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Arkansas Supreme Court: Search of Wallet Exceeded Scope of Lawful ‘Terry’ Frisk for Weapons

by Douglas Ankney

The Supreme Court of Arkansas ruled that the search of a defendant’s wallet during a frisk for weapons pursuant to an investigatory detention constituted an unconstitutional search.

Corporal Kenneth Kennedy of the Clarksville Police Department discovered a parked car in a medium to high crime area of Cline Park at 4:59 a.m. July 27, 2016. By city ordinance, the park was closed at this time.

Kennedy shined his light in the window and observed two occupants — Mo Shay and Faith Rolle — both of whom appeared nervous. Because Shay kept moving his hands toward his pockets. Kennedy ordered him to keep his hands where Kennedy could see them. Both occupants denied having any identification. Kennedy initiated an investigatory search.

Kennedy was wearing a video-camera, but there was only an audio recording of Kennedy frisking Shay for weapons. According to the audio, when Kennedy felt a wallet, he inquired, “What’s that?” and then stated, “Oh! There’s probably some I.D. in there.” He then verbally indicated he was searching the wallet. He saw Shay’s identification, and behind it, Kennedy discovered a small brown bag of methamphetamine. Shay was arrested.

Kennedy conceded during trial testimony that it wasn’t a crime for Shay not to provide an identification card to him.

Shay filed a suppression motion that was denied by the trial court. He was convicted of possession of methamphetamine, and he appealed. The Arkansas Court of Appeals reversed and remanded. The State sought further review in the Supreme Court of Arkansas.

The Court explained when it reviews a decision of the Court of Appeals, it treats “the matter as if the appeal had been originally filed in this court.”

The Court began its discussion by quoting Terry v. Ohio, 392 U.S. 1 (1968), in which the U.S. Supreme Court stated, “We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.”

The Court determined that Kennedy had reasonable suspicion to investigate the presence of a car in a closed city park in the wee hours of the morning. It was a medium to high crime area. Upon encountering Shay, Kennedy made reasonable inquiries, and Shay’s responses did nothing to dispel Kennedy’s reasonable fear for his safety. Shay stated he had no identification. He was acting nervous, and he kept reaching toward his pockets. Thus, frisking Shay’s outer clothing for weapons was lawful.

However, when Kennedy felt the wallet, he admitted that he knew it was a wallet, not a weapon. Since it’s not a crime to not provide an identification card to police, Kennedy didn’t have probable cause to search Shay’s wallet for identification. And opening the wallet to search inside, without Shay’s consent, exceeded the scope of a limited search for weapons under Terry. Therefore, the Court held that the search of Shay’s wallet violated the Fourth Amendment. Accordingly, the Court reversed and remanded for further proceedings consistent with its opinion. (Note: Pursuant to Arkansas procedure, the decision of the Court of Appeals was vacated when the Supreme Court granted the State’s Petition for Review.) See: Shay v. State, 562 S.W.3d 832 (Ark. 2018). 

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