The Volokh Conspiracy
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"Out of My Peripheral I Felt as if Something Could Have Taken Place."
From State v. Barnes, a new decision from the Ohio Court of Appeals.
Here's some remarkable testimony from the suppression hearing in State v. Barnes, handed down yesterday by the Ohio Court of Appeals, in which an officer searched through a suspect's pockets and found drugs. The officer had already frisked the suspect for weapons and found nothing, but then searched him again on the suggested ground that another suspect might have just handed him something:
On cross-examination, Patrolman Risner 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." (Emphasis added.) (Tr. 136). The following exchange then occurred:
[Defense Counsel:] At no time do we see from the body cam any type of exchange occur, do we?
[Patrolman Risner:] We don't see the exchange, no.
[Defense Counsel:] And you didn't either, did you?
[Patrolman Risner:] Out of my peripheral I felt as if something could have taken place.
[Defense Counsel:] But you didn't see anything, did you?
[Patrolman Risner:] 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?
[Patrolman Risner:] Because I believed that I did.
[Defense Counsel:] Okay. But you didn't, did you?
[Patrolman Risner:] No.
* * *
[Defense Counsel:] I mean, how do you believe you see something from what we just saw [on the body camera footage]?
[Patrolman Risner:] 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.
The very unimpressed Court of Appeals ruled that the search violated the Fourth Amendment and that the trial court properly suppressed the evidence.
UPDATE: Reading over the case again, and thinking more about it, I think the testimony above may have come off pretty differently in the opinion than at the suppression hearing. In the opinion, it reads as if the officer is trying to pull a fast one, like he's trying to defend the search based on his feelings. But the opinion later points out that there was another possible Fourth Amendment basis for the search that the officer was apparently relying on: The automobile exception, based on a positive drug detection dog alert before the search occurred.
Let me explain this a bit. If a dog alerts to drugs in a car, that entitles officers to search the car. The officer appears to have been thinking that this allowed the search through the former passenger's pockets, not that the officer safety rationale of stop-and-frisk law did so. The court points this out in passing to explain why there was no real officer safety rationale, but it's worth pointing out that this presumably explains the officer's testimony. Presumably he wasn't trying to justify the search based on his feelings, but rather was just being truthful about his thinking: He was seeing this as a drug case based on the dog alert, and he thought he could search a person from the car and was just explaining why he searched that person. If that view were correct, he would not need additional suspicion.
As it turns out, though, that belief about Fourth Amendment law is not correct. The automobile exception allows a search of property that a passenger carries out of the car when ordered to exit after probable cause has been established, lower courts have held. But the Supreme Court has held that the automobile exception does not extend to a passenger's pockets. See United States v. Di Re, 332 U.S. 581, 587 (1948). So it's possible that what happened here is that the officer was thinking of one exception to justify the search but the prosecution ended up trying to justify the search based on a different exception. The testimony seems odd because the government ended up arguing that the search was justified based on an exception that the officer was not trying to invoke. Or at least that seems like a distinct possibility.
