The Akron Legal News

Appeals court reverses lower court's ruling on officer's frisk

ANNIE YAMSON
Special to the Legal News
Published: June 5, 2013

In a recently released decision, the 2nd District Court of Appeals ruled that a Montgomery County Court of Common Pleas improperly convicted a defendant by admitting evidence found in a pat down.

According to testimony from the trial court’s evidentiary hearing the defendant, Joseph Howard, was a member of a multi-state motorcycle biker gang called the Renegades.

On Sept. 24, 2011, police received nuisance calls regarding shots fired at a loud party at the Renegades Clubhouse.

Det. Chad Knight testified at the hearing that the Renegades are considered by both the police and the FBI to be an “outlaw motorcycle club” and that they have a history of violence.

Before entering the Clubhouse that evening, Knight met with about 15 other officers and his supervisor to devise a plan of action for entering the building. The officers were outnumbered three to one and it appeared that some members had been drinking heavily.

The plan of approach required officers to pat down Renegade members in the gated portion of the Clubhouse’s front yard and then direct members one at a time to the backyard to speak with Knight and his supervisor.

Knight testified that, when informed of the plan, all Renegade leaders were fully cooperative.

Renegade members were also permitted to leave at any point and were not required to stay on the premises.

During the pat down, which was conducted by Officer Setty of the Dayton Police Department, officers recovered knives and guns from several Renegade members ad subsequently made between two and three arrests.

When Howard approached Setty, the officer began the pat down without asking for permission or acquiring any verbal consent because, according to his testimony, Howard was acting in a manner consistent with the other Renegades who consented to the pat down.

Setty described Howard as being very cooperative and friendly.

Setty found a handgun and three knives on Howard, which he was carrying legally, before he removed a small white container from Howard’s front pocket.

Based on his experience, Setty was concerned the container might be hiding a razor-blade so he opened the small box.

His testimony revealed that a “white, powdery substance” spilled from the container, the remains of which tested positive for cocaine.

Case summary stated that at no point during the investigation of the substance did Setty interview the defendant, obtain a warrant or recite the defendant his Miranda rights.

The trial court held that the interaction between Setty and Howard was a “consensual encounter” and that Setty was permitted to remove the container from Howard’s pants pocket because he “reasonably believed it could be a weapon.”

It also claimed that Setty was permitted to open the container based on his suspicion that it might be housing a razor blade and that no Miranda issue existed because Setty did not engage in any custodial interrogation.

During his trial, Howard filed a motion to suppress the cocaine which the trial court denied.

He subsequently pleaded no contest to one count of cocaine possession, a fifth-degree felony, and he was sentenced to five years of community control.

In his appeal, Howard argued his encounter with Setty was not consensual and that the police lacked authority to subject him to a pat down.

“He maintains that the incident was an investigatory detention and weapons frisk ... without the requisite individualized suspicion that he had done anything wrong or that he was armed and dangerous,” Judge Michael Hall wrote on behalf of the three-judge appellate panel.

Howard contended Setty lacked the authority to open the container discovered in his pocket because he did not consent to it being opened and that there was nothing incriminating or threatening about the container.

“We conclude that the trial court’s factual findings are supported by the suppression hearing testimony,” wrote Hall. “Applying those facts to the legal issues before us, we find that Officer Setty had no legal authority to open the small container found in Howard’s pants pocket.”

The appellate panel held that even assuming that the pat down was consensual and lawful, Setty’s act of opening the container and examining its contents violated the Fourth Amendment.

“Setty did not seek Howard’s permission to open the container and he lacked a warrant to open it,” explained Hall. “Nor did Howard explicitly or implicitly give Setty consent to search the container.”

According to the trial court’s factual findings, Setty simply removed the lid and tipped the container to see what was inside.

“The only articulated justification for this act was Setty’s concern that the container might contain razor blades,” Hall stated.

Hall proceeded to explain that an officer may remove an object felt during a pat down if he recognizes it as a weapon.

Conversely, an officer may not remove an object if he determines, solely from his sense of touch, that it is not a weapon.

If an officer reasonably believes an object may be a weapon but is uncertain, he may also remove said object.

Setty testified it was immediately apparent to him that the object in Howard’s pocket was a container but he feared that it might contain a weapon.

“The Ohio Supreme Court concluded that an officer performing a lawful pat down cannot remove ‘a soft object that the officer knows or reasonably should know is not itself a weapon on the grounds that it may contain a small weapon such as a razor blade,’” wrote Hall.

The appellate panel claimed this was true because a razor blade can be concealed almost anywhere and provide a pretext for any search.

The state argued that Setty was not acting based on a general suspicion that razor blades might be concealed in small containers but rather he knew from experience that gang members sometimes conceal razor blades.

“We are unpersuaded by the foregoing distinctions,” wrote Hall. “Setty did profess to know that gang members sometimes hide razor blades in ‘any small, little areas.’ But if this general knowledge were enough to justify a search, it reasonably could justify almost any search.”

The panel argued the number of “small areas” in which a gang member could hide a blade are limitless and that allowing such a search would be “to permit a search just as intrusive as that which can be made incident to a custodial arrest.”

Additionally, the panel contended that in a particular situation, it may be apparent that a particular type of weapon would be of no use because of the superior police presence.

“These case-specific considerations militate against a finding that the container in Howard’s pocket even posed a realistic threat to officer safety on the basis that it could hold razor blades.”

The suppression hearing transcript revealed that Howard was “an older gentleman who walks with a cane.”

“Under these circumstances, we are unconvinced that there was a reasonable and articulable suspicion that Howard posed a sufficient danger to the waiting detectives or other officers, who undoubtedly were armed themselves, from a generalized possibility that he could have concealed razor blades in a closed container in his pocket,” held the appellate panel.

Based on its analysis, the court concluded Setty was not justified in opening the container and that the trial court erred in failing to suppress the cocaine.

The judgment of the Montgomery County Court of Common Pleas was reversed and the case remanded for further proceedings.

Presiding Judge Mike Fain and Judge Jeffrey Froelich concurred.

The case is cited State v. Howard, 2013-Ohio-2123.

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