Stop & Search of Bicyclist
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On December 16, 2016, the Second District Court of Appeals issued a decision affirming the Montgomery County Common Pleas Court’s ruling suppressing evidence seized by police from a bicyclist.
In the case of State v. Swift, 2016-Ohio-8191, Defendant Swift was riding his bicycle in the “travel part” of East Fourth Street in Dayton, Ohio, when Dayton Police officers observed him from their marked cruiser. The police did a U-turn and approached Swift, but did not activate the cruiser’s sirens or lights. According to one of the officers, when the officer rolled his window down and asked whether he could talk to Swift “real quick”, Swift stopped his bicycle. When the officer stopped out of his cruiser, he cautioned Swift about riding his bike “towards the center of the street”. He then asked Swift “do you mind if I pat you down[?]” Swift allegedly stated, “Sure.” During the pat down, the police recovered marijuana, heroin, and crack cocaine on Swift’s person. Swift gave a much different account, stating that one of the officers had “hopped out” of the cruiser, ordered Swift to stop his bike, pulled the bike down to the ground, and grabbed Swift by the waist and started patting him down without Swift’s permission. Swift was charged with Possession of Drugs, but was not cited for any traffic offenses. Swift filed a Motion to Suppress the drugs seized from him challenging the constitutionality of the stop of his bicycle and search of his person.
The Second District noted the legal standards involved. The Fourth Amendment protects individuals form unreasonable searches and seizures. Police officers may briefly stop and/or temporarily detain individuals in order to investigate possible criminal activity if the officers have a reasonable, articulable suspicion that criminal activity may be afoot, including a minor traffic violation. A traffic violation gives an officer reasonable articulable suspicion justifying a traffic stop, notwithstanding that the traffic stop may also have been a pretext to investigate suspected drug activity.
The Court further noted that a stop of a person on a bicycle is governed by the same standards as any other traffic stop: an officer must have a reasonable, articulable suspicion that the operator has engaged in criminal activity, including a minor traffic citation. Consensual encounters occur when the police merely approach a person in a public place and engage the person in conversation, and the person remains free not to answer and to walk away. The Fourth Amendment guarantees are not implicated in such an encounter. They are implicated, though, in an investigatory detention. An individual is subject to an investigatory detention when, in view of all the circumstances surrounding the incident, by means of physical force or show of authority, a reasonable person would have believed that he was not free to leave or was compelled to respond to questions.
Applying these standards to the present case, the Second District affirmed (upheld) the ruling of the trial court – Judge Skelton of the Montgomery County Court of Common Pleas. In its ruling, the Court held that “[w]hen tow uniform[ed] police officers in a police cruiser pass by a vehicle (whether an automobile or bicycle) and then do a quick-u-turn and catch up with the vehicle, drive along side it and ‘request or demand’ that the driver stop and pull over to talk, no reasonable person would believe that he was free to ignore the police and continue on his way down the street.” The trial court further concluded that the police had approached Swift “for no apparent reason.” The court concluded that a vehicle stop, including a bicycle stop, is not a consensual encounter, and that a “sensible person” would not believe he (or she) could “come and go freely” from such a stop, because it is made “with an implicit claim of right based on fault of some sort.” The court found that a seizure had occurred when the officers stopped Swift and that there had been no probable cause or reasonable suspicion to justify the seizure. Having concluded that the stop violated the Fourth Amendment, the trial court suppressed the contraband discovered during the stop as “fruit of the unlawful stop.”
Just like the rest of us, law enforcement officers are not immune from making an occasional mistake in the performance of their duties. Sometimes the mistakes of law enforcement officers can result in serious criminal charges and consequences. An experienced criminal defense attorney can challenge evidence that has been unlawfully obtained. If you or someone you know is being prosecuted for a criminal offense contact Criminal Defense Attorney Jonathan Horwitz at Horwitz & Horwitz, LLC, located in Centerville, Ohio.
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Horwitz & Horwitz, LLC
201 W. Franklin St., Ste. C
Centerville, OH 45459
t:(937) 828-5534
f: (937) 828-5534