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If Your Buddy Has Marijuana in His Pocket, Can the Police Search

  Two juveniles, C.C. and D.K., were passengers in a car which the police stopped for speeding. D.K., who had an outstanding arrest warrant, tried to flee, but was caught. The officer did a pat down search of D.K. He felt an object believed to be a gun. The officer then searched the outer clothing of D.K. and discovered a handgun, a baggie of marijuana, and other illegal pills. He was taken into custody. The officer then turned his attention to C.C. and conducted a pat down search of him. The pat down was done with more than normal focus because a weapon and drugs had been found on D.K.
 
  The officer felt a bulge in C.C.’s pocket. He testified the bulge felt similar to what he felt when he patted down D.K., and D.K. had drugs on him. Otherwise he had no reason to suspect drugs. The officer turned out C.C.’s pocket and found a plastic bag containing 28 pills, one of which was “ecstasy.” C.C. was charged with illegal drug possession.
 
  C.C. challenged the search. The Fourth Amendment to the U.S. Constitution forbids “unreasonable search and seizures.” The U.S. Supreme Court has ruled it is reasonable for an officer to pat down a suspect to look for a weapon if the officer has a reasonable fear of his or someone else’s safety. If, during such a pat down the officer feels an object in the subject’s outer clothing which is “immediately apparent” to be contraband, the office can search the suspect’s clothes and seize any contraband. The trial court ruled the evidence the officer found on C.C. was legally seized. C.C. appealed.
 
  A unanimous Supreme Court ruled the search was illegal and ordered the ecstasy pill suppressed as evidence. It is obvious, the court explained, that if an item might just as well be a legal substance as an illegal one it cannot be “readily apparent” that it is contraband. The Court ruled that the mere fact that the officer felt what appeared to be a plastic bag, and that marijuana is frequently carried that way, did not justify a seizure. Nor did it help that a search of D.K. turned up contraband. All C.C. and D.K. had in common was they were passengers in the same car. There was no evidence of a drug connection between the two.
 
  Justice Johnson agreed the ecstasy must be suppressed, but in a concurring opinion, scolded the majority justices for relying on the U.S. Constitution rather than the Vermont Constitution. The U.S. Supreme Court can overrule a state court decision based on the U.S. Constitution, but not if it’s based on the state constitution. Recently the U.S. Supreme Court overturned a Vermont decision based on the U.S. Constitution freeing a prisoner because his speedy trial rights were violated. Justice Johnson disagreed with the breadth of searches permitted by the U.S. Supreme Court. She would create greater rights for Vermonters. In re C.C. Juvenile 2009 VT. 108.