Thursday, March 12, 2009

Terry Patdown Goes Awry In Blackhawk County

State v. Chihak, no. 08-0452 (Iowa Ct. App. March 11, 2009)

Chihak was a passenger in a car that was stopped for a noisy muffler.

The driver consented to a search of the vehicle and Chihak was asked out.

The officer then proceeded to say to him "I'm going to pat you down, make sure you don't have any bombs, guns, knives, or anything that can stick me." Chihak remained silent. The officer testified that he could see into Chihak's pocket and saw a bag of marijuana. Chihak was arrested and tried for third offense possession of marijuana, a felony.

Chihak moved to suppress the fruits of the search, arguing that the patdown was an unreasonable search barred by the federal and state constitutions.

The state argued that the pat down was justified under the officer safety exception. However, testimony indiciated that Chihak was cooperative, provided his identification, was not threatening or otherwise acting squirrely.

That, the court noted, vitiated the idea that Chihak was a danger to the officer. Although such determinations are made on a case by case basis, there were no specific and articulable facts that suggest that there was a justification to subject Chihak to a Terry patdown.

The state argued that the marijuana was in plain view, but the court noted that Chihak had been placed in the position where the marijuana was in plain view as a result of the illegal search, and the plain view exception did not therefore apply.

The takehome's clear. There have to be specific and articulable facts to invoke a Terry patdown.


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