Why Law Enforcement Should NEVER ask for Consent to Pat Down
State v. Fisk
2021 – Ohio – 2989
Twelfth District Appellate Court
Preble County, Ohio
August 30, 2021
On December 28, 2019, a Preble County Deputy was sitting in his cruiser in a parking lot off U.S. Route 35 in West Alexandria. It was 7:35 p.m. and dark. He observed a male later identified as Mr. Steven M. Fisk, riding a bicycle on Route 35. He noted that the bicycle did not have rear reflectors or a red lamp light but did have a blue light on wheel spokes. He drove behind the bicycle, illuminated his flashing lights, and initiated a traffic stop.
When the deputy was behind the bicycle and had activated his lights, he believed, mistakenly, that Mr. Fisk was someone else who he had been looking for and who had an active warrant. At the beginning of the stop, Mr. Fisk acknowledged to the deputy that he was aware that the battery on his bicycle light was out. He explained that he hoped that the blue light would be sufficient. Of course, hope is not an exception to the Ohio Revised Code.
The deputy asked Mr. Fisk for identification and Mr. Fisk produced an identification card. At this time, the deputy realized he had been wrong about his assumption as to Mr. Fisk’s identity. He called Mr. Fisk’s information into dispatch.
The deputy indicated that he was familiar with the Fisk family and had previously encountered Mr. Fisk’s brother and found him to be carrying a B.B. gun, which gave him concern that Mr. Fisk may be carrying a weapon. The deputy also noted what appeared to be a metal bat in a bag hanging from Mr. Fisk’s bicycle handles. While waiting for dispatch to respond, the deputy asked Mr. Fisk “[D]o you mind if I check you real quick? I just want to check to make sure you have no weapons on you.” Mr. Fisk responded, “Sure”. This exchange was captured on the deputy’s cruiser video camera. Since Mr. Fisk and the deputy were to the side of the cruiser there is no video, but the audio portion of the exchange was captured. The deputy limited his consent to search for weapons. This will be further evaluated in Lessons Learned.
The deputy frisked Mr. Fisk and felt a tube and a syringe in Mr. Fisk’s right pocket. The deputy believed, based upon his personal experience, that the tube would contain narcotics as it was of a type generally used to carry contraband. Meanwhile, the Preble County dispatch responded and indicated that Mr. Fisk had a warrant. The deputy informed Mr. Fisk that he had a warrant and began to handcuff him. However, dispatch quickly advised that there had been a mistake, and that Mr. Fisk did not have a warrant. The deputy released Mr. Fisk and put away his handcuffs.
The deputy then began to explain to Mr. Fisk that he believed he had felt contraband in his pocket. He explained that the “plain feel” doctrine gave him the right to demand to inspect those objects and indicated that Mr. Fisk could either remove the objects from his pocket himself or that the deputy would remove the objects for him. At that point, Mr. Fisk began backing away from the deputy and another police officer who had arrived on scene. Mr. Fisk indicated that he was not going to remove anything from his pocket, that he did not have to, and that the deputy needed a search warrant. The deputy ordered Mr. Fisk to stop walking away, but Mr. Fisk ignored the command and continued backing away. Seconds later, Mr. Fisk turned and ran into a cornfield. The deputy and the other officer pursued and quickly caught Mr. Fisk by tackling him. The officers and Mr. Fisk briefly wrestled until they were able to restrain him.
The officers led Mr. Fisk back to the deputy’s cruiser. Upon searching Mr. Fisk, the items that the deputy had felt in Mr. Fisk’s pockets were missing. Law enforcement searched the area and no syringe was ever located. However, a tube-shaped container containing a crystal-like substance was recovered in the area where the deputy tackled Mr. Fisk. The substance was tested and was identified as methamphetamine.
Mr. Fisk was charged with Aggravated Possession of Drugs, Obstructing Official Business and Possession of Drug Paraphernalia. He filed a Motion to Suppress and the trial court held that Mr. Fisk was lawfully stopped, granted consent for the deputy to pat him down and that the methamphetamine was lawfully obtained and should not be suppressed. Mr. Fisk pled No Contest to Aggravated Possession of Drugs and Obstructing official Business. The Drug Paraphernalia charge was dropped.
Mr. Fisk appealed his conviction to the Twelfth District Appellate Court. He appealed that he did not grant consent because he was detained at the moment the deputy requested consent. The court held “The trial court found that Fisk voluntarily consented to a pat down search by [the deputy]. Competent and credible evidence in the record supports this conclusion.”.
Mr. Fisk also challenged the Plain Feel Doctrine. The Twelfth District Appellate Court held “At the hearing, [the deputy] testified that he felt a tube and syringe while patting down Fisk’s right pocket. He did not manipulate either object. [The deputy] testified that he knew from personal experience that the tube would likely contain contraband. We agree that the totality of circumstances indicated that [the deputy] had the right, under the plain feel doctrine, to seize the items he felt in Fisk’s pocket.”.
Information for this article was obtained from State v. Fisk, 2021 – Ohio – 2989. This case was decided by the Twelfth District Appellate Court which is binding in Brown, Butler, Clermont, Clinton, Fayette, Madison, Preble and Warren.
- The Twelfth District Appellate Court held in the deputy’s favor for the traffic stop and Plain Feel Doctrine. However, there is a better legal way for law enforcement to obtain the evidence. I have written my strong opposition for law enforcement to utilize the Plain Feel Doctrine in an article What do Breast Implants and the Plain Feel Doctrine have in Common?. Herein the court held “[The deputy] testified that he knew from personal experience that the tube would likely contain contraband.”. If a suspect has a cylindrical tube that is likely a syringe, I believe it is far stretch that a law enforcement can predict that it ‘likely’ contains drugs. Even if the suspect is an addict and there are strong indicators that he uses the syringe to consume drugs, how would law enforcement know that the syringe contains drugs right now? So how can law enforcement be more successful? At the point that the deputy asked for consent he limited his consent to ‘check’ Mr. Fisk for weapons. Specifically, the deputy asked “[D]o you mind if I check you real quick? I just want to check to make sure you have no weapons on you.”. Instead, the request should not be limited to a pat down for weapons. Early in my career I mirrored the exact words of the deputy. Later, I learned that the request should be for consent to search. Often, I would set up the suspect for success … mine not his. “Do you have any guns on you?”. Every time the answer was no. Followed quickly by “Can I search you?”. Most of the time the answer was yes. Now I have consent to search and not just for weapons. If you would like more information, please email me for a paper I crafted titled; Why Law Enforcement Should Never Ask for Consent to Pat Down. Fore more on the Consent Doctrine see One Headlight, Two Joes and Three Stolen Checks totaling $202.02 Lead to the THE Most Important Consent Case.
- Once the deputy had consent to pat down Mr. Fisk and felt objects in his pockets the court explained the next exchange “[The deputy] then began to explain to Mr. Fisk that he believed he had felt contraband in his pocket. He explained that the “plain feel” doctrine gave him the right to demand to inspect those objects and indicated that Fisk could either remove the objects from his pocket himself or that [the deputy] would remove the objects for him.” [emphasis added] If a suspect has any contraband on his person, law enforcement should NEVER give the suspect the option to be given dominion and control of the contraband. If the suspect has control of the contraband, most especially when it is felony level contraband, rarely is the suspect going to casually hand it over to law enforcement. Often the suspect will flee, throw, hide or consume the contraband. That is exactly what occurred in this case. Within seconds Mr. Fisk and his methamphetamine were running in a cornfield.
- The Preble County Deputy should be commended for utilizing the traffic code on a cold December day to ultimately lawfully remove Mr. Fisk and his methamphetamine from Preble County – most especially during the holiday season.
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!