Casual Encounters With Police Officers: A Look At How A Quick Conversation With Between A Bicyclist And A Police Officer Led To Suppressed Evidence

Bicycle! Bicycle! Bicycle!  I want to ride my bicycle! bicycle! bicycle!  I want to ride my bicycle…I want to ride my bike…I want to ride my bicycle!  I want to ride it where I like!

After reading State v. Swift, 2016-Ohio-8191, the only thing that was going through my head was Queen’s Bicycle Race!  So much so I had to YouTube the song to listen to it a couple times.  Bicycle Race is probably one of my favorite Queen songs along with Somebody to Love.  Now if you really want to rock out with some Queen, checkout Somebody to Love live at Milton Keynes Bowl, 1982.  You will not be disappointed!

Alright, back to the story at hand.  In Swift, good ole Swift was riding his bike down East Fourth Street minding his own business when he noticed that a Dayton Police Cruiser made a U-turn and began to drive towards his general direction.  Upon approaching Swift, the officers did not activate the cruiser’s sirens or lights.

Officer Williams testified that when he pulled up alongside Swift, he rolled down the cruiser’s window, and asked whether he could talk with Swift real quick.  Officer Williams then got out of the cruiser and cautioned Swift about riding his bike towards the center of the street and asked Swift, “do you mind if I pat you down?”  In addition, Officer Williams asked whether Swift possessed any guns or other weapons, and Swift stated that he did not.

Officer Williams went on to testify that during the pat down, Swift advised Officer Williams that he had some weed on him.  Due to this admission, Officer Williams handcuffed Swift and continued with the search.  During the pat down, Officer Williams ordered Swift to spread his legs for weapons and noticed that Swift’s buttocks were very tight.  After convincing Swift to spread his butt cheeks, Officer Williams found a hard object between Swift’s two butt cheeks and suspected it to be either heroin or crack cocaine.

To make matters even better for Swift, Officer Williams testified that he learned Swift’s identity; he recalled the night prior to Swift’s arrest that he made a drug arrest near the location he stopped Swift.  It was during that arrest that the arrested person’s phone rang approximately 20 times and the caller was later identified as Swift.  However, Officer Williams never testified that Swift’s bicycle-riding had violated any state law or city ordinance, and no traffic citation was ever issued.

Swift, however, told a different story.  Swift testified that he did not want to stop when the officers pulled up next to him.  Swift stated that, “they made me stop cause I tried to keep going.”  Swift further testified that one of the officers hopped out of the cruiser and approached him, told him to stop his bike, and pulled the bike down.  Swift went on to testify that when the officer made him put his bike down, the officer grabbed him by the waist before patting him down.  Lastly, Swift denied giving the officers permission to pat him down or having any conversation in which he admitted to the possession of drugs.

After hearing testimony, the trial court found that “when two uniformed police officers in a police cruiser pass by a vehicle (whether an automobile or a bicycle) and then do a quick u-turn and catch up with the vehicle, drive alongside 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 went on to find that Officer Williams and his partner had approached Swift for no apparent reason.  The trial court further found that a vehicle stop, including a bicycle stop, is not a consensual encounter, and that a sensible person would not believe he/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.  With all of that the trial court ultimately held that the seizure had occurred when the officers stopped Swift and that there had been no probable cause or reasonable suspicion to justify the seizure and suppressed the contraband discovered during the stop.  The State appealed.

On appeal, the appellate court found 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 violation.  State v. Brown, 2012-Ohio-5532.

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.  State v. Lewis, 2009-Ohio-158, citing United States v. Mendenhall, 446 U.S. 544.  The Fourth Amendment guarantees are not implicated in such an encounter.  State v. Taylor, 106 Ohio App.3d 741.  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.  Lewis citing Mendenhall.

The appellate court found that the trial court reasonably concluded that the officer’s traffic stop of Swift was not based on reasonable, articulable suspicion of criminal activity.  In addition the appellate court found that the trial court reasonably concluded that a reasonable person in Swift’s position, having had officers pull alongside him while riding his bicycle and initiate a conversation, would not have felt free to ignore the officer’s request to speak with him.  So with all of that, the appellate court held that the trial court’s findings supported its decision to suppress the state’s evidence.

Great win for Swift, but I will say that Swift’s case is very fact-sensitive and case-specific!  In closing, enjoy that somewhat warm December weather and go ride your bicycle!

www.daytonduilaw.com

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