OH2: Officer’s claim he didn’t know whether def’s bag had a gun was unparticularized and applied to everybody

DTF officers entered a Greyhound bus heading to Detroit to question passengers. Defendant’s stop on the bus and then the frisk of his bag lacked reasonable suspicion. The fact there had been drug couriers on the bus before didn’t mean defendant was. The officer’s claim he didn’t know whether defendant’s backpack had a gun applied to everybody on the bus. State v. Mallory, 2020-Ohio-4848, 2020 Ohio App. LEXIS 3690 (2d Dist. Oct. 9, 2020):

Most significantly, it was the State’s burden to establish that Swallen had reasonably feared Mallory might be armed and dangerous, and there was no evidence from which to conclude that Swallen feared violence or was concerned for his own safety or the safety of the other passengers in the course of his encounter with Mallory. Swallen did not articulate a particular set of facts, individualized to Mallory, which would have lead a reasonable person to conclude that Mallory may have been armed and dangerous. Swallen merely stated that he did not know if the backpack contained a gun, which would be true of any luggage on the bus, unless it was searched. Accordingly, we conclude that, although Swallen was interacting with Mallory at close range, the seizure of the back pack was not a reasonable precautionary measure under Terry. Mallory, merely by virtue of being a passenger on a bus where trafficking crimes had previously occurred, did nothing to forfeit his constitutional right to be free from unreasonable searches and seizures. Because we cannot conclude that the seizure and search of the backpack were executed for a reasonable, protective purpose, the seizure and search were invalid.

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