Cop Put Hand In My Pocket To Pull Weed Out

My question involves search and seizure law in the State of: Ohio.


Basically I was in a car with 2 other people. We were pulled over, ended up outside of the vehicle. Officer patted me down(after I attempted to refuse the search). Put his hands in my pockets, went through them, found some weed. Until he found the weed, he had absolutely no reason to detain me(I was merely a passenger in the car, coming home from work) or search me. He said he was patting me down to check for weapons.

I have been reading about Terry Stops and Minnesota v Dickerson...I think I could win if I fought the charge...my only problem is it's much more practical for me to pay a $105 citation and be done with it.

You are right about the terry stop with the going inside the pockets. They are only allowed to go inside the pockets is they believe something to be a weapon. They have to be able to articulate it though.

I would get a copy of the police report to see why they detained you. Just because you believe he doesnt have the right to detain you is not relevant. There may have been other factors like the possible smell of marijuna.

But like you said, you could miss a day of work, pay a lawyer, and go to court, or just pay the $105 ticket.

Good luck, stop smoking weed!!!

Unless, of course, the cop did feel something in the pocket from the outside.

The officer would have to reasonably believe that what he felt was, or could be, a weapon. Feeling a squishy object, of itself, isn't cause to pull the object out of a pocket.

Aaron, if the article palpated is determined to be contraband and can be articulated by the officer as such, does this not allow the extended effort of reaching into the pocket?

I believe (if I remember correctly) that Carl (CdwJava) did state that if the object could be identified as contraband rather than a weapon, it could be used as cause to investigate further and allowed a more invasive search without violating the 4th amendment.

http://bulk.resource.org/courts.gov/...p.06/8274.html

even Minnesota v. Dickersen established this action as proper. Under the "plain feel" doctrine, if an object is immediately recognized as illlegal contraband or even a typical container used for such, it allows the more invasive search of the person. In this case, a squishy bag may be accepted as acceptable cause as a squishy bag is often the medium used to transport illegal drugs as well as the "squishy" part being caused by the marijuana itself.

What if the squishy bag were the leftovers from his lunch?

I wont argue whether search was legal or not (Wheres Carl?) but its almost funny that OP has illegal substance on him and now wants to whine that Police found it.:rolleyes:

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Quoting panther10758

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I wont argue whether search was legal or not (Wheres Carl?) but its almost funny that OP has illegal substance on him and now wants to whine that Police found it.:rolleyes:

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Sit down for this one.

Based solely on what OP says, I think he has a valid case.

Having the cops search you illegally is way worse than some dude with a little weed.

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Quoting seniorjudge

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Sit down for this one.

Based solely on what OP says, I think he has a valid case.

Having the cops search you illegally is way worse than some dude with a little weed.

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Oh wait, you mean drugs.

Nevermind.

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Quoting seniorjudge

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Based solely on what OP says, I think he has a valid case.
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I think that is the problem.

He does state the officer was performing a Terry pat and as long as he can articulate a justification, he is ok to that point. As I said, even Dickerson allows for a more invasive search should the officer believe, (not merely suspect, at least as I understand it) the object felt is in fact some form of illegal contraband. A baggy is not typically found in a persons pocket unless it is being used to carry drugs. Even I, the great supporter of rights and opponent of invasive governmental actions, do not believe that a baggy in a pocket is anything but a bag o' weed almost all the time.

Personally, I believe the plain feel doctrine is a bunch of hooey. A terry pat was bad enough but somewhat acceptable as long as proper justification can be proved although I am not fully comfortable with even this. I believe the plain feel doctrine is too susceptible to exaggeration or just plain old intentional misuse to be allowable. If a weapon is not felt, then that is the end of the search, period, but that is not the way it has been ruled.

People carry lots of squishy things in their pockets, most of which aren't drugs. A Terry level stop does not allow you to remove items from somebody's pockets because you have a hunch that they might be contraband. You cannot tell from "plain feel" that a squishy object within a pocket is a bag full of marijuana as compared to, say, regular tobacco or chaw. Or as seniorjudge points out, in some cases, leftovers from lunch. (By way of example.)

but even in the link provided, they do give explanation that would make such a search allowable and the evidence obtained admissable.

Don;t get me wrong, I am against such any acceptance of evidence as allowable whether it be immediately identifiable or not as this allows for too many possibilities of an improper search being accepted. Personally, I believe Terry was actually even wrong. It does leave a great deal to the officers "mind" and interpretation.
I do accept your and Sr's possibility and the application of the doctrine but I will also resist total acceptance of the OPs claim simply because it is impossible to try the case here based upon what we were told. As I originally quoted Sr.:

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Based solely on what OP says, I think he has a valid case

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.and I am sure he stated this exactly as this for just such a reason.

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Quoting jk

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Aaron, if the article palpated is determined to be contraband and can be articulated by the officer as such, does this not allow the extended effort of reaching into the pocket?

I believe (if I remember correctly) that Carl (CdwJava) did state that if the object could be identified as contraband rather than a weapon, it could be used as cause to investigate further and allowed a more invasive search without violating the 4th amendment.

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A small baggie of marijuana is not going to be so distinct as to give such a certainty or reasonable likelihood of being contraband. A meth pipe, sure, a small baggie of marijuana, no. Plus, to feel it so completely might require a manipulation of the pocket that exceeds the scope of terry.

- Carl

Unfortunately, I have seen far too many officers that exceed the scope of a Terry stop with the best of intentions, but without sufficient cause to just reach in to a pocket.

The officers feel it in the pocket, and 9 times out of 10 they are going to be correct in their assumption that it is drugs, but Terry does not give the officer the authority to confirm his suspicions for non-weapon items.

- Carl

glad to hear this.

I do not know what a typical crack pipe looks like as I do not do crack but I often carry a small flashlight (3/8 to 1/2 inch diamater and about 3 inches long) and would be really bothered if it were thought to be a crack pipe. From what little I know about crack, it is about the size of what I would think a crack pipe would be.

How would an officer differentiate between a crack pipe and this flashlight? I am not involved with drugs of any sort nor do I associate with those that do (at least to my knowledge) but your oft repeated statement of the crack pipe situation actually makes me nervous. I do not deal with the police often but still....

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Quoting jk

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do not know what a typical crack pipe looks like as I do not do crack but I often carry a small flashlight (3/8 to 1/2 inch diamater and about 3 inches long) and would be really bothered if it were thought to be a crack pipe. From what little I know about crack, it is about the size of what I would think a crack pipe would be.

How would an officer differentiate between a crack pipe and this flashlight? I am not involved with drugs of any sort nor do I associate with those that do (at least to my knowledge) but your oft repeated statement of the crack pipe situation actually makes me nervous. I do not deal with the police often but still....

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There is a difference between your flashlight and a glass pipe used to smoke meth or crack. Having felt all three, I can tell the difference quite easily.

The pipe is very distinctive, hence the reason that it is often the exception to the rule. Unlike a small baggie or bindle which could, for practical purposes, be about anything, the glass pipe is distinctive for an officer with any level of experience.

- Carl

your input and experience has eased my mind, some. Sorry to say but I do not feel the same about all police as I do about you, Carl. I can only hope that I simply have not met enough police to change my mind and there are many more out there with the training, experience, intelligence, and ethics like you.

Ok, so back top the OP (sorry for hijacking the thread David). It does appear that there is a general consensus of those "in the know" that you would have a reasonably good chance of fighting this bust. At this point, it becomes your decision to fight it or accept the apparently minimal punishment for the crime you are charged with. The one thing I would be cautious of is; what will this do to your record and will it have any long term consequences on your employability in whatever endevour you pursue in life?

the $105 may seem to be the easy way out but in reality, will it cost you much more in the future?

Remember though; the advice you recieved is based upon what you have provided. There may be much more that you either intentionally or unintentionally have not related here.

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Quoting jk

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.and I am sure he stated this exactly as this for just such a reason.

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I am telling the story factually. I have been in trouble before, and attempted to justify my actions or place the blame elsewhere. Even then, I knew I was lying to myself. But this time, I am the one who has been wronged. I have had my rights violated, which (as stated) is way worse than the weed in my pocket.

Which brings me to that. The weed in my pocket was a very small amount, about half a blunt. It was rolled up in a plastic baggie. Nearly, if not entirely, impossible to identify through my pocket.

The cop was very much in dick-mode, serious power trip. When he first approached my window, he told me, "You watch those ashes(I was smoking a cig). You flick those ashes on me, and I'll pull you out of this car and take you downtown". He said this very threateningly, and immediately set a negative tone for the encounter.

Gotta go for now...

I did not accuse you of anything. Please note I wrote: intentionally OR unintentionally ommitted some info.
as to Srjudges writings. due to the same fact that all we have is what you tell us he was simply qualifying his answer.
No intention of calling nor inferring you weren;'t truthful.

David read this whole thread too. We discuss it there also.

http://www.expertlaw.com/forums/show...ight=Dickerson

I do agree with Carl here. The out of view squish of a small baggie is not enough, IMO also, to justify the search. The doctrine is alive, yes, but I think a court may have an issue with your facts unless others are present??

For example, and I am not saying this applies to you though.

On Cops an officer asked a motorist to exit his vehicle. He then asked him if he had any drugs or weapons in the car? He said no!

The officer stated that he was sure he had some drugs in his possession, the man continued to deny it.

He had a joint on his ear!!

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Quoting jk

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I did not accuse you of anything. Please note I wrote: intentionally OR unintentionally ommitted some info.
as to Srjudges writings. due to the same fact that all we have is what you tell us he was simply qualifying his answer.
No intention of calling nor inferring you weren;'t truthful.

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No, but given the nature of this board, I'm sure there are many posts just like mine, but in the end, OP comes back and says "Oh by the way the car reeked of weed"

I just want to reiterate that this is not the case.

I guess my next question is about a public defender. I can not afford a lawyer of any sort really. I am sure I would qualify financially, but is a public defender available for a citation such as this?

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Quoting DavidH

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I guess my next question is about a public defender. I can not afford a lawyer of any sort really. I am sure I would qualify financially, but is a public defender available for a citation such as this?

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Most probably, No!

What is the code citation on the summons?

2925.11? If that's not it then I don't know where to find that information.

it appears the amount of contraband determines the level of the crime (misdemeanor, felony)

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3) If the drug involved in the violation is marihuana or a compound, mixture, preparation, or substance containing marihuana other than hashish, whoever violates division (A) of this section is guilty of possession of marihuana. The penalty for the offense shall be determined as follows:

(a) Except as otherwise provided in division (C)(3)(b), (c), (d), (e), or (f) of this section, possession of marihuana is a minor misdemeanor.

(b) If the amount of the drug involved equals or exceeds one hundred grams but is less than two hundred grams, possession of marihuana is a misdemeanor of the fourth degree.

(c) If the amount of the drug involved equals or exceeds two hundred grams but is less than one thousand grams, possession of marihuana is a felony of the fifth degree, and division (B) of section 2929.13 of the Revised Code applies in determining whether to impose a prison term on the offender.

(d) If the amount of the drug involved equals or exceeds one thousand grams but is less than five thousand grams, possession of marihuana is a felony of the third degree, and division (C) of section 2929.13 of the Revised Code applies in determining whether to impose a prison term on the offender.

(e) If the amount of the drug involved equals or exceeds five thousand grams but is less than twenty thousand grams, possession of marihuana is a felony of the third degree, and there is a presumption that a prison term shall be imposed for the offense.

(f) If the amount of the drug involved equals or exceeds twenty thousand grams, possession of marihuana is a felony of the second degree, and the court shall impose as a mandatory prison term the maximum prison term prescribed for a felony of the second degree.

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later on in the statute, it states that conviction of a "minor misdemeanor" is essentially not kept on record as a criminal offense. I woudl think that a PD may not be available if that is the charge but anything greater should allow you to apply for a PD.

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Quoting jk

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I woudl think that a PD may not be available if that is the charge but anything greater should allow you to apply for a PD.

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Well here's the deal. I had 7 days to pay the citation. I did not pay, and I have a court date scheduled. I have approx. 2 weeks to figure things out before my court date.

Is it really that simple? If I can't afford a lawyer, I am forced to accept a citation which was wrongfully issued to me? Am I just supposed to forget about any kind of protection against the police, as long as the offense isn't too large?

:wallbang::wallbang::wallbang::wallbang::

I would really appreciate some advice. I will not be able to contact the PD's office until monday, but I am afraid that I will not qualify. Assuming I do NOT qualify, what can I do? Be another testament to the fact that the justice system is unfavorable to the poor?

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Quoting DavidH

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Well here's the deal. I had 7 days to pay the citation. I did not pay, and I have a court date scheduled. I have approx. 2 weeks to figure things out before my court date.

Is it really that simple? If I can't afford a lawyer, I am forced to accept a citation which was wrongfully issued to me? Am I just supposed to forget about any kind of protection against the police, as long as the offense isn't too large?

:wallbang::wallbang::wallbang::wallbang::

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You can appear at your bench trial and give testimony. After or even before trial you can ask the court to dismiss the charge and suppress (exclude) the evidence under the "exclusionary rule" based on a search that violated the federal and Ohio constitutions.

In the meantime pay a visit to a library where they have the Ohio Revised Code. Look for the constitution volumes:

Article 1:

§ sec. 14 Search warrants and general warrants (1851)

The right of the people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the person and things to be seized.

Read some case law annotations afterwards and see if any can assist in your defense, maybe some that cite Dickerson.

If you don't know to prepare a brief to file, take notes and refer to them when mounting your defense in court. You can also type or NEATLY handwrite a brief to hand to the court stating the reasons you ask for a dismissal.

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I would really appreciate some advice. I will not be able to contact the PD's office until monday, but I am afraid that I will not qualify. Assuming I do NOT qualify, what can I do? Be another testament to the fact that the justice system is unfavorable to the poor?

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The federal constitution does not mandate appointment of counsel IF the charge/crime is one punishable by a "money fine" only. Ohio follows this rule:

How do I use the services of the Public Defender?
The Court will provide you with the address and phone number of the Public Defender. You must appear in person at the Public Defender's office where they will determine if you qualify for their services. Minor traffic and minor misdemeanor cases do not qualify for the Public Defender. You must be charged with an offense with a possible penalty of jail time.


http://www.mcohio.org/revize/montgom...affic_faq.html

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How do I use the services of the Public Defender?
The Court will provide you with the address and phone number of the Public Defender. You must appear in person at the Public Defender's office where they will determine if you qualify for their services. Minor traffic and minor misdemeanor cases do not qualify for the Public Defender. You must be charged with an offense with a possible penalty of jail time.

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nice work BOR. That is exactly the possibility to what I was referring to.

Ohio codes are available online as well.

http://codes.ohio.gov/orc (Ohio Revised Code (statutes))

http://codes.ohio.gov/oac (Ohio administrative code)

http://www.legislature.state.oh.us/constitution.cfm (Ohio constitution)

I did happen to see this on the link BOR provided:

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When can I file for an expungement?

You may file for an expungement of a criminal case one year after your conviction date. However, if your case was dismissed you do not need to wait a year from dismissal date to file for an expungement. You must also have no other violations on your record. Traffic records cannot be expunged. There is a $50 fee to file for an expungement.

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This may be the simplest and least expensive, in both time and money, inyour situation if it applies. If your attempt to fight the charge and are not successful, hopefully you will still have this avenue availble to you.

I can download/print a motion to suppress evidence, from the county's PD office. I plan on having this when I go to court. Will this be enough, along with my own testimony? Or should I have additional notes? Here is the motion below, so you can see specifics.



Link

I believe you should have Dickerson in your pocket. I did not see it cited in that motion and that is one (actually "the") of the defining cases that affect your exact situation.

I would also read what you can concerning the cases cited to be able to utilize those cases if there is anything applicable within them.

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Quoting jk

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I believe you should have Dickerson in your pocket. I did not see it cited in that motion and that is one (actually "the") of the defining cases that affect your exact situation.

I would also read what you can concerning the cases cited to be able to utilize those cases if there is anything applicable within them.

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I have not read through the motion completely, and I was unaware that Dickerson is not cited. I plan on researching everything that is in the motion, and then anything else I find that is NOT in the motion. I have already read up on Terry and Dickerson and various other cases. Would it be beneficial to visit a PD with the documents I intend to bring to court? Or will they not help me at all since I don't qualify?

You can always ask. The worst they can say is no. In my area, a PD is simply an attorney that has agreed to get suckered into, I mean volunteered to accept the states pay schedule for defending a person. In that situation, the atttorney still has a private practice and would not be open to assisting as you seek.

If you have a PD's office where all the attorneys do is as a PD, you might have a better chance but I still wouldn't hold my breath on it.


You may calll the ACLU if you get no local assistance. Although this is a small case, this is the type of cases they do represent.

Ok well that's not a big deal. I think I may just go to court by myself, with some papers, and hope for the best. I will look into the ACLU, but I'm not hoping for much. I'm starting to think I can beat this on my own. Hopefully I'm right.

best of luck to you and do come back and give us updates.

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Quoting DavidH

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I can download/print a motion to suppress evidence, from the county's PD office. I plan on having this when I go to court. Will this be enough, along with my own testimony? Or should I have additional notes? Here is the motion below, so you can see specifics.



Link

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The Suppression Motion sample is just that, a sample. YOU type/neatly handwrite any case law you feel the court needs to consider, such as Dickerson and any relevant case law from Ohio courts.

Describe your facts of detention and frisk as specifically as you can.

It may be best to file the Motion before trial if possible, that way, according to the link, a Suppression hearing can take place.

You can always ask for an extension/continuance of trial date under your "local rules of court", citing you are preparing a Motion to Suppress and need additional time to research it!!

Find your local rules online and read them!!

Why do you say that is a sample? It seems legitimate to me. I was planning on editing it to remove irrelevant citations, and to add something for Dickerson. Should the motion include specific facts of my case, or will I just tell that when I go to court? Both?

Thanks

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Quoting DavidH

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Why do you say that is a sample? It seems legitimate to me. I was planning on editing it to remove irrelevant citations, and to add something for Dickerson. Should the motion include specific facts of my case, or will I just tell that when I go to court? Both?

Thanks

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Your second sentence is what I meant by it being an "example". Since it does NOT reference Dickerson, which is the basic foundation of your Motion, it needs to be rewritten, as you say, to argue specific case law. I am not saying every case listed is per se irrelevant, I am just saying if you submitted it "as is", the court does not have your Dickerson cite before it.

NOW, IF you are specific in your details, and were not aware of the Dickerson case, the court would probably very well cite it regardless. I am just saying, it is YOUR motion, on example of the court, YOU need to be as accurate as you can when citing law, either statutory or case law.

A few possible other legal avenues of argument are:

Your first post stated:

"Basically I was in a car with 2 other people. We were pulled over, ended up outside of the vehicle. Officer patted me down(after I attempted to refuse the search). Put his hands in my pockets, went through them, found some weed. Until he found the weed, he had absolutely no reason to detain me(I was merely a passenger in the car, coming home from work) or search me. He said he was patting me down to check for weapons".

Under Brendlin, listed below, IF you feel the motor vehicle stop was UNconstitutional, you can argue such and lay a foundation to have all evidence suppressed after the stop. Under Brendlin, ALL occupants of a MV are "seized" when it is stopped, not just the driver. You listed no facts at first to say the reason for the stop was fabricated, so I am assuming it was Cosntitutional.


http://www.law.cornell.edu/supct/html/06-8120.ZS.html

Second possible argument. Under M.v.W., below, the federal constitution permits an officer to order a passenger out of the vehicle and not just the driver.

I have heard Carl say that CA does not permit the passenger to be ordered out unless good cause can be shown, irrespective of M.v.W.

I do NOT know if Ohio follows this rule of ordering a passenger out without cause, but since thier Constitution's provison on search and seizure is basically "coextensive" with the federal's this may be a moot point.

As you see, contesting a S&S can be an uphill battle for a laymen unskilled in law.

http://www.law.cornell.edu/supct/html/95-1268.ZS.html

Good luck.

BOR (Bill of Rights)

Do I think the initial stop was Constitutional? No, I really do not.
Do I think a cop would be able to convince a judge otherwise? Unfortunately, I do.

The reason given for the stop was no license plate light. This would probably stand up in court. Quick question-if the stop was ruled Unconstitutional, how could this affect the driver and the other passenger? (Driving with suspended license, and a weed ticket)

I don't need to know, I'm just wondering.

So:motion should basically be a review of what happened, and cite the cases which have precedent?

I am assuming my motion doesn't have to be perfect, and that I will be able to articulate my argument in court, and go over anything that was missed. Is this a bad assumption to make? I want to be as prepared as possible, but hell...I don't really know what I'm doing.

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Quoting DavidH

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Do I think the initial stop was Constitutional? No, I really do not.
Do I think a cop would be able to convince a judge otherwise? Unfortunately, I do.

The reason given for the stop was no license plate light. This would probably stand up in court.

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Equipment violations are ready made probable cause. There is no latitude in judgment concerning a so called Terry Stop, since the evidence is in open view, no articulation is required.

As a matter of absolute fact, I was pulled over about 6 months ago for the same violation.

It was late at night. I was driving home and all of a sudden I see the lights on behind me.

I pulled over, turned off my engine and turned ALL my inside lights on for his peace of mind, so I was clearly visible to him.



The officer told me the reason for the stop and I did not even ask to exit my car to look. He was professional all the way. He asked a few questions to which I responded.

I had my DL and proof of insurance and he saw no reason to further detain me, which there was not, and he gave me a verbal warning to get it fixed, which I did the next day.

I did wonder intially, what in the world did I do?? When I stopped at a gas station to fill up and looked, sure enough, they were OUT.


I can guarantee if the officer lacked probable cause or at least a reasonable suspicion to seize my car, I would have protested, even on the scene.

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Quick question-if the stop was ruled Unconstitutional, how could this affect the driver and the other passenger? (Driving with suspended license, and a weed ticket)

I don't need to know, I'm just wondering.

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An unlawful stop that produces contraband after investigation is MOST generally subject to suppression under the "fruit of the poisionous tree" doctrine.

In this 2006 case though, the USSC ruled the exclusionary rule does not apply, even though the 4th was violated.

This is a rare case. As I said, most generally, such evidence is subject to suppression.

If he had a suspended license, the officer may have known it before hand by running the tag, even before the stop, this is permissable. Regardless, as I said, the equipment violation is solid probable cause, unless of course it was a ruse and it was really working??

http://www.law.cornell.edu/supct/html/04-1360.ZS.html

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So:motion should basically be a review of what happened, and cite the cases which have precedent?

I am assuming my motion doesn't have to be perfect, and that I will be able to articulate my argument in court, and go over anything that was missed. Is this a bad assumption to make? I want to be as prepared as possible, but hell...I don't really know what I'm doing.

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Laymen are not required to hand the Judge a picture perfect Motion. You have a constitutional right to defend yourself to a criminal charge. Dismissing your Motion due to lack of a definite statement, etc., such as an attorney would draft, violates Due Process, IMO.

You have to decide whether to file the Motion before hand or present it in court.

In Ohio pro se litigants are held to the SAME standards that attorneys are held. There is substantial case law to this effect in this state. So therefore if an attorney would be expected to turn in a picture perfect motion, so would OP.

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Quoting Ohiogal

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In Ohio pro se litigants are held to the SAME standards that attorneys are held. There is substantial case law to this effect in this state. So therefore if an attorney would be expected to turn in a picture perfect motion, so would OP.

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Appreciated, but he is not a Pro Se "litigant", he's a Pro Se "defendant".

The law does not provide him with a PD, so the law must grant a deference to his law skills as long as they are not so way out of the norm the court has no idea, even under the loosest standards of pleading, what he is trying to give testimony to.

I am also aware that even Pro Se litigants, per the USSC, must be given deference to a certain degree in notice pleading and filings, court procedure, etc.