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A law enforcement officer does not have to say he feared for his safety to justify frisking someone for weapons, a divided Texas Court of Criminal Appeals has ruled. But the court, in a 5-4 decision handed down on Sept. 20, rejected the state’s argument in Phillip George O’Hara v. State of Texas that a pat-down search can be justified as a matter of routine. The facts of each case will have to be considered, the majority said. “It is our job to look at all the facts surrounding the pat-down objectively and determine if a reasonable person in the officer’s position would have been justified in patting the individual down. In doing so, we recognize that sometimes, even when an officer erroneously conducts the pat-down as a matter of routine, the objective facts will nevertheless justify the pat-down,” Judge Mike Keasler wrote in the majority opinion. The ruling, which came in the case of a man whose conviction on a drug possession charge was reversed by a lower court, marked the first time that the criminal appeals court addressed the question of whether an officer must state that he was afraid in order to justify a weapons search. Appeals courts around the state have disagreed on the issue, State Prosecuting Attorney Matthew Paul said in a brief filed with the CCA. The state had petitioned the court to review the O’Hara case. The case began when a Department of Public Safety trooper made a routine traffic stop on a lonely stretch of highway six miles north of Premont, Texas, during the early morning hours of April 11, 1997. Keasler noted in the opinion that Trooper Phillip Muhler had stopped Phillip O’Hara’s 18-wheeler because the truck’s clearance lights had malfunctioned. Muhler, whose duties included enforcing federal trucking regulations, conducted a standard safety inspection on the truck. The trooper noticed that O’Hara was wearing a belt knife but didn’t ask him to place it in the truck until the inspection was completed, the opinion said. According to the opinion, Muhler asked for but was refused permission to search the trucker’s suitcase. O’Hara was told that he could sit in the patrol car while the trooper wrote his report but that he first would have to be searched for weapons. Muhler found a bag of marijuana when he frisked O’Hara and arrested the trucker, the opinion said. A charge for cocaine possession was added after O’Hara was observed dropping packets of cocaine on the ground, according to the opinion. O’Hara tried to suppress the marijuana and cocaine evidence as fruits of an illegal search, but his motion was denied, the court noted. He was found guilty by a jury and sentenced to two years in prison. Last year, the San Antonio Court of Appeals reversed the conviction on the ground that it violated the Fourth Amendment prohibition against unreasonable search and seizure. The appeals court held that the search was invalid because Muhler did not testify that he was afraid of O’Hara or that he felt that he was in danger. The U.S. Supreme Court, ruling in Terry v. Ohio, held in 1968 that before conducting a pat-down search, an officer need only be able to “point to specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.” Whether a Fourth Amendment violation has occurred hinges on an objective assessment of the officer’s actions in light of the circumstances he faced, Keasler said in the opinion. An officer doesn’t have to be absolutely certain that the individual is armed, he wrote. “The issue is whether a reasonably prudent person would justifiably believe that his safety or that of others was in danger,” Keasler wrote. TIMING QUESTIONED Lee Persohn IV, as assistant district attorney in Jim Wells County, says the trooper testified during direct examination that he was afraid for his safety but said on cross-examination that he was not afraid of O’Hara. Persohn says the court’s decision that a police officer does not have to articulate fear to justify a pat-down will help officers. “People in general think a cop has to be afraid before he can do something. I don’t think that’s true, and I think that’s what the Court of Criminal Appeals is saying,” Persohn says. Gray Scoggins, O’Hara’s lawyer for the appeal, says he believes everyone has missed the central issue and that is the state has the burden to justify a search. “They just flat didn’t do it,” says Scoggins, a sole practitioner in Alice, Texas. The timing of the pat-down troubled Judge Cheryl Johnson, who wrote a dissenting opinion in which she was joined by Judges Lawrence Meyers, Tom Price and Sue Holland. Muhler would have been justified in patting down O’Hara when he noticed the knife but wasn’t justified in conducting the search later, Johnson said. Johnson said the trooper, “as a matter of routine,” ordered O’Hara out of his truck and to sit in the patrol car. Then Muhler, “as a matter of routine,” frisked O’Hara for weapons before allowing him in the car, she said. “This practice is exactly what the majority professes to reject as a violation of Fourth Amendment rights,” Johnson wrote. The CCA sent the case back to the San Antonio appeals court for consideration of another issue raised by O’Hara. Scoggins says he questions whether Muhler exceeded the scope of Terry by reaching into O’Hara’s pocket after he felt a small, hard object in it. Muhler allegedly found an alligator clip and the bag of marijuana in the pocket. Since the clip wasn’t large enough to have been a weapon, the trooper had no reason to reach into the pocket, Scoggins argues.

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