Griffin, Adam Troy

• Court: Court of Criminal Appeals of Texas
• Decided: February 14, 2007
• Docket: PD-1036-05
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1036-05 ADAM TROY GRIFFIN, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE TENTH COURT OF APPEALS

FALLS COUNTY

Hervey, J., delivered the opinion of the Court on rehearing in which Keller, P.J., Meyers, Womack, Johnson, Keasler, Holcomb and Cochran, JJ., joined. Price, J., not participating.

OPINION ON APPELLANT'S MOTION FOR REHEARING

Appellant has filed a motion for rehearing claiming that our opinion on original submission "is far too broad to satisfy Terry." He claims that this opinion is contrary to Fourth Amendment principles discussed in Richards v. Wisconsin ⁽¹⁾ by categorically labeling as possibly armed and dangerous all those actively engaged in selling drugs in public places for whom no objective and particularized showing of need to frisk (for weapons) is required under Terry. ⁽²⁾ Our opinion on original submission should not be read as lessening the requirements of Terry. And, the original analysis of whether the limited intrusion into appellant's personal security by Eskelin's pat-down of his outer pocket did not end upon a determination that Eskelin had reasonable suspicion to believe that appellant was dealing drugs in a public place. In considering whether Eskelin's pat-down of appellant's pocket was objectively reasonable, our original opinion also considered that appellant had been arrested for the same offense just two days before ⁽³⁾ and that he moved his hand toward his pocket during the investigative detention. See Griffin, slip op. at 10. Our opinion on original submission should not be characterized as holding that an objectively reasonable police officer may base a determination that his safety is in danger solely upon the basis that "the suspect is a drug dealer." ⁽⁴⁾

Appellant's motion for rehearing is denied.

Hervey, J.

Delivered: February 14, 2007

Publish

1. 520 U.S. 385 (1997).

2. For example, appellant argues in his motion for rehearing that the "correct interpretation of Terry is to require that officers base a determination that their safety is in danger upon more than the suspect is a drug dealer."

3. Our opinion on original submission also mentioned that Eskelin knew that appellant had been arrested "a day or two before." See Griffin v. State, S.W.3d , slip op. at 2 (Tex.Cr.App. No. PD-1036-05, delivered December 20, 2006). A reasonable police officer could believe that a suspect facing his second arrest on another felony drug charge in two days might be more likely to engage in violence to avoid this arrest.

4. We do note that Justice Harlan filed a separate concurring opinion in Terry suggesting that the majority opinion in Terry actually supports the proposition that "the right to frisk must be immediate and automatic if the reason for the stop is, as here, an articulable suspicion of a crime of violence." See Terry, 392 U.S. at 33 (Harlan, J., concurring). Justice Harlan also wrote that "[t]here is no reason why an officer, rightfully but forcibly confronting a person suspected of a serious crime, should have to ask one question and take the risk that the answer might be a bullet." See id. In another case handed down the same day as Terry, Justice Harlan filed a concurring opinion stating, "First, although I think that, as in Terry, the right to frisk is automatic when an officer lawfully stops a person suspected of a crime whose nature creates a substantial likelihood that he is armed, it is not clear that suspected possession of narcotics falls into this category. If the nature of the suspected offense creates no reasonable apprehension for the officer's safety, I would not permit him to frisk unless other circumstances did so." See Sibron v. New York, 392 U.S. 40, 74 (1968) (Harlan, J., concurring).