A citizen may not be frisked on a belief that he possesses drugs; the belief must be that the citizen possesses a weapon.


State v. Howard

2020 – Ohio – 1400

Fifth District Appellate Court

Tuscarawas County, Ohio

April 7, 2020

On Friday May 28, 2018, Officer James Miller of the New Philadelphia Police Department was on traffic patrol around 10:15 a.m. Officer Miller was northbound on Tuscawaras Avenue Northwest and passed a blue Honda driven by Ms. Natasha Harding, a person known to Officer Miller from drug-related and Driving Under Suspension arrests. Officer Miller observed a male passenger in the vehicle, later identified as Mr. Jerrod Howard. Suspecting Ms. Harding did not have a valid operator’s license, Officer Miller radioed dispatch to check the status of her license. Dispatch responded that Ms. Harding’s license was suspended. Officer Miller executed a traffic stop in the 500 block of Fair Northwest.

Officer James Miller stopped Ms. Natasha Harding in this block of New Philadelphia, Ohio.  Ms. Harding had weed in her bra but that was not the legal issue that was litigated in this case.

Officer Miller approached the vehicle and told Ms. Harding her license was suspended. He asked Ms. Harding to step out of the vehicle, intending to place her in his cruiser, and asked if there was anything illegal in the vehicle. In response, Ms. Harding pulled a baggie of marijuana out of her bra and handed it to Officer Miller. Ms. Harding was then placed in the cruiser.

Mr. Howard did not have an operator’s license with him but provided Miller with the Social Security Number of “Joseph Howard.”.  Mr. Howard, a recidivist, lied to Officer  Miller identifying himself as his biological brother.  Officer Miller pulled up a photo of Joseph Howard on his in-car computer and believed appellee to be the person in the photo.

A second officer on scene, Officer DeMattio, assisted Officer Miller. When Ms. Harding produced the marijuana from her bra, Officer Miller stated to Officer DeMattio, “She has weed on her; check him.” Officer DeMattio patted Mr. Howard down and felt something in the right pocket of his cargo shorts; officers suspected the item was a baggie of narcotics, specifically methamphetamine. Officer Miller seized and secured the contraband to submit for testing. Mr. Howard was not arrested at the scene but was released pending test results on the contraband.

Officer Miller encountered Mr. Howard again several days later. A vehicle was parked, running, outside a “suspected narcotics house” and police were watching the vehicle. When it pulled away, the driver committed a traffic violation and the vehicle was stopped. The driver was Mr. Larry Austin Short, whose operator’s license was suspended, and Mr. Howard was a passenger in the vehicle. Mr. Howard again provided the S.S.N. of Joseph Howard.” As Officer Miller investigated, a deputy of the Tuscarawas County Sheriff’s Department overheard the traffic stop on the radio and asked Officer Miller if the suspect had a tattoo sleeve. The deputy noted that if the suspect had a tattoo sleeve, he was likely Mr. “Jerrod” Howard, not Mr. “Joseph” Howard; the two were related and often used each other’s identifying information, especially when one or the other had an arrest warrant. Jerrod had a tattoo sleeve and Joseph did not.  This unidentified deputy should be commended for listening to the radio, helping out brother officers and memorizing recidivists in his county.

A deputy came to the scene of the traffic stop and identified appellee as Mr. Jerrod Howard. Mr. Jerrod Howard had an active felony arrest warrant and a knee injury which proved to be from a gunshot wound. He was arrested and transported to a hospital for treatment.

Upon cross-examination, Officer Miller acknowledged that he told the other officer to pat appellee down as soon as he knew Ms. Harding had drugs. When asked the purpose of the pat-down, Officer Miller responded to find drugs in the vehicle and for officer safety. He acknowledged, though, that he intended to search appellee as soon as he knew Ms. Harding had drugs on her person.

A sergeant from the T.C.S.O. testified that he catalogues arrest warrants and protection orders, and that on May 28, 2018 Mr. Jerrod Howard had an active warrant for felony nonsupport. The sergeant was aware that Mr. Jerrod Howard and Ms. Joseph Howard use each other’s identifying information to avoid arrest. Jerrod has a sleeve of tattoos that Joseph does not have.

Mr. Jerrod Howard was charged with:

One count of aggravated drug possession pursuant to R.C. 2925.11(A) and (C)(1)(B) [F-3]

One count of identity theft pursuant to R.C. 2913.49(B)(1) and (I)(2) [F-5]

Mr. Howard filed a Motion to Suppress the methamphetamine because the pat down was not supported by reasonable suspicion.  The trial court granted the motion to suppress and the Tuscarawas County Prosecutor’s Office filed an appeal.  The Fifth District Appellate Court upheld the trial court, holding “[T]he evidence at the suppression hearing established police resolved to search appellee as soon as the driver, Harding, produced contraband. Accordingly, based on the authority of Terry v. Ohio, 392 U.S. 1 (1968), the search of appellee was unreasonable under the facts of this case. A citizen may not be frisked on a belief that he possesses drugs; the belief must be that the citizen possesses a weapon. Ybarra v. Illinois, supra, 444 U.S. at 85 (stating that frisks are not permissible merely because the police have a reasonable belief that a person is connected with drug trafficking and may be concealing or carrying away contraband). The officer’s assessment that Harding had drugs, so her passenger might have drugs, is insufficient to support the search of appellee.”.

Information for this article was obtained from State v. Howard, 2020 – Ohio – 1400.

This case was issued by the Fifth District Appellate Court which is binding in the following counties: Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark and Tuscarawas.

Lessons Learned:

  1. Howard was in a vehicle where the officer discovered the driver had marijuana concealed in her bra. Based on this discovery, the first officer directed the second officer to pat down Mr. Howard.  The possession of narcotics is not in and of itself enough legal justification to pat down a suspect.  The U.S. Supreme Court established in Terry v. Ohio, 392 U.S. 1 (1968), a two part test; 1) Criminal activity is afoot [on-going] and 2) The suspect is presently armed and dangerous. The Supreme Court of Ohio held in State v. Evans, 67 Ohio 3d 405, 413 (1993) “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.”.  Here, there was no indication that Mr. Howard was involved in any criminal activity.  There was also no indication that Mr. Howard was a drug dealer or involved in a crime that he was likely to be armed.  For more on Terry and Evans see; Objectively Reasonable Launches and The Right to Frisk is Virtually Automatic Except When It Isn’t.
  1. So how does the frisk of Mr. Howard comport with the Automatic Companion Rule? See What Happens When Josh-the-Felon hangs out with Charlie-the-Wanted-Felon?.  On its face the Automatic Companion Rule seems to comport since Ms. Harding was arrested and Mr. Howard was in the company of Ms. Harding.  However, there are some notable differences.  The Automatic Companion Rule is only recognized in the Second and Eighth Districts in Ohio.  This case was issued by the Fifth District.  The crime for which Ms. Harding was going to be arrested – No Operator’s License is not a crime in which passengers are likely to armed.  Additionally, the court opined “Upon cross-examination, Officer Miller acknowledged that he told the other officer to pat appellee down as soon as he knew Ms. Harding had drugs. When asked the purpose of the pat-down, Officer Miller responded to find drugs in the vehicle and for officer safety.”.  A pat down is not reasonable to discover narcotics.  See What do Breast Implants and the Plain Feel Doctrine have in common?, for more information on the fallacy of the Plain Feel Doctrine.  Also, there is not lawful doctrine to conduct a pat-down for ‘officer safety’.  If that was the case, law enforcement could literally pat down every person they came into contact with because it would be for ‘officer safety’.
  1. Clearly Officer Miller’s gut instinct was spot-on; Mr. Howard was at least a drug courier, possibly a drug consumer or drug dealer. However, conducting a pat down for narcotics because the driver of the car had no license but did have weed would not sustain a lawful pat down. What could Officer Miller had done in lieu of directing another officer to pat down Mr. Howard?  He or the other officer could have asked for consent to search.  Clearly Mr. Howard may have refuted that request but given the facts of this case up to the point he was patted down, there was no legal justification to pat down Mr. Howard.  Law enforcement is the HARDEST job in America.  This traffic stop and legal nuances found throughout demonstrates just how hard the profession of law enforcement is on a run-of-the-mill No Operator’s traffic stop.

Does your agency train on Pat Downs?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.