Throughout the course of a day and night, an officer observed the defendant with 9 to 11 known narcotics addicts. At no time did the officer hear any conversation between the defendant and these persons, nor did he witness any exchange between them. After seeing the defendant in a restaurant with three of the known addicts, the officer approached. They went outside. There was nothing in the record to determine whether the defendant went outside with the officer voluntarily or was ordered out to the street. Once outside, the officer said to the defendant, “you know what I am after.” The defendant mumbled something and reached into his pocket. At the same time, the officer reached into the defendant’s pocket and found a controlled substance. The defendant was convicted of unlawful possession of heroin. At trial, there was nothing to show that the officer’s safety was a potential justification for the intrusion into the defendant’s pocket
Whether the officer established probable cause to believe the defendant was in possession of a controlled substance?
No. The officer’s observations did not meet the criteria to establish probable cause.
While the officer had seen the defendant in conversation with known drug addicts, he was unaware of the topics being discussed. Further, he saw nothing pass between the defendant and any of the addicts. The officer could not articulate facts that demonstrated probable cause. Therefore, the search could not be justified as incident to that arrest. The officer also could not justify the search on the grounds that he reasonably suspected the defendant to be armed and dangerous. At no time could the officer claim that his actions were taken in order to protect himself from potential weapons carried by the defendant. Additionally, the scope of the search exceeded the allowable limits of Terry v. Ohio. The officer did not pat-down the defendant’s outer garments searching for weapons, but instead inserted his hand directly into the defendant’s pocket to search for a controlled substance.
392 U.S. 40, 88 S. Ct. 1889 (1968)