State v. Evans

618 N.E.2d 162, 67 Ohio St. 3d 405

Opinions

Moyer, C.J.

In determining whether defendant’s constitutional rights were violated, we must consider two issues arising under the Fourth Amendment. First, having lawfully detained defendant for a traffic violation, did the police officers have the authority to conduct a pat-down search of defendant’s body after ordering him out of his car? Second, if the officers had legal authority to search defendant, did they exceed the permissible scope of that pat-down search for weapons?

I

The propriety of the initial stop of defendant’s vehicle cannot be reasonably disputed under the facts of this case. The officers’ suppression hearing testimony, indicating that defendant was pulled over because of a burned-out headlight, is uncontroverted and served as the lawful basis for the stop. The focus of our inquiry, therefore, is on the officers’ request that defendant step out of the vehicle and on the ensuing pat-down search for weapons.

The United States Supreme Court, in Pennsylvania v. Mimms (1977), 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331, held that a police officer may order a motorist to get out of a car, which has been properly stopped for a traffic violation, even without suspicion of criminal activity. What is now referred to as a “Mimms order” was viewed by the court as an incremental intrusion into the driver’s personal liberty which, when balanced against the officer’s interest in protection against unexpected assault by the driver and against accidental injury from passing traffic, is reasonable under the Fourth Amendment. In this regard, the court stated:

“ * * * We think this additional intrusion can only be described as de minimis. The driver is being asked to expose to view very little more of his person than is already exposed. The police have already lawfully decided that the driver shall be briefly detained; the only question is whether he shall spend that period sitting in the driver’s seat of his car or standing alongside it. Not only is the insistence of the police on the latter choice not a ‘serious intrusion upon the sanctity of the person,’ but it hardly rises to the level of a ‘ “petty indignity.” ’ Terry v. Ohio [ (1968), 392 U.S. 1, 17, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889, 903], What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer’s safety.” Pennsylvania v. Mimms, 434 U.S. at 111, 98 S.Ct. at 333, 54 L.Ed.2d at 337.

Other courts have relied on Mimms in holding constitutional a police officer’s additional order that the driver be seated in the patrol car. See State v. Mertz (N.D.1985), 362 N.W.2d 410, 413, where the Supreme Court of North Dakota held that this “additional increment of intrusion” into a driver’s personal liberty “does not outweigh public-policy concerns for the safety of police officers and in North Dakota, with its varying weather conditions, concerns for the protection of both the officer and driver.” See, also, United States v. Manbeck (C.A.4, 1984), 744 F.2d 360, 377-378.

Mimms merely dispenses with the requirement that the police officer possess reasonable suspicion of criminal activity before the officer may order the driver out of an already lawfully stopped vehicle. Accordingly, the ordering of defendant to get out of his car was proper even if the officers were unable to articulate a reasonable suspicion which prompted this action.

Contrary to the lower court’s opinion, the order to step out of the vehicle is not a stop separate and distinct from the original traffic stop. It is so minimal and insignificant an intrusion that the Mimms court refused to apply the requirements for an investigatory stop. Unlike an investigatory stop, where the police officer involved “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion,” Terry v. Ohio (1968), 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906, a Mimms order does not have to be justified by any constitutional quantum of suspicion.

We turn now to the propriety of a police officer’s pat-down search for weapons — a search governed by the dictates of Terry v. Ohio,, supra. Under Terry, a limited protective search of the detainee’s person for concealed weapons is justified only when the officer has reasonably concluded that “the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others * * Id. at 24, 88 S.Ct. at 1881, 20 L.Ed.2d at 908. Justice Harlan’s concurring opinion in Terry emphasizes that “the right to frisk must be immediate and automatic” where the lawfully stopped detainee is under suspicion for a crime of violence. Id. at 33, 88 S.Ct. at 1886, 20 L.Ed.2d at 913. “The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence * * Adams v. Williams (1972), 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 617. “Where a police officer, during an investigative stop, has a reasonable suspicion that an individual is armed based on the totality of the circumstances, the officer may initiate a protective search for the safety of himself and others.” State v. Bobo (1988), 37 Ohio St.3d 177, 524 N.E.2d 489, paragraph two of the syllabus.

A Mimms order does not automatically bestow upon the police officer the authority to conduct a pat-down search for weapons. In analyzing the ensuing Terry frisk, the question we must ask is whether, based on the totality of the circumstances, the officers had a reasonable, objective basis for frisking defendant after ordering him out of the car. See State v. Andrews (1991), 57 Ohio St.3d 86, 565 N.E.2d 1271. “The touchstone of our analysis under the Fourth Amendment is always ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ ” Mimms, supra, 434 U.S. at 108-109, 98 S.Ct. at 332, 54 L.Ed.2d at 335, quoting Terry, supra, 392 U.S. at 19, 88 S.Ct. at 1878-1879, 20 L.Ed.2d at 904.

The transcript of the suppression hearing reveals that the officers’ actions were motivated by two possible concerns: (1) the information received from the radio broadcast, and (2) the defendant’s failure to properly identify himself by producing his driver’s license.¹ Officer Green agreed -with defense counsel on cross-examination that the request to defendant to step out of the car and the frisk were the result of what he had heard from the police dispatcher. On redirect, however, Officer Green stated that these actions were taken because defendant’s inability to produce a driver’s license meant that the officers had to place him in the back seat of the patrol car. The apparent inconsistency was later clarified for the fact finder by Officer Green’s testimony that both concerns prompted his actions.

Next to testify was Officer Travano. According to his suppression hearing testimony, after defendant was ordered out of the car, he was patted down as an incident to his failure to produce a driver’s license. The officers wanted to run defendant’s name through the computer to verify the existence of his driver’s license as well as ascertain the car owner’s identity. Officer Travano further stated that the protective search was conducted because he wanted to be sure that defendant did not possess weapons while being detained in the patrol car. Officer Travano stressed that defendant was searched on this basis alone. The radio broadcast, according to his testimony, was not the motivating reason for either asking defendant to get out of his vehicle or the pat-down protective search for weapons.

We recognize that one of the realities of police work is that an officer’s conduct is not always guided by a single objective. An additional motive, later determined to be improper, will not taint an otherwise lawful search. Here, the officers’ pat-down search of defendant was in accordance with standard police procedure which dictates that protective measures be taken before a person is to be held in the back seat of a squad car. A determination as to the reasonableness of a particular police procedure depends “on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” United States v. Brignoni-Ponce (1975), 422 U.S. 873, 878, 95 S.Ct. 2574, 2579, 45 L.Ed.2d 607, 614-615. Certainly, it is reasonable that the officer, who has a legitimate reason to so detain that person, is interested in guarding against an ambush from the rear. “A court reviewing the officer’s actions must give due weight to his experience and training and view the evidence as it would be understood by those in law enforcement.” Andrews, supra, 57 Ohio St.3d at 88, 565 N.E.2d at 1273.

We, therefore, find that the police officers’ proffered justification in patting down the driver — their own personal security — is legitimate. When balanced against the driver’s minimal privacy interests under these circumstances, we can only conclude that the driver of a motor vehicle may be subjected to a brief pat-down search for weapons where the detaining officer has a lawful reason to detain said driver in the patrol car. Terry wisely instructs that “it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” Terry, 392 U.S. at 23, 88 S.Ct. at 1881, 20 L.Ed.2d at 907. The state’s obligation not to violate the individual’s Fourth Amendment rights does not command that the police officer forsake reasonable precautionary measures during the performance of his duties.

The court of appeals, however, held that the police officers’ search of defendant’s person was unlawful because their actions were motivated solely by what was relayed to them on the radio broadcast. We disagree. Officer Travano testified contrary to this position. The testimony of Officer Green, while at times inconsistent, can hardly be interpreted with the court of appeals’ degree of certainty. It is well to note that only the trier of fact, who is in the unique position to observe a witness face-to-face, can make such factual inferences as elusive as the witnesses’ subjective motives. According to one expert on communication techniques for trial attorneys, ninety percent of the total meaning of testimony is interpreted through nonverbal behavior, such as voice inflection, hand gestures, and the overall visual demeanor of the witness. The witnesses’ choice of words accounts for only ten percent of the meaning of their testimony. Rasicot, New Techniques for Winning Jury Trials (1990) 28-29. Therefore, nonverbal information, incapable of being transcribed into the record by the court stenographer, significantly influences the fact finder’s determinations. After reviewing the police officers’ suppression hearing testimony, we find that the court of appeals’ position cannot be maintained. The record is simply not as unequivocal as the appellate court believed.

Alabama v. White (1990), 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301, heavily relied on by the court of appeals in reversing defendant’s conviction, presents facts bearing some resemblance to the facts of the case sub judice. Both cases concern a police officer’s reliance on tips given by an anonymous informant involving drugs. However, unlike the case sub judice where defendant’s car had already been lawfully stopped for a traffic violation, the anonymous tip in White formed the basis for stopping a car being driven by the defendant. In White, an anonymous individual phoned the police department and informed it that “Vanessa White” would be leaving a certain apartment at a particular time. She would be driving a brown Plymouth station wagon with a broken right taillight lens to a specific motel with about an ounce of cocaine in her possession. Police arrived at the designated apartment, observed a woman get in the station wagon, and then followed her as she drove the most direct route to the motel identified by the caller. Police stopped the vehicle just short of its destination and informed White that she had been stopped for suspected cocaine possession. After White consented to the search of the vehicle, the officers discovered cocaine and marijuana.

The issue in White was whether the anonymous tip exhibited sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop. In resolving this issue, the court applied the “totality of the circumstances” approach (which had been adopted as a test for probable cause in Illinois v. Gates [1983], 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527)² to decisions involving the less demanding standard of reasonable suspicion. The court observed that, under the facts of the case, “significant aspects of the informer’s predictions” had been independently corroborated by the police in the course of following the defendant. Alabama v. White, 496 U.S. at 332, 110 S.Ct. at 2417, 110 L.Ed.2d at 310. This “imparted some degree of reliability to the other allegations made by the caller.” Id. The court observed that the anonymous informant’s tip under this set of facts generated reasonable suspicion because the informant was able to accurately predict White’s “future behavior.”³ (Emphasis sic.) Id.

The court of appeals’ reliance on White is misplaced. Initially, it is important to emphasize that the court in White did not depart from its well-established “totality of the circumstances” test. White does not establish a categorical rule conditioning a Terry stop (when police are acting on an anonymous tip) on corroboration of predictive information. The critical inquiry is more broadly focused on the existence of reasonable suspicion, as the following language from White indicates:

“Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors— quantity and quality — are considered in the ‘totality of the circumstances — the whole picture]’ ” White, 496 U.S. at 330, 110 S.Ct. at 2416, 110 L.Ed.2d at 309.

Unlike the defendant in White, Evans was subjected to a stop because of a traffic violation. The police officers’ testimony at the suppression hearing clearly reveals that they were authorized to stop defendant’s car because they witnessed him driving with only one operable headlight, a violation of R.C. 4513.04. Since the reason for the traffic stop was a violation of traffic laws, the court of appeals erred in finding White was the controlling authority.

Even if we were to draw the same factual inferences from the officers’ suppression hearing testimony as did the court of appeals — that the pat-down search was motivated solely by the information received by the radio broadcast— we would conclude that a rational trier of fact could find that the officers had a reasonable suspicion to justify a Terry search. Here, a routine and innocuous stop for an equipment violation turned into a situation fraught with danger. While speaking to defendant in regard to the burned out headlight, both officers received a message over their portable radios that a person fitting defendant’s description — a male wearing a red Reebok jogging suit and driving westbound on Glynn Road in a gray Datsun 280Z — had participated in a drug transaction. Being in close proximity to the officers, defendant may have even been alerted by this information. Because these details of the anonymous tip were corroborated by what the police officers had already observed, they were justified in suspecting that the remainder of the broadcast’s information was accurate as well — namely, that defendant had been involved in a drug deal. “[Reasonable suspicion can arise from information that is less reliable than that required to show probable cause.” White, 496 U.S. at 330, 110 S.Ct. at 2416, 110 L.Ed.2d at 309. In this regard, we observe that while this anonymous informant’s tip may not provide a sufficient basis either to arrest or to stop a car lawfully driven, it is certainly reliable enough to justify a pat-down search for weapons. The right to frisk is virtually automatic when individuals are suspected of committing a crime, like drug trafficking, for which they are likely to be armed. See State v. Williams (1990), 51 Ohio St.3d 58, 554 N.E.2d 108. See, also, United States v. Ceballos (E.D.N.Y.1989), 719 F.Supp. 119, 126: “The nature of narcotics trafficking today reasonably warrants the conclusion that a suspected dealer may be armed and dangerous.”

The court of appeals’ opinion implies that a critical factor in determining whether the officer had reasonable suspicion that the detainee was armed is whether the officer is in fear for his or her safety. We disagree. The following language from United States v. Tharpe (C.A.5, 1976), 536 F.2d 1098, is on point:

“We know of no legal requirement that a policeman must feel ‘scared’ by the threat of danger. Evidence that the officer was aware of sufficient specific facts as would suggest he was in danger satisfies the constitutional requirement. Terry cannot be read to condemn a pat-down search because it was made by an inarticulate policeman whose inartful courtroom testimony is embellished with assertions of bravado, so long as it is clear that he was aware of specific facts which would warrant a reasonable person to believe he was in danger. Under the familiar standard of the reasonable prudent man, no purpose related to the protective function of the Terry rule would be served by insisting on the retrospective incantation T was scared.’

“Some foolhardy policemen will never admit fear. Conversely, reliance on such a litany is necessarily prone to self-serving rationalization by an officer after the fact. It would be all too easy for any officer to belatedly recite that he was scared in situations where he neither had any reason to be scared, nor was indeed seared. * * * ” United States v. Tharpe, supra, 536 F.2d at 1101, overruled on other grounds, United States v. Causey (C.A.5, 1987), 834 F.2d 1179.

Therefore, had the radio broadcast been the sole reason behind the officer’s pat down of defendant, the limited search would have been lawful and evidence subsequently discovered would not be subject to the sanction of the exclusionary rule.

II

Our final task concerns the scope of the pat down conducted by the police. Because the court of appeals held that the officers did not have the authority to frisk defendant for weapons, it did not answer that question. As we have held the officers were entitled to pat down defendant for weapons, we must address this issue.

Under Terry and its progeny, the police may search only for weapons when conducting a pat down of the suspect. “A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation. * * * Thus it must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby * * Terry, 392 U.S. at 25-26, 88 S.Ct. at 1882, 20 L.Ed.2d at 908. The protective pat down under Terry is limited in scope to this protective purpose and cannot be employed by the searching officer to search for evidence of crime.⁴ See Adams, supra, 407 U.S. at 146, 92 S.Ct. at 1923, 32 L.Ed.2d at 617. Obviously, once the officer determines from his sense of touch that an object is not a weapon, the pat-down frisk must stop. The officer, having satisfied himself or herself that the suspect has no weapon, is not justified in employing Terry as a pretext for a search for contraband. The specific question raised by the facts of this appeal concerns what future actions are permissible under Terry if the searching officer is unable to determine from the pat down that the suspect is not carrying a weapon.⁵

In answering this question, it is important first to emphasize that Terry does not require that the officer be absolutely convinced that the object he feels .is a weapon before grounds exist to remove the object. At the same time, a hunch or inarticulable suspicion that the object is a weapon of some sort will not provide a sufficient basis to uphold a further intrusion into the clothing of a suspect. When an officer removes an object that is not a weapon, the proper question to ask is whether that officer reasonably believed, due to the object’s “size or density,” that it could be a weapon. 3 LaFave, Search and Seizure (2 Ed.1987) 521, Section 9.4(c).

“Under the better view, then, a search is not permissible when the object felt is soft in nature. If the object felt is hard, then the question is whether its ‘size or density’ is such that it might be a weapon. But because ‘weapons are not always of an easily discernible shape,’ it is not inevitably essential that the officer feel the outline of a pistol or something of that nature. Somewhat more leeway must be allowed upon ‘the feeling of a hard object of substantial size, the precise shape or nature of which is not discernible through outer clothing,’ which is most likely to occur when the suspect is wearing heavy clothing.” (Footnotes omitted.) Id. at 523.

Officer Travano testified that, upon patting down defendant, he discovered a “large bulk” in the left front pocket which “felt like a rock substance.” The following dialogue occurred between the officer and the defense attorney on cross-examination:

“Q. There was no question there wasn’t a weapon?

“A. At the time, to be honest with you, I didn’t know due to the fact of the big wad because he had like a thousand some dollars on him all in the same pocket.

“Q. But what I am saying is, when you felt his pocket, you knew it wasn’t a gun, didn’t you?

“A. Yes, I knew it wasn’t a gun.

“Q. And it would be accurate to say you knew it wasn’t a knife?

“A. I couldn’t say that because I’ve seen knives come in all shapes and sizes.”

We conclude that Officer Travano acted within the scope of Terry in reaching into defendant’s pocket to retrieve the object because it was reasonable for him to believe the object could be a weapon. Here, through his sense of touch as well as his experience on the police force, Officer Travano was unable to conclude that the object was not a knife or other weapon. “If by touch the officer remains uncertain as to whether the article producing the bulge might be a weapon, he is entitled to remove it.” United States v. Oates (C.A.2, 1977), 560 F.2d 45, 62 (removal of an overstaffed wallet justified when the officer could not determine what caused the bulge by feeling it through defendant’s outer clothing). Accordingly, we hold that when an officer is conducting a lawful pat-down search for weapons and discovers an object on the suspect’s person which the officer, through his or her sense of touch, reasonably believes could be a weapon, the officer may seize the object as long as the search stays within the bounds of Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. In this case, what later was discovered to be a large wad of money and a little packet of crack cocaine was of such size and density that a reasonable officer could not discount the possibility that it was a weapon. Officer Travano stayed within the proper bounds of a Terry-type search.

Our holding today does not authorize the removal of a soft object that the officer knows or reasonably should know is not itself a weapon on the grounds that it may contain a small weapon such as a razor blade. “ ‘[Sjomething of the size and flexibility of a razor blade could be concealed virtually anywhere, and accordingly provide the pretext for any search, however thorough.’ ” (Footnote omitted.) 3 LaFave, Search and Seizure (2 Ed.1987) 522, Section 9.4(c). Such a police procedure would, therefore, be impermissible under Terry because it would be tantamount to allowing the more intrusive search incident to custodial arrest to be made without reasonable grounds to arrest.

For the foregoing reasons, we reverse the judgment of the court of appeals and remand the cause to the trial court for reimposition and execution of the original sentence.

Judgment reversed and cause remanded.

Douglas, Resnick and F.E. Sweeney, JJ., concur. A.W. Sweeney, Wright and Pfeifer, JJ., dissent.

Footnotes

1

. Pursuant to R.C. 4507.35, police have the authority to request a driver of a lawfully stopped motor vehicle to display a driver’s license or furnish satisfactory proof that he or she has such license. The provision also states that “[fjailure to furnish satisfactory evidence that such person is licensed under sections 4507.01 to 4507.30 of the Revised Code, when such person does not have his license on or about his person shall be prima-faeie evidence of his not having obtained such license.”

Violation of R.C. 4507.35 is currently punishable under R.C. 4507.99(F) as a misdemeanor of the first degree. Although an issuance of a citation for a minor misdemeanor is the general rule, R.C. 2935.26(A) explicitly authorizes the police officer to make an arrest under certain exceptional circumstances. One such circumstance, R.C. 2935.26(A)(2), occurs when the offender cannot or will not produce a satisfactory form of identification.

2

. Gates applied the “totality of the circumstances” approach to determine whether an ihformant’s tip established probable cause for the issuance of a search warrant. In abandoning the “two-pronged test” of Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and Spinelli v. United States (1969), 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, the United States Supreme Court, in Gates, nonetheless emphasized that the informant’s “veracity,” “reliability,” and “basis of knowledge” remain “highly relevant” in probable cause determinations. Gates, 462 U.S. at 230, 103 S.Ct. at 2328, 76 L.Ed.2d at 543.

3

. “ * * * What was important was the caller’s ability to predict respondent’s jfuture behavior, because it demonstrated inside information — a special familiarity with respondent’s affairs. . The genera] public would have had no way of knowing that respondent would shortly leave the building, get in the described car, and drive the most direct route to Dobey’s Motel. Because only a small number of people are generally privy to an individual’s itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual’s illegal activities. See [Illinois v. Gates, supra, 462 U.S.] at 245, 103 S.Ct. at 2336, 76 L.Ed.2d at 552-553. When significant aspects of the caller’s predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop.” (Emphasis sic.) White, supra, 496 U.S. at 332, 110 S.Ct. at 2417, 110 L.Ed.2d at 310.

4

. Terry states:

“Suffice it to note that such a search, unlike a search without a warrant incident to a lawful arrest, is not justified by any need to prevent the disappearance or destruction of evidence of crime. See Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777, 780 (1964). The sole justification of the search in the present situation 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.” 392 U.S. at 29, 88 S.Ct. at 1884, 20 L.Ed.2d at 910-911.

5

. We are aware of Minnesota v. Dickerson (1993), 508 U.S.-, 113 S.Ct. 2130, 124 L.Ed.2d 334, recently decided by the United States Supreme Court. While Dickerson and the case at bar both involve the reliability of the sense of touch of a police officer conducting a protective pat-down search, that is where the similarity ends. Dickerson answered the question whether police may enter a suspect’s pockets during the course of a Terry pat down on the basis of something other than a belief that the individual is carrying a weapon. Drawing an analogy to the plain view doctrine, the court held that police, conducting a lawful Terry-type search, may seize nonthreatening contraband when its incriminating nature is “immediately apparent” to the searching officer through his sense of touch. Id. at-, 113 S.Ct. at 2137, 124 L.Ed.2d at 345. In other words, the officer may not manipulate the object, which he has previously determined not to be a weapon, in order to ascertain its incriminating nature. This limitation on the “plain feel” exception to the warrant requirement of the Fourth Amendment ensures that police will search only within the narrow parameters allowed for a Terry-type search.

Dickerson has no relevance to circumstances, like the ones brought before our court, where personal safety is the reason behind the officer’s entering the suspect’s pocket. Operating under a reasonable belief that the object was a weapon, Officer Travano retrieved the large wad of money and packet of crack cocaine from the defendant’s pocket. Therefore, since Officer Travano removed this object in order to protect himself, the seizure cannot be struck down under Dickerson.