Alexander v. StateAlexander v. State
Lead Opinion
Rеnaldo Alexander appeals his conviction for possession of cocaine, arguing that the trial court should have granted his pretrial motion to suppress the crack cocaine seized from his person on the ground that there was insufficient basis to stop and frisk him. We reverse.
At the hearing on the motion, Officer Johnson testified that while on routine patrol, he stopped to talk to a confidential informant with whom he had worked eight to ten times and from whom he usually received reliable information. The informant pointed towards a car
Based solely on the informant’s tip, Johnson stopped the car. Whеn other officers arrived, he conducted a pat-down search of Alexander, the driver. He explained at the hearing that he intended to detain the driver and passenger in his patrol car while he searched the vehicle, and that he performed the weapons search for his own safety as standard procedure. When asked about the procedure to determine whether to search the vehicle, Johnson stated:
Well, I could have looked for probable cause on the outside of the vehicle, I could have called the canine unit, and have the canine unit come around, which I eventually did.
In the area of Alexаnder’s crotch, Johnson felt a hard cylindrical object, two to three inches long and one half to an inch in diameter. He testified that he had seen other people bearing knives and razor blades in their crotches. Alexander did not respond when Johnson asked him what the object was, whereupon Johnson told him, “You can еither take it out or I will take it out.” Alexander undid the side of his shorts, Johnson shook him, and a plastic bag containing ninety pieces of crack cocaine fell out of his pants leg.
On cross-examination, Johnson testified that the informant did not give him a description of the occupants, but merely pointed to the car, and that he did nоt wait to get details of where the cocaine was in the car, or when the informant had seen the cocaine. He testified that he assumed the informant had just seen the cocaine. He admitted that he had no other information except the informant’s tip, that he did not see any contraband or weapons in plain view when he stopped the car, and that he knew the object in Alexander’s crotch was not a gun or razor blade, but he was not sure if it was a knife.
The judge found that the informant was credible and his information reliable, so that the tip provided reasonable suspicion to justify a stop of the vehicle, and that the officer had “prоbable cause to believe that defendant may have been armed and dangerous” because he was engaged in a drug transaction involving a large quantity of narcotics and a large sum of money, justifying the pat-down search.
Appellant contends that the informant’s tip was insufficient to establish reasonable suspicion tо stop his vehicle, because it was insufficiently detailed and was not corroborated. He argues that even if the stop was valid, the evidence failed to establish probable cause to believe that he was armed with a dangerous weapon, and that the seizure of the cocaine exceeded the pеrmissible scope of a pat-down search.
The state argues that the stop was justified by a reasonable suspicion to believe Alexander was committing a felony based on the informant’s tip, citing State v. Cook,
Alexander replies that it is unclear from the testimony when the informant saw the cocaine, how he knew there was cocaine in the vehicle, and whether the cocaine was still in the car. He argues that following standard procedures is not sufficient to justify a pat-down search, citing Harris v. State,
Assuming that the informant’s tip, that he had seen a large amount of cocaine in the car driven by Alexander, provided reasonable suspicion that a crime was being
In Terry v. Ohio,
[W]e cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lаck probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take neсessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.
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Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable sеarch for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armеd; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or “hunch,” but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.
Id. at 24-27,
In Terry, the actions of the suspects were consistent with the police officer’s hypothesis that they “were contemplating a daylight robbery — which, it is reasonable to assume, would be likely to involve the use of weapons — and nothing in their conduct from the time he first noticed them until the time he confronted them and identified himself as a police officer gave him sufficient reason to negate that hypothesis.” Id. at 28,
While we acknowledge that there are situations in which the nature of the suspected criminal activity justifying a Terry stop may also provide a basis for a reasonable belief “that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer,”
REVERSED and REMANDED with directions to dischаrge the appellant.
Notes
. There were no other cars in sight at the time.
. See State v. Webb,
. We do not find the federal cases cited in Sayers contrary to our position.
Dissenting Opinion
dissenting.
Without deciding, the majority “assumes” that the informant’s tip herein provided reasonable suspicion that a crime was being committed so as to justify stopping appellant’s vehicle. Despite this “assumption”, however, the majority finds that “neither the facts nor the law” supports the trial court’s finding that the subsequent pat-down search of appellant was justified because the informant’s tip gave the arresting officers probable cause to believe that the defendant may have been armed and dangerous because he was engaged in a drug transaction involving a large quantity of narcotics and a large sum of money. Because I believe that the stop of appellant’s vehicle and the subsequent pat-down search of appellant were reasonable under the circumstances and in accord with applicable case law, I would affirm his conviction.
First, I would hold that the tip provided by the confidential informant was sufficient to justify thе initial stop of appellant’s vehicle. We are not dealing here with an anonymous tip. The officer was hailed over to the curb by the tipster whom he recognized as an informant and knew from past experience to be reliable. The informant pointed out a specific vehicle departing the scene in whiсh he or she had seen a “large amount” of cocaine (quoting the officer’s testimony). There is no doubt that the officer was able to identify the vehicle to which the informant referred and which appellant was driving seconds after the officer received the tip because appellant’s was the only vehicle in the area. Clearly, then, the initial stop of appellant’s vehicle was lawful. Cf. State v. Cook,
With respect to what transpired after the initial stop of appellant’s vehicle, it seems to mе equally clear that the frisk of which he complains was eminently reasonable under the test articulated in Terry. Indeed, the only case to which the majority refers on this point, State v. Sayers,
The majority finds that if the sole basis for frisking a detained person is the suspicion that such person is dealing in a large quantity of illicit drugs and large sums of money, then the Terry reasonableness test is not met notwithstanding the implications in what it characterizes as “dicta” in State v. Sayers. “Dicta” though it may be, it nonetheless states a well recognized rule of law which the Sayers court found necessary to articulate in order to explain why such rule did not operate, on the particular facts there at hand, to justify a protеctive frisk of the suspect.
*544 The trial court correctly acknowledged that it is not necessary that the agents have direct information that the person to be frisked is armed and that a law enforcement agent may reasonably believe that a person engaged in a transac-. tion prospectively involving a largе quantity of narcotics and large sums of money is likely to be armed to protect the drugs, the money, or himself. See United States v. Vasquez,634 F.2d 41 (2d Cir.1980); United States v. Post,607 F.2d 847 (9th Cir.1979); United States v. Oates,560 F.2d 45 , 62 (2d Cir.1977) (firearms are as much “tools of the trade” to “substantial dealers in narcotics” as other articles of narcotics paraphernalia); United States v. Wiener,534 F.2d 15 (2d Cir.), cert. denied,429 U.S. 820 ,97 S.Ct. 66 ,50 L.Ed.2d 80 (1976) (same); United States v. Santana,485 F.2d 365 (2d Cir.1973), cert. denied,415 U.S. 931 ,94 S.Ct. 1444 ,39 L.Ed.2d 490 (1974). Ordinarily, then, the fact that the agents had reliable information that Sayers was flying to Miami to purchase $50,000 worth of cocaine from the co-defendant, Zzie, and that, immediately before the frisk, they had observed Sayers meet briefly with Zzie, would give rise to a reasonable belief that Sayers was armed. But the trial court was free to find, as it did, that where, as here, the agents knew that Sayers had “just stepped off a сommercial airline flight in which they have radar detectors and metal detectors and ... had walked through them,” that the agents’ belief that Sayers was armed was not reasonable under these circumstances.
State v. Sayers,
Thus, the Sayers court correctly recognized that it is generally not unreasonable to believe that one suspected of trafficking in large amounts of narcotics may be armed. Even so, the district court properly declined to disturb the trial court’s finding that it was unreasonable to believe that Sayers was armed because he had just walked through a metal detector.
Of the cases cited in Sayers, the one which it seems to me most clearly articulates the applicable legal standard is United States v. Post,
It is clear that an officer who has the right to stop a person does not necessarily have a concomitant right to search that person. Only when an officer justifiably believes that “the individual whose suspicious behavior he is investigating at a close range is armed” may he conduct a limited search for cоncealed weapons.
In Terry, the Court closely scrutinized Officer McFadden’s conduct and concluded that, despite the fact that he had not observed a weapon or any physical indication of a weapon, it was reasonable to assume, from the nature of the offense contemplated, that Terry was armed and dangerous. It is not unreasonable to suspect that a dealer in narcotiсs might be armed.
Id. at 851, (citations omitted) (emphasis added).
In the case at hand, in light of the fact that the officer had a reasonable belief that appellant was in possession of a “large amount” of cocaine, an amount from which the officer may reasonably have inferred that appellant was trafficking in large quantities of cocaine, it was not unreasonable for the officer to also believe that appellant was armed, thereby justifying the investigatory frisk. Terry.
Although the officer testified that the frisk he performed was part of “standard police procedure,” the lawfulness of the frisk may be and in my view is sustained on the basis of the underlying facts leading to the frisk. In addition, the casе at bar is distinguishable from Harris, supra, and L.D.P., supra, where such “standard” procedures were held unlawful either because the officer conceded that he had no fear that the suspects may have been armed {Harris), or because the facts failed to support a reasonable belief that the suspects were armed (L.D.P.) (dicta).
. State v. Sayers affirmed the trial court’s order finding the initial stop of the defendant lawful but suppressing the evidence seized on the