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Marijuana Possession & Paraphernalia Charge Dismissed Due to Illegal Search

As we have discussed previously on our blog, the police cannot stop and search your person or your car unless certain standards are met.  This issue came up again in a recent case before the Second District Court of Appeals.

In State v. Hawkins, 2013-Ohio-5458, officers were patrolling in an area that had recently seen a lot of drug activity and drug arrests.  Two men were walking toward the officers, then veered off and cut through the grass into an apartment building.  The officers followed them, even though crossing a lawn is not itself suspicious.

The Facts of the Case

marijuana possession cigarette

The police confronted them men and asked for ID.  One of the men was really nervous and shaking and seemed like he wanted to go into the apartment.  The officer asked for permission to pat them down for weapons.  During the pat down, the officer felt a round solid object and asked what it was.  The defendant asked him to stop the pat down.

The officer asked again what it was and the defendant said “a pipe.”  The officer “pipe” to mean “[a] marijuana smoking device.”  The officer took the pipe out and smelled raw marijuana.  The officer asked if the defendant had any marijuana.  He said that he did.  The officer then searched him and found marijuana in his pocket.

The defendant was cited for possession of drug paraphernalia, a violation of R.C. 2925.14, and for possession of marijuana, a violation of R.C. 2925.11.

The  Motion to Suppress

In court, the defendant moved to suppress the pipe and marijuana.  The trial court overruled that motion and allowed the marijuana into evidence.  The trial court said that the conversation was voluntary and turned into something more (an investigatory detention) when the officer smelled marijuana.  The trial court also found that the pat down was justified and that the smell of marijuana created probable cause to search.

But on appeal, the Court of Appeals disagreed.


Was this a “seizure” under the Fourth Amendment?  Yes. 

The Fourth Amendment prohibits unreasonable searches and seizures.   The first question the appeals court asked was whether this was a “seizure” for purposes of the Fourth Amendment.  In other words, was the defendant allowed to just walk away?

If it was a voluntary conversation and the defendant could walk away anytime, then the Fourth Amendment protections don’t apply. If on the other hand, he was being detained and couldn’t leave, then he is protected against unreasonable search and seizure by the U.S. and Ohio Constitutions.

Here, the court found that the stop was not voluntary or consensual.  Rather, it was an investigatory detention.  The defendant didn’t feel like he could walk away and felt like he had to answer the officer’s questions.

Here, the officers followed the men – they didn’t just run into them.   They told them to stop.  They told them to “stay where they were.”   The men were NOT free to leave.  So, the Fourth Amendment protections do apply.

Did the officers have reasonable suspicion to stop the defendant? No. 

The only time officers are allowed to detain someone is if they have a “reasonable, articulable suspicion that criminal activity may be afoot.”

Here, the defendant was: (1) stopped in a high drug area, (2) looked nervous, (3) seemed like he wanted to leave.  But all of these things were observed AFTER the officers already stopped the defendant.  There was nothing that happened beforehand that was in any way suspicious.

What’s more, being nervous or having shaky hands when stopped by an officer does not mean that someone is engaged in criminal activity.  Usually it it just innocent nerves when talking to a police officer.

Because nothing suspicious happened BEFORE the stop that made the officers believe something criminal was going on, the stop and search was illegal.

Did the officers have reason to believe the defendant was armed or danger to others to support a pat down? 

In order to justify a pat down or frisk, the officer must “reasonably believe that a person is armed or a danger to the officer or others.”  BUT, the frisk is only allowed if the officer’s encounter with the person is lawful.   So, if the initial stop was illegal, then the frisk is too.

Here, as explained above, there was no good reason to stop the defendant in the first place.  So, even if the officers did think the defendant might be armed, the frisk is illegal because the initial stop was illegal.

Same goes for the smell of marijuana.  The officers smelled the marijuana AFTER they had already stopped the defendant. They smelled it during their illegal search.  So, the marijuana smell can’t be the basis for a search here.

As a result, the marijuana and the pipe were thrown out and all charges were dismissed.

If you have been stopped and searched by the police and have been charged with marijuana possession, paraphernalia or other possession charge, make sure you talk to an attorney and take a close look at the circumstances surrounding the stop.  If the stop was illegal, anything found during the stop should be inadmissible in court.