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Media > Newsletters > Law Enforcement Bulletin > July 2012 > State v. Byrd — Second District Court of Appeals (Champaign, Clark, Darke, Greene, Miami, and Montgo

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State v. Byrd — Second District Court of Appeals (Champaign, Clark, Darke, Greene, Miami, and Montgomery counties), June 15, 2012


Question: Is an officer’s pat-down constitutional when a suspected gang member is stopped in a high crime area and admits to having marijuana in his pants pocket?

Quick answer: No, not without any particularized suspicion that the suspect is armed or presents a danger to officers.

Facts: Officers were patrolling a neighborhood known for drug trafficking and gang activity when they observed defendant Rodney Byrd committing a jaywalking violation. Based on previous interactions in the neighborhood and information from the law enforcement database, officers learned that Byrd was an alleged member of a violent gang, that he allegedly had run a “dope house” in the past, and that others reported him as being armed and selling drugs.

The officers stopped Byrd by grabbing his shirt, and one officer asked Byrd if he had any weapons. Byrd said no. The officer then asked, “Do you have anything I need to know about?”  Byrd told the officer that he had a bag of marijuana in his right jeans pocket. The officer reached into Byrd’s pocket to retrieve the marijuana and, when doing so, he felt two items that he described as “small rocks or pebbles.” He admitted that he did not immediately know what the items were. Then the officer pulled up Byrd’s pants and conducted a pat-down of Byrd’s clothing. The officer again felt the small pebbles, and at that point, he believed they were either crack cocaine or heroin. The officer reached back into Byrd’s pants and pulled out the pebbles, which were crack cocaine. Byrd was charged with possession.

Why this case is important: The court found that the officers’ pat-down was unconstitutional under the Fourth Amendment. A peace officer may briefly stop and detain a suspect if the officer has a reasonable, articulable suspicion that criminal activity has occurred or is about to occur. But a pat-down doesn’t go hand-in-hand with the stop. An officer has to have a reasonable belief that the suspect may be armed and dangerous before a pat-down can occur, and the pat-down is to check only for concealed weapons.

Here, Byrd, an alleged gang member, told officers he had marijuana in his pants, so the officers were allowed to go into Byrd’s pocket to seize it. However, they had no additional reasonable suspicion to believe that Byrd was armed, so they had no justification to perform a pat-down. Being in a high-crime area and being an alleged gang member aren’t enough for the particularized suspicion needed to justify a pat-down for weapons. Also, even though the officer who retrieved the marijuana noticed that Byrd had some “pebbles” in his pocket, he later admitted that he didn’t believe they were weapons and didn’t immediately know what the pebbles were. This, too, gave the officers no justification for retrieving the crack cocaine during the unlawful pat-down.

Keep in mind: You can’t pat down a suspect if you have no reasonable, particularized suspicion that the suspect is armed. Being in a high-crime area, being involved in a gang, and possessing drugs doesn’t give you that particularized suspicion, either, if the suspect hasn’t given any indication that he might be armed and dangerous.

Click here to read the entire opinion.