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Originally published July 10, 2014 at 8:28 PM | Page modified July 10, 2014 at 10:22 PM

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Ruling reins in scope of police frisks

The state Supreme Court issued a decision Thursday that limits the scope of protective frisks used by police to search someone for weapons in order to ensure officer safety.


Seattle Times staff reporter

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The headline "reins in scope of police frisks" is incorrect. Thirty years ago when I became a cop it was very clear... MORE
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The state Supreme Court issued a ruling Thursday that limits the scope of protective frisks used by police to ensure officer safety.

The ruling centers on warrantless searches of small containers found during frisks for weapons, with the justices finding that such searches are generally unconstitutional.

Justifiable frisks “are limited, external pat-downs to ensure safety,” says Thursday’s ruling.

“Any further intrusion must end as soon as an officer discovers that the suspect does not have a weapon. An officer may not search through a detainee’s personal effects under the unreasonable belief that they may contain a weapon,” the justices ruled.

A 1968 decision by the U.S. Supreme Court in an Ohio case gave rise to what is known as a Terry stop, which allows police officers to conduct a limited pat-down of a person’s outer clothing to determine if that person is armed. The brief, warrantless search is justified provided the officer can point to specific facts, which create a reasonable belief that a suspect is armed and dangerous.

In August 2011, Tanner Zachary Roy Russell, a passenger in a traffic stop, lied to Centralia police when he said he wasn’t armed, according to the facts outlined in the Supreme Court ruling. But during the course of the stop, an officer found a small, easily concealed .22-caliber handgun loaded with a single bullet in Russell’s pocket, it says.

The officer confiscated the gun and issued Russell a citation.

A week later, Centralia Police Officer Derrick Makein stopped Russell for riding his bicycle without a headlight and other traffic violations, according to the ruling. He recognized Russell from the earlier traffic stop and fearing he might have a weapon, decided to frisk him, the ruling says.

While Makein properly frisked Russell in a search for weapons, the officer violated Russell’s constitutional right to be free from police intrusion when he opened a small container he found in Russell’s jacket without first getting a warrant, Justice Susan Owens wrote in the court’s majority opinion.

The container held a syringe filled with meth. Russell was charged with possession of a controlled substance.

A Lewis County judge suppressed the syringe, the state’s only evidence to support the drug charge, and the case against Russell was dismissed.

Lewis County prosecutors appealed to the state Court of Appeals, which reversed the trial judge and sent the case back for trial last summer.

“Makein’s previous experience with Russell caused this heightened safety concern here and justified Makein’s search inside the box to be sure it did not contain a weapon that could be used against him, before returning the box to Russell,” says the Court of Appeal’s unpublished opinion from July 2013. “Extending a protective search to a small container under these circumstances does not unreasonably expand the scope of a Terry frisk to allow a search of any container, no matter how small.”

Russell appealed to the state Supreme Court, which Thursday reversed the Court of Appeals’ ruling.

“The search of the container in this case violated Russell’s constitutional right to be free from police intrusion. The officer felt a small container, removed it, and then opened it without a warrant,” the ruling says. “He admitted that the contents of the container weighed only a fraction of what the pistol weighed.

“Therefore, we conclude that no reasonable person could believe that the container housed a gun,” says the ruling.

The ruling cites two cases in which police improperly conducted warrantless searches on a wallet and a cigarette pack during Terry stops.

Though none of the justices wrote a dissenting opinion, Justice Steven Gonzalez wrote a concurring opinion that partially disagrees with the majority: “Russell’s constitutional rights were not violated when the small container was removed from his pocket. His rights were violated immediately after, when the officer realized that it did not contain a weapon and searched the container anyway.”

Gonzalez noted: “Removing a container from a jacket that could potentially contain a weapon does not require a warrant as part of an otherwise lawful Terry stop.”

While both the trial court and the Court of Appeals found that Russell voluntarily consented to the search of the container, the Supreme Court justices ruled the state didn’t meet its burden to prove voluntary consent.

“In fact, the record does not show that Russell consented at all. The officer testified only that Russell did not ‘appear to have any problem’ with the search,’ ” the ruling says.

Because of Thursday’s ruling, Russell, now 22, won’t face trial on the 2011 drug charge. But court records show he has been arrested three times since then on felony drug charges, and a bench warrant was issued July 2 for his arrest in connection with a case filed against him in February.

Seattle Times news researcher Miyoko Wolf contributed to this report.

Sara Jean Green: 206-515-5654 or sgreen@seattletimes.com



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