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Media > Newsletters > Law Enforcement Bulletin > November 2015 > State v. Mabry, 2015 Ohio 4513

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State v. Mabry, 2015 Ohio 4513

Question: During a Terry pat down, can an officer unbutton a suspect’s pants in order to retrieve suspected contraband from shorts worn underneath his pants?

Quick Answer: Yes. The doctrine of plain feel allows an officer to lawfully seize an object if he has probable cause to believe that the item is contraband.

Facts: While on patrol, an officer stopped two men for jaywalking in a high-crime area where several robberies had taken place as well as homicides and drug investigations. During the course of a lawful Terry pat down for weapons, the officer could see and feel bulges in Mabry’s pants pocket. When the pat down search was complete, the officer asked Mabry if he could go into his pockets and remove the contents, to which Mabry responded, “yes.” When the officer reached into Mabry’s pants pocket he felt a cellphone, identification card, and a plastic bag containing gel capsules. He was unable to remove the bag of gel capsules as they were located in a shorts pocket worn beneath the suspect’s pants. Based on his training and experience, the officer immediately recognized that the gel capsules were illegal contraband, specifically heroin. Mabry challenged the officer’s retrieval of the capsules from his shorts that were underneath his pants. The court upheld the seizure, noting “[u]nder the plain feel doctrine, the physical features of the article which are revealed to the officer through his sense of touch must cause the identity of the article, and from that its criminal character, to be immediately apparent to the officer”.

Keep in Mind: Officers need not be absolutely positive that the item is contraband. Instead, it must be probable. In other words, it is more likely than not that the article is contraband, and this determination must be immediately apparent to the officer.