Lead Opinion
Aрpellant John Wesley Shaver brings this appeal after entering a conditional plea of guilty of possession of methamphetamine with intent to deliver and receiving a sentence of 120 months in the department of correction. His sole point for reversal is that the trial court erred in failing to grant his motion to suppress evidence recovered as a result of an unlawful search and seizure. We affirm the trial сourt’s ruling.
Shaver’s arrest ensued from incidents that occurred at 2:40 a.m. on July 7, 1996. Greg Henry was driving Shaver’s truck 76 miles per hour in a 55-mile-per-hour zone when Officers Larry Mitchell and Phillip Hydron stopped Henry for speeding. Shaver was a passenger in his truck. After Henry exited the vehicle and gave his driver’s license to Officer Mitchell, Mitchell saw what appeared to be leather straps next to the passenger seat, and noticed that Shaver was seated with an old tee shirt or towel over his lap. Mitchell asked Henry if there were any weapons in the vehicle, and Henry responded, saying Shaver had two. Mitchell then alerted Officer Hydron of the presence of the guns and asked him to remove Shaver from the truck. Hydron obliged, had Shaver place his hands on the truck, and began to pat him down. As Hydron reached to pat Shaver down, he noticed a bulge in Shаver’s front pocket. At the same time, Shaver “bowed up,” causing Hydron to press him against the truck and to tell Shaver to calm down and keep his hands on the truck. Officer Hydron then decided to reach inside Shaver’s pocket to determine what caused the bulge. Hydron pulled out a bag of white powdery substance, and he told Officer Mitchell that “it looks like we have discovered contraband.” Hydron continued to pull out а substance from both of Shaver’s pockets that he suspected was methamphetamine. Hydron testified that, initially, he had no idea what was in Shaver’s pockets, but only knew there was a “big bulge.” Hydron said that the bulge did not feel like a weapon, but added he was uncertain what the contents were. On cross examination, Hydron related that his intent was to pull everything out of Shaver’s pockets, regardless.
Recently, the Supreme Cоurt held that an officer making a traffic stop may order passengers to get out of the vehicle pending completion of the stop. Maryland v. Watson,
In seeking suppression of the drugs found on Shaver, Shaver relies heavily on Minnesota v. Dickerson,
In its review of Dickerson’s case, the Supreme Court held that the officer overstepped his bounds because the officer’s continued exploration of Dickerson’s pocket, after having concluded that it contained no weapon, was unrelated to the sole justification of the search under Terry — the protection of the police officers and others nearby.
The Dickerson holding is simply not controlling here. We first point out that, in reviewing a trial judge’s ruling on a motion to suppress, this court reviews the evidence most favorable to the appellee. Johnson v. State,
In the instant case, the trial court found Officers Mitchell and Hydron credible when describing their traffic stop of Shaver’s truck and subsequent patdown of Shaver, and concluded the actions taken were reasonable to insure their safety. The officers became immediately aware that Shaver had two weapons inside the stopped vehicle, and Officer Mitchell had seen a leather holster next to where Shaver was seated. Mitchell also saw Shaver had a tee shirt or towel in his lap. After Shaver was directed to get out of the truck, and when Officer Hydron commenced a patdown, Shaver “bowed up,” causing Hydron to tell him to “calm down” and again place his hands on the truck. Because of these actions and events, the trial court found it was reasonable for Hydron to reach into Shaver’s pockets to determine what was causing the bulges. The trial court further concluded that, although Hydron felt a plastic bag with a rock-like substance in it, the officer still was unaware of what else was in Shaver’s pocket because he could not feel the entire contents of his pocket. The trial court ruled this uncertainty of Hydron as to what else was in Shaver’s pocket was sufficient reason with all other circumstances for Hydron to search Shaver’s pocket.
In his argument, Shaver places emphasis on Hydron’s testimony that, when he searched Shaver’s pocket, the bulge “did not feel like a weapon” and that his “intent was to pull everything out of Mr. Shaver’s pockets, regardless.” In doing so, however, he ignores the circumstanсes leading to the patdown of Shaver — that guns were present, Shaver was seen next to a leather holster with a tee shirt or towel in his lap, and Shaver appeared “a bit agitated” and was ordered to “calm down.” To insure the officers’ safety, Officer Hydron felt compelled to check the “big bulge” in Shaver’s pocket, and while, in doing so, he found a bag of white powdery substance, Hydron remained uncertain regаrding what else was in Shaver’s pockets. Under these described circumstances, we cannot say the trial court was clearly wrong in finding Officer Hydron was justified in conducting a limited search to determine that Shaver had no weapon on his person.
Dissenting Opinion
dissenting. When Officer Hydron reached into the front pocket of appellant John Wesley Shaver’s blue jeans and seized its contents, he violated Mr. Shaver’s right under the Fourth Amendment to be free from unreasonable searches and seizures. We should reverse the conviction and direct the Trial Court to suppress the items seized by Officer Hydron.
The majority opinion erroneously asserts that Officer Hydron’s actions may be condoned under the rule announced by the United States Supreme Court in Terry v. Ohio,
A Terry weapons frisk is not “justified by any need to prevent the disappearance or dеstruction of evidence of crime.” Id. at 29. Rather, its “sole justification ... is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Id. See Adams v. Williams,
Thus, even if an officer is reasonable in commencing a Terry weapons frisk, the scope of the search that follows “must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Terry v. Ohio,
We have followed the Terry case in several of our own decisions. See, e.g., State v. Barter,
Our rules of criminal procedure have codified the principles discussed in the Terry case. Under Ark. R. Crim. P. 3.1, an officer may stop and detain a person upon reasonable suspicion that the person “is committing, has committed, оr is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property.” “‘Reasonable suspicion’ means a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is rеasonable as opposed to an imaginary or purely conjectural suspicion.” Ark. R. Crim. P. 2.1. If an officer has detained an individual pursuant to Rule 3.1, he then may proceed under Rule 3.4, which provides as follows:
If a law enforcement officer who has detained a person under Rule 3.1 reasonably suspects that the person is armed and presently dangerous to the officer or others, the officer or someone designated by him may search the outer clothing of such person and the immediate surroundings for, and seize, any weapon or other dangerous thing which may be used against the officer or others. In no event shall this search be more extensive than is reasonably necessary to ensure the safety of the officer or others.
Thus, the Terry case and our rules of criminal procedure allow an officer to commence a weapons frisk when the officer (1) has detained the suspect based on reasonable suspicion that he is involved in criminal activity, and (2) reasonably believes the suspect is armed and dangerous. However, a weapons frisk also may be permissible where the reason for the initial detention is not that the suspect is involved in criminal activity. Under Pennsylvania v. Mimms,
Under the rule announced in Minnesota v. Dickerson,
In light of the above principles and the factual circumstances recited in the majority opinion, I am willing to concede, for the sake of argument, that Officer Hydron was reasonable in detaining Mr. Shaver and in further concluding that Mr. Shаver was armed and dangerous. Thus, I do not dispute the majority’s suggestion that Officer Hydron was permitted by the Terry case to commence a weapons frisk of Mr. Shaver’s outer clothing.
The facts mentioned by the majority, however, only justify the commencement of a Terry search, not Officer Hydron’s subsequent intrusion into Mr. Shaver’s pocket. Based on Officer Hydron’s own testimony, it is clear that he exceeded the scope of the search that he was permitted by the Terry case to undertake when he reached into Mr. Shaver’s pocket. Officer Hydron testified that, when he “reached to pat Mr. Shaver down,” he noticed a bulge in Mr. Shaver’s front pocket. Officer Hydron testified that he “was uncertain as to what it was.” Significantly, he testified that the item “did not feel like a weapon.” The officer said that he “didn’t know or have any idea what was in his pockеts. All I knew was that there was a big bulge, so that is why I decided to reach inside the pocket.” He emphasized that he would have emptied Mr. Shaver’s pockets “regardless.”
By his own admission, Officer Hydron intruded into Mr. Shaver’s inner clothing without first concluding that the item he had detected in the course of the pat-down was a weapon. That fact renders the officer’s entry into the pocket illegal under the Fourth Amendment. In approving thе officer’s conduct in the Terry case, the Court was careful to note that the officer “did not place his hands” in the suspects’ “pockets or under the outer surface of their garments until he had felt weapons, and then he merely reached for and removed the guns.” Terry v. Ohio,
In Sibron v. New York, supra, which was a companion case to the Terry case, the Court invalidated the officer’s search of the petitioner’s pocket because that extension of the initial, exterior pat-down was not based on a reasonable suspicion that a weapon would be found there. The Court in Sibron distinguished the Terry case as follows:
The search for weapons approved in Terry consisted solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault. Only when he discovered such objects did the officer in Terry place his hands in the pockets of the men he searched. In this case, with no attempt at an initial limited exploration of arms, Patrolman Martin thrust his hand into Sibron’s pocket and took from him envelopes of heroin. His testimony shows that he was looking for narcotics, and he found them. The search was not reasonably limited in scope to the accomplishment оf the only goal which might conceivably have justified its inception — the protection of the officer by disarming a potentially dangerous man.
New York v. Sibron,
The decisions of courts in other jurisdictions also require that an officer conducting a Terry search must, before moving the search from the exterior to the interior of a suspect’s clothing, have a reason to believe that the item he has detected is a weapon. In People v. Collins,
Numerous other cases are in accord. See, e.g., Ellis v. State,
Thus, even if Officer Hydron could have legitimately commenced a Terry search of Mr. Shaver’s outer clothing, the officer’s testimony shows that he never concluded, as a result of his initial pat-down, that the “bulge” he detected in Mr. Shaver’s pocket was a weapon. It follows that the officer’s entry into Mr. Shaver’s pocket was “not reasonably related to the circumstances which provoked the protective search for weapons.” United States v. Del Toro,
In the darkness of 2:40 a.m. on a July morning in the presence of two men whose vehicle containing weapons has been stopped for speeding, police officers are undoubtedly entitled to take reasonable measures to protect themselves from the possibility of being wounded if one of the men, removed from the vehicle, has a weapon in his pocket. The law must zealously provide for the officers’ protection. At least equal zeal must, however, be applied to the protection of this principle: “The right of the people to be secure in their persons. . . and effects, against unreasonable searches and seizurеs shall not be violated . . . .” U.S. Const., amend. 4. Obviously, a balance must be achieved by interpreting the word “unreasonable,” and then a line must be drawn.
To avoid the Fourth Amendment being swallowed by the need to protect the officers, and to avoid the need to protect the officers from being swallowed by the Fourth Amendment, the United States Supreme Court has drawn the line, described in the cases cited above, to be followed by all courts, including this one. In this instance this Court has clearly overstepped that boundary.
I respectfully dissent.