Pocket Docket

The State Supreme Court says the bulge was searched illegally.

A A A Comments By Rick Anderson Wednesday, Dec 16 2009

Can an apparently law-abiding citizen, walking along a city street, be arrested for having a bulge in his pants? Yes—in Richland, anyway.

Jeremey Eaton

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It happened to Dustin Warren Harrington around 11 p.m. on Aug. 13, 2005. Police Officer Scott Reiber thought Harrington looked suspicious walking through a neighborhood at night. He then flipped a U-turn and asked Harrington if they could talk.

Reiber asked Harrington where he was coming from. His sister's house, Harrington said, but he didn't know exactly where the house was. That made Reiber suspicious, and Harrington seemed nervous, according to court records.

The officer then noticed bulges in Harrington's pockets. Reiber also thought it suspicious that Harrington kept moving his hands in and out of them. As a state trooper pulled up to assist, the cop asked if he could pat down Harrington for officer safety, explaining that he was not under arrest.

Harrington agreed. Reiber then "felt a hard, cylindrical object in Harrington's front right pocket," according to the record.

"What's this?" asked the cop.

"My glass," said Harrington. "My meth pipe."

Harrington, also carrying a baggie of meth, was arrested immediately and later convicted of unlawful possession of a controlled substance. He appealed, claiming the evidence was seized illegally.

Last week, the state Supreme Court unanimously agreed. "We conclude," said Justice Richard Sanders, who authored the prevailing opinion, "the officers' actions [i.e., Officer Reiber and the assisting trooper], when viewed cumulatively, impermissibly disturbed Harrington's private affairs without authority of law and therefore constituted an unlawful seizure."

Asking someone if you can pat down their body, writes Sanders, "is inconsistent with a mere social contact. If Reiber felt jittery about the bulges in Harrington's pockets, he should have terminated the encounter—which Reiber initiated—and walked back to his patrol car...When Reiber requested a frisk, the officers' series of actions matured into a progressive intrusion substantial enough to seize [control of] Harrington...Our [state] constitution protects against disturbance of private affairs—a broad concept that encapsulates searches and seizures...Article I, section 7 cannot tolerate the officers' progressive intrusion into Harrington's privacy."

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