Baker, J.
Whether or not a police officer’s actions are subject to the Fourth Amendment while the officer is off duty depends on the “nature of the acts” that the officer is performing. See Tapp v. State, 406 N.E.2d 296, 302 (Ind. Ct. App. 1980) (finding that an out-of-uniform, off-duty police officer working as private security was performing his official law enforcement duties when he identified himself as a police officer, displayed his badge, and advised a woman she was under arrest pursuant to Indiana law). In this instance, the record demonstrates that Officer Price was acting as a law enforcement officer during this investigation. More specifically, Officer Price was wearing his full police uniform, complete with his badge, gun, taser, and radio. Tr. p. 12-13. Although Officer Price may not have verbally identified himself as a police officer, id. at 36, 43, it seems likely that someone being approached by two men wearing full police uniforms would assume that the men were acting in a state-sanctioned law enforcement capacity and not as security officers for the apartment complex. Moreover, after one of Clanton’s companions fled, Officer Price ordered the two remaining men to put their hands on the wall and performed a patdown search of the men while brandishing his taser for officer safety. Id. at 10. These actions are consistent with Officer Price’s law enforcement training, but they would not otherwise be available to a private security guard. See Lemon v. State, 868 N.E.2d 1190, 1193-96 (Ind. Ct. App. 2007). Thus, we conclude that although Officer Price was off duty and on private property, the Terry stop and frisk effectuated by Officer Price comes within the auspices of Fourth Amendment protections.
. . . .
. . . [O]ur Supreme Court has held that “the reasonable suspicion which gives authority to a Terry stop does not, without more, authorize the examination of contents of items carried by the suspicious person.” Berry v. State, 704 N.E.2d 462, 466 (Ind. 1998). Thus, if an officer determines that an item is not a weapon and the officer cannot immediately ascertain whether or not the item is contraband, the search of that item must stop. . . . .
Clanton contends that Officer Price went beyond the permissible scope of a Terry frisk when, after removing the pen cap from Clanton’s pocket, he determined that the item was not a weapon but continued to examine it, ultimately discovering that the pen cap held a baggie containing cocaine.7 Appellant’s Br. p. 13. In support of this proposition, Clanton directs us to Harris and Jackson v. State, 669 N.E.2d 744 (Ind. Ct. App. 1996). Appellant’s Br. p. 12-13. In each of these cases, an officer was justified in removing a pill bottle from an individual’s outer clothing on the basis that the hard object felt by the officer might be a weapon. Harris, 878 N.E.2d at 538; Jackson, 669 N.E.2d at 748. However, the officer in each case then overstepped the bounds of Terry by further manipulating the pill bottle, which in turn led to the discovery of cocaine. Harris, 878 N.E.2d at 537, 539; Jackson, 669 N.E.2d at 746, 749.
In our view, the dispositive fact is not whether a container is open or closed, but whether the illicit nature of an item was immediately apparent to the officer or apparent only through further manipulation. . . . .
Here, once Officer Price discovered that the sharp item in Clanton’s pocket was a pen cap, he had dispelled his suspicion that the item was a weapon. Indeed, Officer Price testified that he kept the pen cap, searched it, and seized its contents because, “upon further investigation and looking at it,” he saw a baggie hanging from the pen cap, and based on previous experiences of finding narcotics in baggies in pen caps, he suspected that this baggie contained narcotics. Tr. p. 11, 18, 47-48, 51. Officer Price also admitted numerous times that he could not tell what was inside the baggie when he first observed it hanging out of the pen cap. Id. at 18, 48. In fact, Officer Price realized that the baggie contained cocaine only upon closer examination. Id. at 11. Thus, like in Harris and Jackson where the illicit nature of the pill bottles was not immediately apparent to the investigating officers, here the contraband nature of the contents of the pen cap was not immediately apparent to Officer Price. As a result, the discovery of the cocaine violated Clanton’s right to be free from unreasonable searches under the Fourth Amendment, and the trial court erred in admitting the cocaine into evidence. Thus, Clanton’s conviction cannot stand.
ROBB, C.J., concurs.
BRADFORD, J., concurs in part and dissents in part with opinion:
. . . I do not agree that Officer Price exceeded the scope of the initial search by pulling the plastic out of the pen cap, revealing the cocaine. The record demonstrates that during the outer-clothing pat-down search, Officer Price felt a sharp object in Clanton’s pocket. Believing that the sharp object could potentially be used as a weapon, Officer Price removed the object from Clanton’s pocket, identified it as a pen cap, and immediately saw plastic sticking out of the pen cap. The plastic that was stuffed into the pen cap was immediately apparent to Officer Price. Furthermore, although it was not immediately apparent what specific drug was stored in the plastic bag in the pen cap, Officer Price testified that in his experience as a police officer, he was aware that individuals often store drugs in plastic bags stuffed in pen caps. As such, I would conclude that Officer Price did not exceed the scope of the original pat-down search by removing the plastic from the pen cap and seizing the cocaine contained within.