State v. Evans
67 Ohio St.3d 405 (1993)
Supreme Court of Ohio
Decided: September 22, 1993
On Sunday April 23, 1989 East Cleveland Police Officers Carl Green and Jaimie Travano observed a gray Datsun 280Z traveling westbound on Glynn Road near Mt. Vernon Boulevard. It was nighttime and the vehicle did not have on the headlights. The officers conducted a traffic stop. On first approach and while speaking with the driver, the East Cleveland dispatcher aired that a male driving a gray car westbound on Glynn Avenue, who was wearing a red jogging suit, with Reebok written across the back had JUST completed a drug transaction. The officers ordered the driver who was wearing a red jogging suit with Reebok written across the back, now identified as Dwayne Evans, out of the car. Officer Travano conducted a pat down of Mr. Evans and in the front left pocket [case does not indicate if it was his jacket or pants] felt something large and bulky. He reached in and pulled out a large wad of cash and a small baggie of crack cocaine, which was intertwined with the cash.
The Cuyahoga Court of Common Pleas denied the motion to suppress, Mr. Evans plead no contest and was convicted. The Eighth District Appellate Court overturned the conviction in a split decision; opining that the pat down was not lawful. The City of East Cleveland appealed, and the Supreme Court of Ohio held “The right to frisk is virtually automatic when individuals are suspected of committing a crime, like drug trafficking, for which they are likely to be armed. The nature of narcotics trafficking today reasonably warrants the conclusion that a suspected dealer may be armed and dangerous.” Id at 413.
- Many officers fail to read the holding past the first seven words. Yes, the right to frisk is virtually automatic BUT the crime must of the type where suspects are ‘likely’ to be armed. As applied to the narcotics trade, suspected drug dealers ARE likely to be armed. However, drug consumers are almost never armed. Why? Because addicts, if they had a firearm, would sell it for money to obtain the narcotics. The courts will never support law enforcement to become pat down machines. The officer, not the judge or attorney, must win the case by articulating why s/he believed the suspect was ‘likely’ to be armed right now. This is the second prong of Terry v. Ohio, 392 U.S. 1, 31 (1968). The first prong ‘Was criminal activity afoot’. It was established by the driver of the car wearing a red jogging suit with Reebok written across the back who was reported to have just been involved in a drug transaction within the same time frame and geographical location.
- If the cocaine packet that was intertwined in the large wad of money did not come out with the money, it is highly unlikely that the cocaine would be admissible. If the cocaine remained in the pocket it would be non-threatening contraband which would invoke the Plain Feel Doctrine. Law enforcement would not be able to claim it was ‘immediately apparent’ if the rocks were felt during the pat down. See What do Breast Implants and the Plain Feel Doctrine have in Common? July 6, 2020
- The Supreme Court of Ohio also opined “A determination as to the reasonableness of a particular police procedure depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” Id at 410. This tension, an individual right to freedom versus the public interest in maintaining safety, is what is applied in nearly every law enforcement interaction. It is a balancing act that is first done at the scene by law enforcement, then by the prosecutor, next the defense attorney, later by the judge and sometimes juries. This balancing act is at the heart of the Reasonableness doctrine of the Fourth Amendment.
Does your agency train on when and how to conduct pat downs and searches?
Don’t fail your training – don’t let your training fail you!
Be safe, smart and objectively reasonable!
Robert H. Meader Esq.