State v. Luxem

324 N.W.2d 273, 1982 S.D. LEXIS 386

• Court: South Dakota Supreme Court
• Decided: September 8, 1982
• Docket: 13587
• Status: Published

Opinions

WOLLMAN, Justice.

This is an intermediate appeal by the State from orders granting defendants’ motions to suppress evidence. SDCL 23A-32-5(1). We reverse and remand.

While on patrol duty at approximately 5:30 p. m. on July 9, 1981, Hughes County Deputy Sheriff Charles Vollmer observed an automobile in the parking lot of an automobile body repair shop in the city of Pierre. Deputy Vollmer observed that four persons had left the vehicle and that the three males in the group had moved to the front of the vehicle and were attempting to open the hood. Deputy Vollmer drove around the block and came back to the scene inasmuch as he thought that the four might be having some trouble with their vehicle.

As he drove into the north entry of the parking lot, Deputy Vollmer observed that the four persons had re-entered the vehicle and that the vehicle was being backed in a southerly direction. As Deputy Vollmer entered the approach area in his patrol car the other vehicle stopped, whereupon Deputy Vollmer left his car and walked to the passenger side of the stopped vehicle and asked the driver if he and his passengers were having some problems with the vehicle. Defendant Luxem was seated behind the steering wheel and one Alfred Grud-niewski was sitting on the passenger side in the front seat. Defendants Wright and Walters were sitting in the rear seat of the vehicle.

In response to Deputy Vollmer’s question, Luxem and Mr. Grudniewski indicated that the vehicle was overheating and inquired regarding the closest place to get water for the radiator. Deputy Vollmer then engaged in a conversation with Luxem regarding various places where Luxem could obtain water for the vehicle. Luxem’s voice appeared to be slurred and he appeared to be having some difficulty with his speech, whereupon Deputy Vollmer asked Luxem for his driver’s license for the purpose of identifying him and ultimately asking him to perform some field sobriety tests.

After Luxem produced a driver’s license, Deputy Vollmer asked to see the registration for the vehicle. When Luxem started reaching for the glove box, Walters stated that he thought that the registration was located above Luxem’s head. After hesitating momentarily, Luxem continued to reach for the glove box and then rummaged through the glove box before looking to the sun visor above his head. After experiencing some difficulty in pulling the registration holder clip off the sun visor, Luxem handed Deputy Vollmer the entire clip. The vehicle was registered in the name of a woman whom Luxem later identified as his girlfriend.

During his conversation with Deputy Vollmer concerning the ownership of the vehicle, Luxem appeared to have some difficulty comprehending the questions; his voice was slurred, he mumbled somewhat, and his speech was not clear.

After being handed the registration form, Deputy Vollmer asked Luxem to step out of the vehicle. As Luxem complied with this request, he had difficulty with his balance. As Luxem left the vehicle, Deputy Vollmer noticed the butt end of a fold-up type knife protruding from the front left pocket of Luxem’s trousers. Concerned that the knife, the blade of which was in the locked-open position, might ultimately be used as a weapon, Deputy Vollmer, who was alone in the area, asked Luxem to put his hands on the vehicle. As Luxem did so, Deputy Vollmer removed the knife from Luxem’s pocket and asked Luxem to assume a spread-eagle position with his hands on the top of the automobile. Deputy Vollmer then conducted a pat search of Luxem’s body and made a visual inspection of the vehicle for any possible weapons that might be within it. As he did so, Deputy Vollmer observed a paper sack next to the passenger in the front seat. A search of the sack revealed that it contained only beer. Deputy Vollmer then asked Walters if he could look in the paper sack that was between Walters’ legs on the rear floor board of the vehicle. In response to this inquiry, Walters reached down and pushed the open sack away from Deputy Vollmer, folding the top over in the process so that Deputy Vollmer could not see the contents. Deputy Vollmer renewed his request, whereupon Walters picked the sack up from between his knees and moved it away from Deputy Vollmer towards defendant Wright’s side of the automobile. Deputy Vollmer then reached into the automobile and grabbed the sack as Walters moved it towards Ms. Wright. Upon opening the sack Deputy Vollmer observed a large plastic bag containing a brownish, leafy substance.

Deputy Vollmer testified that at the time he looked into the interior of the automobile he was concerned for his safety. He testified that it is not a usual occurrence to stop someone and find the person carrying in his pants pocket a fold-up knife with the blade in an unfolded position.

Defendants were subsequently charged with the offense of possession of marijuana in excess of one pound. The motion to suppress made by defendants Walters and Wright was granted by the-Honorable John B. Jones; the motion to suppress made by defendant Luxem was granted by the Honorable Robert A. Miller. The cases were consolidated for purposes of this appeal.

Both Judge Jones and Judge Miller relied upon Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981), as the basis for holding that the marijuana found in the paper sack in the rear seat should be suppressed. We disagree. Rather, we conclude that Deputy Vollmer had a reasonable basis for asking Luxem to step out of the vehicle to perform field sobriety tests, given the difficulties that Luxem was having in producing the registration for the vehicle and the difficulty he had in comprehending and responding to Deputy Vollmer’s questions. Once Deputy Vollmer became aware of the open knife in Luxem’s pants pocket, his concern for his personal safety constituted sufficient justification for him to make an immediate search of the interior of the automobile for other possible weapons. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). As we said in another case in which officers were searching the occupants of an automobile for possible weapons, “We will not require that the arresting officers in such a situation make nice calculations concerning the length of a suspect’s reach.” State v. Strickland, 87 S.D. 522, 527, 211 N.W.2d 575, 578 (1973). Although Deputy Vollmer had not placed the occupants of the vehicle under arrest before he made the search of the interior of the vehicle for weapons, we do not read Terry, Adams, and Mimms as requiring an arrest as a condition precedent to a search for weapons to protect the safety of the investigating officer.

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The orders suppressing the evidence are reversed, and the case is remanded to the circuit court for further proceedings.

MORGAN and HENDERSON, JJ., concur specially. FOSHEIM, C. J., and DUNN, J., dissent.

Because we are not here concerned with a search for contraband based upon probable cause, the United States Supreme Court’s recent decision in United States v. Ross, - U.S. -, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), and our recent decision in State v. Anderson, 316 N.W.2d 105 (S.D.1982), are not applicable.