Question: Does a peace officer violate the Fourth Amendment by searching inside a suspect’s pocket or socks without a warrant?
Quick answer: Yes, but only if there are no warrant exceptions that will justify the warrantless search.
Facts: A police officer saw a truck with out-of-state license plates parked at an apartment complex in an area known for drug trafficking. The officer entered the truck’s plates into the law enforcement database and learned that the truck belonged to defendant Maurice Robinson, who had a prior drug conviction. The officer watched Robinson leave the apartment complex and drive away in his truck, and the officer followed. He witnessed Robinson commit two traffic violations, so he stopped Robinson’s vehicle and then called for the K9 unit to come to the scene for a drug sniff while he wrote Robinson a traffic ticket.
The K9 officer arrived, which caused Robinson to become agitated and argumentative. When the dog alerted to the driver’s side door, the officer asked Robinson to get out of the car. He handcuffed Robinson for safety purposes. The officer then asked if he could pat down Robinson’s clothing, and Robinson consented. The officer patted down his outer clothing and discovered a large wad of money in his pocket. The officer began to retrieve the money, but Robinson reminded the officer that he only consented to a “Terry pat-down,” not a search.
Shortly after the officer found the wad of money, the K9 officer discovered loose marijuana on the floor of Robinson’s car. Upon learning this information, the first officer went into Robinson’s pocket and took out the money he felt from the pat-down. He requested that Robinson sit on the bumper of the cruiser and remove his shoes, and Robinson complied. He had two bags of cocaine in his sock, so the officer placed Robinson under arrest for drug possession. Robinson moved to suppress the evidence from both his pants and his socks as an unconstitutional search.
Why this case is important: The court held that the search of Robinson’s person violated the Fourth Amendment. The officers conducted a warrantless search, and they had no justification from any warrant exceptions. First, the drug-detection dog’s positive alert didn’t give the officers probable cause to search Robinson, only his vehicle, under the automobile exception. Once a trained drug dog alerts to drugs in a lawfully detained vehicle, an officer has probable cause to search only the vehicle for contraband. However, searching inside an individual’s pockets or shoes is not permissible as part of the search. Second, the officers couldn’t justify the search as a Terry frisk. An officer is allowed to conduct a limited pat-down of an individual’s outer clothing for weapons during an investigatory stop if the officer has reasonable suspicion that the suspect may be armed and dangerous. Here, because there was no indication that the officers believed either the wad of money or the bulge in Robinson’s socks was a weapon, or that the criminality of the items were immediately apparent, they couldn’t justify their warrantless search under Terry.
Third, the officers couldn’t justify searching Robinson’s clothing under the search incident to arrest warrant exception. The officers couldn’t arrest Robinson for the small amount of loose marijuana found in the car because it is considered a minor misdemeanor in Ohio, and peace officers aren’t permitted to arrest someone for a minor misdemeanor (unless there is a statutory exception). Finally, Robinson didn’t consent to the search of his pockets or his socks. Consent to search is voluntarily given when a reasonable person would believe he had the freedom to refuse an order given by an officer. Here, Robinson limited his consent to a “Terry pat-down” only, and he removed his shoes only because he acquiesced to the officer’s claim of authority, not because he consented.
Keep in mind: For a warrantless search to be constitutional (and the evidence to be admitted in court), you have to have a valid warrant exception to justify the search. So remember the warrant exceptions and what is required for each of them to be valid. For example, with the automobile exception, should you find probable cause, you can search only the vehicle, not the driver or passengers of the vehicle.
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