709 N.E.2d 227 | Ohio Ct. App. | 1998
This appeal comes to us from a judgment of conviction and sentence issued by the Bowling Green Municipal Court for possession of drug paraphernalia. Because we conclude that the court should have suppressed evidence acquired through a warrantless search, we reverse.
Appellant, Tony J. Hale, was a passenger in a car stopped by a Pemberville police officer. When the officer arrested the driver of the car for carrying a concealed weapon, he ordered the car in which appellant was riding towed. The officer informed appellant "that he could not ride in the towed vehicle, but told him to ride into town' in the police cruiser. Before the officer put appellant in the cruiser he conducted a "pat-down" search. During this search "the officer felt something in appellant's pocket and pulled it out. The objects the officer found were a package of cigarette rolling papers and a "roach" clip. These items were the basis for the charge of possession of drug paraphernalia.
Appellant "entered a plea of not guilty and moved to suppress the clip and papers found in the warrantless search of his person. At the suppression hearing, the arresting officer testified that he had not offered appellant the option of acquiring other transportation and that a pat-down search before placing anyone in a police vehicle was departmental policy. The officer testified that it was also policy to have one placed in a police cruiser empty his pockets. Notwithstanding this, the officer stated that when he felt the "roach" clip in appellant's pocket he thought that it might be scissors, which could be used as a potential weapon.
Following the hearing, the court ordered the "rolling papers suppressed but denied appellant's request to suppress the "roach" clip. After this ruling, appellant withdrew his pot guilty plea, entered a plea of no contest, and was found guilty of possession of drug paraphernalia. This appeal followed, with appellant setting forth the following single assignment of error:
"The trial court erred in denying the motion to suppress because there was no reasonable and articulate suspicion of criminal activity' sufficient to justify the warrantless search of appelant's [sic] pockets."
The Fourth Amendment to the Constitution of the United States and Section
One such exception is an investigatory detention of an individual reasonably suspected of criminal activity. During such a brief detention the officer may conduct a limited search for weapons. Terry v. Ohio (1968),
Also permitted is a brief pat-down search for weapons of an individual who is to be placed in a police vehicle for a lawful reason. State v. Evans (1993),
Appellant counters by arguing that the policy of the Pemberville police, requiring that all persons placed in police cruisers empty their pockets, goes beyond the permitted pat-down. We agree. See Terry at 23, 88 S.Ct. at "1881,
More troublesome to us is the requirement that appellant get in the police cruiser. The testimony of the arresting officer, taken as a whole, reveals that appellant was given little choice in this matter. It appears that the officer ordered him to get in the car and insisted on searching him before he did so. This was so even though at the time appellant was not charged with, or suspected of, any criminal offense. Clearly, appellant at that point should have had the option of accepting the ride — and the search — or declining both. The officer's testimony is plain: appellant was not informed of that option.
Appellee attempts to justify this by arguing that if the officer had left appellant alone in the country without transportation, the city might have incurred civil liability if anything harmful had happened. That may be, but it does not alter the fact that unless the officer provided appellant with the option, he subjected him to an unlawful seizure of his person, which acts to taint the subsequent search. The situation is somewhat analogous to that found in State v. Robinette (1997),
Accordingly, we conclude that the officer's search of appellant was unlawful and the trial court erred in failing to suppress all of the fruits of that search. Appellant's sole assignment of error is found well taken.
The judgment of the Bowling Green Municipal Court is reversed. Costs to appellee.
Judgment reversed.
GLASSER and KNEPPER, JJ., concur.