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Bicycle escape leads to illegal pat-down search

TRACEY BLAIR
Legal News Reporter

Published: December 10, 2018

A Lake County trial court erred by denying a motion to suppress against unreasonable search and seizure in a drug case after the appellant attempted escape on a bicycle, the 11th District Court of Appeals ruled recently.

The case stems from a July 1, 2017, incident in which Eastlake police responded to a report of indecent exposure for public urination. Dispatch described the suspect as a white male, six feet tall, wearing a long-sleeve grey shirt and dark pants.

Officer Christopher Weber noticed a man in the area later identified as Dominick J. Luther riding toward him on a bicycle that appeared to be too small for him who matched the suspect’s description.

After Luther saw Weber, the appellant turned onto another street and started peddling faster.

The appellant dropped the bicycle near a house and started walking across the back yard. He complied after the officer asked him to come over and speak with him.

According to appellate records, the officer patted Luther down because it appeared he had tried to evade police on his bicycle, was “pouring sweat,” appeared nervous and kept looking around.

Two officers testified that a suspect looking to flee poses a risk to officer safety.

During the pat-down, Weber felt a large, sturdy object in the appellant’s front pants pocket. Luther claimed it was cigarettes; Weber was concerned it could be a weapon.

The object ended up being a four-inch long “clamshell” case that appeared large enough to contain a knife or small-caliber gun, so Weber opened it.

Inside the case was a razor blade, two syringes and a paper fold with an off-white powder inside.

Luther filed a motion to suppress all evidence obtained as a result of the pat-down search that prompted his arrest. He argued the search was baseless when he was stopped for questioning about public urination.

After that motion was denied, he pleaded no contest to three counts – possession of heroin (0.16 grams), aggravated possession of drugs (a substance containing fentanyl and carfentanil), both fifth-degree felonies, and possessing drug abuse instruments, a second-degree misdemeanor. All three counts included forfeiture specifications.

He was sentenced last February to three years of community control.

The appellate panel cited Terry v. Ohio, 392 U.S. 1 (1968) in its ruling. Terry provides an exception to the warrant requirement – a brief investigatory stop based upon reasonable suspicion of recent, ongoing or imminent criminal activity.

“We determine the totality of the circumstances demonstrates that Officer Weber had a reasonable suspicion that appellant, whom he was investigating at close range, may have been armed and dangerous,” 11th District Judge Timothy P. Cannon wrote in his opinion.

Therefore, the decision to conduct a pat-down search to determine whether the appellant was armed was not unreasonable. In addition, retrieving the metal case from Luther’s pocket to determine whether the object was a weapon did not violate Terry, Judge Cannon said.

However, the officer exceeded the scope of Terry when he opened the metal case, as it was not based on a reasonable suspicion that it contained a weapon that might harm the officers or others nearby, the judge wrote.

“… Here, we find no evidence that would reasonably support a suspicion that the metal case contained a weapon as opposed to cigarettes, as was claimed by appellant. The case itself was not contraband,” Judge Cannon added. “… Similarly here, we find that the face-to-face encounter during daylight hours between two armed police officers and appellant, who was complying with the officers’ orders and had only a bicycle by which he could escape, militates against a finding that any item discovered in that metal case could have posed a realistic threat to the officers’ safety, particularly once the officers had possession of the case.”

Appellate judges Cynthia Westcott Rice and Thomas R. Wright concurred that the motion to suppress should have been granted, and the matter was remanded.

The case is cited State v. Luther, 2018-Ohio-4568.


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