Lead Opinion
This сase involves a routine traffic stop that turned into a contraband-yielding roadside pat down search. Jeremy Henage appeals from the district court’s denial of his motion to suppress evidence a police officer discovered while searching Jeremy’s person. We reverse.
I.
This case commenced when the Jerome City Police cited Jeremy Henage for possession of a controlled substance and drug paraphernalia following a traffic stop. Officer Johnson was on patrol when he stopped a vehicle with a broken taillight. Jeremy was a passenger in the subject vehicle and his brother, Zach, was the driver. Officer Johnson conversed with Zach about the taillight. Sergeant Baker arrived shortly after the initial stop and approached Jeremy while he was still in the vehicle. Sgt. Baker told Jeremy he was not under arrest and was free
Jeremy was subsequently cited for possession of a controlled substance and drug paraphernalia. He moved to suppress the contraband, contending that the extended questioning and search were illegal under the Fourth Amendment. The district court denied his motion to suppress. Jeremy subsequently entered a guilty plea but reserved the right to appeal the denial of his motion to suppress.
II.
In reviewing an order granting or denying a motion to suppress evidence, this Court will defer to the trial court’s factual findings unless clearly erroneous. State v. Donato,
III.
We address two questions: (1) whether the district court erred in holding that the traffic stop evolved into a consensual encounter prior to Sgt. Baker’s extended questioning of Jeremy, and (2) whether the district court erred in holding that Sgt. Baker’s search of Jeremy’s person was constitutionally justified.
A.
Jeremy argues that the period of extended questioning conducted by Sgt. Baker constituted a seizure to which Fourth Amendment protections apply. The Fourth Amendment provides that “the right of the people to be secure in thеir persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Traffic stops constitute seizures under the Fourth Amendment. Delaware v. Prouse,
Jeremy does not dispute that he was initially subjected to a lawful detention when his brother was stopped for having a broken taillight. Rather, Jeremy argues that the officers impermissibly extended the traffic stop by continuing to question him beyond the time necessary to effectuate the stop. The district court disagreed, holding that the traffic stop evolved into a consensual encounter before the period of extended questioning. Jeremy contends that the district court erred in holding that the traffic stop evolved
This Court will not set aside factual findings unless they are clearly erroneous. Donato,
Sgt. Baker could not recall whether the overhead lights on the cars had been turned off during the extended conversation with Jeremy. Jeremy testified that Sgt. Baker’s overhead lights were no longer going at the time, but that Officer Johnson’s were. The district court determined that, although Officer Johnson’s overhead lights may have remained activated, it did not preclude the traffic stop from evolving into a consensual encounter. In a factually similar case, the Court of Appеals held that “[i]t is not practical nor necessary that an officer turn off his emergency lights before he may effectively instruct an individual who has been stopped that he may leave.” State v. Roark,
B.
Jeremy contends that even if his continued conversation with Sgt. Baker was consensual at first, it resulted in an illegal search and seizure. According to Jeremy, the encounter took a nonconsensual turn when he told Sgt. Baker he had a knife. That is, Sgt. Baker then directed Jeremy to keep his hands out where he could see them and proceeded with a search, without asking or receiving Jeremy’s consent to do so. Jeremy argues that when Sgt. Baker laid hands upon him, the encounter became nonconsensual and constituted an unlawful seizure.
Just as a traffic detention can turn into a consensual encounter, a consensual encounter can turn into a seizure. In State v. Baker,
An encounter between an officer and a citizen does not trigger Fourth Amendment scrutiny, however, unless it is non-consensual. Florida v. Bostick,501 U.S. 429 , 434,111 S.Ct. 2382 , 2386,115 L.Ed.2d 389 , 398 (1991). An encounter becomes a seizure only when an officer, by means of physical forcе or show of authority, has restrained the liberty of a citizen. United States v. Mendenhall,446 U.S. 544 , 553-54,100 S.Ct. 1870 , 1876-77,64 L.Ed.2d 497 , 508-09 (1980). The test for deciding whether someone has been seized by a show of authority is an objective one. Id. at 554,100 S.Ct. at 1877 ,64 L.Ed.2d at 509 . The Supreme Court of the United States has held that a seizure occurs “only*660 if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Id. Examples of circumstances that might indicate a seizure would be the threatening presence of several officers, the display of a weаpon by an officer, physical touching of the person, or the tone or use of language indicating that compliance with an officer’s request might be compelled. Id. In the absence of some such evidence, otherwise inoffensive contact between a citizen and an officer cannot, as a matter of law, amount to a seizure of that person. Id. at 555,100 S.Ct. at 1877 ,64 L.Ed.2d at 509 .
Jeremy asserts that the physical touching of his person, without his consent, amounted to a seizure of his person.
The Court is not particularly well positioned to determine this issue on appeal, first, because the record is somewhat sparse regarding the circumstances surrounding the initiation of the search and, second, because the district court did not consider the issue of whether the consensual encounter later turned nonconsensual. However, we need not address the issue because we have determined that the search itself was unreasonable, requiring reversal of the district court’s order.
The Fourth Amendment to the United States Constitution prohibits unreasonable searches. A search conducted by law enforcement officers without a warrant is per se unreasonable unless it falls within one of the narrowly drawn exceptions to the warrant requirement. Schneckloth v. Bustamonte,
And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken togеther with rational inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search “warrant a man of reasonable caution in the belief’ that the action taken was appropriate?
Thus, in determining whether Sgt. Baker’s pat down search of Jeremy was justified, one must determine whether Sgt. Baker had objective grounds for believing that Jeremy posed a risk of danger to himself or others. At this juncture, the parties, while both pointing to the same language in Terry, urge differing interpretations of that language. The language at issue is:
Our evаluation 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 search 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 armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief*661 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 unpartieularized suspicion or “hunch,” but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.
Jeremy reads this language as requiring a finding by the court that the prospective friskee is both armed and dangerous. On the other hаnd, the State contends that an individual need not be shown to be both armed and dangerous in order to justify a pat down for weapons. According to the State, if a person is armed, he is sufficiently dangerous to justify a pat down search. In support of its position, the State cites Pennsylvania v. Mimms,
Jeremy argues that a person must both be armed and dangerous before a pat down search can be made, while the State argues that a person need only be armed in order to perform such a search. Neither side has grasped the essence of Terry. A person can be armed without posing a risk of danger. On the other hand, a person can be dangerous, without apparently being armed. The primary concern of the Supreme Court in Terry and its progeny, including Mimms, was to protect the safety of officers аnd others from harm when dealing with a person who may pose a risk. As the Terry court put it, “where nothing in the initial stages of the encounter serves to dispel [the officer’s] reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.”
Our inquiry then is to determine whether it was objectively reasonable for Sgt. Baker to conclude a pat down search was necessary for the protection of himself or others. The record in this ease does not disclose that Sgt. Baker pointed to specific and articulable facts that would reasonably warrant a search for weapons. At the suppression hearing, Sgt. Baker testified to two reasons why he frisked Jeremy: he was acting nervous and he had admitted having a knife. This, during what the State argues was a consensual encounter in which Jeremy was not in any way acting threatening or dangerous, but indeed, aсcording to Sgt. Baker’s testimony, was “cooperative” and “polite.” Sgt. Baker characterized their conversation as “friendly” and “congenial.” He had known Jeremy for several years and never had a combative experience with him.
Nor did Sgt. Baker articulate any furtive movements or behavior from which a person in Sgt. Baker’s position could reasonably conclude Jeremy posed any risk. Jeremy made no suspicious movements for his pockets or other area from which a weapon might be readily retrieved. See and compare United States v. Davis,
The State argued that Jeremy’s admission to carrying a knife was, by itself, sufficient to create in the officer a reasonable belief that Jeremy posed a safety risk. Sgt. Baker testified that “[ojnce a person tells me they’re in possession of a weapon, it compromises my safety.” To be sure, Jeremy’s admission established that he had a knife of some sort. And we are mindful of the substantial risk our peace officers face while in the field. However, Sgt. Baker did not testify to any fact that demonstrated Jeremy presented a potential threat to him or others and, in fact, acknowledged that Jeremy was in no way threatening to him.
This Court defers to the factual findings of the district court unless those findings are clearly erroneous. Therefore, we must review the facts that the district court relied upon to reach its conclusion. While considering the propriety of the search, the court found: “Upon learning that the defendant had a knife on his person, and the continued nervous behavior exhibited by the defendant, the officer felt that his safety had been compromised аnd he proceeded to search the defendant for weapons.” Thus, the court, after reviewing the evidence, found that Jeremy had told Sgt. Baker he had a knife, that Jeremy exhibited continued nervous behavior, and that Sgt. Baker felt his safety had been compromised, and determined that such facts justified the search. The first two findings have some support in the record and we will not second guess them. However, the finding that Sgt. Baker “felt” his safety had been compromised is flawed for two reasons — it is not supported by Sgt. Baker’s testimony and it аppears to be based on a subjective standard. The only evidence upon which the court could have based Sgt. Baker’s feeling that his safety had been compromised was Jeremy’s nervousness and the officer’s statement that “once a person tells me they’re in possession of a weapon, it compromises my safety.” However, this does not constitute the type of specific and articulable fact necessary to justify initiating a search under Terry. Sgt. Baker did not particularize this general statement to Jеremy, a person who had never given him any trouble, and he testified to an amiable, non-threatening consensual encounter.
The district court based its determination that Sgt. Baker was justified in initiating the weapons search upon a subjective feeling attributed to Sgt. Baker rather than a determination as to “whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry,
The evidence obtained during the search should have been suppressed. The district court’s order denying Jeremy’s motion to suppress is reversed and Jeremy’s conviction is vacated. This case is remanded for proceedings consistent with this opinion.
Notes
. Sgt. Baker said he had been to situations where Jeremy had been in altercations but did not elaborate and did not say Jeremy had ever been involved in аn altercation with a police officer.
Concurrence Opinion
Concurring in the Result.
Under the Fourth Amendment to the Constitution of the United States, a search must be reasonable under the totality of the circumstances. Samson v. California, — U.S. —,
A temporary seizure for the purpose of questioning (a Terry stop) is justifiable under the Fourth Amendment if the officer has a reasonable, articulable suspicion that the person has committed or is about to commit a crime. Florida v. Royer,
In Pennsylvania v. Mimms, the officer stopped the vehicle being driven by Mimms for an expired license plate. He told Mimms to get out of the car and produce his owner’s card and operator’s license. When Mimms alighted from the car, the officer noticed a large bulge under Mimms’s sports jacket. Fearing that it might be a weapon, the officer frisked Mimms and found a loaded revolver in his waistband. Upon seeing the bulge, the officer was authorized to frisk Mimms without having to eliminate the possibility that Mimms was armed but not dangerous. As the Supreme Court stated, “The bulge in the jacket permitted the officer to conclude that Mimms was armed and thus posed a serious and present danger to the safety of the officer.” Id. at 112,
He [the officer] had observed Terry, together with Chilton and another man, acting in a manner he took to be preface to a “stick-up.” We think on the facts and circumstances Officer McFadden detailed before the trial judge a reasonably prudent man would have been warranted in believing petitioner was armed and thus presented a threat to the officer’s safety while he was investigating his suspicious behavior. The actions of Terry and Chilton were consistent with McFadden’s hypothesis that these men were contemplating a daylight robbery which, it is reasonable to assume, would be likely to involve the use of weapons....
The pat down in the instant case occurred during a police-initiated, consensual encounter between Henage and the officers. The officers were not detaining Henage bеcause they possessed a reasonable, articulable suspicion that he had committed or was about to commit any crime. In my opinion, that changes the balancing of the degree to which the pat down intrudes upon an individual’s privacy with the degree to which it is needed for the promotion of legitimate governmental interests. Under the totality of the circumstances in this case, Henage’s statement that he had a knife in his pocket did not justify a pat down search. No reasonable person could havе concluded, under the circumstances in this case, that Henage posed a danger to the officers.
Concurrence Opinion
Specially Concurring.
In the aftermath of the reality of Henage possessing drugs it is tempting to find a rationalization for justifying the search. However, wrapped around the overlays of Terry interpretation is a simple concept of personal privacy and security. Once the traffic stop was completed and Henage was free to leave, this encounter was no different from any person going to work or shopping or using leisure time. A police officer may, of course, talk to people and may ask questions. That does not mean the encounter can be escalated into a search without a reasonable belief that the person poses a danger. Standing outside the entrance to a corporate office or a shopping mall and asking the employees or customers who enter if they have contraband or a knife, or anything else that might be used as a weapon would probably yield a fair number of affirmative answers. One can only speculate how many men, women and children carry a knife, or pocket knife, or fingernail file or a pair of scissors, or permitted concealed weapon. While the question may be asked, an honest answer in the affirmative does not lead to the conclusion that the person may be searched absent an objectively reasonable belief that the person poses a danger. Special exceptions to a warrant requirement for a search have been drawn. This is not one of them.