While I’ve been critical of the 8th’s confrontation clause jurisprudence, their 4th Amendment cases have been all one could hope for, and that continued last week with State v. Kaine. 

The facts are simple:  The cops had staked out a Walgreen’s parking lot in a “high drug area,” and observed a Ford Explorer pull into the lot, drive past several empty spaces, then park.  Kaine, it turned out, was the driver of the car.  He didn’t get out.  Sometime later (apparently not too long, but the opinion doesn’t say), another car pulled up next to the Explorer; the driver got out, got into the Explorer, then, in copspeak, ”exited that vehicle” after half a minute and got back into his own car.  The police officer didn’t see anything that went on in the Explorer, but his suspicions were mightily aroused, and so when he saw the Explorer drive the wrong way through Walgreen’s “drive-thru” pharmacy, he stopped it. 

The cop had Kaine exit the vehicle and immediately patted him down, then placed him in the cruiser and did a “quick search” of the Explorer, supposedly for weapons.  He came up empty on that score, but found cocaine under the front seat.

Kaine argued that the judge should have granted his motion to suppress, and a panel of the 8th — and a panel which would not be regarded as pro-defendant – agreed.  First, the court reaffirms the cases in which the 8th has held that reasonable suspicion for a stop doesn’t exist unless the police see something which could actually be construed as a drug transaction, such as a hand exchange of some type.  Second, it reiterated that there has to be some evidence that the suspect is armed before a frisk — or, in this case, a “protective search” of the car for weapons – is allowed. 

As I said, on neither of these positions is Kaine an outlier.  In fact, one of the cases it cites, State v. Delagraza, presented facts far more substantial in suggesting drug dealing:  the police observed someone flagging down cars and approaching them, and on one occasion lean into the car and “did what appeared to be some sort of transaction between himself and the occupants of the auto.”  That still wasn’t sufficient to justify a stop of a subsequent car, where there was no such evidence of an exchange. 

So there you have it.  In the 8th District, at least, a bright-line rule:  if the police don’t see something which could reasonably be interpreted as a transfer of drugs, they don’t have a basis for an investigative stop.

On the other side of bright-line rules, you have the 2nd District’s decision last week in State v. Schneider.  Yes, the search was struck down, on the ground that the officers had no basis for a stop.  But the court reaffirms its holding that, in cases involving drug trafficking, “the right to frisk is virtually automatic when individuals are suspected of committing a crime, like drug trafficking, for which they are likely to be armed.”  As I’ve mentioned in the past, that’s not the law in the 8th, despite the above quote being from an Ohio Supreme Court case. 

As I mentioned yesterday, there are times when clarity in the law may provide a superior benefit to reaching the correct result in a particular case.  That is especially true in search and seizure cases:  police officers have to make split-second decisions, and the more hard and fast rules, the better.  I’m a little more concerned with the result in Schneider, since the link between drugs and guns is much more attenuated than many believe, at least in terms of street dealing; in State v. Jones, for example, the 8th threw out a frisk of two suspects stopped for trying to flag down cars, noting that the officer acknowledged that of the several hundred drug arrests he’d made, only “five or six” turned up weapons.