OH8: Defendant bystander to a search was improperly searched; no RS he was a lookout

Officers approached a house with a search warrant, and they encountered defendant who lived next door in his own yard. Although he was compliant, he was put down and handcuffed and frisked. While it was theoretically possible he was a lookout, that alone was no reason to frisk him. State v. Williams, 2011 Ohio 2397, 194 Ohio App. 3d 431, 956 N.E.2d 887 (8th Dist. 2011), Discretionary appeal not allowed by State v. Williams, 2011 Ohio 5358, 129 Ohio St. 3d 1506, 955 N.E.2d 388 (2011):

[*P17] There was no prior basis to suggest that Williams posed any threat to the officers or was involved in any criminal activity other than the fact he was in close proximity to the officers closing in on the target address. Detective O’Connor’s past experiences, that Williams could have been a lookout for the target address and that executing warrants on drug houses is inherently risky, are insufficient collectively standing on their own to establish an individualized, reasonable, articulable suspicion of criminal activity to support the initial detention. See Bobo, 37 Ohio St.3d at 179.

[*P18] We are cognizant that this case is as much about officer safety as it is about the Fourth Amendment. Police officers are exposed to dangerous situations when conducting searches of homes. Events often happen in a matter of seconds, and there is little time for reflection. The margin of error is often close, and errors carry deadly consequences. Nevertheless, police know they will likely encounter uninvolved citizens on adjacent properties when approaching targeted locations and should be prepared to deal with them. Asking citizens on an adjacent property to go indoors, or to stay indoors, or to leave the immediate vicinity of the search area are all less intrusive options. If the individual then exhibits any behavior that warrants additional police intrusion, it can be justified without violating the tenants of the Fourth Amendment. Officer safety must be a determination of what is both reasonable and acceptable to afford police the necessary protections to ensure both their personal safety and the safety of the public. Officer safety cannot justify what amounts to a custodial arrest where the bystander is handcuffed and mandated to lie on the ground in all instances.