Even more questions …
Does a Canine Alert of an Occupied Vehicle Justify the Search of Each Vehicle Occupant?
Is a Verbal Pat Down Lawful?
Is it Objectively Reasonable to Order a Female Suspect to Shake Out Her Own Bra?
State v. Barnes
Third District Appellate Court
Hardin County, Ohio
December 16, 2024
Possible Narcotics House Under Surveillance
On June 10, 2023, Officer #1 was parked in the vicinity of Mr. David Barnes’s house. On prior dates, law enforcement had received reports of suspicious activities transpiring at Mr. Barnes’s residence and had responded to drug overdoses at that location. For these reasons, the police believed that the house where he lived was the site of drug-related activities. Around 2:00 P.M., Officer #1 saw Mr. Barnes leave his house in a pickup truck and observed him make at least three turns without properly activating his turn signal.
Note: The case holding identifies Officer #1 by name, but I have chosen to redact his name.
Traffic Stop and Request for Canine
Because he “believed that it could potentially become a narcotics investigation,” Officer #1 contacted the handler in a canine unit, Officer #2, to determine whether a drug-detection dog was available. In response, Officer #2 got his canine partner and headed towards Officer #1’s location. After initiating a traffic stop, Officer #1 approached the pickup truck. Mr. Barnes was the driver while Ginger Williams and Charles Wilcox were passengers. Officer #1 obtained Mr. Barnes’s driver’s license and gave this information to dispatch for a records search.
Note: The case holding identifies Officer #2 by name, but I have chosen to redact his name.
Canine Alert WITH Occupants Left in the Vehicle
Officer #2 arrived at the scene roughly ten minutes after the traffic stop had been initiated. By this point, dispatch had not yet provided Officer #1 with the information he had requested. The canine was deployed to examine Mr. Barnes’s vehicle and alerted after walking to the middle of the passenger side of the pickup truck. At this point, the three occupants of the vehicle were directed to exit the vehicle.
Female is Directed to Empty Her Pockets and Shake Out her Bra
After Mr. Barnes exited the truck, Officer #2 performed a pat-down search of Mr. Barnes’s person but did not locate any weapons. Officer #2 then began to search the driver’s side of the vehicle. Since Officer #1 was standing on the passenger side of the vehicle, he engaged Wilcox and Williams after they exited the pickup truck. He directed Williams to “empty out [her] … pockets” and “shake out … [her] bra.” He later explained that he gave this directive because “[I]t is very common for women to hide contraband in their bra.”
Officer #1 Obtains a Cell Phone and Film Container from Mr. Barnes Pockets
At this time, Mr. Barnes was walking towards where Wilcox was located besides the police cruiser. Officer #1 approached Mr. Barnes and stated, “Did he already—here, I’m going to double check.” Officer #1 then reached into one of Mr. Barnes’s pockets and pulled out a cellular phone. After Mr. Barnes told him to stop, Officer #1 reached into this pocket again and retrieved an old film canister. The canister was opened and found to contain what appeared to be methamphetamines.
Purse Contained a Drug Pipe and Syringe
Officer #2 had stopped searching the vehicle when he heard Officer #1 speaking to Mr. Barnes about the contents of his pockets. When the police indicated that they were going to resume the search of the pickup truck, Williams stated that her purse was inside the vehicle and contained a drug pipe and a syringe. After the police located these items in her purse, they discovered two other drug pipes inside the center console of the vehicle. Once the search of the vehicle was completed, the police officers decided not to arrest Mr. Barnes and permitted him to leave on his own accord.
Indicted and Motion to Suppress is Granted
On September 14, 2023, Mr. Barnes was indicted on one count of aggravated possession of drugs in violation of O.R.C. §2925.11(C)(1)(a), a fifth-degree felony. On January 19, 2024, Mr. Barnes filed a motion to suppress. Officer #1 and Officer #2 testified at the suppression hearing. Footage from Officer #1’s body camera was presented. On March 18, 2024, the trial court granted Mr. Barnes’s motion to suppress, finding that the police did not have reasonable suspicion or probable cause to conduct the “second warrantless search of the defendant’s person.”
State Appeals the Suppression of Contraband
The State filed its notice of appeal on March 21, 2024.
Officer #2 Conducted the First Pat Down
The State argues that trial court erred in concluding that Officer #1 did not have sufficient legal justification to search Mr. Barnes’s pockets after Officer #2 had already conducted a pat-down search of Mr. Barnes’s outer clothing. In this case, Officer #2 testified that he conducted a limited, pat-down search for the purpose of determining whether Mr. Barnes was armed. Officer #2 stated he did not detect any item “large enough to be a significant danger” and affirmed that he was “satisfied that he [Mr. Barnes] was not packing a gun or other weapon.”
A Possible Contraband Hand-Off
After this limited, pat-down search, Mr. Barnes moved towards the area where Wilcox was standing next to the police cruiser. Officer #1 testified that, as he was talking to Williams, he could see Wilcox and Mr. Barnes in his peripheral vision and “thought that there was a possibility that they could have handed something off to one another”. However, in its judgment entry, the trial court noted that, in this timeframe, “Mr. Wilcox was visible on his [Officer #1’s] body cam off and on and clearly was not near the defendant most of the time.”
Motion to Suppress Cross Examination
On cross-examination, Officer #1 admitted that the body camera footage contained no indication that any type of exchange occurred but stated that he “felt as if something could have taken place.” The following exchange then occurred:
[Defense Counsel:] At no time do we see from the body cam any type of exchange occur, do we?
[Officer #1:] We don’t see the exchange, no. [Defense Counsel:] And you didn’t either, did you?
[Officer #1:] Out of my peripheral I felt as if something could have taken place.
[Defense Counsel:] But you didn’t see anything, did you? [Officer #1:] No, I didn’t see a handoff, no.
[Defense Counsel:] Now why on the body cam, then, did you tell Mr. Barnes that you saw him put that in his pocket?
[Officer #1:] Because I believed that I did.
[Defense Counsel:] Okay. But you didn’t, did you?
[Officer #1:] No.
[Defense Counsel:] I mean, how do you believe you see something from what we just saw [on the body camera footage]?
[Officer #1:] I can’t explain to you how I felt at that moment. I was busy dealing with her [Williams]. Out of my peripheral, it looked like something could have been potentially handed off so I investigated further and I was right.
Mr. Barnes was Nervous and Officer #1 had a Gut Feeling
Officer #1 then went over Mr. Barnes and “asked him if he had already been patted down because [he] didn’t know at that time if [Mr. Barnes] had been or not.” He described Mr. Barnes’s actions in response as follows:
So his [Mr. Barnes’s] behavior, you could tell in his voice that there was— he was kind of stuttering or whatnot, which led me to believe that there was some deceptive behavior behind that. He was fidgeting with his hands, still fidgeting with his pockets, pacing around, getting close to Charles [Wilcox], walking away. Just all over the place.
Officer #1 told Mr. Barnes that he was going to “double-check him.” In response, Mr. Barnes “got defensive.” Officer #1 testified that he “made the decision to go in his [Mr. Barnes’s] pocket” “based on his demeanor.”
On appeal, the State argues that the stop-and-frisk exception applies to Officer #1’s search of Mr. Barnes’s pockets. However, even if Officer #1 had been unaware of the prior pat-down of Mr. Barnes’s person, he never mentioned any safety concerns as a reason for reaching into Mr. Barnes’s pockets at the suppression hearing or on the recording from his body camera.
Search of Mr. Barnes’ Pockets was based on the Canine Alert
Rather, Officer #1 testified that he believed that a canine alert at a vehicle provided grounds to search the passengers and that the exigent circumstances exception applied to the search of Mr. Barnes’s person. This testimony is an indication that the search of Mr. Barnes’s pockets was undertaken for the purpose of locating evidence rather than to ensure officer safety. In contrast, Officer #2’s testimony regarding the earlier pat-down of Mr. Barnes’s person clearly explained that he was searching for weapons to ensure officer safety before they proceeded to examine the vehicle.
A Possible Hand-Off
In evaluating this testimony, the trial court noted that Officer #1 mentioned a “possibility” of a handoff before “admit[ing] he did not see Mr. Wilcox hand anything to the defendant, but just had a feeling” that he “c[ould]n’t explain.”
A Possible Hand-Off is an Inarticulable Hunch
The trial court then noted that Officer #1 admitted that he did not see the defendant actually do anything, he just suspected it or ‘had a feeling’ that he could not explain. Based upon this feeling, which the Court would call an inarticulable hunch, he engaged in a second pat-down which produced a cell phone, pocketknife and small canister containing suspected methamphetamine.
Further, the trial court noted that Officer #1 did not testify “that he was fearful at the time of the second pat down,” and no other evidence in the record suggested he was conducting a protective search by reaching into Mr. Barnes’s pockets.
Officer Safety was Not a Factor
Based on these observations, the trial court found that there was no “solid evidence of a ‘particularized suspicion’” in this case and that “[O]fficer safety was not a consideration in the second pat-down/frisk.” For these reasons, the trial court correctly concluded that “the stop and frisk doctrine … does not apply because the defendant had already been frisked and there was no evidence subsequent to that which would call into question officer safety.”
Officer #1 Conducted a Search not a Pat-Down
Additionally, we also note that Officer #1 did not appear to be engaging in a limited pat-down search of Mr. Barnes’s outer clothing in the body camera footage. Rather, he testified that he “made the decision to go in his [Mr. Barnes’s] pocket.” In the video footage, Officer #1 reached directly into Mr. Barnes’s pockets almost immediately after approaching him. State v. Debrossard, 2015-Ohio-1054, ¶ 32 (4th Dist.).
Search of Mr. Barnes’ Pockets was Objectively Unreasonable
In summary, the State did not provide evidence that suggests that a concern for officer safety motivated the search of Mr. Barnes’s pocket. Thus, we conclude that the State failed to establish that the stop-and-frisk doctrine was applicable to the search of Mr. Barnes’s pockets. Having examined the facts in the record before us, we conclude that the State has failed to demonstrate that the trial court erred in granting Mr. Barnes’s motion to suppress with this argument. Accordingly, the second assignment of error is overruled.
Would Mr. Barnes Narcotics Have Been Inevitably Discovered?
The State of Ohio argues that, even if Officer #1’s search of Mr. Barnes’s pockets was not constitutionally permissible, the contraband would have been inevitably discovered as the result of the lawful search of the vehicle.
Established Case Law
“A warrantless search of an automobile, where police officers have probable cause to believe such vehicle contains contraband, is one of the well- recognized exceptions to the constitutional requirement of a search warrant.” State v. Holmes, 2019-Ohio-2485, ¶ 43 (3d Dist.), quoting State v. James, 2016-Ohio- 7660, ¶ 23 (5th Dist.). “If a trained canine alerts to the odor of drugs from a lawfully stopped and detained vehicle, an officer has probable cause to search the vehicle for contraband.” State v. Jennings, 2015-Ohio-1750, ¶ 10 (2d Dist.).
Further, under the inevitable-discovery doctrine, evidence that is obtained inconsistently with the requirements of the Fourth Amendment can still be admissible if “the state establishes that the evidence would inevitably have been discovered in the course of a lawful investigation.” State v. Banks-Harvey, 2018- Ohio-201, ¶ 27. “The rule permits the State to remove the taint from ill-gotten evidence by establishing that the unlawful act from which the evidence resulted was ‘not a sine qua non of its discovery.’” State v. Mr. Barnes, 2017-Ohio-7284, ¶ 12 (3d Dist.), quoting U.S. v. Griffin, 502 F.2d 959 (6th Cir. 1974).
For this exception to the exclusionary rule to apply, the State must establish “(1) that the police possessed the leads making the discovery inevitable at the time of the misconduct and (2) that the police were actively pursuing an alternative line of investigation prior to the misconduct.” Mr. Barnes at ¶ 12, quoting State v. Keith, 2008-Ohio-4326, ¶ 10 (2d Dist.). Thus, the State must demonstrate a “reasonable probability” exists “that the evidence would have been discovered apart from the unlawful conduct” by a preponderance of the evidence. Banks- Harvey at ¶ 27.
Importantly, “[T]he state must prove not simply that the government could have found the evidence without the constitutional violation, but affirmatively would have found it.” State v. Alihassan, 2012-Ohio-825, ¶ 29 (10th Dist.). “Proof of inevitable discovery ‘involves no speculative elements but focuses on demonstrated historical facts capable of ready verification or impeachment.’” Toledo v. Powell, 2014-Ohio-3627, ¶ 31 (6th Dist.), quoting Nix v. Williams, 467 U.S. 431, 444-445, fn. 5 (1984).
State Argues that the Canine Alert Established Probable Cause to Search Vehicle Occupants
The State argues that, notwithstanding Officer #1’s search of Mr. Barnes’s pockets, the illegal drugs would still have been inevitably discovered through a lawful line of investigation. The State points out that, after the canine alert gave the police probable cause to search the vehicle, Officer #2 had begun a lawful search of the vehicle that was interrupted when Officer #1 discovered the contraband in Mr. Barnes’s pocket. Jennings at ¶ 10. This evidence does indicate that law enforcement was engaged in an alternative line of investigation prior to the misconduct. Keith at ¶ 10.
The State then traces this alternative line of investigation through three main steps that would have purportedly led to the inevitable discovery of the methamphetamines: (1) if Mr. Barnes’s pockets had not been prematurely searched, the police would have continued searching the vehicle and discovered the drug paraphernalia; (2) on finding this evidence of a crime, the police would have arrested Mr. Barnes; and (3) the police would have discovered the illegal drugs in Mr. Barnes’s pockets during a permissible search incident to this arrest.
The first step is substantiated by the evidence before us: when the police returned to searching the vehicle, they located the drug paraphernalia. However, the second step is at odds with the “demonstrated historical facts” in the record because Mr. Barnes was never arrested. Nix, 467 U.S. 431, 444-445, fn. 5. The State asserts that, in the alternative line of investigation, the police would have arrested Mr. Barnes for the misdemeanor offense of possession of drug paraphernalia after the drug pipes were discovered in the center console of the vehicle.
But in this case, the police did locate the drug paraphernalia in the center console of the vehicle and did not arrest Mr. Barnes after its discovery. Further, at the time the drug pipes were found, the police had reason to believe that Mr. Barnes had committed the felony offense of possession of drugs in addition to the misdemeanor offense of possession of drug paraphernalia. Yet the police still chose not to arrest Mr. Barnes. The State cannot persuasively argue that the police would have taken the opportunity to arrest Mr. Barnes for a misdemeanor offense in an alternative line of investigation when the police did not take the opportunity to arrest Mr. Barnes for a misdemeanor and a felony.
Conclusion – Search was Unreasonable
Since the State has failed to establish that the police would have arrested Mr. Barnes for possession of drug paraphernalia, a search incident to an arrest would not have been an applicable exception to the warrant requirement in this alternative line of investigation. For these reasons, we conclude that the State has failed to establish that a reasonable probability exists that the contraband in Mr. Barnes’s pockets would have been inevitably discovered apart from the unlawful conduct with this argument.
Accordingly, the third assignment of error is overruled.
There was one more appeal that is not evaluated in this article. That appeal, like the first two, was overruled and the Mr. Barnes narcotics were suppressed.
Having found no error prejudicial to the appellant in the particulars assigned and argued, the judgment of the Hardin County Court of Common Pleas is affirmed.
Information for this article was obtained from State v. Barnes, 2024 – Ohio – 5865.
State v. Barnes, 2024 – Ohio – 5865 was issued on December 16, 2024 by the Third District Appellate Court and is binding in the following Ohio Counties: Allen, Auglaize, Crawford, Defiance, Hancock, Hardin, Henry, Logan, Marion, Mercer, Paulding, Putnam, Seneca, Shelby, Union, Van Wert and Wyandot.
Lessons Learned:
- Does a Canine Alert on a Vehicle Justify the Physical Search of the Occupants of the Vehicle? The initial stop for Fail to Signal and request for a canine were both reasonable. At the time the canine handler had the occupants of the vehicle remain inside the vehicle the stop began to be challenged. There are two reasons law enforcement should not leave occupants inside a vehicle prior to a canine sniff. The first is officer safety. The canine handler must focus on the canine during the free air sniff to observe for behavior changes in the canine and that should be the handler’s primary focus. Second, courts have repeatedly held that a canine alert of a vehicle with occupants does not justify the search of the occupants. See State v. Dudsak, 2021-Ohio-3632 and Ybarra v. Illinois, 444 U.S. 85, 91 (1979). Here is a link to a previous article I wrote on leaving occupants inside a vehicle during a canine sniff: Does a Canine Alert on a Vehicle Justify the Physical Search of the Occupants of the Vehicle?
- Is a Verbal Pat Down Constitutional? – “Since Officer #1 was standing on the passenger side of the vehicle, he engaged Wilcox and Williams after they exited the pickup truck. He directed Williams to “empty out [her] … pockets” and “shake out … [her] bra.” An objectively reasonable pat down occurs when a law enforcement feels the outer clothing pressing his hand against the form of the body to determine if a weapon is between the officer’s hand the suspect’s body. In this case Officer #1 directed Ms. Williams to empty her own pockets, consequently that is a search, not a pat down. When an officer directs a suspect to lift her shirt, empty their pockets, or empty a container that is a Verbal Pat Down. This type of search goes beyond the constitutional limitations of a physical pat down. Also from an officer safety viewpoint, an officer should NEVER put contraband or weapon in the dominion and control of a suspect. If there was a weapon in Ms. Williams possession, she could have attacked the officers. If there was contraband in her pocket, she could have attempted to destroy it by emptying the package, or throwing it in a sewer, field or some other location that would make it difficult to recover. Alternately, Ms. Williams could have attempted to consume what was in her pocket. In those situations, officers may attempt to use force to inhibit the suspect from consuming the narcotics for the suspect’s own safety and to preserve the narcotics for prosecution. For more on a verbal pat down see: Is a Verbal Pat Down Objectively Reasonable posted August 8, 2022, State v. Barcus, 2022 – Ohio 2491.
- Strip Search Violation? Body Cavity, Strip Search – Conducting an Unauthorized Search O.R.C. §2933.32(A)(2) states in pertinent part “Strip Search” means an inspection of the … undergarments of a person that is preceded by the … rearrangement of some or all of the person’s clothing that directly covers the person’s … breasts … or in any other manner while the person is detained …. For the alleged commission of a misdemeanor or traffic offense.”. In this case the court explained “Since Officer #1 was standing on the passenger side of the vehicle, he engaged Wilcox and Williams after they exited the pickup truck. He directed Williams to “empty out [her] … pockets” and “shake out … [her] bra.”. I believe that because Ms. Williams shook out her bra at the direction of Officer #1 that was a violation of the O.R.C. §2933.32(A)(2). Specifically, the ‘any other manner’ language could reasonably apply to the suspect rearranging their own clothing at the direction of the officer. Additionally, I do not believe that a citizen/suspect can consent to violate a statute.
- Training – Chief Scott Hughes and I have presented Legally Confident-Tactically Confident since 2021. In 2022 the class focused on investigative detention and pat downs. Pat downs were explained and demonstrated in detail, to include patting down suspects in heavy clothing and the Verbal Pat Down Doctrine. Additionally, since 2022 I have presented Canine Legal Update class throughout the State of Ohio. During that class, I review case law that identifies a canine alert does not establish probable cause to search vehicle occupants. If you or your team would like to attend or host training please visit objectivelyreasonable.com.
Does your agency train on Traffic Stops. Canine Sniffs and the Strip Search Doctrine?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and objectively reasonable!