Have you ever been in the wrong place at the wrong time and an officer conduct a body search of your pockets because you happen to be present? The officer searches your pockets and finds a small quantity of drugs in your pocket and you are then arrested. That is the situation in the case presented in Ex Parte Gardner.
The defendant in this case Beverly Gardner was charged with unlawful possession of a controlled substance. She filed a motion to suppress the .2 grams of methamphetamine that was found in her pocket. During a suppression hearing, testimony of the officer indicated that officers were executing a search warrant for someone else and that Gardner happened to be at that location.
The officer testified that Gardner was acting nervous and that during a pat down, he felt a bulge in her front left pocket. He later admitted it was not the kind of bulge that indicated a weapon. The trial court denied Gardner’s motion to suppress the evidence.
Gardner entered a guilty plea but reserved her right to appeal the trial court's ruling on the motion to suppress. The Supreme Court of Alabama issued a Writ of Certiorari regarding the case and the case was reversed.
The court relied on Minnesota vs. Dickerson, 508 U.S. 366 (1993). The court examined to what extent an officer may legally seize non weapon contraband during a pat down search. The court stated that if an officer’s pat down of a suspects outer clothing and feels an object whose contour or mass makes it identity immediately apparent there has been no invasion of the suspect privacy.
If the object is contraband, its warrantless seizure would be justified. The question in this case was whether the bulge was immediately apparent to the officer as contraband. The defendant Gardner argued that it was not because the testimony was that the officer in had to grab hold of the bulge before she realized it was consistent with the feel of methamphetamine. The appellate court explained that officers are not permitted to squeeze or otherwise to manipulate a suspects clothing to find contraband that the officer knows is not a weapon. Based on the facts that were presented in this case the methamphetamine was illegally seized and the evidence should have been suppressed. The case was dismissed on appeal.
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