A Deputy Feels a Baggie in a Suspect’s Pants Pocket During a Lawful Pat Down and asks “Is this dope … it feels like dope”? … Was this Question asked in Violation of Miranda?

Under the totality of the circumstances, Mr. Anderson would not yet have considered himself to be in custody to the degree associated with a formal arrest.

State v. Anderson

2023 – Ohio – 945

Seventh District Appellate Court

Monroe County, Ohio

March 23, 2023

At the November 15, 2021 suppression hearing, the state played the body- cam video for the court and presented the deputy’s testimony. The deputy testified he was on patrol at 9:30 a.m. on June 10, 2021 when he conducted a roadside welfare check on the two occupants of a car pulled to the side of State Route 7. The driver’s window was rolled down. The female in the driver’s seat had “a Methamphetamine smoking device protruding” from her low-cut top (seemingly tucked into her bra); it was further described as a glass pipe with a ball at the end. Mr. Brian Anderson was in the passenger seat.

Monroe County is located in the Southeast corner of Ohio and State Route 7 runs parallel to the Ohio River. Mr. Anderson was in the passenger seat of a vehicle pulled along side the road when a Monroe County Deputy completed a welfare check. What happened next led to Mr. Anderson’s conviction and appeal.

The deputy said they both appeared to be in a heavy sleep or passed out as if under the influence of a substance. To rouse the occupants, the deputy said “hey,” knocked on the car door, and said “hey” again. The deputy believed the occupants seemed confused about their location; he observed the female’s eyes were red. The deputy ordered her out of the vehicle, placed her in handcuffs, and confiscated the glass pipe.

Before leading the female to sit on the front bumper of his police cruiser, the deputy instructed Mr. Anderson to place his hands on the dashboard. According to the deputy, Mr. Anderson kept removing his hands from the dashboard and moving abruptly. Upon returning to remove Mr. Anderson from the vehicle, the deputy asked Mr. Anderson to unlock the passenger door.

When the door opened, the deputy viewed a sawed-off shotgun between the passenger seat and the passenger door. He could see it violated the law as a dangerous ordnance (a shotgun with less than 18 inches of barrel or less than 26 inches in overall length). The shotgun was within easy access of Mr. Anderson. While Mr. Anderson stepped from the car, the deputy asked if the gun was loaded. From the deputy’s next statement on the body cam, it seems Mr. Anderson said it was not loaded (and the deputy testified at trial that Mr. Anderson said it was not loaded).

To prevent access to the gun and fearing an additional weapon, the deputy handcuffed and frisked Mr. Anderson. The deputy testified about patting down Mr. Anderson’s front pocket as follows: “through my training and experience, I felt what appeared to be a foreign substance, like a narcotic, a pretty large bag … I knew it was a narcotic.” He said to Mr. Anderson, “is this dope? It feels like dope.” Mr. Anderson replied, “yes, it is dope.” The deputy explained the amount of drugs in the baggie felt substantial and the pocket bulge was visible. The deputy opined Mr. Anderson was not formally under arrest during the pat-down but explained he would have eventually taken Mr. Anderson to jail and charged him with possession of a dangerous ordnance as a result of the sawed-off shotgun (even if drugs had not been discovered in Mr. Anderson’s pocket).

After Mr. Anderson acknowledged the bulge was dope, the deputy provided Miranda warnings. When the deputy asked if he understood the rights, Mr. Anderson “just kept like becoming frustrated with the situation” or “getting agitated.” The deputy testified he had no reason to believe Mr. Anderson lacked the capacity to understand him, stating Mr. Anderson did not seem so intoxicated that he could not understand Miranda rights. The deputy again asked if Mr. Anderson understood his rights while explaining he wanted to ask if the bag contained fentanyl due to concerns about exposure; Mr. Anderson then said it was not fentanyl.

The deputy then removed the baggie from Mr. Anderson’s pockets. Other deputies arrived, and a search of the car revealed additional contraband, which was claimed by the driver and resulted in charges against her. Mr. Anderson later admitted he smoked meth at some earlier point and said a man provided it in exchange for a ride. When filing his report later, the deputy discovered Mr. Anderson was under a firearm disability.

After hearing this testimony, the trial court denied the motion to suppress. In the December 28, 2021 judgment entry, the court concluded the question asking whether the bulge was dope was mere on-scene investigative questioning, which did not trigger Miranda, citing State v. Gaston, 110 Ohio App.3d 835, (11th Dist. 1996). Based on Mr. Anderson’s answer identifying the bulge as dope, the court found the officer was permitted to retrieve the illegal item from the pocket. The court also found the deputy was permitted to remove the baggie under the plain feel doctrine, finding it was immediately apparent to the deputy that the bulge in Mr. Anderson’s pants was drugs. It was noted the deputy’s mid-pat-down question on whether the bulge was dope was immediately followed by his observation that it felt like dope. As to post-Miranda statements, the court concluded Mr. Anderson understood the rights recited to him.

At the jury trial, the arresting deputy’s body camera video was played for the jury. A BCI forensic scientist testified the substance submitted by the state was meth and weighed 25.89 grams. She explained meth was a schedule II controlled substance with a bulk amount of 3 grams. The deputy’s trial testimony repeated much of the testimony he gave at the suppression hearing. He additionally noted the drugs weighed 28.31 grams while in the baggie, as confirmed by a photograph of the baggie on a scale. A photograph of items recovered from the vehicle was also admitted. The deputy noted while the driver claimed ownership of various items, including meth pipes, she did not claim ownership of the shotgun.

The deputy pointed out Mr. Anderson said the gun was not loaded but also said it belonged to a person who was previously in the car. The deputy testified the shotgun’s barrel measured only 12 inches, and a photograph of it next to a tape measure was admitted. The shotgun had a trigger, a hammer, and an intact firing pin. It was considered a safety hazard to test fire the shotgun with a live round due to the short barrel (and what he believed was a pistol grip modification). However, a “dry fire” was conducted where the hammer was pulled back, the trigger was pulled, and the firing pin was observed to be operating as expected. The parties stipulated Mr. Anderson was under indictment for felony possession of drugs in Summit County at the time in question (an element of having a weapon while under disability).

The jury found Mr. Anderson guilty of all three offenses. The court sentenced Mr. Anderson to four to six years for aggravated drug possession (for which prison was mandatory), 30 months for having a weapon while under disability, and 11 months for unlawful possession of a dangerous ordnance, all to run concurrently. See R.C. 2925.11(C)(1)(c) and R.C. 2929.13(F)(5) (mandatory prison for the drug offense regardless of community control factors). The within timely appeal followed.

Appeal

Was Mr. Anderson in Miranda-Custody When He Answered the Deputy’s Question “Is this dope”?

First, Mr. Anderson argues his pre-Miranda statement agreeing the pocket bulge was drugs should have been suppressed. Before the deputy asked about the bulge, the deputy saw an illegal shotgun as Mr. Anderson alighted from the vehicle and asked if it was loaded; Mr. Anderson said it was not loaded. After observing the illegal shotgun and during the handcuffed frisk, the deputy felt the front pocket of Mr. Anderson’s pants and asked, “is this dope? It feels like dope.” Mr. Anderson immediately replied, “yes, it is dope.” The deputy then Mirandized Mr. Anderson and told him he did so in order to further inquire about the specifics of the drugs because he feared fentanyl exposure.

An Investigative Detention does not Rise to the Level of Miranda – Custody

Although the roadside detention of a vehicle significantly restricts the freedom of the driver and the passengers and is a seizure, the person “temporarily detained as part of a routine traffic or investigatory stop is not generally deemed ‘in custody,’ and, hence, is not entitled to Miranda warnings.” Berkemer v. McCarty, 468 U.S. 420 at 436 (1984).

A traffic stop is temporary, brief, public, and substantially less police-dominated than the type of interrogation at issue in the Miranda case, especially where only one officer is present. Id. at 421, 437-440 (even though it imposes some pressure to answer questions). The court considers how a reasonable person in the detainee’s position would have viewed his situation under the totality of the circumstances. Id. at 442. An officer’s unarticulated plan has no bearing on the question of whether a suspect was in custody at a particular time. Id. (the officer could ask the driver if he had been using intoxicants after the officer decided to arrest without voicing his intent to arrest).

Public Safety Exception to Miranda

Initially, we point out the question as to whether the gun was loaded was not asked during a custodial interrogation. Mr. Anderson does not dispute the deputy was permitted to order him out of the vehicle after the removal of the female driver. During a valid investigatory stop, officers may order occupants, including the passengers, out of the vehicle to complete the stop without violating the Fourth Amendment. Maryland v. Wilson, 519 U.S. 408, 413-415, (1997). The sawed-off shotgun was in plain view as the passenger door was opened. The deputy’s question about the gun was asked while Mr. Anderson was alighting from the vehicle. The question was posed in response to an emergency situation of an occupant being removed from a vehicle while within inches of a sawed-off shotgun, which is a dangerous ordnance. New York v. Quarles, 467 U.S. 649, 656, (1984) (the public safety exception allows a police officer to temporarily refrain from reciting Miranda in order to ask questions necessary to securing the immediate safety of himself or the public).

In fact, Mr. Anderson acknowledges a frisk for weapons was warranted. See Terry v. Ohio, 392 U.S. 1, (1968) (an investigative seizure made with mere reasonable suspicion of criminal activity permits a frisk for weapons without violating the Fourth Amendment). We also note Mr. Anderson’s brief does not specify an argument about the pre-Miranda statement on the gun being unloaded in making his suppression argument. Rather, his specific pre-Miranda suppression argument focuses on his pre-Miranda statement identifying the bulge in his pocket as dope, which occurred after he was handcuffed.

Mid-Frisk Questioning

As to the single mid-frisk question asking whether the bulge was dope, there had not yet been a formal arrest. Therefore, to determine if Mr. Anderson was in custody, the question is whether the totality of circumstances demonstrate a restraint on the detainee’s freedom of movement to the degree associated with a formal arrest. California v. Beheler, 463 U.S. 1121, 1125 (1983). Some circumstances before the frisk arguably supporting a custody argument include: the deputy instructed Mr. Anderson to place his hands on the dashboard multiple times; Mr. Anderson knew the deputy saw the firearm; and Mr. Anderson was placed in handcuffs upon his removal from the vehicle. Still, “handcuffing a detainee where there is reasonable suspicion to frisk for weapons does not automatically convert a stop into an arrest … In some cases, the act of handcuffing may constitute a reasonable means to detain an individual during an investigatory stop.” State v. Whitfield, 7th Dist. Mahoning No. 99CA111 (Nov. 1, 2000).

Relevant circumstances tending toward a pre-custodial question in this case include: the daytime public roadside setting where the driver was removed from the car (due to sleeping in the driver’s seat with a meth pipe protruding from her bra); the presence of only one officer with two detainees; the officer did not draw his weapon; the question was asked within a minute of Mr. Anderson’s removal from the car; the question was asked only one time (and was immediately followed by the deputy’s expression of his own belief that it felt like dope) to which Mr. Anderson immediately answered it was dope; the situation unfolded fast with the officer wishing to secure Mr. Anderson’s position and unarmed status before securing the sawed-off shotgun; and there were no coercive comments.

Under the totality of the circumstances, Mr. Anderson would not yet have considered himself to be in custody to the degree associated with a formal arrest.

Regardless, even if we were to rule in Mr. Anderson’s favor on this particular issue (and the question on whether the bulge was dope is considered a custodial interrogation), this would not necessarily be dispositive of the appeal in his favor.

Is a Search Warrant Required to Remove a Baggie of Narcotics from a Suspects Pocket?

If Mr. Anderson’s admission was properly obtained, then the admission provided probable cause to believe the baggie contained a large amount of a controlled substance and no warrant would have been required to recover the drugs. See State v. Moore, 90 Ohio St.3d 47, (2000) (an officer with probable cause to believe a person has drugs during a traffic stop need not leave the drugs in the person’s pocket while a warrant is obtained under the exigency exception). Mr. Anderson does not argue otherwise below or on appeal.

If Mr. Anderson’s admission (“yes, it is dope”) should have been suppressed, the disclosure of this statement to the jury was not prejudicial to his conviction if the drugs were admissible anyway. See, e.g., State v. Williams, 6 Ohio St.3d 281, 290, (1983) (improper admission of the confession which should have been suppressed due to violation of right to counsel, was harmless beyond a reasonable doubt as the remaining evidence was overwhelming). The baggie was recovered from Mr. Anderson’s front pants pocket. It contained a large amount of a substance. Scientific testing showed the substance was meth and weighed over 25 grams. With this evidence, Mr. Anderson’s confirmation that the baggie was dope did not influence his conviction of aggravated possession of drugs or the weapons offenses.

This leads to Mr. Anderson’s argument that if his admission of dope was subject to exclusion, then the drugs should have been suppressed because a warrant was required to remove the baggie from his pocket. In addition to finding Mr. Anderson’s initial statement was part of an onsite investigation before Miranda was triggered, the trial court also applied the plain feel doctrine and found it immediately apparent to the deputy that the bulge in Mr. Anderson’s pants was drugs.

A Terry frisk “must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby * * *.” Terry, 392 U.S. 1, 26. However, as the trial court pointed out:

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. Minnesota v. Dickerson, 508 U.S. 366, 375-376, (1993).

Where reasonable suspicion justifying a weapons frisk rises to probable cause due to the observations gained from the officer’s sense of touch, a seizure of the contraband is warranted. Id. at 375. The probabilities to be considered are the “factual and practical considerations of everyday life on which reasonable and prudent [people], not legal technicians, act.” Moore, 90 Ohio St.3d at 51, quoting Brinegar v. United States, 338 U.S. 160, (1949) (on probable cause).

Here, the deputy had just awakened the occupants of a vehicle parked on the side of the road facing oncoming traffic. He removed from the driver’s seat a female who had been sleeping with a meth pipe sticking out of her bra; as the deputy pulled the meth pipe from her bra, a long line of saliva stretched from the pipe and she appeared woozy. Mr. Anderson was in the passenger seat. Against orders, Mr. Anderson seemed to remove his hands from the dashboard, as if attempting to hide something. As Mr. Anderson alighted from the car, the deputy observed a sawed-off shotgun between the passenger seat and door within Mr. Anderson’s easy grasp. The deputy worried about a second weapon due to the drug indicators and the sawed-off shotgun. During the frisk, the deputy could feel there was a large amount of a substance in a baggie in Mr. Anderson’s pants pocket. Under the circumstances, it would be reasonable to believe the powder in a baggie was probably drugs.

Plain Feel Doctrine

We recognize it is not immediately apparent a lump is contraband if an officer determined by touch that a pocket does not contain a weapon and then had to further manipulate the lump in order to develop probable cause that it was contraband. Dickerson, 508 U.S. at 378. On this topic, we note the body cam video shows that after the initial patting of the lump in the front pocket, the officer pulled at the top of the pocket. Still, there was no indication one could see into the pocket, and he quickly released the pocket. He then continued patting the object. Yet, by this point, he was already asking if it was dope. As the trial court pointed out, the deputy’s mid-pat-down question as to whether the bulge was dope was immediately followed by the deputy’s own observation that it felt like dope, confirming he already knew the answer to his question when he asked it. The trial court believed the deputy’s testimony, “through my training and experience, I felt what appeared to be a foreign substance, like a narcotic, a pretty large bag. * * * I knew it was a narcotic.” Factual questions at a suppression hearing are left to the trial court’s sound discretion. Regardless of the applicability of the plain feel exception, there is the issue of Mr. Anderson’s inevitable arrest for reasons preexisting the frisk.

Inevitable Discovery?

As the state points out, the deputy had probable cause to arrest Mr. Anderson for a felony before the frisk. This was based on Mr. Anderson’s constructive possession of a sawed-off shotgun, which is a dangerous ordnance. The deputy testified he would have eventually placed Mr. Anderson under arrest for unlawful possession of a dangerous ordnance even if no drugs were found during the pat-down.

The Methamphetamine IS admissible!

In sum, after viewing the gun, the deputy was clearly permitted to lawfully arrest Mr. Anderson for unlawful possession of a dangerous ordnance and conduct a search incident to arrest, which would include the pockets of the pants he was wearing. Mr. Anderson was arrested without delay after the frisk. Therefore, the drugs were not subject to suppression. The deputy would have discovered the drugs incident to Mr. Anderson’s arrest without Mr. Anderson’s answer about dope during the frisk. Accordingly, we overrule Mr. Anderson’s suppression arguments on his pre-Miranda statement and the methamphetamine recovered from his pocket.

Too Much Meth to Understand Miranda?

As to post-Miranda statements, Mr. Anderson argues his statements after being read his rights should be suppressed on the basis that he did not understand the Miranda rights recited by the deputy during the pat-down. Although Mr. Anderson does not specify the particular statements he wishes to be suppressed, we note this argument would apply to statements such as the baggie in his pocket did not contain fentanyl and the gun was left in the car by an individual who was in the car previously.

As the drugs were ruled admissible above, the non-fentanyl statement was not prejudicial; Mr. Anderson’s possession of meth was clear where the drugs were in the pocket of the pants he was wearing. Mr. Anderson’s allegation that the gun belonged to someone else may indicate Mr. Anderson’s awareness of the gun (or it may merely indicate he assumed the other person left it in the car). Regardless, he already said the gun was not loaded, which was properly admitted as discussed supra; this clearly demonstrated his awareness of the gun and its particular condition. Considering the facts of this case, we conclude the post-Miranda statements were not shown to have prejudiced Mr. Anderson.

In any event, the preponderance of the evidence showed a valid waiver of his rights after his Miranda rights were recited. Where a suppression motion challenges a Miranda waiver, the state has the burden to show by a preponderance of the evidence that the suspect knowingly, intelligently, and voluntarily waived his rights. The court examines the totality of the circumstances, which may include: background and criminal experience; age, education, and intelligence; capacity and ability to understand the rights and the consequences of waiving those rights; the details of the interview (including length, intensity, and frequency); and the existence of deprivation, mistreatment, threat, or inducement. A defendant’s mental condition alone will not result in a finding of an involuntary Miranda waiver where there was no official coercion or overreaching.

The First Amendment and Fifth Amendment Confluence

Mr. Anderson used a Constitutionally protected word to answer whether he understood his Miranda rights. He also told the deputy the narcotics were not fentanyl but simultaneously argued he did not understand his Miranda rights.

After Mr. Anderson said the bulge was dope, the deputy said he was going to read Mr. Anderson his rights so he could ask more questions before he touched the potentially dangerous drugs and then recited the Miranda warning to Mr. Anderson. Mr. Anderson loudly said, “Fuck.” When the deputy asked if Mr. Anderson understood the rights, Mr. Anderson said, “What was that?” The deputy repeated his question about whether Mr. Anderson understood his rights, and Mr. Anderson groaned. The deputy said Mr. Anderson appeared to make these replies out of frustration with the situation; the deputy testified he had no reason to believe Mr. Anderson did not understand his rights. Notably, the deputy asked a third time if Mr. Anderson understood the rights read to him, explaining he was reading the rights so he could ask about the specific drug as he worried about fentanyl exposure. Mr. Anderson responded, “it’s not fentanyl.”.

In arguing the evidence showed he did not understand his rights, Mr. Anderson emphasizes the following parts of the deputy’s testimony: the occupants of the vehicle appeared to be passed out; he woke them by calling to them and knocking; when they awoke, they seemed confused as to their location; and the deputy believed they were under the influence of a substance. The deputy also said Mr. Anderson later told him he used meth earlier.

Court Breaks Down the Rapidity of the Deputy’s Knocks and an Analysis of Mr. Anderson’s Lack of Hand Compliance

However, it was 9:30 a.m. when the officer approached the vehicle to wake the occupants, and Mr. Anderson did not indicate when he used meth (or when they stopped the car to sleep). The body-cam video shows the occupants responded fairly quickly to the deputy’s knocking (three fast knocks in a row, not three separate incidents of knocking). Mr. Anderson immediately placed his hands on the dashboard when the deputy instructed him to do so. Although he may have thereafter moved his hands abruptly, this did not show a lack of understanding (but more likely showed an attempt to hide something). When the deputy motioned for him to unlock the car door, Mr. Anderson did so with one hand while leaving the other hand on the dashboard, which shows his awareness of the importance of the situation.

Totality of the Circumstances Applied to Mr. Anderson’s Miranda Waiver

Upon exiting the vehicle, Mr. Anderson followed instructions and did not appear to be in a state of incomprehension. His gait, balance, and gaze seemed steady (especially in comparison to the female). The deputy indicated Mr. Anderson’s speech was not slurred and his eyes were not red. Mr. Anderson was not young (nearly 34 years old). Mr. Anderson’s prior experience with the criminal justice system was revealed by the indictment for having a weapon while under disability. There was no indication Mr. Anderson’s replies were not voluntary; there was no coercion, threat, deprivation, mistreatment, or inducement. The subsequent questioning was brief and mostly conducted roadside for reasons of safety or identification. See State v. Lather, 110 Ohio St.3d 270 (2006) (listing these factors). Under these circumstances, we conclude the preponderance of the evidence showed Mr. Anderson’s waiver of his Miranda rights was valid. This assignment of error is overruled.

Mr. Anderson filed a second appeal on the Weapons Under Disability conviction but that too was upheld by the Seventh District Appellate Court. Though that appeal was fully analyzed in the case, it is not analyzed in this article.

Information for this article was obtained from State v. Anderson, 2023 – Ohio – 945.

This case was issued by the Seventh District Appellate Court and is binding in the following Ohio Counties: Belmont, Carroll, Columbiana, Harrison, Jefferson, Mahoning, Monroe and Noble.

Lessons Learned:

There is a period of detention where the suspect is not free to go and yet the suspect is not in custody for purposes of Miranda, sometimes called Miranda-Custody. This is a hazy legal line that can be difficult for lawyers and judges to evaluate and even more difficult for law enforcement officers to discern in real time. In the mid-1980’s the U.S. Supreme Court did well to provide some lines of demarcation in framing when a suspect is in custody for purposes of Miranda. In 1983 the U.S. Supreme Court held “Although the circumstances of each case must certainly influence a determination of whether a suspect is “in custody” for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a “formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125 (1983). The following year the U.S. Supreme further explained “[A person who is] “temporarily detained as part of a routine traffic or investigatory stop is not generally deemed ‘in custody,’ and, hence, is not entitled to Miranda warnings.”Berkemer McCarty, 468 U.S. 420 at 436 (1984). When read and applied together both Beheler and Berkemer, make clear that Mr. Anderson was not in Miranda-custody when the deputy asked “Is this dope, it feels like dope.”.
Anderson also made a feeble argument that he did not understand his Miranda warnings once they were read to him. Though not explicitly stated Mr. Anderson’s argument seemingly is that he was too impaired on methamphetamine to understand the Miranda warning. This argument failed based on the totality of the circumstances as to Mr. Anderson’s level of impairment. As the Seventh District Court opined “Notably, the deputy asked a third time if Mr. Anderson understood the rights read to him, explaining he was reading the rights so he could ask about the specific drug as he worried about fentanyl exposure. Mr. Anderson responded, “it’s not fentanyl.””. The fact that Mr. Anderson knew the narcotics were not fentanyl but was methamphetamine applies to the totality of the circumstances that he was not too impaired to understand his Miranda warning.
The deputy in this case was wise not to try and apply the Plain Feel Doctrine.The Plain Feel Doctrine holds that the officer must know the object is both non-threatening and also that it is ‘immediately apparent’ that the object is a specific type of narcotic – See Minnesota v. Dickerson, 508 U.S. 366 (1993). For more on the Plain Feel Doctrine see What do Breast Implants and the Plain Feel Doctrine have in common?.
The case does not identify who the Monroe County Deputy is by name. However, this deputy performance on this call was highly professional! Well done Monroe County unnamed deputy!