“Out of my peripheral I felt as if something could have taken place.”

Here’s some remarkable testimony from the suppression hearing in State v. Barnes, handed down yesterday by the Ohio Court of Appeals, in which an officer searched through a suspect’s pockets and found drugs.  The officer had already frisked the suspect for weapons and found nothing, but then searched him again on the suggested ground that another suspect might have just handed him something:

On cross-examination, Patrolman Risner admitted that the body camera footage contained no indication that any type of exchange occurred but stated that he “felt as if something could have taken place.” (Emphasis added.) (Tr. 136). The following exchange then occurred:

[Defense Counsel:] At no time do we see from the body cam any type of exchange occur, do we?

[Patrolman Risner:] We don’t see the exchange, no.

[Defense Counsel:] And you didn’t either, did you?

[Patrolman Risner:] Out of my peripheral I felt as if something could have taken place.

[Defense Counsel:] But you didn’t see anything, did you?

[Patrolman Risner:] No, I didn’t see a handoff, no.

[Defense Counsel:] Now why on the body cam, then, did you tell Mr. Barnes that you saw him put that in his pocket?

[Patrolman Risner:] Because I believed that I did.

[Defense Counsel:] Okay. But you didn’t, did you?

[Patrolman Risner:] No.

* * *

[Defense Counsel:] I mean, how do you believe you see something from what we just saw [on the body camera footage]?

[Patrolman Risner:] I can’t explain to you how I felt at that moment. I was busy dealing with her [Williams]. Out of my peripheral, it looked like something could have been potentially handed off so I investigated further and I was right.

The very unimpressed Court of Appeals ruled that the search violated the Fourth Amendment and that the trial court properly suppressed the evidence.

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