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Media > Newsletters > Law Enforcement Bulletin > May 2012 > State v. Holmes — Fifth District Court of Appeals (Ashland, Coshocton, Delaware, Fairfield, Guernsey

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State v. Holmes — Fifth District Court of Appeals (Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark, and Tuscarawas counties)

Question: Can a peace officer pat down someone walking through a parking lot in a high-crime area when the person appears to be avoiding the officer?
Quick answer: No, not without reasonable, individualized suspicion that the person is involved in criminal activity.
Facts: Early one morning, a police sergeant and his partner were providing extra security for a local apartment complex. The complex had a high volume of drug and violent crime activity, including criminal trespass to buy drugs. The complex management had complained specifically about apartment buildings 901 and 921. About 1 a.m., the sergeant saw defendant Joseph Holmes leave building 901 and walk through the parking lot of the building. About 15 to 20 seconds later, Holmes noticed the officers and appeared to quickly change directions as if to avoid them. The sergeant told the other officer that they needed to talk to Holmes to see if he was visiting the building and had a visitor’s pass. In their cruiser, the officers caught up with Holmes on the street and asked him some questions about who he was and who he had been visiting. Holmes couldn’t provide a name or apartment number where he visited, so the sergeant got out of the cruiser and patted Holmes down. When the sergeant patted Holmes’ right pants pocket, he felt what he thought was a plastic baggie that may have held crack cocaine. But before the officer could do anything else, Holmes leaned over the front of the police cruiser. The sergeant then arrested him. He reached into Holmes’s pants pocket and found two plastic baggies with crack cocaine. Holmes was charged with cocaine possession.
Why the case is important: The appeals court found that the police sergeant violated the Fourth Amendment when he stopped and frisked Holmes. Before the Terry pat-down, the sergeant only observed Holmes for 15 to 20 seconds. In that amount of time, neither police officer saw Holmes engage in any criminal activity, and they had no suspicion that he was carrying a weapon or was dangerous. The officers stopped him for merely being present in a high-crime area, which is not enough to provide reasonable, individualized suspicion that Holmes was involved in criminal activity or was armed. Plus, the officer admitted that, when he felt the plastic baggie in Holmes’ pocket, the criminality of what was in the baggie was not immediately apparent.
Keep in mind: “Reasonable suspicion” is different than a “hunch.” Your instincts might tell you that a person is probably a criminal, but you need actual, individualized evidence before you can stop him. For example, you can’t frisk a person for merely being present in a high-crime area or for simply turning to avoid contact with you. You must have some reasonable facts that the specific person you are patting down has committed or is about to commit a crime.
And while the suspect leaned over the front of the car, essentially admitting guilt, he did so after the unconstitutional frisk, making all the resulting evidence inadmissible.
Click here to read the entire opinion.