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When Can Ohio Police Perform a Stop and Frisk / Pat Down?

What is a “Terry” Stop?

There are three types of police police-citizen interactions:

1) a consensual encounter,

2) a brief investigatory stop or detention, and

3) an arrest.

During the second kind of stop — an investigatory stop (also called a “Terry stop”) — the officer is permitted to briefly stop someone in order to investigate possible criminal activity.  This type of stop happens when the police have reasonable suspicion to believe the person has committed a criminal or traffic violation (e.g., ran a red light, jaywalked, etc.)

Without placing the person under arrest, the officer is permitted to ask questions and ask for identification or enough information to write a citation or to run a background check for outstanding warrants (called a “field investigation”).

During a Terry stop, it is sometimes considered reasonable for the officer to conduct a “protective search” by patting down the suspect for weapons.   The primary purpose of this search is public and officer safety.  But very often the pat down turns up marijuana or other drug paraphernalia that then form the basis for a drug or other criminal charge.

But just because the officer has reasonable suspicion to stop doesn’t mean that he has the right to pat someone down for weapons.  Once the police lawfully stop someone, they can only conduct a pat down if the officer “reasonably believes that the suspect may be armed or a danger to the officer or to others.”  The purpose isn’t to look for drugs or other evidence of a crime, but to make sure the officer is safe.

Defendant Patted Down After Being Stopped for Jaywalking

One recent Ohio case demonstrates the problem of a Terry stop where there was no reasonable suspicion to believe the suspect is armed.

In State v. Millerton, 2015-Ohio-34, the defendant was stopped in the middle of the afternoon for jaywalking.

The officers told the defendant to stop and he did.  Once the officer exited the cruiser, he held the defendant by the arm, and began a pat him down for officer safety, “because the area was known to the Officers as a high crime area.”

There was no other basis for the pat down other than it being a high crime area.   For example, there was nothing suspicious about the defendant’s appearance, he didn’t have any bulge in his pockets, and he didn’t act suspiciously.   He didn’t reach into his pockets or his waistband or take any other actions that might be deemed suspicious or furtive.

During the pat down, the officers found a knife and a gun.  He was charged with carrying a concealed weapon.

No Constitutional Basis to Perform a Terry Pat Down 

Because the defendant was jaywalking (even though the jaywalking statute was later found unconstitutional), the officer did have reasonable suspicion to stop him.

However, the officer did not have the right to pat the defendant down simply because he was walking in a high crime area.

Other examples of cases where there was NO basis for a protective search include:

  • No facts supported that the suspect is armed or dangerous. (State v. Byrd, 2d Dist. Montgomery No. 24583, 2012-Ohio-2659).
  • The defendant was stopped for a minor misdemeanor riding a bicycle on the sidewalk.  She couldn’t produce ID so the officer frisked her before putting her in the cruiser.  The frisk produced drugs.  The pat down was unconstitutional because the suspect was cooperative and didn’t show any risk to officer safety.  (State v. Habel, 190 Ohio App.3d 393, 2010-Ohio-3907, 942 N.E.3d 389 (2d Dist.)).

Similarly here, just walking in a high crime area is not alone enough to justify a stop and frisk.

Therefore, the pat down was unconstitutional and any weapons or other illegal items found were inadmissible.  As a result, all concealed weapons charges were dismissed. 

If you have been charged with marijuana possession, paraphernalia or other criminal charge based on evidence found during a pat down, talk to an attorney about possible defenses.  If you were not under arrest and there was no reasonable suspicion to believe you were armed, the drugs could be excluded from evidence.