A recent case, State v. Brandon, dealt with the issue of whether a pat down search of a person is lawful in the interest of officer safety when the person is not under arrest.
Facts of the Case
Brandon was stopped by law enforcement because officers wanted to question him in connection with a missing juvenile. The officers wanted Brandon to come to their office and speak with them. Brandon stated he would, but declined the officers invitation to accompany them in their vehicle. Brandon stated that he would drive himself.
One of the officers checked the interior of Brandon’s vehicle for weapons and another officer checked to see if Brandon had a valid license. One of the officers asked Brandon if he had anything on his person and told Brandon that he was going to conduct a pat down search of Brandon. The officers justified this search because of officer safety and not wanting to transport Brandon in their vehicle without having first checked Brandon for weapons.
During the search of Brandon, cocaine and marijuana was found, resulting in an indictment of Brandon for possession of cocaine, a 4th degree felony, and possession of marijuana, a minor misdemeanor. Brandon entered a plea of not guilty to both charges and his attorney filed a motion to suppress the evidence as illegally obtained by the police. However, the motion was denied as the trial court concluded that the officers “acted appropriately and reasonably under the circumstances.” This ruling was appealed.
Contact with the Police
Contact between the police and the public can be characterized in one of three ways: investigation, “Terry stop,” and probable cause to believe a crime has been committed.
The first type of contact is initiated by the police for the purposes of an investigation. Merely approaching and individual in public to ask voluntary, uncoerced questions does not violate the Fourth Amendment to the United States Constitution. Even when the officers have no basis for suspecting that the individual committed a crime, law enforcement may ask questions of that individual and ask to examine their identification. However, the person approached does not have to answer any questions and may walk away. Moreover, the person cannot be detained for any length of time.
A Terry stop is predicated upon reasonable suspicion. This is a temporary detention of a person and is justified if there is reasonable suspicion that a person has committed a crime or is about to commit a crime.
Probable Cause to Believe a Crime Has Been Committed
The final type of contact occurs when an officer has probable cause to believe that a crime has been committed and the person stopped committed it. A warrantless arreset is lawful if the officer had probable cause to believe at that based on the facts and circumstances at that moment the individual detained had committed or was committing a crime.
In this case, the officers did not stop Brandon’s vehicle. The officers were in an unmarked vehicle, never activated any sirens, and did not motion or request that Brandon pull over. Furthermore, the officers did not ask Brandon to exit his vehicle. Brandon voluntarily exited his vehicle. Therefore, the Fourth Amendment does not apply and the request for Brandon’s identification was appropriate.
However, the authority to conduct a pat down search is not automatic. The Fourth Amendment requires that the officer have a reasonable fear for his own or others safety before conducting a pat down search. The officer must be able to articulate something more than an unparticularized suspicion or hunch.
The Ohio Supreme Court, in State v. Lozada, dealt with the issue of detentions and searches in a somewhat analogous case. In Lozada, an Ohio State Trooper stopped a vehicle for speeding and asked the driver to exit his vehicle. The trooper conducted a pat down search and found cocaine. The Court found that even though the initial stop was proper, the pat down search was not. Whether an officer may pat a person down before placing him in a vehicle depends upon the legitimacy of placing him in the police cruiser in the first place.
Placement of a person in a cruiser to facilitate a traffic stop may be permissible, such as when the conditions on the road are hazardous. However, it cannot be done to justify a search of the driver. This would violate the requirement of a specific and articulable belief that an individual is armed and dangerous under Terry.
Here, Brandon was not under arrest when asked to by the officers to come to their office. Furthermore, Brandon declined the invitation to ride in the officers’ cruiser. Rather, Brandon wished to drive himself. Moreover, the officers had no legitimate reason to place Brandon in their cruiser to transport him for questioning and the officers never expressed any reasonable, articulable suspicion that Brandon was armed.
Thus, the court held that the officers did not provide sufficient reasons to justify a reasonable belief that Brandon was armed and dangerous. Therefore, the pat down search of Brandon was illegal and the evidence obtained (i.e., cocaine and marijuana) must be suppressed.
Columbus and Delaware, Ohio Criminal Defense Attorney
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