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Media > Newsletters > Law Enforcement Bulletin > April 2014 > Search and Seizure (Unparticularized Suspicion): State of Ohio v. Boswell

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Search and Seizure (Unparticularized Suspicion): State of Ohio v. Boswell

Question: Can you stop an individual and conduct a search if you believe the person is up to no good?
Quick Answer: No, you have no right to stop people on a hunch. You must have a specific reason to believe the person is engaged in criminal activity.

State of Ohio v. Boswell, Fifth Appellate District, Ashland County, March 7, 2014
Facts: Edward Boswell and a friend were walking on the sidewalk at 10:30 a.m. when an officer drove by, stopped, got out, and asked for identification. The officer then asked if they had anything illegal. Boswell’s friend said he did not and gave permission for his backpack to be searched. Inside, the officer found a scale and marijuana flakes. The officer then noticed that Boswell had on a bulky coat and was acting nervous. Boswell told the officer he did not want to be searched. The officer said he was going to search him for weapons and did not need his consent. Inside the coat, the officer found a broken marijuana pipe and a cell phone. Boswell told the officer not to look at the phone, to which the officer said he could search it now or back at the station. The officer then arrested Boswell. At the station, Boswell allowed the officer to look at his phone. The officer found messages about marijuana. Boswell argued that the officer improperly searched him and seized his property.  
Importance: If you’ve been on the street for a long time, you probably have developed a keen sense about who is likely a criminal. In fact, the officer in Boswell said he relied on his “cop radar” when he decided to search Boswell. You may have well-developed cop radar, but that isn’t enough to justify stopping and searching someone. The Fourth Amendment balances an individual’s right to freedom and the public interest of safety. It’s important to remember that the use of your cop radar, even if you are right, won’t justify a violation of an individual’s right to freedom.
Keep in Mind: The officer could not point to any fact supporting his conclusion that Boswell was doing something suspicious, which was the key in this case. His testimony amounted to an unparticularized suspicion or hunch, which then constitutes an improper Terry stop. If the officer had testified about more concrete reasoning for the stop, the outcome may have been different.
More on Search and Seizure
Jumping out of a window (twice) and running means you did something wrong. You get a report about a stolen TV. You and the victim arrive at the address where he says the suspect lives. You knock on the front door and get no answer. The victim goes around back and sees the suspect jump out the window. But by the time you get there, he is gone. Later that day, you and the victim head back to the house. No one answers, but you hear noises coming from the back. As you walk around the house you see the suspect jump from the window and run. You call for backup, and the suspect is apprehended. The victim, however, says that is the wrong person. The guy you apprehended said he ran because of an outstanding child support warrant. After a pat-down, crack cocaine and heroin are found. Was the seizure proper? According to the court in Foreman, the answer is yes. The police had probable cause because Sammie Foreman ran and did not comply with orders to stop. Additionally, after the detainment, the active warrant was enough for an arrest. State of Ohio v. Foreman, Second Appellate District, Montgomery County, Feb. 21, 2014
Strange movements = reasonable suspicion. While parked outside of a gas station, you notice an individual exit a car and walk up to a truck. You believe an exchange between the two individuals occurred, although you are not totally sure. After the individual returns to his car, you observe him take a drink of what appears to be a beer. You approach the individual, and he starts to reach down to the floor on the driver’s side. Concerned he may be reaching for a weapon, you ask him to place his hands on the steering wheel. He then opens his hands to reveal a clear plastic bottle with pills. He admits to paying $100 for them. You arrest him for possession. Was the seizure proper? The court in Shrewbury said yes. In this case, the officer had a hunch about Shannon Shrewbury, so he continued to watch him. The difference between this case and Boswell is that the officer waited until he had reasonable suspicion to approach (the open-container violation). The suspicious movements of Shrewbury gave additional reasonable suspicion for the officer to ask his for his hands be placed on the steering wheel, thereby exposing the object in his hand. State of Ohio v. Shrewbury, Fourth Appellate District, Ross County, Feb. 26, 2014