It’s bad enough that there was nothing legally controversial about the cops making a pretext stop of a guy whom they considered a “person of interest” in a recent shooting, But the Whren Court said anybody in a car was fair game, and so Dubuque police stopped a car on Christmas Day 2019 to speak with a passenger, Earnest Hunt Jr. Don’t let the fact that the “person of interest” was a passenger cause you to furrow your brow, as he, too, fell within the officers’ sphere of safety under Mimms. And it spiraled down from there.

An officer observed Hunt seeming very nervous and feared he might have a gun, so the officer placed him in handcuffs and patted him down over his clothing.

The pat-down didn’t turn up a gun, but the officer did feel something else: a plastic bag containing small, hard balls. The officer, an investigator with the city’s drug task force, testified he recognized the item by sound and feel as a bag of drugs packaged for sale. He removed the bag, which later proved to contain crack cocaine, from Hunt’s pocket and placed him under arrest.

The cops, apparently not a Stephen Stills fan, read Hunt’s nervousness as indicative of his possible possession of a weapon, since no ordinary innocent person might be a bit paranoid under the circumstances, and went for the safety pat down, as the law allows, until he stumbled on Hunt’s  “hard balls.”

The U.S. Supreme Court in 1993 established what is known as the “plain-feel exception,” allowing officers to seize anything found during a weapon pat-down that is “immediately apparent” to the touch to be contraband or otherwise evidence of a crime without a warrant.

The district judge in Hunt’s case, however, ruled that exception didn’t apply. The problem was that multiple drugs, including heroin, crack and powder cocaine, are packaged in similar ways.

“As evidenced by his testimony and the body camera footage of officers on the scene, (the officer) was not sure of the nature of the substance in the bags even after he had removed them and was examining them by feel and sight,” the district court wrote, finding that the illegality of the bag was not “immediately apparent” to the touch.

It’s not that the officer didn’t believe his “plain touch” of Hunt’s “hard balls” wasn’t drugs of some sort, but that he couldn’t tell what type of drugs it might be, rendering his copping a feel not sufficiently obvious to search and seize.

The appellate court reversed under the “let no guilty defendant walk” theory.

Instead, the court determined the lack of specificity in Leitzen’s testimony showed he was unsure the bag contained contraband. But the investigator acknowledged that “[he] did not know what type of drugs they were, [he] just knew they were packed drugs.” We agree with the State that he did not need to pinpoint the specific type of drug to rely on the plain-feel exception. Immediately apparent is not synonymous with absolute certainty. Brown, 460 U.S. at 741. The test under Dickerson is simply whether the officer had probable cause to believe the item seized was contraband. 508 U.S. at 376. The question then boils down to what constitutes probable cause. Probable cause is a “flexible, common-sense standard,” requiring only “that the facts available to the officer would ‘warrant a man of reasonable caution in the belief’ that certain items may be contraband.”

The court held that it was close enough that the officer believed it to be contraband even if he didn’t know, either by plain feel or close inspection, what the contraband might be. To be fair, unmarked stuff in a glassine might well be some variation of narcotic, even if the specific flavor can’t be immediately discerned. That’s why there are crime labs to ascertain the specific chemical makeup of the substance found. But then, it could also be glaze from a delicious donut not purchased from Krispy Kreme.

Here, Investigator Leitzen testified he was certain the bag he felt in Hunt’s pocket contained illegal drugs. His inability to determine whether the drug was heroin, powder cocaine, or crack cocaine did not discredit that belief.

Had Hunt’s “hard balls” turned out to be something other than a narcotic, the officer’s certainty that it was illegal, even if he had no clue what drug it was, might not have led the court to endorse a search and seizure based on the substance being druggish enough.