In another recent unconstitutional search and seizure case, an Ohio Court of Appeals has again affirmed that being in a high-crime area does not in itself allow police to conduct warrantless searches.

In this case, a driver was parked at a gas pump and had a baggie in his hand.  He was approached by police who forced him to open his hand, revealing what turned out to be an illegal drug.  The court found that being in a high-crime area and holding a baggie does not indicate that any criminal activity is happening or is about to happen.  Thus, all drug evidence was excluded from evidence and the drug possession charges were dismissed.

Police Force Driver at Gas Pump to Open Hand Holding a Clear Plastic Bag

The officers testified that at approximately 1:30 a.m., they pulled into a gas station in a neighborhood known for drugs.   They tried to pull up to a pump, but the driver’s side door of another car was blocking their way.  The other car was also at a gas pump.

The officers were able to see into the driver’s side, as the door was wide open, as they waited for him to close the door so they could drive through to the pump.   There was one man inside the car who was “leaned over towards the passenger seat, kind of fumbling around or grabbing stuff.”

While the officers were waiting for him to close his door, one officer noticed he had a clear plastic bag in his right hand.  Based on the officer’s experience, “the majority of street level narcotics is transported in clear plastic sandwich bags,” which aroused his suspicion.

The driver was already outside of his car when one officer walked over and asked what was in the driver’s hand.  At no point prior to asking questions did the officer read the driver his Miranda rights.

The driver wouldn’t answer and kept his hand closed down by his side.  There was half of a baggie sticking out of the driver’s closed hand.  The officer could not see what was in the baggie, but was suspicious that the driver was trying to hide drugs.

Finally, the officer grabbed the driver’s arm and told him to open his hand, which he did.  The officer saw red and green colored pills in an odd shape, which the driver stated were Valium.  Only after the officers had the bag and the driver admitted what was in it did the officers read him his Miranda warnings.

The officers collected the pills for testing and released the driver.  Test results revealed that the pills were n-benzylpiperazine (BZP), a controlled substance.

Motion to Suppress: No Reasonable Suspicion to Conduct a Stop or Search

At the hearing on the driver’s motion to suppress evidence, his attorney questioned the officer about all of the other legal things that could have been in that baggie.

For example, the driver could have just been cleaning trash out of the passenger seat to throw away at the gas station.  The officer didn’t know the driver, he didn’t have any outstanding warrants, and the officer had not at that point run the driver’s name through dispatch.

Other than sitting in his car having a plastic bag in his hand, the driver hadn’t done anything illegal.

Warrantless Searches: Terry Stops

Warrantless searches and seizures are considered unreasonable as a matter of law under the Fourth Amendment, subject to only a few exceptions.

One of those exceptions is the rule regarding investigative stops, also called a “Terry” stop.  In these cases, a police officer may stop someone to investigate unusual behavior, without a warrant or probable cause to arrest, if the officer has a “reasonable, articulable suspicion that specific criminal activity may be afoot.”   There must be “specific and articulable facts that, taken together with the rational inferences from those facts, reasonably warrant that intrusion.”

No Reasonable Suspicion of Criminal Activity = Illegal Search and Seizure

Here, the driver was seized and searched by the officers without any reasonable, articulable suspicion that criminal activity was afoot.

He was seized because: he was approached by two uniformed officers, they were in a confined space, they repeatedly asked him about what was in his hand.  Thus, he was restrained – or seized – by this show of authority and wouldn’t have felt free to leave.

There was no reasonable, articulable suspicion of criminal activity because: he was on private property, the gas station was open, the driver was at a gas pump engaged in an activity that was consistent with merely removing trash from his car, the officers were not dispatched there due to a complaint, the officers didn’t know the driver, and there no testimony that the driver appeared to be under the influence of drugs.

The mere presence of a “sandwich bag,” in an area known for drug activity, under the totality of the circumstances, does not support a warrantless seizure and search.

Accordingly, all drug evidence found during the illegal search was deemed inadmissible and the charges dropped.

The full text of the case may be found at: State v. Embry, 2015-Ohio-193

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