OH4: A frisk for weapons is limited; the video here shows a search for drugs with officers digging in his pockets

A frisk for weapons is limited; the video here shows a search for drugs with officers digging in his pockets. The search wasn’t for weapons, and his consent was invalid. State v. Debrossard, 2015-Ohio-1054, 2015 Ohio App. LEXIS 989 (4th Dist. March 18, 2015):

[*P30] The trial court, in its decision denying Appellant’s motion to suppress, determined that the contraband at issue was recovered during the course of a lawful Terry pat-down search. As set forth above, the primary purpose of Terry is to permit a frisk of a suspect believed to be armed. Further, a Terry search is limited in nature and is designed primarily to facilitate officer safety. “The frisk described by the Terry Court, *** is a limited search for weapons, requiring that the intrusion be limited to a patdown of the suspect’s outer clothing. A police officer may not order a suspect to empty his pockets instead of a pat-down.” Ohio Arrest, Search and Seizure, §16.1, Lewis R. Katz., 2013 Edition; citing State v. Todd, 2nd Dist. Montgomery No. 23921, 2011-Ohio-1740. Further, “[e]vidence secured when defendants are not frisked but ordered to empty their pockets will not be admissible when the only authority is a search for weapons [footnote omitted]. Similarly, where a police officer reaches into a pocket without first frisking the suspect, evidence retrieved is not admissible under Terry.” Id. at §16.3; citing State v. Linson, 51 Ohio App.3d 49, 554 N.E.2d 146 (8th Dist. 1988); State v. Franklin, 86 Ohio App.3d 101, 619 N.E.2d 1182 (1st Dist. 1993); and State v. Kratzer, 33 Ohio App.2d 167, 293 N.E.2d 104 (10th Dist. 1972).

[*P31] Here, a review of the transcript from the suppression hearing as well as the video from the cruiser cam reveals that the officers’ search of Appellant was directed at more than just discovering weapons. In fact, during direct examination, Sergeant Tim Gay expressly stated that he asked Appellant for consent to search his person for drugs. Sergeant Gay later stated on cross-examination that the search was conducted as both a weapons pat-down and for drugs. Likewise, Officer Tonya Gannon testified on direct examination that Appellant was asked for consent to search for weapons and drugs. Thus, the goal of the search was to discover more than simply weapons.

[*P32] Further, a review of the video indicates that at no point did law enforcement conduct a preliminary or initial frisk of Appellant prior to digging into his pockets. In fact, there was no initial pat-down at all, but rather, a male officer began immediately emptying out Appellant’s pockets while he was cuffed. As the male officer continued to empty out Appellant’s pockets, the female officer, presumably Officer Gannon, began to go through the contents, including opening up various papers and seemingly reading them. It was not until the officer went through and emptied all of Appellant’s jacket and pants pockets that a male officer appeared to conduct a limited pat-down of Appellant’s lower body. Thus, there seemed to be no concern at all that Appellant possessed a weapon on his body at the time he was being searched. As a result, we disagree with the trial court’s determination and instead conclude that the search of Appellant’s person in this case far exceeded the scope of a limited pat-down search for weapons under Terry. See State v. Scott, 61 Ohio App.3d 391, 394, 572 N.E.2d 819 (1989) (finding the warrantless search of the defendant’s person was illegal where the search was not limited to a pat-down, but rather extended to reaching into defendant’s pockets for evidence.) As such, the discovery of the contraband at issue cannot be justified under a Terry stop and frisk analysis. Therefore, the only reason the discovery of the narcotics and heroin should not have been suppressed is if the trial court determined that Appellant consented to the search. As will be discussed more fully below, the trial court found that Appellant’s consent to search was involuntary and therefore, invalid.