[W]e agree with the trial court’s conclusion that the officer’s pat-down search did not comply with the Terry requirements.
State v. Willoughby
2021 – Ohio – 2611
Fourth District Appellate Court
Pickaway County, Ohio
July 22, 2021
On May 4, 2019 a Pickaway County Sheriff’s Deputy observed a vehicle make an improper lane change during daylight hours, fail to signal, and fail to display a license plate. The deputy initiated a traffic stop: “I made contact with the driver, a female. Both she and the passenger, appellant, were extremely nervous, couldn’t answer very basic questions that I ask everybody that I stop.” The deputy further described the behavior of the car’s occupants: “I asked them very basic questions, where were you coming from. They wouldn’t look me in the eye, they were extremely nervous to where both the driver and the passenger were physically shaking.”. This is common among citizens who are transporting methamphetamine as will later be discovered. The deputy stated, after the back-seat passenger “[W]as found to have a warrant,” The deputy “secured the passenger in my cruiser.” The deputy then removed the driver as she “seemed possibly being under the influence the way she was acting.” The deputy also requested the assistance of a female deputy and, during his interaction with the driver, the deputy “[A]dvised [the driver] that I had deployed my K-9 for a free air narcotic search around the vehicle.”.
After the deputy removed the driver, he also removed the back-seat passenger, later identified as Mr. Raheem Willoughby and “[E]xplained what was going on, what I was doing and that I would be performing a simple pat down for weapons.” When asked at the hearing whether he would ever “[R]un a K-9 around the car with passengers in the car,” the deputy testified, “[n]o * * * Because 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.” When asked why he advised appellant that he intended to pat him down, The deputy 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.”.
When the deputy patted down Mr. Willoughby’s outer garments and “[F]elt a hard bulge in the groin area,” the deputy informed Mr. Willoughby that he found contraband and advised Mr. Willoughby he was under arrest. After Mr. Willoughby told the deputy that he “[H]ad something in his pants,” the deputy “[P]ut gloves on and I retrieved it out of his pants.” The deputy identified the contraband as methamphetamine. Mr. Willoughby also informed the deputy that “[H]e had suboxone in his pants,” and the deputy retrieved the suboxone. At that time, the deputy deployed the canine, and “[I]mmediately, on my cursory search, the dog alerted on the passenger’s side of the vehicle where Mr. Willoughby was sitting.”
During cross-examination, the deputy acknowledged that in the criminal complaint he only noted that the driver appeared to be extremely nervous and that he did not arrest the driver. The complaint further stated that, after the deputy removed the contraband, “Mr. Willoughby was secured in the back of [another deputy’s] cruiser. I deployed my K-9 partner Joris, he indicated on the drivers side door and the passenger side door of the vehicle. Upon search of the vehicle, [the other deputy] located some paraphernalia and a small amount of marijuana inside the vehicle on the passenger side. Mr. Griffith [back seat passenger] was transported to the jail on his warrant and Mr. Willoughby was transported to the jail and charged with possession of drugs and trafficking in drugs.”
After the trial court overruled appellant’s motion to suppress evidence, Mr. Willoughby pleaded no contest to both counts. The court accepted Mr. Willoughby pleas and:
(1) Imposed a four- year mandatory prison sentence for Count One.
(2) Ordered Count One be subject to an additional two years of imprisonment pursuant to the Reagan Tokes Law
(3) Merged counts one and two for purposes of sentencing, and
(4) Ordered a mandatory three- year post-release control term.
Mr. Willoughby appealed his conviction that the deputy did not have the legal authority to pat down Mr. Willoughby. The Fourth District Appellate Court held that the deputy did not have authority to pat down Mr. Willoughby and provided the following detailed analysis on his lack of legal authority.
Because an officer’s authority to conduct a pat- down search for weapons does not flow automatically from a lawful stop, a separate inquiry is required. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Consequently, neither an order to exit the vehicle, nor the act of placing a motorist in a police cruiser, automatically entitles an officer to conduct a pat-down for weapons. State v. Dozier, 187 Ohio App.3d 804, 2010-Ohio-2918, 933 NE.2d 1160, citing State v. Evans, 67 Ohio St.3d 405, 407, 618 N.E.2d 162 (1993). Instead, to determine whether a person may be subjected to a pat-down search for weapons, “[W]e must consider whether, based on the totality of the circumstances, the officer had a reasonable, objective basis to believe that the motorist was armed and dangerous.” Evans at 409; State v. Andrews, 57 Ohio St.3d 86, 565 N.E.2d 1271 (1991).
The trial court concluded that the deputy’s pat-down “[S]eem to be his own standard operating procedure when he removes anyone from a motor vehicle.” The deputy 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, the deputy acknowledged that, although he stated in the complaint that the driver acted nervously, at the hearing the deputy testified that all occupants behaved that way. The deputy also testified that he generally removes people from vehicles before he walks his canine around a car because of “[S]afety 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 Mr. Willoughby’s pat-down, the deputy stated “[J]ust 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.” 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.
We agree with the trial court’s conclusion that the officer’s pat-down search did not comply with the Terry requirements.
Ultimately the Fourth District Appellate Court held that the methamphetamine was admissible because the deputy would have ‘inevitably discovered’ the methamphetamine because Canine Joris alerted on the vehicle. However, the Inevitable Discovery Doctrine should never be relied on by law enforcement. That is a legal doctrine akin to a Hail Mary pass in football. The prosecutors, in a last-ditch effort to overcome the Exclusionary Rule, were successful in arguing the Inevitable Discovery Doctrine which the court agreed and admitted the methamphetamine to evidence.
The Fourth District Court held “[W]e agree with the trial court’s conclusion that the totality of the circumstances present in the case sub judice [this case] supports the application of the inevitable-discovery doctrine.”.
Information for this article was obtained from State v. Willoughby.
This case was decided by the Fourth District Appellate Court which is binding in Adams, Athens, Gallia, Highland, Hocking, Jackson, Lawrence, Meigs, Pickaway, Pike, Ross, Scioto, Vinton and Washington Counties.
- There is no legal standard to pat down suspects for officer safety. Courts will often mention officer safety as a factor but it will not be the only factor. However, in Ohio there are three types of pat downs; Terry, Lozada and Consent. For more on a Terry pat down see Objectively Reasonable Launches. For more on a Lozada pat down see Don’t Just Sit There!. Law enforcement should NEVER ask for consent to pat down … EVER! If you would like to know why, contact me and I will send you a paper I crafted titled; Why Law Enforcement Should Never Ask for Consent to Pat Down.
- Though not addressed by the Fourth District Appellate Court, it appears that the retrieval of the methamphetamine from Mr. Willoughby’s pants violated O.R.C. § 2933.32 Strip Search statute. There is not enough information to completely evaluate this conclusion, however, here is what the case explains; “When [the deputy] patted down Mr. Willoughby outer garments and “[F]elt a hard bulge in the groin area,” [the deputy] informed Mr. Willoughby that he found contraband and advised Mr. Willoughby he was under arrest. After Mr. Willoughby told [the deputy] that he “[H]ad something in his pants,” [the deputy] “[P]ut gloves on and I retrieved it out of his pants.” [the deputy] identified the contraband as methamphetamine. Mr. Willoughby also informed [the deputy] that “[H]e had suboxone in his pants,” and [the deputy] retrieved the suboxone.”. When the deputy felt the hard object, if he believed it could be a weapon then he may retrieve it even though it was inside of Mr. Willoughby’s underwear or garment that immediately surrounds his genatila. If the deputy believed it to be a weapon he should not have taken time to put gloves on before removing it. THAT is something that is based in officer safety. If the deputy did not believe the hard object was a weapon then the Strip Search statute should have been followed, which would require a letter from the sheriff or his designee prior to the removal of anything from Mr. Willoughby’s underwear. Strip Searches must be completed in a private location, not on State Route 23. Some legal tacticians believe that a suspect can consent to remove the contraband under this statute, but I do not believe that a suspect can ‘voluntarily’ consent while in custody, most especially in this context. Further, I do not believe that law enforcement and a suspect can consent to violating the law. Moreover, if officer safety is paramount, why should any officer place a hard object in the dominion and control of a suspect? Most especially when directing the suspect to blindly retrieve it from inside his pants? This fails all officer safety doctrines. Clearly the suspect could throw the hard object from the immediate location, attempt to swallow it or worse … use the hard object as a weapon against the officer.
- For more on the Inevitable Discovery Doctrine see California Mike Inevitably Discovers he will in Ohio for Next Eleven Years, Because Dave did not have a Driver’s License His Cocaine was Inevitably Discovered and Would Mr. Maffey’s Meth be Inevitably Discovered?.
Does your agency train on the Pat Downs?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!