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Home > Journals > Michigan Law Review > MLR > Volume 121 > Issue 5 (2023)

 

Abstract

The idea that a police officer can park in a low-income neighborhood, pull someone over because of their race, frisk everyone in the car, let them go if their pockets are empty, and do the whole thing over and over again until the officer finds something illegal seems deeply upsetting and violative, to say the least. And yet, pretextual traffic stops are constitutional per a unanimous Supreme Court in Whren v. United States, 517 U.S. 806 (1996), as is seizing obvious contraband during a frisk per Minnesota v. Dickerson, 508 U.S. 366 (1993). In the thirty years since these cases were decided, their disproportionate impact on minority communities has become clear, and yet courts have struggled to place meaningful limits on officer discretion. Amid the growing national conversation on police practices, this Note analyzes the role of Dickerson’s plain feel doctrine, which permits an officer to seize contraband during a frisk so long as the illicit nature of the item is immediately apparent upon “plain feel.” First, it reviews the doctrine as it was established in Dickerson and traces its roots to understand the rationale behind the ruling. Second, it identifies the key factors state and federal courts consider when applying Dickerson and demonstrates that courts presented with similar facts routinely come to conflicting conclusions. Third, this Note assesses the ways modern plain feel doctrine is in tension with core Fourth Amendment principles and argues that, in the thirty years since Dickerson, it has quietly become an ever-broadening loophole enabling the ongoing targeting of minority populations. As calls to address inequitable policing grow louder, the plain feel doctrine is a crucial site for reform.

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