ID: Patdown of a visitor at a probationer’s house during probation search requires RS, and here it was lacking

Finding it a close question, the patdown of a visitor during a probation search of the probationer’s house was unreasonable because there was no indication he was a problem or potentially violent. His demeanor was calm throughout for 17 minutes before the searching officer arrived. State v. Downing, 2017 Ida. LEXIS 349 (Dec. 22, 2017):

The Fourth Amendment to the United States Constitution prohibits unreasonable searches. U.S. Const. amend. IV. A warrantless search is unreasonable unless an exception to the warrant requirement exists. Henage, 143 Idaho at 660, 152 P.3d at 21 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973)). “One such exception allows an officer to conduct a limited self-protective pat down search of a detainee in order to remove any weapons.” Id. (citing State v. Wright, 134 Idaho 79, 82, 996 P.2d 298, 301 (2000)). A pat-search allows a law enforcement officer to investigate “without fear of violence being inflicted upon the officer’s person.” State v. Rawlings, 121 Idaho 930, 933, 829 P.2d 520, 523 (1992). An officer may reasonably justify this type of search if the objective “facts available to the officer at the moment of the [] search [would] warrant a man of reasonable caution in the belief that the action taken was appropriate.” Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Wright, 134 Idaho at 82, 996 P.2d at 301. Several factors can determine whether a reasonable law enforcement officer could conclude someone might be armed and dangerous, including bulges in clothing resembling a weapon, whether the encounter took place at night, furtive movements, appearing nervous or agitated, appearing to be under the influence of drugs, or an unwillingness to cooperate. Bishop, 146 Idaho at 819, 203 P.3d at 1218. “Whether any of these considerations, taken together or by themselves, are enough to justify a Terry frisk depends on an analysis of the totality of the circumstances.” Id. (citing Henage, 143 Idaho at 661-62).

This is a close case. Many of the Bishop factors were missing in this encounter, but some were present. There was no weapon-shaped bulge or furtive movements, and Downing appeared willing to cooperate throughout. However, the encounter took place after Officer Holtry was called to a house and briefed by on-scene officers that at least one of the unsecured people he was about to question had admitted recently smoking methamphetamine. Additionally, the confusion of the situation—even if Downing was not the one acting erratically—likely adds to a reasonable officer’s perceived need to be cautious. Officer Holtry was not present for the preceding seventeen minutes of Downing’s admittedly docile behavior, so he had only a brief snapshot of Downing’s calm demeanor before starting to investigate.

However, given the totality of the circumstances in this case, this Court finds that the pat-search was unreasonable. At the time he was searched, probationer (who had been the only one acting erratically) was handcuffed. Officer Holtry testified that he “didn’t know who was who, who was where, who was doing what.” He further testified that he wanted to “secure things” since Downing and the other visitor were going to “maintain a position of being unsecured.” Terry and its progeny require more than general unease or confusion, however, else law enforcement could conduct frisks in nearly every encounter with the public. Absent a warrant, a frisk for weapons “is only justified when, at the moment of the frisk, the officer has reason to believe that the individual he or she is investigating is ‘armed and presently dangerous to the officer or to others’ and nothing in the initial stages of the encounter dispels the officer’s belief.” Bishop, 146 Idaho at 818, 203 P.3d at 1217.

This Court thus determines that the factors on which Officer Holtry relied to perform a pat-search fell short of the required reasonable articulable suspicion particularized to Downing.