Question: Can you pat down a suspect a second time based on his behavior following the first pat-down?
Quick Answer: A suspect may be patted down a second time if he continues to act suspiciously, even after a previous pat-down was performed and nothing was found.
State of Ohio v. Dunlap, Seventh Appellate District, Columbiana County, Dec. 17, 2013
Facts: St. Clair Police Officer Jayson Jackson stopped a vehicle because it had a broken windshield. Hashim Dunlap was in the backseat. Jackson noticed that Dunlap was acting strangely, fidgeting with the seat and handling some object. When Dunlap continued to fidget, Jackson asked him to step out of the car. The pat-down and inspection of the back seat where Dunlap was sitting turned up nothing. While he was issuing a citation to the driver, Jackson noticed that Dunlap was again fidgeting around in the backseat of the car. Dunlap’s behavior concerned Jackson, so he ordered Dunlap back out of the car. Jackson asked Dunlap if he could pat him down a second time. Dunlap consented. This time, Jackson located two pockets that he had missed on the first search and felt a lump under Dunlap’s jacket. Dunlap stated he did not know what the item was. Jackson admitted that he did not think the item was a weapon, but he removed it anyway and found it was a digital scale about the size and shape of a cell phone. There was white, powdery residue on the scale that was later identified as cocaine. Jackson seized the scale. Dunlap argued that Jackson had no reason to search him a second time because had no reasonable belief that he was armed and that Jackson had no right to remove objects from his person that Jackson did not believe were weapons. The court held that the second pat-down was justified, but suppressed the powdery scale.
Importance: A
Terry pat-down is limited in scope to assuring officer safety and cannot be used to search for contraband. But here, Dunlap’s actions following the first pat-down were sufficient to create a suspicion that perhaps he had armed himself after the first pat-down and so supported a second pat-down.
Remember: Since a
Terry stop is limited to protecting officer safety, an officer can only seize and investigate items that a reasonable officer would believe could be a weapon. In this case, the court refused to admit the scale found inside Dunlap’s jacket because Jackson could tell during the pat-down that the lump was not a weapon.
More on Search and Seizure
Who’s your friend? You and your partner respond to a radio call about shots being fired. At the scene, witnesses tell you that a black male wearing a gray jacket or hoodie, a black hat, and blue jeans tucked a gun into his waistband and ran. You quickly find a man who matched the description walking with a boy. You call both the man and boy to your vehicle and ask them to show their hands. They hesitate before complying. Concerned for your personal safety, you pat down both the man and boy. The pat-downs revealed that the boy was carrying a .22-caliber rifle. Does it matter that you only searched the boy because he was walking alongside the suspect? No, according to the court in
D.S. Under the “automatic companion” rule, you can pat down any companion of an arrestee to get assurance that the companion is unarmed. Although in this case the boy’s companion had not yet been arrested, his stop-and-frisk was still justified because the officers had reasonable suspicion that the man he was walking with was armed and dangerous.
In re D.S., Eighth Appellate District, Cuyahoga County, Dec. 26, 2013
It’s safe to assume she’s armed. You and your partner are watching a restaurant where you made a felony drug bust earlier in the morning when a car drives up. A female climbs out of the back seat, speaks to the front-seat passenger, and enters the restaurant. Meanwhile, the driver pulls out a baggie, spoon, and needle, and starts cooking heroin in the front seat of the car. You arrest the men in the car and enter the restaurant to arrest the woman. As you lead her outside, she tries several times to reach into her pocket. Concerned she is armed, you pat her down and feel something in the pocket she was attempting to open. When you ask the woman what it is, she tells you it’s heroin. Was the pat-down reasonable? The court in
Grefer said yes because the officers had made a bust at the same location, saw the driver using drugs in the car, know that drug users are often armed, and witness the woman repeatedly reach for her pocket. These facts together created a reasonable suspicion that the woman was armed and a pat-down was necessary to ensure officer safety. Be careful though; although the search was justified, the seizure of the heroin was only permissible because the woman identified it and consented to its removal
. State of Ohio v. Grefer, Second Appellate District, Montgomery County, Jan. 10, 2014
Bad neighborhood, suspicious behavior. You are on patrol in a bad neighborhood and see a man dressed in all black riding a bike. You watch him stop and hand off the bike to another person. Based on your experience, you believe he is dealing drugs, but given the bad neighborhood and drug activity, you are concerned for your safety, so you call for backup. As you wait for backup, you stop the suspicious man and ask him to sit on a step until backup arrives. While waiting, you notice the man is acting nervous, has “shifty eyes,” and seems to be sitting in a way as to conceal something. You pat down the man and find a gun in his right back pocket. Did you have a reasonable suspicion to perform the pat-down? The court in
Ruff answered yes. The officer knew she was in a bad neighborhood, and she suspected a drug offense. The suspect acted nervous while waiting and appeared to be concealing something, further supporting the officer’s suspicions of criminal activity. The totality of these safety concerns justified the officer’s decision to pat him down once backup arrived. Remember that the factor of being is a bad neighborhood is not a legitimate reason for a pat-down. As in this case, there must be multiple factors to give you reasonable suspicion.
State of Ohio v. Ruff, First Appellate District, Hamilton County, Dec. 24, 2013