State v. Evans

Wright, J.,

dissenting. I must respectfully dissent because the majority’s analysis fails in two critical, interrelated respects. First, it is apparent from the testimony of the officers that they did not have a reasonable belief there was a weapon in Evans’s left front pocket. Thus, the search of the interior of the pocket and the subsequent seizure of a small amount of cocaine went beyond the constitutional limits set by Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.

Second, and more important, the record is clear that the officer pressed beyond the limits of a Terry search when he put his hand into Evans’s pocket and *417removed the contents because of his suspicion that the pocket contained drugs, not a weapon. Therefore, the constitutionality of the search of the interior of the pocket must be analyzed in light of the United States Supreme Court’s very recent ruling in Minnesota v. Dickerson (1993), 508 U.S.-, 113 S.Ct. 2130, 124 L.Ed.2d 334. In Dickerson, the court held that an officer must have probable cause, not just reasonable suspicion, to extend a Terry pat-down search for weapons into a search for contraband. I believe that Dickerson is dispositive of this matter, yet the majority relegates Dickerson to a footnote. A full analysis of Dickerson is contained infra.

I

The majority bases its decision on Terry and its progeny. There are three steps to a Terry analysis. First, to justify the investigatory stop the officer must have a reasonable suspicion that “criminal activity may be afoot.” Terry, 392 U.S. at 30, 88 S.Ct. at 1884, 20 L.Ed.2d at 911. Next, if the officer reasonably believes the person “may be armed and presently dangerous,” the officer may engage in a limited frisk comprised of a pat down of the person’s outer clothing to discern whether the person is carrying a gun or other weapon so that the officer may proceed with the investigation without fear for the officer’s safety. Id. at 30, 88 S.Ct. at 1884-1885, 20 L.Ed.2d at 911. Finally, the officer is permitted to proceed beyond this limited pat down of the outer clothing of the detained person only if the officer has a reasonable belief that the object he or she is reaching for is a weapon.6 The determination of whether the officer’s belief is reasonable is an objective, not subjective, test. Id. at 21-22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906; State v. Williams (1990), 51 Ohio St.3d 58, 60, 554 N.E.2d 108, 111. In other words the mere incantation of the magic words “I believed the object was a weapon” is not enough to make a warrantless search constitutional.

Applying the three steps of a Terry search to the present case, I agree with the majority that the initial stop for the broken headlight was permissible. However, I believe that there is support for the conclusion by the court of appeals that the officers never had a reasonable belief that Evans was armed and, thus, a pat-down search was inappropriate. I reach this conclusion based on a number of points raised by the majority, with which I agree. I agree that “[a] Mimms order does not automatically bestow upon the police officer the authority to conduct a pat-down search for weapons” and the officers must have “a reasonable, objective basis for frisking defendant.” (Emphasis added.) All must agree *418that Terry requires that the officer reasonably conclude that “the individual whose suspicious behavior he is investigating at close range is aimed and presently dangerous to the officer or to others * * Id., 392 U.S. at 24, 88 S.Ct. at 1881, 20 L.Ed.2d at 908. The majority correctly notes that we have stated that an officer must have “a reasonable suspicion that an individual is armed based on the totality of the circumstances * * *.” State v. Bobo (1988), 37 Ohio St.3d 177, 524 N.E.2d 489, paragraph two of the syllabus. But be that as it may, these proper statements of the law do not lead the majority to a correct conclusion in this case. Surprisingly, the majority points to no evidence that the officers had an objectively reasonable belief that Evans was armed.7

This leads me to conclude, as did the court of appeals, that the real motivation for the search was the radio broadcast and the real purpose of the search was to look for drugs. The majority appears to misunderstand or ignore the full significance of the radio broadcast and its effect on the actions of the police officers, a significance which Judge Harper understood full well in her opinion for the court of appeals. One can debate whether the radio broadcast was the real reason for the Terry pat-down search or whether the reason somehow involved a routine police procedure to frisk Evans before placing him in the back of the police car while the officers ran a computer check on his license and car registration. One can, perhaps, debate whether the radio broadcast, following a lawful stop, permitted a Terry pat-down frisk.

*419What cannot be debated, however, is the fact that the radio broadcast, referring to an alleged drug transaction, affected the officers’ actions concerning the extent of the search of Evans. This can be seen from the testimony of both of the police officers. Officer Green testified that the real reason for the search was the radio broadcast. Officer Travano stated that he conducted an extended search because of the radio broadcast’s reference to drugs.

Officer Green testified concerning police practice with regard to persons who have been stopped on minor traffic violations:

“Q. They don’t arrest on that?
“A. No.
“Q. You don’t take people out of the car and search them for that also, do you?
“A. No.
“Q. And the sole purpose of taking him out of the car and frisking him was based on the alleged information you received from the radio broadcast, correct?
“A. Yes.
« * * *
“Q. Would it be safe to say, but for the radio broadcast, you would have never taken him out of the car, out of the car and patted him down. That would be accurate, wouldn’t it?
“A. Correct.” (Emphasis added.)

After this testimony during cross-examination, on redirect Officer Green testified that the reason he initially asked Evans to get out of the car was because Evans did not have his driver’s license and that he would have searched him for this reason also. The trial court made its own inquiry to clarify the officer’s testimony:

“Q. The question, Officer, is what was the reason on this very occasion that you did conduct the search on the gentleman.
“A. On this particular occasion the reason he was searched, it was due to the radio broadcast.” (Emphasis added.)

Officer Travano repeatedly testified that he intended to conduct a more extensive search than a Terry pat-down frisk because of the radio broadcast. In reality, Officer Travano intended to conduct two searches: one, a Terry pat-down frisk for weapons which he justified on the basis that Evans would be placed in the back of the police vehicle while the officers ran a computer check on his license and car registration and, two, a more extensive search for contraband because of the information contained in the radio broadcast. Officer Travano testified:

*420“A. Before we put anybody in the police car, we do a weapon search.
“Q. Do you do a search for anything else?
“A. If our call is like — depending on the call. If it is drug related, the search could possibly be more extensive due to the fact we checked the back seat of the police car before and after we put somebody in.
“So if the call came over that narcotics were involved or any kind of contraband, there would be a more, you know, search I would say.”

In a series of questions to Travano by the prosecutor concerning the practice of detaining persons who do not have a driver’s license with them, the prosecutor asked:

“Q. * * * Would you normally search that person?
“A. Yes.
“Q. And the purpose of doing that, would it be necessarily for a weapon?
“A. Yes.
“Q. Would it be for anything else?
“A. Like I stated, depending on the call. You know, especially if there’s contraband possibly involved.
“Q. In this particular instance, was there an indication of contraband being involved?
“A. By the radio broadcast, yes. It gave us reason to believe that this male possibly had some contraband on his person.” (Emphasis added.)
Subsequently, in response to questions from defense counsel, Travano testified:
“Q. Now, you also said that at certain times you do more extensive searches than others.
“A. Yes. Right. Right, based on the probable cause and plus the radio broadcast. Our suspicion.
“Q. Your suspicion?
“A. Right.
“Q. And the radio broadcast?
“A. Yes.” (Emphasis added.)

Although Officer Travano denied that the radio broadcast “triggered” the search, it is apparent that the radio broadcast affected the scope of the search. Travano intended to engage in an extended search for the purpose of finding contraband. But Terry permits only a “strictly circumscribed” search, id., 392 U.S. at 25, 88 S.Ct. at 1882, 20 L.Ed.2d at 908, the purpose of which “is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence * * Adams v. Williams (1972), 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 617.

*421Officer Travano’s testimony describing the actual search confirms that he went into Evans’s pocket not because he had a reasonable belief there was a weapon in the pocket, but because he suspected there were drugs in the pocket. To reach its contrary conclusion, the majority resorts to a selective editing of the actual testimony. The majority appears to distort the testimony when it states that the officer “upon patting down defendant, [Officer Travano] discovered a ‘large bulk’ in the left front pocket which ‘felt like a rock substance.’ ” The actual testimony of the officer was: “Upon patting down the defendant over there, there was a large bulk in his pocket. While feeling the left front pocket, it felt like a rock substance might be in his pocket. That is when I dug in his pocket and I pulled out a large wad of money. On top of that was a little packet which was a white substance believed to be crack cocaine.” The officer never testified, as the majority states, that the large bulk felt like a rock substance. Instead, it is apparent from the officer’s testimony that he is describing two separate items: a large bulk and a rock substance. We also know from the officer’s testimony that the large bulk was money. A wad of money is a soft object. The majority states a rule it chooses not to follow: “ ‘Under the better view, then, a search is not permissible when the object felt is soft in nature.’ ” The second object, the rock substance, we know from the officer’s testimony was a little packet believed to be crack cocaine.8 Again, according to the majority’s own rule, “ ‘[i]f the object felt is hard, then the question is whether its “size or density” is such that it might be a weapon.’ ” It is not objectively reasonable to believe, as Terry and its progeny require, that a little packet of rock substance might be a weapon. The purpose of Terry is to protect the officer from danger. Not even the majority can suggest that the officers were in danger from an object so small.

Despite the majority’s statement that “[o]ur holding today does not authorize the removal of a soft object that the officer knows or reasonably should know is not itself a weapon on the grounds that it may contain a small weapon such as a razor blade,” that is indeed what the majority has done.9

II

Since the officer’s intrusion into Evans’s pocket was not justified under Terry as a pat-down search for weapons, it remains to determine whether it was

*422justified under the “plain feel” exception recognized by the United States Supreme Court in Dickerson. Because of its direct relevance to the disposition of this case, as stated above, I will discuss Dickerson in some detail.

In Dickerson, the Minnesota Supreme Court had ruled that the seizure of a small packet of cocaine from the defendant’s pocket during a Terry pat-down search was unconstitutional for two reasons: First, the court refused to recognize a “plain feel” exception to the warrant requirement of the Fourth Amendment and, second, even if such an exception existed, the intrusion into the defendant’s pocket was outside the permissible scope of Terry. The United States Supreme Court affirmed the judgment of the Minnesota Supreme Court. The court disagreed with the Minnesota Supreme Court concerning recognition of a .plain feel exception, but agreed that the search exceeded the limits of Terry and was therefore unconstitutional.

In rendering its decision, the Supreme Court again reviewed the requirements of Terry and its progeny. The court stated:

“Time and again, this Court has observed that searches and seizures ‘ “ ‘conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well delineated exceptions.’ ” ’ One such exception was recognized in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which held that “where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot’ the officer may briefly stop the suspicious person and make ‘reasonable inquiries’ aimed at confirming or dispelling his suspicions.

“Terry further held that ‘[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,’ the officer may conduct a patdown search ‘to determine whether the person is in fact carrying a weapon.’ ‘The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence * * Rather, a protective search — permitted without a warrant and on the basis of reasonable suspicion less than probable cause — must be strictly ‘limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.’ If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed.” (Emphasis added and citations omitted.) Dickerson, 508 U.S. at-, 113 S.Ct. at 2135-2136, 124 L.Ed.2d at 343-344.

The Supreme Court then considered whether a plain feel exception could be analogized to the plain view exception. Under the plain view exception, “if police are lawfully in a position from which they view an object, if its incriminating *423character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. * * * If, however, the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object — i.e., if ‘its incriminating character [is not] “immediately apparent,” ’ * * * — the plain-view doctrine cannot justify its seizure.” (Citations omitted.) Id. at-, 113 S.Ct. at 2136-2137, 124 L.Ed.2d at 345.

The court found that there was an analogy between the plain view doctrine and “cases in which an officer discovers contraband through the sense of touch during an otherwise lawful search.” Id. at-, 113 S.Ct. at 2137, 124 L.Ed.2d at 345. Just as with the plain view doctrine, the object’s identity must be “immediately apparent.” “[T]he Fourth Amendment’s requirement that the officer have probable cause to believe that the item is contraband before seizing it ensures against excessively speculative seizures.” Id.

The court then applied the above principles to the facts in Dickerson. The court found that “the dispositive question before this Court is whether the officer who conducted the search was acting within the lawful bounds marked by Terry at the time he gained probable cause to believe that the lump in respondent’s jacket was contraband.” Dickerson at-, 113 S.Ct. at 2138, 124 L.Ed.2d at 347. The court agreed with the Minnesota Supreme Court that the officer “overstepped the bounds of the ‘strictly circumscribed’ search for weapons allowed under Terry. * * * Where, as here, ‘an officer who is executing a valid search for one item seizes a different item,’ this Court rightly ‘has been sensitive to the danger ... that officers will enlarge a specific authorization, furnished by a warrant or an exigency, into the equivalent of a general warrant to rummage and seize at will.’ * * * [The search] therefore amounted to the sort of evidentiary search that Terry expressly refused to authorize, * * * and that we have condemned in subsequent cases.” (Citations omitted.) Dickerson at-, 113 S.Ct. at 2138-2139, 124 L.Ed.2d at 347-348. This clear-cut holding is why I must offer my vigorous dissent in this case.

The Supreme Court’s conclusion in Dickerson requires that we also find that the search into Evans’s pocket was outside the strictly circumscribed limits of a Terry search. “Although the officer [in Dickerson] was lawfully in a position to feel the lump in respondent’s pocket, because Terry entitled him to place his hands upon respondent’s jacket, the court below determined that the incriminating character of the object was not immediately apparent to him. Rather, the officer determined that the item was contraband only after conducting a further search, one not authorized by Terry or by any other exception to the warrant requirement. Because this further search of respondent’s pocket was constitu*424tionally invalid, the seizure of the cocaine that followed is likewise unconstitutional.” Dickerson at-, 113 S.Ct. at 2139, 124 L.Ed.2d at 348.

There is no testimony in this case that when the officer patted down Evans’s front pocket it was “immediately apparent” to him that either the soft wad or small rock substance items were drugs. The state must carry the burden of proof to show that the warrantless search and seizure were constitutionally permissible. Xenia v. Wallace (1988), 37 Ohio St.3d 216, 524 N.E.2d 889, paragraph two of the syllabus. The officer had only a “suspicion” that the items in the pocket were contraband; he did not have probable cause to believe that the items were contraband. Therefore, under Dickerson, the intrusion into the pocket was unconstitutional as was the subsequent seizure of the cocaine.

I fear that today’s decision will cause the lower courts to grievously misapply— or, worse yet, feel no need to apply — Dickerson. A majority of this court evidently does not understand that the plain feel exception, like the plain view exception, requires probable cause. This is an error that the United States Supreme Court must quickly correct, lest the plain feel exception devour the probable cause rule.

Had I been in the majority I would have engaged in an independent analysis of the Ohio Constitution to determine whether our state Constitution would permit a plain feel exception. This decision particularly troubles me because other state supreme courts are analyzing their state constitutions and finding protections greater than the protections afforded under the United States Constitution. With this decision, the majority is not affording Ohio citizens even those rights which the United States Supreme Court recognizes under the United States Constitution. As Justice A.W. Sweeney said in his dissenting opinion in State v. Smith (1989), 45 Ohio St.3d 255, 268, 544 N.E.2d 239, 250, reversed (1990), 494 U.S. 541, 110 S.Ct. 1288, 108 L.Ed.2d 464:

“While we as a society must endeavor to deal with the scourge of illegal drugs in a quick and effective manner, we must never sanction a solution that dispenses with the constitutional guarantees and personal liberties that have made ours the most enduring government on the face of the Earth.”

For all these reasons, I would affirm the judgment of the court of appeals.

A.W. Sweeney and Pfeifer, JJ., concur in the foregoing dissenting opinion.

. For a discussion of the application of this standard, see 3 LaFave, Search and Seizure (2 Ed.1987) 521, Section 9.4(C), and Katz, Ohio Arrest, Search and Seizure (3 Ed.1992) 244, Section 14.04. The majority recognizes this standard in paragraph two of the syllabus.

. The majority justifies the search on two separate, independent grounds: (1) police procedure to frisk individuals for weapons prior to placing them in the back seat of the cruiser, and (2) the radio broadcast description of a person who had allegedly engaged in a drug transaction.

The majority focuses on the proffered policy of frisking suspects before placing them in the rear seat of the cruiser. This may be a reasonable police procedure, but the majority does not analyze whether it was reasonable to place Evans in the back of the cruiser while checking for a valid driver’s license. I would conclude the officers did not need to place Evans in' the cruiser during such a check. As indicated by Officer Green’s testimony, the officers did not actually consider Evans to be a threat while in his own car. Officer Green testified that Evans “didn’t do anything to make me feel afraid of him, no.” Moreover, there were two officers present. One officer could have stayed with Evans while the other officer went to the cruiser to obtain the information they sought. Such a check would, and apparently did, reveal that Evans did in fact have a valid driver’s license.

With regard to the second purported justification for the search, contrary to the conclusion of the majority, the radio broadcast did not provide the officers with the requisite reasonable belief that Evans was armed and dangerous so as to justify the search. The information available to the officers from the broadcast and from their own observations distinguishes this ease from Alabama v. White (1990), 496 U.S. 325, 110 S.Ct. 2412, 100 L.Ed.2d 301. In White, the information relayed in a telephone tip provided more details concerning the defendant’s conduct than the radio broadcast in this case. Even if the radio broadcast justified detaining Evans it did not provide the officers with any reasonable belief that Evans was armed and dangerous. What the majority fails to emphasize about White is that the defendant in that case consented to the search after she was stopped by the police, which certainly is not the case here.

. Officer Green agreed that it was “a very small amount” of cocaine.

. This is the very type of justification proffered by the police officer in this case. Officer Travano testified he knew the object was not a gun but did not know whether or not it was a knife “because I’ve seen knives come in all shapes and sizes.” A blanket statement such as this, that anything could be a knife, does not meet the objective requirement that the officer have a reasonable belief the item could be a weapon. Acceptance of such a justification destroys even the illusion that there are constitutional limits to a Terry pat-down search.