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What's Up in the 8th

8th District, eight cases -- that was the court's output this past week.  So instead of quantity, we'll go with quality, and take an extended look at one of them.

State v. Thomas is Exhibit No. 84 in support of my contention that the 8th is the most 4th Amendment-friendly court in the state.   The opinion tells us that two men, in town for a business trip and "looking for a good time," met up with "two males and a female, who accompanied them back to a hotel room for a night of alcohol and drugs."  One of them, a man named Jones, awoke from his stupor the next morning to find that -- quelle surprise -- his laptop computer was missing.  He called one of the males he'd met with the night before -- the defendant -- who told Jones that he'd return the laptop for $300, and arranged a meeting at a parking lot.

Jones, no dummy -- well, actually, he had been, up to that point -- called the police, who arrived at the parking lot at the scheduled time and observed Thomas, wearing the clothes Jones had described.  The detective told Jones to call the individual he was supposed to meet, and then approached Thomas, who, upon inquiry, responded that he was "suposed to meet some guy up here, something about a laptop computer."  Although Thomas was cooperative, according to the detective, he was nonetheless patted down "for officer safety."  Thomas had his hands clenched into fists, and the detective told him to open them; a baggie containing half a gram of crack fell out.  Then Thomas' phone rang, and it turned out to be Jones calling.

The court concludes, correctly, that the circumstances -- the accuracy of Jones' description, Thomas' acknowledgment that he was there "to meet a guy about a laptop" -- were sufficient to give the detective a reasonable suspicion that Thomas was engaging in criminal activity.  In many other courts, that would have been the end of the inquiry.  But, as the opinion notes, the propriety of the stop and the propriety of the frisk are separate questions:  the standard on the latter is "whether a reasonably prudent person would be warranted in believing that his or others' safety is jeopardized." 

The court's also on solid ground in holding that the standard isn't met in this case:

Appellant was not hostile, made no furtive gestures, refused no order of the officers, had his hands visible at all times, and cooperated with officers fully.  None of the information Det. Walentek received in regard to appellant involved any violence or use of a weapon.

To be candid, I'd feel more comfortable about the outcome of the case if the frisk had resulted in finding drugs in, say, the defendant's pockets.  Here, though, the drugs were in the defendant's hands.  Somewhat curiously, the opinion notes that "the officers never asked appellant to open his hands prior to conducting the pat-down search."  If the officers had done so prior to instituting the pat-down, would the result have been different?  Is ordering a defendant to open his hands a frisk?  Would a defendant's refusal to do so give rise to a reasonable suspicion that the defendant is holding a weapon?  (On the latter point, the answer seems to be no; the court notes that the detective testified that "one could hide a small knife or razor blade in one's clenched fist," but "that alone does not give an officer a reasonable suspicion that an individual is armed or poses a danger.")

Another tantalizing possibility is raised by this passage in the court's opinion:

If the officers had only waited a few seconds, the search may have been validly conducted as a search incident to arrest when it was confirmed that appellant was the individual attempting to extort money from Mr. Jones in exchange for the laptop.

Based on that, the State might have been able to argue that the drugs would have inevitably been discovered when Jones was arrested.  No such argument was raised, apparently, either at the trial or appellate level.  Interestingly, the court seems to take away that possibility in a footnote, citing the Supreme Court's recent decision in State v. Smith (discussed here) requiring a warrant before searching the contents of a suspect's cell phone.  I'm not sure I would read Smith so broadly as to prohibit the police from simply looking at the caller ID on a cell phone that they had seized to determine who was calling; the message log or the actual contents of the phone seems to be within the legitimate privacy interests with which Smith is concerned. 

The State may appeal Thomas, and if it's accepted I wouldn't want to lay odds on the Ohio Supreme Court coming to the same conclusion as did the 8th.  (It should be noted, though, that this was not a particularly liberal panel.)  But appealing is a dicey proposition from the strategic standpoint.  Regardless of the court's conclusion, its process was correct:  stop and frisk is a two step process, and here the police did not have any reasonable suspicion that Thomas was armed and dangerous.  Unfortunately, there are a lot of cops, prosecutors, judges, and even defense attorneys who do not appreciate that distinction.  An appeal of Smith could result in a reversal of the case, but a clear statement from the Supreme Court of the distinction between the suspicion necessary for a stop and that necessary for a frisk.  From a defense standpoint, that would be a welcome clarification of an otherwise murky area of 4th Amendment law.

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