inadvertence requirement. Thus, two requirements must be met for the application
of the plain view doctrine. First, the police officer must be lawfully present. Second, it must be "immediately apparent" to the police officer that the item to be seized may be evidence of a crime, contraband or otherwise subject to seizure.
Officer Stevens' presence, the laying of his hand upon the appellant's foot, was lawful pursuant to a Terry frisk. Therefore, the central inquiry in this case is whether it was "immediately apparent" that the object which he detected under the appellant's sock was evidence of a crime, contraband or otherwise subject to seizure.
(2-3) The "immediately apparent" language of Coolidge does not require that a police officer "know" that an item is contraband or evidence of a crime before seizing it. "[T]he seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity." Payton v. New York, 445 U.S. 573, 587 (1980). A requirement of probable cause for seizure in the ordinary case is consistent with the fourth amendment. Texas v. Brown, 460 U.S. 730, 738 (1983). Thus, if, while lawfully engaged in a particular place, police officers "perceive" a suspicious object, they may seize it immediately. Id. at 739 n.4. Perceive means to attain awareness or understanding of, to become aware of through the senses. Webster's New Collegiate Dictionary 1675 (3d ed. 1986). See also State v. Washington, 134 ...