State v. Dunlap
2013 Ohio 5637
Ohio Ct. App.2013Background
- At 2:30 a.m., Officer Jackson stopped a vehicle for a cracked windshield; Hashim Dunlap was a rear-seat passenger.
- Officer observed Dunlap "fidgeting" and asked for ID; Dunlap said he had none but identified himself.
- Officer conducted an initial consensual pat-down and a sweep of the backseat; no weapons were found and Dunlap was allowed back in the car while the driver was cited for a suspended license.
- While the officer was with the driver, he observed Dunlap again fidgeting, brought him out, and conducted a second pat-down with Dunlap’s consent.
- During the second frisk the officer removed a wallet (containing about $1,400) and then a digital scale with white powder; the scale was later tested as cocaine.
- Dunlap was indicted for drug possession; he moved to suppress the wallet and scale; the trial court denied the motion, he pleaded no contest, and appealed the denial of suppression. The appellate court reversed and ordered the wallet and scale suppressed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Were the consecutive Terry frisks reasonable? | Stop and repeated frisks were reasonable given furtive movements and officer safety concerns. | First frisk ok; second frisk unreasonable because prior search and sweep eliminated weapon concerns. | Both frisks were reasonable; officer safety justified second pat-down given ongoing furtive behavior and consent. |
| Could officer remove a non-weapon-feeling object (wallet) during frisk? | Removal permitted by officer safety and because Dunlap lied about ID. | Wallet did not feel like a weapon; removing it exceeded Terry’s protective scope. | Removal was unreasonable; officer admitted wallet did not feel like a weapon and Terry is limited to weapons. |
| Could officer remove the digital scale found after the wallet? | Once wallet found, officer could arrest for falsification or otherwise justify further search; seizure incident to arrest. | Officer never arrested before removing the scale; removal was a search for contraband beyond Terry. | Removal of scale was unreasonable; officer did not place Dunlap under arrest and the search exceeded Terry’s scope. |
| Was suppression of the wallet and scale improper? | Items discoverable; officer had articulable safety concerns and later probable cause. | Items obtained in unreasonable search; must be suppressed. | Suppression required: wallet and scale suppressed because removals exceeded permissible Terry frisk and no lawful arrest justified search incident to arrest. |
Key Cases Cited
- Katz v. United States, 389 U.S. 347 (establishes warrant requirement and privacy principles under the Fourth Amendment)
- Terry v. Ohio, 392 U.S. 1 (authorizes limited protective frisks when officer has reasonable, articulable suspicion the person is armed and dangerous)
- Minnesota v. Dickerson, 508 U.S. 366 (limits frisk to discovery of weapons and prohibits using a frisk as a pretext to find contraband)
- State v. Evans, 67 Ohio St.3d 405 (Ohio Supreme Court: Terry frisks are limited to weapons; removal of non-weapons must be justified by size/density and officer safety)
- Adams v. Williams, 407 U.S. 143 (protective search purpose is officer safety, not to discover evidence of crime)
- State v. Hackett, 171 Ohio App.3d 235 (successive frisks become increasingly attenuated; police not entitled to unlimited searches)