¶1dissenting.
¶2I respectfully dissent from the holding of the majority in this case. I find no fault with the stop and accept the factual findings of the trial justice that justified a frisk of the defendant, pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). I depart, however, from the reasoning of the majority with respect to the scope of the police officer’s search of the defendant’s person.
¶3In Terry, 392 U.S. at 30, 88 S.Ct. 1868, the United States Supreme Court first authorized a manual pat-down of persons who an accosting officer believes might be armed and therefore dangerous to the officer. Although it is true that the Supreme Court did not strictly limit the scope or extent of the frisk in that case, the Court nonetheless said:
“where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.” Id.(Emphasis added.)
¶4This Court first addressed the scope of a permissible stop and frisk in the case of State v. Collodo, 661 A.2d 62 (R.I.1995). In that case, a police officer who had made a traffic stop became concerned that the driver did not show him a proper driver’s license and that his passenger was “fidgeting [and] looking straight forward, looking down” and did not make eye contact with the officer. Id. at 63. When he touched the defendant’s body, the officer was able to feel a “hard object” which the officer suspected was a weapon. Id.At that point, the officer reached into the outer garment of the defendant and removed a loaded gun. Id. at 64. In affirming the defendant’s conviction, this Court said that the patting down of a person’s outer garment is “an ‘intrusion upon the sanctity of the person’ and thus not to be taken lightly.” Id.at 66 (quoting Terry, 392 U.S. at 17, 88 S.Ct. 1868). The Court nonetheless affirmed the conviction, pointing out:
“our concern for the exposure of an officer to such danger that, we believe, justifies the de minimis intrusion incurred in a limited pat-down search for weapons, once the officer has reasonably concluded that the facts available at that moment would ‘warrant a man of reasonable caution in the belief that the pat down was justified.” Id.(quoting Pennsylvania v. Mimms, 434 U.S. 106, 112, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977)).
¶5It is certainly true that courts have upheld the actions of law enforcement when police officers, after either seeing a bulge in a defendant’s outer clothing, see, e.g., *652United, States v. Baker; 78 F.3d 135, 136, 138 (4th Cir.1996); United States v. Hill, 545 F.2d 1191, 1192-93 (9th Cir.1976), or being aware of solid information that a particular defendant is armed and dangerous, see, e.g., Adams v. Williams, 407 U.S. 143, 144-45, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); People v. Taggart, 20 N.Y.2d 335, 283 N.Y.S.2d 1, 229 N.E.2d 581, 583 (1967), appeal dismissed, 392 U.S. 667, 88 S.Ct. 2317, 20 L.Ed.2d 1360 (1968), have been permitted to reach into the waistband
¶6In reasoning that the bounds of Terryand its progeny were not exceeded when defendant was asked to open up her coat so that the officer could see what was underneath it, the majority has hitched its wagon to the case of United States v. Reyes, 349 F.3d 219 (5th Cir.2003). In that case, the Fifth Circuit held that a Texas border patrol agent did not exceed the permissible bounds of a Terrystop when he asked the defendant to raise his shirt. Id. at 225. But there, it was significant that the agent had been alerted to the defendant and his cohort by a drug sniffing dog. Id. at 222. Knowing that the dog was reacting to the scent of narcotics, based on his experience and training, and concerned that weapons often accompanied drug transportation at the border, the agent asked the defendant to lift his shirt. Id. at 222, 225. After the defendant lifted his shirt, the agent saw a bundle, which proved later to be a controlled substance, taped to the defendant’s back. Id. at 222.
¶7The Fifth Circuit affirmed the district court’s denial of the defendant’s motion to suppress. Reyes, 349 F.3d at 225. In doing so, the court reiterated the familiar teaching of Terry: “[a] law enforcement officer may conduct a limited search of a subject for weapons if he reasonably believes that the suspect may be armed and dangerous.” Id.at 224 (citing Terry, 392 U.S. at 29, 88 S.Ct. 1868). The court also noted that the agent was outnumbered by the two suspects, who were clothed in large jackets that could have concealed a weapon. Id. at 225. Finally, the court blessed the manner in which the Terryfrisk was conducted, reasoning that asking the suspect to lift his shirt was less intrusive than probing his body over his clothing. Id.
¶8Whether a pat-down is or is not more intrusive than requiring a citizen to open her coat in the middle of the street, and then openly display what she previously had covered, is open to debate.
¶9Requiring a citizen who is not under arrest to open her coat is a search, plain and simple. There is no dispute that at the time defendant was asked to open her coat there was no probable cause to arrest her and therefore there was no right to search her. See Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (“the Fourth Amendment protects people, not places”).
¶10Furthermore, I simply do not agree that the cases cited by the majority, with the limited exception of the Fifth Circuit’s holding in Reyes, offer any support whatsoever to the Court’s conclusion today. The majority cites the Fourth Circuit’s holding in Baker, 78 F.3d at 138, for the proposition that a pat-down frisk is only one of many alternatives by which a reasonably protective search may be conducted, and as support for the bromide that having the suspect lift his shirt is “less intrusive than the patdown frisk sanctioned in Terry.” However, in the Baker case, the police officer already had observed a bulge, which he reasonably believed to be a weapon, near the front of the defendant’s shirt and in the waistband of his pants. Id. at 136. The court said that “[hjaving formed a reasonable belief that [the defendant] was carrying a weapon, Officer Pope had an immediate interest in determining whether [the defendant] actually was armed and, if so, neutralizing any potential threat without assuming unnecessary risks.” Id. at 138. That is simply not the case here, where the arresting officer saw nothing that would provide a foundation for a belief that defendant possessed a weapon.
¶11The majority also has cited this Court’s holding in State v. Black, 721 A.2d 826, 830 n. 2 (R.I.1998), observing that we noted in that case that “variable degrees of reasonable suspicion … may … give rise to a variable scope of authority to search a suspect’s person.” However, the Blackcase is inapposite. That case involved the application of the “plain-feel” doctrine first set forth in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993),
¶12In my opinion, the majority’s cite to Commonwealth v. Flemming, 76 Mass.App.Ct. 632, 925 N.E.2d 39 (2010) is similarly inappropriate. Although the Court of Appeals did say in Flemmingthat the language in Terrydoes not strictly limit law enforcement to a pat-down search, the court nevertheless vacated the conviction of the defendant who had been convicted of possession of a revolver. Id. at 44. In that case, “after observing a bulge at the defendant’s waistband, the police lifted the defendant’s shirt to ascertain the source of the bulge without first conducting a pat-frisk.” Id. at 41. In affirming the defendant’s motion to suppress, even though the officer had seen the bulge with his own eyes, the court concluded that “though there may be circumstances in which a patfrisk is unnecessary as an initial investigatory step, the present case does not warrant departure from the general rule *654favoring a patfrisk as a predicate to further investigation in a Terrystop.”
¶13With all due respect, is it my opinion that the majority’s citation to Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983) is likewise inapt. Although it correctly quotes the Supreme Court that “[t]he reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative ‘less intrusive means,’ ” id. at 647-48, 103 S.Ct. 2605, the majority overlooks the fact that Lafayettedid not involve a Terry-type stop at all, but rather an inventory search, conducted at the police station, after a lawful arrest. Id. at 641, 103 S.Ct. 2605. Lafayette simply bears no relevance to the case before the Court.
¶14Finally, the majority cites Epps v. Maryland, 193 Md.App. 687, 1 A.3d 488, 505 (2010), for the proposition “that the intrusion must be only that which is necessary to detect the presence of a weapon — and nothing more.” In that case, law enforcement officials had asked a passenger in a motor vehicle to lift his shirt, and when he did, a baggie containing cocaine and marijuana was observed. Id. at 491. The Maryland Court of Special Appeals determined that the facts gave rise to a reasonable suspicion to support a Terrysearch, but remanded the case to the trial court to determine whether the defendant had consented to the manner of the search. Id. at 494. It was the issue of consent, and not the scope of the search, that was decided by the Maryland court. Id. at 493. Indeed, in rendering its opinion, the court said “[wjere, arguendo, the merits of the Terryfrisk properly before us, we would hold that directing the appellant to lift his shirt exceeded in scope the tightly limited intrusion permitted by Terry v. Ohio.” Id. at 503 (emphasis added). “The purpose — the only purpose — of a Tei"ry frisk is to discover the presence of suspected offensive weapons that could be used to harm the stopping officer. It is most emphatically not to discover the presence of evidence.” Id. at 504. “Directing the appellant to lift his shirt went beyond the limited scope of a frisk.” Id.
¶15The very thrust of the majority’s opinion in this case is that although the method used by the officers went beyond the scope permitted by Terryand most reported cases throughout the country, it nonetheless was permissible because it was both reasonable and less intrusive than a pat-down. However, I agree with the reasoning of the Maryland Court of Special Appeals, which said:
“The suppression hearing judge reasoned, sua sponte, that the lifting of the shirt was reasonable because it was less intrusive than a pat-down would have been. The degree of intrusiveness, however, is not the controlling criterion. Nor is the duration of the intrusion. Nor is the degree of embarrassment that the intrusion might cause. The critical limitation is that the intrusion must be only that which is necessary to detect the presence of a weapon — and nothing more.” Epps, 1 A.3d at 504-05.
¶16I am further concerned that the Court’s holding in this case creates a slippery slope that will give rise to a series of flexible and confusing standards for stops and frisks under Terry. In my opinion, this presents a particular danger with re*655spect to female defendants because the police may maintain, as they did here, that they are reasonably reluctant to frisk women.
¶17For all these reasons, it is my opinion that the officers exceeded the permissible bounds of a Terrystop when they required that Ms. Taveras stand in the middle of the street, open up her coat, and reveal what was under it, rather than conduct a pat-down of her outer clothing. In my view, the evidence retrieved as a result of that search should have been suppressed.
¶18. However, in State v. Smith, 345 Md. 460, 693 A.2d 749, 750 (1997), the Court of Appeals held that an officer exceeded the permissible scope of a protective frisk when he pulled out the shirt of a suspect to view the suspect’s waistband and a plastic bag containing cocaine fell out. The court explained that ‘‘the objective [of a Terryfrisk] is to discover weapons readily available to a suspect that may be used against the officer, not to ferret out carefully concealed items that could not be accessed without some difficulty.” Id. at 751. Most applicable to the case at bar, the Smithcourt explained that police officers were not authorized "to dispense with a pat-down merely because they have reason to believe that a weapon is concealed at a particular location on a suspect’s person.” Id. at 752.
¶19. As highlighted by the Second Circuit in United States v. Casado, 303 F.3d 440, 449 (2d Cir.2002), ‘Terry, Sibron [v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968)], and their progeny teach that the Fourth Amendment protects [the defendant] against an intrusion into his privacy either by a patdown or by an invasion of his clothing, but that the latter is more serious than the former, and that this difference has constitutional significance.”
¶20. In that case, the Supreme Court explained that "[t]he very premise of Terry, after all, is that officers will be able to detect the presence of weapons through the sense of touch … Minnesota v. Dickerson, 508 U.S. 366, 376, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).
¶21. The Flemmingcourt also noted that a visual inspection of a concealed area may, for Fourth Amendment purposes, be more intrusive than a patfrisk. Commonwealth v. Flemming, 76 Mass.App.Ct. 632, 925 N.E.2d 39, 44 n. 10 (2010). The court explained that such an intrusion "may reveal objects (such as soft or pliable items) that would not warrant further investigation, were they felt during a patfrisk.” Id.
¶22. In an exquisite footnote, the Epps court said:
"Would lifting her shift, for instance, also have been less intrusive to a female stop-pee? Is that, moreover, a question for the judge or for the frisking officer to decide on behalf of the stoppee? If a female stoppee were directed to empty her pockets on the assumption that that would be less intrusive (embarrassing to her) than to be closely patted down by a male stopping officer, and out of her pockets came pouring narcotics, would the narcotics be admissible as the product of a properly limited Terryfrisk? What price gallantry? She was saved embarrassment, but she’s now doing 25 years.” Epps v. Maryland, 193 Md.App. 687, 1 A.3d 488, 504-05 n. 2 (2010).