State v. Taylor , 82 Ohio App. 3d 434 ( 1992 )

I write separately because, while I agree that the warrantless search of defendant Taylor's person was not illegal, I cannot agree with Judge Fain's analysis in support of that conclusion.

The central inquiry required by the Fourth Amendment is the reasonableness under the attendant facts and circumstances of a particular governmental invasion of a citizen's personal security. Terry v. Ohio (1968), 392 U.S. 1, 88 S. Ct. 1868,20 L. Ed. 2d 889, 44 O.O.2d 383. Unreasonable searches are per se illegal. Warrantless searches are presumptively unreasonable and, therefore, illegal. Absent either a warrant or probable cause combined with exigent circumstances, an officer may search a person only if the officer has a reasonable suspicion that the person is armed and dangerous to the officer or others. A search limited to those purposes may then be made.

Whether or not an officer's suspicion is reasonable is a fact-sensitive inquiry resolved on an objective basis. The state must demonstrate an individualized need from the particular facts and circumstances involved.

I cannot dispute Judge Fain's assertion that it is "common knowledge" that drugs and weapons are often found in close proximity or his conclusion that officers searching a premises for drugs may also take reasonable steps to protect themselves. However, under Fourth Amendment analysis the reasonableness of a weapons frisk to accomplish that goal depends on the particular facts involved, not the generality of common knowledge, however faithfully we may all subscribe to it.

The rationale followed by Judge Fain is inconsistent withFourth Amendment analysis in two ways. First, it adopts a general hypothesis of fact and dispenses with the requirement that the state show a particularized need beyond it. Second, it permits a search at the absolute discretion of the officer when the general hypothesis is shown. Both results are at odds with the burden placed on the state by the Fourth Amendment to show an individualized suspicion of danger that justified the particular warrantless invasion of a person's personal security. That is not a difficult burden, and this court generally grants great deference to law enforcement officers who must meet it. However, it cannot be waived entirely to accommodate law enforcement without destroying the core principles of theFourth Amendment.

Officer Nankivell testified that when officers encountered defendant Taylor he was dressed only in baggy shorts, did not appear to be armed, and did not threaten them. He justified his search of Taylor as one conducted "for my own safety and the other officers due to the warrant for narcotics * * *." On cross-examination, he acknowledged that this is "what normally happened in the Dayton Police Department." These reasons are not founded on the requisite individualized suspicion, but instead on a general rule applicable to a broad category of situations. Standing alone, they do not rebut the presumption of unreasonableness and illegality that attaches to any warrantless search.

We are not limited to the needs articulated by the officer conducting the search in order to determine its legality. If the record demonstrates that on the attendant facts and circumstances the search was reasonable, its fruits should not be suppressed.

In this case, officers were executing a warrant to search a private residence containing several rooms. The officers were unfamiliar with the rooms and their contents and had no knowledge of who, other than the person identified in the warrant, might be found there. Officers chose to enter with a battering ram (no reason for this means is explained in the record), which can readily produce confusion and a violent reaction from persons inside. The officers were then thrust into close quarters with unknown persons in an inherently perilous situation. A reasonably prudent officer in such circumstances would, as these officers did, examine the premises and the persons inside for weapons that might suddenly be turned on the officers. Such an examination would reasonably include a "pat-down" of those persons.

The Fourth Amendment is a protection against arbitrary searches by law enforcement officers. It requires, simply, that under the circumstances the person presents a danger that a prudent officer may reasonably act to avoid. Where officers are executing a warrant issued by a neutral and detached magistrate who has authorized the search, the risk of arbitrary action by officers is greatly ameliorated. These same considerations would not, therefore, necessarily apply to an on-the-street stop and frisk instituted by an officer on his or her own suspicion of crime.

For the foregoing reasons, I find that the search of defendant Taylor's person was reasonable and, therefore, not prohibited by the Fourth Amendment. He is not entitled to suppression.

Finally, I believe that the reliance on Michigan v. Summers (1981), 452 U.S. 692, 101 S. Ct. 2587, 69 L. Ed. 2d 340, is misplaced. Summers was specifically limited to pre-arrest seizures of persons found on premises searched pursuant to a warrant. The Supreme Court permitted a brief detention under those circumstances until the investigation is completed. The opinion specifically distinguished weapons pat-down searches of such persons from the permitted detention, stating that the two should not be confused. SeeSummers, 452 U.S. at 696, 101 S.Ct. at 2590, 69 L.Ed.2d at 345, fn. 4.