WHEN CAN A POLICE OFFICER ORDER A PERSON TO EMPTY THEIR POCKETS?
A recent decision from the Ohio Court of Appeals has held that police officers may order someone to empty his or her pockets only when the officer believes a person has a weapon (is armed and dangerous). The police officer must be able to point to specific facts to justify the necessity for a weapons check for public or officer safety.
If an officer is not concerned for his safety and is only interested in finding illegal drugs, asking someone to empty their pockets is an illegal search.
OFFICER QUESTIONS DRIVER AT GAS STATION
In State v. Kinnison, 2016-Ohio-3481, a police officer received a tip of a vehicle driving erratically on the road late at night. The officer found the vehicle in the parking lot of a gas station, and found the Defendant inside the building.
The defendant stated he owned the vehicle, and had just left the hospital after receiving prescription medication. The officer believed the Defendant was acting suspiciously. When asked if he feared for his safety, the officer gave a vague answer, saying “you never know . . . we are in danger with everyone.”
The officer didn’t do a pat down. But the officer did suspect that the Defendant might be using drugs as he was acting lethargic and had slow speech. So, the officer said to the Defendant something like – “Do you have a problem emptying your pockets?” in order to see if he had any drugs.
The Defendant complied and when he emptied his pockets, a small bag of heroin fell to the ground. He was arrested and charged with possession of drugs.
THE FOURTH AMENDMENT
“The Fourth Amendment to the United States Constitution protects individuals from unreasonable searches and seizures.” Terry v. Ohio, 392 U.S. 1, 88 The state of Ohio classifies the publics dealings with the police into three categories:
1) A consensual encounter,
2) A brief investigatory stop, Sometimes called a Terry Stop
3) An arrest.
State v. Jones, 188 Ohio App.3d 628 (10th Dist.).
Investigatory detention, often referred to as a Terry stop, allows an officer to briefly stop and temporarily detain individuals in order to investigate possible criminal activity. Terry v. Ohio, 392 U.S. 1, 88.
An investigatory stop does not constitute an arrest or place the suspect in custody. A Terry Stop happens when the person stopped by police believes that he or she is not free to leave or is forced to respond to questions.
“During a Terry stop, an officer can ask for identification or sufficient information to write a citation or to run a background check for outstanding warrants, often called a ‘field investigation’”. State v. Wortham, 145 Ohio App.3d 126
TERRY FRISK: LIMITED SEARCH FOR WEAPONS ONLY
In the Terry case, the Court held that police officers are also allowed to do pat down searches, without arresting the person, when officers suspect that an individual may be armed and dangerous.
Here, in Kinnison the conversation between the police officer and the Defendant was just investigatory. The officer was asking if he owned the car, where he was going, if he had any drugs in the car. Both the police officer and the Defendant testified that the Defendant was not free to leave.
However, the police officer testified that the only reason he told the Defendant to empty his pockets was because he suspected he had illegal drugs. He didn’t suspect that the Defendant had a weapon. So, the officer did not have a reasonable concern for his safety to search the Defendant’s pockets.
He did not have a warrant and did not suspect the Defendant had a weapon. So, the search was illegal and the drugs discovered as a result of the illegal search were inadmissible.
COURT’S RULING IN KINNISON
The Court in Kinnison concluded:
“There is nothing to support a reasonable articulable suspicion that [the Defendant] was armed and dangerous that would justify the necessity for a weapons check for public or officer safety. Moreover, since [the officer] was admittedly not concerned for his safety and was only interested in finding illegal narcotics, his request for [the Defendant] to empty his pockets was clearly an unlawful intrusion under the Fourth Amendment.”
If you have been charged with any drugs or alcohol related offenses and have questions about defenses related to your legal rights, talk to one of our Columbus defense attorneys about your case at 614-361-2804.
Written by Anthony Iori, Esq, Riddell Law LLC Associate Attorney