Because competent, credible evidence supports the trial court’s findings and application of the plain-feel exception to the warrant requirement, the seizure of the illegal narcotics located on Kent’s person did not violate his Fourth Amendment rights.

State v. Kent

2022 – Ohio – 834

Eighth District Appellate Court

March 17, 2022

On Thursday April 4, 2019, Cleveland Police Sgt. Jarrod Durichko and members of the vice unit were surveilling a high-crime area that is “known for drug sales and drug activity.” During his patrol, Sgt. Durichko observed a white vehicle pull into the parking lot of a nearby gas station. While the vehicle was parked at the gas station, Sgt. Durichko witnessed “[T]hree completely separate individuals approached the driver’s side of the vehicle, reached into the driver’s window for a brief exchange, and then parted ways.” He further testified that the white vehicle parked next to a gas pump for approximately 10 to 15 minutes. During this duration of time, Sgt. Durichko witnessed three separate males walk to the car, lean into the driver’s side door, and stay for less than a minute before walking away. This is commonly referred to as a lemonade stand.  A felonious one, but a lemonade stand, nonetheless.  Sgt. Durichko testified that when the white vehicle left the gas station, it turned eastbound on Harvard Avenue without using a turn signal. Based on his belief that a traffic infraction had occurred, Sgt. Durichko notified other units in the area to “[A]pproach and conduct a traffic stop of the vehicle.” Sgt. Durichko did not participate in the subsequent traffic stop of the white
vehicle.

Detective Daniel Hourihan of the Cleveland Police Department testified that on April 4, 2019, he received a radio dispatch from Sgt. Durichko instructing him to initiate a traffic stop of the white vehicle seen leaving the gas station. Det. Hourihan confirmed that he initiated the traffic stop because the vehicle pulled out of the gas station without using its turn signal. Det. Hourihan testified that when he requested identification from the driver of the vehicle, the driver informed him that he did not have a valid driver’s license. Once Det. Hourihan confirmed that the driver of the vehicle, later identified as Mr. Michael Marneros, had a suspended driver’s license, he performed a search of the driver, discovered a baggie of marijuana and advised him that he was under arrest. A loaded firearm was later discovered in between the driver’s seat and center console of the vehicle.

While Det. Hourihan was speaking with Mr. Marneros, Det. Matthew Pollack was dealing with the vehicle’s passenger, who was later
identified as Mr. Wayman Kent. Det. Hourihan stated that he observed Det. Pollack perform a pat-down of Mr. Kent. Det. Pollack then advised Det. Hourihan that he “had found something” on Mr. Kent and “needed gloves.” When a large quantity of drugs were recovered from Mr. Kent’s underwear, Det. Hourihan read Mr. Kent his Miranda rights. Notwithstanding Det. Hourihan’s advisement, Mr. Kent continued to speak with the detectives and admitted that there was “cocaine, percocet, and heroin in [the] bags of drugs” discovered by the detectives. Det. Pollack confirmed that he participated in the traffic stop of the white vehicle and the subsequent search of Mr. Kent’s person on April 4, 2019. Det. Pollack stated that while he was performing a pat-down of Mr. Kent, he “felt something that had the consistency of contraband” hidden in Kent’s groin area. Det. Pollack explained that the contraband was located in an area that was inconsistent with a person’s “anatomy”, and that it was a golf sized bulge in his groin.  Based on his training and experience, Det. Pollack expressed that he “knew what [he] felt,” and “had no doubt in [his] mind” that Mr. Kent was in possession of contraband. Accordingly, Det. Pollack handcuffed Mr. Kent before he pulled back Mr. Kent’s pants and recovered a large plastic baggie containing contraband from inside Mr. Kent’s underwear.

Mr. Kent filed a Motion to Suppress the crack, heroin, Percocet and fentanyl.

At the conclusion of the hearing, the trial court denied Kent’s motion to
suppress, stating, in relevant part:

“All right. The motion to suppress is denied. Our Eighth District court
has in numerous cases indicated that when it is a lawful Terry pat-
down, which this was, and the nature is apparent to the officer to be
contraband — and in fact in State v. Hunter, at 98 Ohio App.3d 632,
the Eighth District held that the incriminating nature of the wadded-
up plastic bag was immediately apparent to the officer. And that’s
exactly what the officer testified to here. And so it is denied, the motion
to suppress.”.

Mr. Kent filed an appeal based upon an unlawful search and the Eighth District Appellate Court held “Because competent, credible evidence supports the trial court’s findings and application of the plain-feel exception to the warrant requirement, the seizure of the illegal narcotics located on Kent’s person did not violate his Fourth Amendment rights.”.

Information for this article was obtained from State v. Kent, 2022 – Ohio – 834.

This case was issued by the Eighth District Appellate Court which is binding in Cuyahoga County.

Lessons Learned:

  1. The officers in this case utilized the Plain Feel Doctrine established by Minnesota v. Dickerson 508 U.S. 366 (1993). In that case the U.S. Supreme Court held “If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.”.
  2. The challenge with this case and all other Plain Feel Doctrine cases is the legal element of “immediately apparent”. The Eighth District Court utilized the totality of the circumstances to evaluate the “immediately apparent” legal element.  For more on the Plain Feel Doctrine see What Do Breast Implants and the Plain Feel Doctrine Have in Common?
  3. I believe that this case could have been evaluated by the officers and the courts under the Probable Cause Doctrine rather than the Plain Feel Doctrine. Since Mr. Kent had set up his narcotics lemonade stand with drug consumers coming and going, there was enough probable cause to conduct a search for narcotics anywhere the drugs could be concealed, which would include the “unnatural felonious bulge in Mr. Kent’s groin, based on probable cause not the Plain Feel Doctrine.  For more on probable cause searches in motor vehicles see What is in Bandit’s Paper Bag.
  4. When Ohio Law Enforcement officers believe a suspect is secreting non-threatening contraband in his underwear or her underwear or bra, the officer should be cautious of violating O.R.C. § 2933.32 the Strip Search statute. There are many nuances and legal requirements when applying the Strip Search statute.  Are you and your team prepared for your next strip search?

Does your agency train on Pat Down?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.