*1 SHAVER v. STATE Arkаnsas Wesley John CR 97-520 of Arkansas delivered
Opinion February *2 Paul for Petty, appellant. Gen., Asst. David R. Sr. Raupp, Att’y by:
Winston Bryant, Gen., for Att’y appellee. Shaver brings Wesley Appellant John Glaze, Tom Justice. of of possession after conditional plea guilty
this entering appeal and a sen- receiving intent to deliver of with methamphetamine of correction. His sole in the tence of 120 months departmеnt to his the trial court erred failing grant for reversal is that point of an unlawful recovered as a result evidence motion to suppress affirm the trial court’s ruling. and seizure. We at 2:40 incidents that occurred arrest ensued from Shaver’s was Shaver’s truck on 1996. Greg driving a.m. July Henry Officers Larry zone when hour in miles per 55-mile-per-hour Shaver Mitchell and Hydron stopped Henry speeding. Phillip exited the vehicle truck. After his Henry was passenger Mitchell, saw what his license to Mitchell driver’s Officer gave seat, be leather next passenger to straps appeared tee over seated with an old shirt or towel noticed that Shaver was asked there were any Mitchell Henry weapons lap. vehicle, Shaver had two. Mitchell and Henry saying responded, asked of the guns then alerted Officеr Hydron presence had to Shaver from truck. Hydron obliged, him remove truck, him down. on the to Shaver his hands began pat place down, he noticed a As reached to Shaver bulge Hydron pat time, At same Shaver “bowed front up,” Shaver’s to the truck and to tell Shaver to him causing Hydron press against then hands on the truck. Officer Hydron calm down and keep what caused reach inside Shaver’s tо determine decided to substance, out a of white the bulge. Hydron pulled bag powdery that “it looks like we have discovered and he told Officer Mitchell out from continued to a substance contraband.” Hydron pull was both of that he methamphetamine. Shaver’spockets suspected that, no in Shaver’s he had idea what was testified Hydron initially, said but knew there was “big bulge.” Hydron only pockеts, uncertain did not feel like a but added was the weapon, examination, what contents were. On cross related Hydron that his intent out of Shaver’s pull everything pockets, regardless. an Court held that officer mak
Recently,
a traffic
order
out
the vehicle
ing
stop may
passengers
get
Watson,
117 S.Ct.
pending
stop.
completion
Maryland
1997); see also
(February
Wright
We have also held
after a
(1997).
lawful
are
to search the outer
stop,
permitted
individual and the immediate
if the facts
vicinity
available
an officer would warrant a
cau
*3
a
tion
believe that
limited search was
State v. Bar
appropriate.
ter,
94,
State,
310 Ark.
In
Shaver,
seeking
of the
found on
suppression
drugs
Shaver
Dickerson,
relies
on Minnesotav.
heavily
threatening determined The Court sort by Terry. permitted so, the bounds their search within do so as stays officers long of Terry. held review of Dickerson’s its because the officer’s con- his bounds
that the officer overstepped after concluded of Dickerson’s having tinued pocket, exploration unrelated to the sole it no justification contained weapon, — officers the police of the search under Terry protection and others nearby. here. controlling
The Dickerson
holding
simply
a trial
on
ruling
We first
out
reviewing
judge’s
point
the evidence
favorable
this court reviews
most
motion to suppress,
State,
197,
325 Ark.
to the appellee. Johnson
trial court’s
ruling
This court reviews a
(1996).
suрpression
circumstances,
position
deferring
superior
totality
and reverse
to evaluate
of credibility,
only
that court
questions
of the evidence. See
if the
is clearly
ruling
against preponderance
State,
State
(1995);
In the instant court Officers of Shaver’s credible when their traffic and Hydron describing stop Shaver, and concluded the truck and subsequent patdown were to insure their The officers actions taken safety. that Shaver had two inside became aware immediately vehicle, Mitchell had leather hol- and Officer seen stopped seated. Mitchell also saw Shaver ster next to where Shaver was a tee or towel in his After Shaver was directed get had shirt lap. truck, and when Officer commenced out of Hydron to tell him to Shaver “bowed causing Hydron up,” patdown, the truck. Because of “calm down” and hands on again place events, the it and trial court found was reasonable these actions what was to reach Shaver’s to determine into Hydron pockets concluded The trial court further causing bulges. it, in felt a with rock-like substance bag although Hydron plastic else was in Shaver’s the officer still was unaware of what pocket because he could not feel the entire contents of his pocket. as trial court ruled this to what else was in uncertainty Hydron Shaver’s was sufficient reason with all other circumstances pocket to search Shaver’s Hydron
In his Shaver on argument, places emphasis Hydron’s that, when he searched Shaver’s “did testimony pocket, not feel like that his “intent was to weapоn” pull everything so, however, out of Mr. Shaver’s pockets, regardless.” doing — ignores circumstances of Shaver leading patdown were guns Shaver was seen next to leather holster present, with a tee shirt or towel in his and Shaver “a bit lap, appeared and was ordered to “calm To agitated” down.” insure the officers’ Officer felt safety, to check the Hydron compelled “big bulgе” while, so, Shaver’s pocket, he found a of white doing bag substance, remained uncertain powdery Hydron what regarding else inwas Shaver’s Under these described circum pockets. stances, we cannot the trial court was say clearly wrong finding Officer Hydron limited search to conducting determine that Shaver had no on his person. dissent. JJ., Imber,
Newbern Justice, When Officer dissenting. Newbern, David reached into Hydron the front appellant Wesley John contents, Shaver’sblue and seized its jeans violated Mr. Shaver’s under the Fourth right Amendment to be free from unreasonable searches and seizures. We should reverse the conviction and direct the Trial Court to the items seized suppress Officer Hydron.
The majority asserts that opinion erroneously Officer actions condoned under the may rulе announced by the United Ohio, States Court in Supreme U.S. 1 (1968). In the Court held that a individual, and detain stop even in the absence of arrest, cause to probable the officer has a “reasonable suspicion,” facts,” based “specific articulable upon individual is *5 involved in criminal case further held activity. Terry the officer also reasonably he has detained suspects is “armed thе officer presently is “entitled for the dangerous,” protection himself and others in the area to conduct carefully 18 individual “in of the of the outer clothing”
limited search him.” be used to assault which to discover might attempt weapons frisk,” If, the officer the exterior “weapons Id. 30. he may, believes is item that he weapon, detects an the item. seize Terry to according need tо any prevent frisk is “justified by A Terryweapons Id. at 29. evidence of crime.” or destruction of the disappearance of the Rather, police ... is the its “sole protection justification be confined and it must therefore and others nearby, knives, to discover guns, to an intrusion reasonably designed scope clubs, assault other hidden instruments or 143, Williams, (1972) v. U.S. 146 407 Id. See Adams officer.” is not to discover еvidence of this limited search (“The purpose without crime, the officer investigation but to allow pursue . . . .”). fear of violence
Thus,
is
Terry
even if an officer
commencing
frisk,
follows
be
the search that
“must
scope
which rendered
the circumstances
tied to and justified by’
‘strictly
“A
Ohio,
19 Ark. Webb (1982); S.W.2d 848 (1980).
Our rules of criminal have codified the procedure principles 3.1, discussed in the case. Under Ark. R. Crim. P. and detain a
may stop pеrson upon suspicion committed, “is has or person is about to commit a committing, (1) or felony, (2) misdemeanor of forcible to involving danger injury or of persons or “‘Rea- appropriation damage property.” sonable means a suspicion’ based on facts or circum- suspicion stances which of themselves do not rise to the cause give probable arrest, a lаwful justify but which requisite rise to more than give is, a bare that is reasonable as suspicion; suspicion opposed or imaginary Ark. R. Crim. P. purely conjectural suspicion.” 2.1. If an 3.1, officer has detained an individual to Rule pursuant 3.4, then under may Rule proceed as follows: provides
If a law enforcement officer who has
detained
person
Rule 3.1 reasonably
suspects
is armed and
person
pres-
others,
or
ently dangerous
the officer or someone
by him
designated
may search the outer
of such
for,
seize,
and the immediate surroundings
any
or
other dangerous thing which
bemay
used
the officer or
against
others.
no
event shall this search be more extensive than is
reasonably necessary to ensure the safety of the officer or others.
Thus, the
case and our rules of criminal
procedure
allow an officer to commence a
frisk when the officer
weapons
(1)
has detained the
based on reasonable
suspect
that he is
suspicion
involved in criminal
activity,
(2)
believes the sus-
However,
armed and
pect
frisk also
dangerous.
may
where the reason for the
permissible
initial detention is not that
is involved in criminal
suspect
Under
activity.
Pennsylvania
Mimms,
Wilson,
Under the rule announced *7 if its seize even contraband U.S. 266 (1993), to him becomes apparent nature immediately incriminating otherwise lawful” Terry of touch the sense “through the Fourth this search. In “plain-feel” exception approving the in Dickerson Court Amendment’s warrant requirement, that, down officer lawfully suspect’s observed pats “[i]f its contour or mass makes and feels an whose object outer clothing the has been no invasion of there identity immediately apparent, that authorized the officer’s already by privacy beyond suspect’s contraband, its warrandess the search weapons; object considerations that seizure would be the same by practical in the context.” Id. 376-77. inhere plain-view the circumstances In of the above factual light principles concede, the I am recited the willing majority oрinion, that Officer was reasonable detaining sake of argument, Hydron was in further that Mr. Shaver armed Mr. Shaver and concluding Thus, I the do not suggestion dangerous. dispute majority’s the case to commence was by that Officer Hydron Terry permitted Mr. outer frisk of Shaver’s clothing. however, the only The facts mentioned by majority, justify search, the of a not Officer subse- commencement Terry Hydron’s Based on intrusion into Mr. Shaver’s Officer quent pocket. it is he exceeded the own clear that scope testimony, the that he was the case to undertake Terry permitted testi- when he reached into Mr. Shaver’s Officer Hydron pocket. down,” he fied he “reached Mr. Shaver noticed when pat testified that in Mr. Shaver’sfront Officer Hydron he as to it was.” he testified “was uncertain what Significantly, that the item nоt like a The officer said that “did weapon.” feel or have idea what was in his All I “didn’t know any pockets. that is I decided to knew was that there was a so big bulge, why have reach inside the He that he would emphasized pocket.” Mr. Shaver’s pockets “regardless.” emptied admission, own intruded into Mr. Hydron Officer By first the item he Shaver’s inner without concluding was a That had detected the course weаpon. pat-down fact renders the officer’s into the entry illegal Fourth Amendment. the officer’s conduct approving case, the Court was careful to note the officer “did not in the sur- hands” under the outer place suspects’ “pockets of their until he had face felt and then garments weapons, reached for Ohio, and removed merely guns.” Terry at 30. U.S. York,
In Sibron v. was New case to supra, companion invalidated the officer’s search of initial, because that extension of the exterior petitioner’s pocket based on that a pat-down suspicion would be found there. The Court in Sibron distinguished *8 case as follows: Terry
The search for
in
of a
weapons approved Terryconsisted solely
limited
of the outer
the
of
for concealed
patting
suspect
objects
might
which
be used as instruments of assault.
when
Only
he discovered
did the
in
objects
such
officer
his hands in
place
Terry
the
he
of the men
searched. In
pockets
this
with no attempt
arms,
at an initial limited
of
Patrolman Martin thrust
exploration
his hand into Sibron’s
and
pocket
took from him
of
envelopes
narcotics,
heroin. His
that
testimony shows
he was
looking
found them.
Thesearch
not
limitedin
reasonably
sсopeto
accomplishment
onlygoal
might
have
conceivably justified
its
protection the
inception
a
dan-
by disarming potentially
—the
man.
gerous
Sibron,
New
v.
York
780, 784 (1985) (“An officer has the to frisk a detainee’s right if there is a reasonable possessions that there suspicion ais located there.”).
The decisions of courts other also that jurisdictions require must, a before conducting moving search from the exterior interior of a suspect’s clothing, a have reason to believe that the item he has detected ais weapon. 22 403, Collins, (Cal. 1970), P.2d 406 v. People exterior an held that pat-down
Court of California
scope
officer,
of an
but only
at the mere discretion
be exceeded
“cannot
to corrobo-
tactile
tending
evidence
discovery
particularly
upon
is
The court observed
armed.”
rate
susрect
suspicion
a
object
pat-down,
soft
suspect’s pocket
“[fjeeling
circumstances,
not warrant an officer’s intru-
does
absent unusual
Id.
to retrieve
object.”
into a suspect’s pocket
sion
State,
See,
v.
are in accord.
Ellis
Numerous other cases
e.g.,
is soft
does
2d
725 (Miss. 1990)(“When
object
573 So.
not
does
Terryanalysis
jus
not
resemble
reasonably
weapon,
it.”);
it from the
and sеarching
tify removing
suspect’s clothing
Santillanes,
State v.
F.2d 1103
Cir.
(10th
1988);
States
United
State,
Collins,
Blackburn
1984);
Thus, com- even if could have Officer Hydron legitimately officer’s menced a search of Mr. Shaver’s outer the clothing, concluded, his initial shows that he never as result of testimony that the he detected in Mr. Shaver’s “bulge” pocket pat-down, It the officer’s into Mr. Shaver’s was a follows that entry weapon. the circumstances was “not related to pocket United States v. Del the search for provoked protective weapons.” search, therefore, Toro, F.2d The (2d 1972). 522-23 Cir. as a with the and the evidence seized did comply the should be Nor can Officer result of suppressed. be under the intrusion into Mr. Shaver’s in Minne- the Court by Supreme “plain-feel” exception аpproved Dickerson, sota v. in the officer’s Nothing testimony suggests supra. nature” of the became “incriminating “immediately to the officer of Mr. Shaver’souter apparent” pat-down The officer testified he “had no idea” what there. clothing. the darkness of a.m. on a 2:40 July morning pres- ence of two men whose vehicle has been containing weapons officers are entitled to stopped speeding, undoubtedly take reasonable measures to themselves from the protect possibility men, vehicle, one wounded if removed from the being has a law must zealously provide must, however, the officers’ At zeal least be protection. equal of this “The applied protection principle: right peo- effects, . be secure their . and unreasоna- ple persons. against Const., ble searches and seizures shall not be violated . . .” . U.S. 4. amend. a balance be must achieved Obviously, by interpreting “unreasonable,” the word and then line must drawn. To avoid Fourth Amendment swallowed being by officers, need to and to avoid the protect need to protect officers from Amendment, swallowed the Fourth being by line, United States Court has drawn the described in the above, courts, cases cited to be all followed this one. including In this instance this has clearly overstepped boundary.
I dissent. respectfully joins this dissent. J.,
Imber,