Court allows patdown alternative

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The Wisconsin Court of Appeals held on Nov. 9 that, where an effective patdown is impossible, an officer may take other action to discover whether a suspect is carrying a weapon.

In 2002, a group of police officers and detectives reported to a Milwaukee residence to investigate complaints about drug dealing. During the investigation, Martin D. Triplett entered the residence.

According to the officers, whose version of the events was found credible by the trial court, the officers noticed that Triplett’s hands were shaking and he was perspiring. He appeared very nervous and asked to use the bathroom.

The officer told him that he could use the bathroom but would have to be patted down first, to ensure that Triplett would not come out of the bathroom with a weapon, and Triplett complied.

The officer proceeded with the patdown, but, when he got to Triplett’s waist area, he found it difficult to “get a good feel for that area” because of Triplett’s large frame and the amount of clothing he was wearing.

Triplett had a winter coat on that hung slightly below the waist, and his stomach hung slightly over the waistband. He was 5’11” and weighed roughly 245 pounds.

To see if there were weapons hidden in the waistband, the officer tugged on Triplett’s belt loops and gave the waistband a few shakes. As he shook, a clear plastic bag dropped from the bottom of Triplett’s right pants leg. The bag contained several smaller corner-cut bags containing cocaine base.

Triplett subsequently pleaded guilty to possession with intent to deliver. He subsequently moved for postconviction relief, claiming that counsel was ineffective for not moving to suppress the evidence.

The circuit court denied the motion, and Triplett appealed. The court of appeals affirmed in a decision by Judge Richard S. Brown.

Noting that the Wisconsin Supreme Court has not addressed the scope of a permissible Terry search when an effective patdown is not possible, the court looked to other jurisdictions for guidance.

The court found, “The prevailing rule seems to be that an officer is entitled not just to a patdown but to an effective patdown in which he or she can reasonably ascertain whether the subject of the patdown has a weapon; where an effective patdown is not possible, the officer may take other action reasonably necessary to discover a weapon.”

The court cited numerous cases for support: State v. Vasquez, 807 P.2d 520, 524 (Ariz. 1991)(where officer’s patdown could not reveal whether a jacket contained weapons because of its bulkiness, officer acted reasonably in reaching into the pocket); State v. Hudson, 874 P.2d 160, 163 (Wash. 1994)(where the patdown is inconclusive, reaching into the clothing is the only reasonable course of action for the police officer to follow); Hodges v. State, 678 So. 2d 1049, 1051 (Ala. 1996)(officer did not have to pat down outer part of a hard leather boot before lifting defendant’s pants leg to determine whether boot had a weapon inside because a patdown probably would have revealed nothing and “would not have lessened the police officer’s concerns for his own safety”); and State v. Evans, 618 NE.2d 162, 171 (Ohio 1993)(an officer may recover an item if its hardness, size, and density warrant his or her belief that it could be a weapon and the shape or nature of the item is not discernible through outer clothing, particularly where the clothing is bulky).

The court wrote, “We find these cases persuasive. … By recognizing that an officer may go beyond the scope of a traditional patdown of the outer clothing when this type of investigatory search for weapons would be ineffective, we remain faithful to the Terry court’s policy of assessing each case on the basis of its own facts and circumstances rather than adopting an overly rigid bright-line test.”

Applying that principle, the court concluded that the officer limited his degree of interference with Triplett’s person to what was reasonably necessary, reasoning, “The officer could not tell whether Triplett had any objects hidden in his waistband because of Triplett’s bulky frame and heavy clothing. In other words, the officer could not get an effective patdown.”

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The court added, “the officer testified that he shook Triplett’s waistband by his belt loops in order to loosen any possible weapons, so as to make the patdown effective. The fact that he acted with the intent to facilitate a traditional patdown supports that he only sought to discover any possible weapons. Second, we note that shaking a waistband by tugging on a belt loop confines the alternative method of looking for weapons to manipulating the outer clothing. Thus, although it may not qualify as a patdown, it is highly similar.”

In addition, the court observed that the officer’s methods may be less intrusive than a traditional patdown, noting that, in a traditional patdown, the officer must “feel with sensitive fingers every portion of the [person’s] body.

Accordingly, the court affirmed, concluding, “The infringement on the sanctity of Triplett’s person was a minimally invasive manipulation of his outer clothing designed to facilitate a patdown. The officer had a right to make his patdown effective, and shaking Triplett’s waistband was a reasonable means of accomplishing this objective.”

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David Ziemer can be reached by email.