OH4: Automatic frisk of anyone officer got out of a car violates Terry

The officer’s policy to frisk anybody he gets out a vehicle, without regard to reasonable suspicioin they are armed, is unreasonable under Terry. However, “the totality of the circumstances present in the case sub judice supports the application of the inevitable-discovery doctrine.” State v. Willoughby, 2021-Ohio-2611, 2021 Ohio App. LEXIS 2616 (4th Dist. July 22, 2021):

{¶19} In the case sub judice, the trial court concluded that Corporal Harger’s pat-down search “seem to be his own standard operating procedure when he removes anyone from a motor vehicle.” Harger did not articulate facts to demonstrate that he had a reason to believe that appellant may have been armed and dangerous. At the suppression hearing, Harger acknowledged that, although he stated in the complaint that the driver acted nervously, at the hearing Harger testified that all occupants behaved that way. Harger also testified that he generally removes people from vehicles before he walks his canine around a car because of “safety of the unknown, what’s inside that vehicle as far as weapons, safety for myself, my partner and everybody that could be around. Like I said, we were right there on 23, we don’t know what’s inside that vehicle. It’s standard procedure for any type of stop, including my K-9.” As for appellant’s pat-down, Harger stated “just because of all of the areas that I have been trained in. It was, like I said, there was inconsistencies of the stories, and just for my safety.”

{¶20} While we readily agree that officer safety is of paramount importance, under the lens of existing law that Terry demands, we believe that the totality of the circumstances in the case at bar did not rise to the reasonable and objective basis to believe that the occupants were armed and dangerous. We, however, are also fully aware of the alarming trend of increasing danger and tragic circumstances that law enforcement officers now encounter on a daily basis while conducting routine traffic stops. Certainly we can foresee a time when an officer’s safety may permit a pat-down search for weapons even during routine traffic stops even without the need for specific facts to indicate that a detainee may be armed and dangerous. Today, however, the controlling authorities have not yet adopted that view.

{¶21} Consequently, we agree with the trial court’s conclusion that the officer’s pat-down search did not comply with the Terry requirements. However, to determine whether the evidence in the case at bar must be suppressed, we turn to a discussion of the inevitable-discovery doctrine.