State v. White , 110 Ohio App. 3d 347 ( 1996 )

I concur in the judgment of the principal opinion, but write separately in order to clarify my own reasons for ordering suppression of the evidence seized from appellant. Our first order of business should be to precisely define the narrow issue presented for review herein. There is no dispute in the causesub judice concerning either the initial Terry-type investigatory stop of appellant or the subsequent pat-down he received to determine if he was carrying any weapons. Appellant has not challenged the propriety of either procedure in this case. Thus, while I generally agree with the principal opinion that the investigatory stop and subsequent weapons pat down were legally permissible in the present case, I would not dwell on the subject for too long. It tends to confuse the issues and distracts our attention from the real crux of this appeal.

The sole question before us in this case is whether the police exceeded the permissible scope of a weapons pat-down. We already know from a variety of seminal Supreme Court cases that such a search is permitted "for the protection of the police officer" where said officer has reason to believe that the suspect is armed and dangerous. See, e.g., Terry v. Ohio (1968),392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889, 909;Minnesota v. Dickerson (1993), 508 U.S. 366, 373,113 S.Ct. 2130, 2136, 124 L.Ed.2d 334, 344. However, the permissible scope of this type of search is quite narrow. "The search for weapons approved in Terry consists solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault." Sibron v. New York (1968),392 U.S. 40, 65, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917, 936. ATerry-type frisk or search "is not a search for evidence; it is only a limited search for weapons." (Emphasis added.) Katz, Ohio Arrest, Search and Seizure (1996 Ed.) 267, Section T 14.04. With this standard in mind, I would note the following admission by one of the police officers at the suppression hearing below:

"Q. And what was the purpose of that pat-down search?

"A. To search for guns or drugs.

"Q. Is that your understanding of the purpose of a patdown, is to search for a weapon and/or drugs?

"A. Based on the information that we had received, that's what I was looking for, yes." (Emphasis added.)

As discussed above, the sole justification for aTerry-type pat-down is to search for weapons which could be used to assault police or someone else during the ensuing investigation. It cannot under any circumstances be used as a subterfuge to search a suspect for evidence. The admitted evidentiary search conducted by the Portsmouth police officers in the cause sub judice was clearly and unequivocally improper.

I concede that, under the so-called "plain feel" doctrine recently enunciated by the United States Supreme Court inDickerson, supra, items seized during a Terry-type pat-down may still be used as evidence if the contour or mass of the items rendered it immediately apparent as contraband during the search. However, the Supreme Court has also made clear that this doctrine applies only to evidence/contraband found within the original and permissible scope of the search. Dickerson,508 U.S. at 374, 113 S.Ct. at 2136, 124 L.Ed.2d at 344. It does not apply to contraband found and seized outside the scope of a permissible Terry-type pat-down. Thus, the pertinent inquiry in the cause sub judice is whether the crack cocaine discovered on appellant's person was found within the original and permissible scope of a Terry pat-down. It seems manifestly obvious to me that it was not.

The uncontroverted evidence below was that the drugs were concealed between two layers of socks appellant wore on his left foot. He was also wearing high-top tennis shoes at the time he was searched. Given that the purpose of a Terry-type pat-down is to discover and remove weapons immediately available to the suspect, the search of appellant's footwear at that juncture went way beyond what was necessary at that point in time. A review of case law construing the recent United States Supreme Court holding in Dickerson reveals that the contraband seized in those cases were "bulges" found in pockets or jackets. See, e.g.,State v. Hunter (1994), 98 Ohio App.3d 632, 636, 649 N.E.2d 289,292; State v. Richardson (1994), 94 Ohio App.3d 501, 510,641 N.E.2d 216, 221-222. Such seizures are much more defensible than the one in this case because those "bulges" in pockets or jackets could just as easily have been a weapon. However, even if the crack cocaine in the cause sub judice had been a weapon, it posed little risk of harm to the police while it was secreted away between layers of socks inside hightop tennis shoes. An "effort to uncover contraband," conducted under the guise of aTerry or Dickerson type search, will not be tolerated. See Statev. Cloud (1993), 91 Ohio App.3d 366, 370, 632 N.E.2d 932,934-935.

For all these reasons, I concur with the judgment of the principal opinion and join in reversing the conviction below.