{"id":1783,"date":"2008-02-14T11:28:41","date_gmt":"2008-02-13T08:14:34","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-02-13T08:14:34","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1783","title":{"rendered":"Defendant’s failure to respond to question about whether he had drugs was not cause to search"},"content":{"rendered":"

The officer saw a car in the parking lot of a school in the early morning hours, and he pulled into the lot, too. The car moved to another, smaller light, and was cornered, and the officer pulled in behind it. He questioned the occupants, and asked about whether they had drugs in the car, with no justification whatsoever, just to see how they answered. One did, and defendant didn’t. Based on the lack of an answer, the officer searched, and it was completely without cause. State v. Rackow<\/a>, 2008 Ohio 507, 2008 Ohio App. LEXIS 432 (9th Dist. February 11, 2008):<\/p>\n

[*P15] In this case, the officer reacted to a suspicion that was aroused only by the fact that Mr. Rackow did not immediately deny having anything illegal in his possession. The officer admitted he had seen nothing suspicious since approaching the vehicle and he had dispelled any suspicion created by the initial report of a car in the school parking lot. The officer never testified that he was concerned about weapons or any threat to his own safety. In fact, he testified that the men in the car did not look dangerous. The officer asked about drugs, “just to see how they would answer” and continued the inquiry directly with Mr. Rackow only because of Mr. Rackow’s failure to immediately answer the question. The officer turned directly toward Mr. Rackow for the first time, shined his flashlight into his face, and asked him: “If I search you, will I find anything illegal?” The form of the question implied that it was the officer who would decide whether Mr. Rackow would be searched. The officer asked: “If I search you, will I find …?” This choice of words by the officer indicated that “compliance with the officer’s request might be compelled.” United States v. Mendenhall<\/em><\/a>, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). Mr. Rackow had already failed to answer the question aimed at the group and, in response, the officer had focused his attention, his flashlight, and his question, directly at him alone. The reasonable person in Mr. Rackow’s position would not feel free to walk away from the officer at that point. Id.<\/em> Mr. Rackow was sitting in the back seat of a car that was not able to move. Even if the driver had been willing to drive away while the officer was questioning Mr. Rackow, the police cruiser was parked so as to block the car. The interior of the car was lit by the large overhead spotlight the officer trained on the vehicle before approaching it. And the officer was shining a flashlight directly into Mr. Rackow’s face and directing his question at Mr. Rackow specifically. The encounter became an illegal seizure at the moment the officer directly asked Mr. Rackow the question about illegal contraband.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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