Question: When eavesdropping on a suspect, do you have reasonable suspicion to conduct a search when you hear him deny having contraband?
Quick Answer: Probably not.
State of Ohio v. Mechling, Fifth Appellate District, Ashland, July 29, 2013
Facts: An officer was called to respond to a complaint of loud music at the home of Christopher Mechling. He determined the music was coming from a detached garage at the rear of the property and walked through the side yard around the residence. Before walking around the corner, the officer overheard a woman telling Mechling to get the “fat joint” out of his pocket so they could “smoke it.” Mechling responded that he did not have a joint. The woman said she had seen it and told him to take out the joint. At this point, the officer walked around the corner and stated, “Yeah, why don’t you get it out.” He then asked Mechling what was in his pocket and Mechling responded, “Nothing.” The officer asked Mechling to show him what was in his pockets. Mechling then pulled his pockets halfway out and marijuana was visible in his hand. He also had rolling papers. Mechling was charged with possession of marijuana and drug paraphernalia. The defense argued the officer conducted an improper search. The court agreed and suppressed the drug evidence.
Importance: You know the Constitution prohibits warrantless searches and seizures. When an officer shows authority and commands a person to adhere to an order to stop, that constitutes a seizure under
Terry. In this case, the officer did not have reasonable suspicion to conduct a warrantless search. Although he had a hunch, based on the comments of the woman that Mechling had contraband, he also was faced with the statements of Mechling denying having the joint to the woman and later to the him.
Nothing prevents an officer in these circumstances from initiating a consensual encounter. That is, an officer is always free to approach someone and merely talk to them. However, once you start telling people to turn their pockets out, have you crossed into a stop.
Keep in Mind: You might think that the officer in this case had reasonable suspicion because he knew someone else saw the joint. But take a step back from the situation and view it the way the court did. Reasonable suspicion is based on all the circumstances, not just the one that favors the stop. Here, although the officer testified that a woman claimed to have seen the joint, the suspect denied having one. The officer hadn’t even seen the two speaking, but he immediately confronted the suspect and quickly ordered him to turn out his pockets.
If Mechling had admitted to either the woman or the officer that he had the joint, or if the officer had talked to the suspect and observed a nervous demeanor, this case might have been different.
Other Cases to Consider
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My neighbor is making a bomb in his garage. Community caretaking/emergency aid exception: When you are investigating a complaint that a suspect is making bombs in his garage, see gunpowder on the table and floor, and observe the suspect moving around tables mixing substances in bowls, follow your agency protocol to remove the suspect and the materials, but remember, you can enter without a warrant. When you have probable cause to believe the suspect is making illegal explosive devices, an emergency exists and justifies entry without a warrant. This is under the community caretaking/ emergency aid exception to the warrant requirement. (State of Ohio v. Griffin, Second Appellate District, Montgomery County, July 12, 2013)
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Marijuana here, there, and everywhere. Evidence to support an affidavit for the warrant: You drive up to a house and see marijuana growing in the back yard and smell its odor. On a protective search inside the home, you find two bags of marijuana. What is the basis for your affidavit to obtain the search warrant? If you answered the marijuana in the back yard, you are correct. The police in State of Ohio v. Patton did it right by not including the observations from the protective sweep as a basis for their search warrant. This was for the best because the protective sweep was found to be improper. However, because the police explained other evidence not found in the protective search, they were able to obtain a valid search warrant and seize the bags of marijuana from inside the home. The key to this case is the fact the police had an independent basis for executing the search warrant — the marijuana from outside the home. (State of Ohio v. Patton, First Appellate District, Hamilton County, July 19, 2013)