State v. Rhodes

788 P.2d 1380, 1990 WL 11152

• Court: Court of Criminal Appeals of Oklahoma
• Decided: February 21, 1990
• Docket: S-89-614
• Status: Published

Opinions

OPINION

PARKS, Presiding Judge:

On November 8, 1988, Tulsa Police Officer Brian Comfort pulled over a Chevy Blazer for failure to signal a right hand turn. As Officer Comfort approached the vehicle, he recognized it as the same Blazer which he had attempted to stop about two weeks earlier. At that time, Officer Comfort had pulled the Blazer over on a routine traffic stop when he noticed inside the vehicle, laying in plain view, empty holsters and shotgun holders. However, during that traffic stop, the Blazer took off and eluded him.

Based on the previous incident, Officer Comfort had the appellee, who was driving the Blazer, step out and stand at the rear of the vehicle for a pat-down search. The officer realized that appellee was not the same driver of the earlier incident, but he was still concerned that appellee might have a weapon. The appellee’s hands were placed on the roof of the Blazer and Officer Comfort started the search at the arms, moving down the body.

During this search, the appellee moved his right hand from the roof and reached into, or in toward the inner left breast pocket of his jeans. Thinking that the ap-pellee was reaching for a weapon, Officer Comfort grabbed appellee’s hand and placed it back on the roof of the Blazer. The officer then reached inside the appel-lee’s jacket to pat the pocket. While doing so, Officer Comfort heard a crinkling sound that resembled a plastic baggie. He also felt some small, hard, round objects.' Figuring the objects to be contraband, the officer reached inside the appellee’s jacket pocket and pulled out a small baggie which contained crack cocaine.

Appellee was charged in Tulsa County District Court, Case No. CF-88-4532, with Unlawful Possession of a Controlled Drug, Cocaine. A preliminary hearing was held on December 13, 1988. At the hearing, Special Magistrate Jesse Harris sustained the appellee’s demurrer and suppressed the evidence, ruling that Officer Comfort had no legal right to search the appellee’s pocket. The State appealed the ruling, and on January 3, 1989, a hearing was held before the Honorable Jay Dalton. At that hearing, Judge Dalton affirmed Judge Harris’s ruling, holding that Officer Comfort had exceeded the legal limitations for a search as set out in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Pursuant to 22 O.S.Supp.1987, § 1089.1, the State brings this appeal.

In its brief, the State agrees that war-rantless searches and seizures are per se unreasonable under the Fourth Amendment. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). However, the State argues that two exceptions are applicable in this case: exigent circumstances and plain view/plain touch. We disagree.

The scope of a “Terry pat-down” is and must be strictly limited to a search for offensive weapons. When in the course of a frisk the officer feels an object, he is not justified in seizing it unless it reasonably resembles an offensive weapon. Francis v. State, 584 P.2d 1359, 1363 (Okl.Cr.1978). See also Ricci v. State, 506 P.2d 601, 604 (Okl.Cr.1973). A review of the record reveals the following:

“THE COURT: Now, when you patted the outside of this inside pocket, and felt this plastic and'this crinkly material, did you think it was a weapon?

OFFFICER COMFORT: I didn’t think it was a weapon.”

(O.R.38).

Thus, once the officer ascertained that ap-pellee had no weapons on his person, his right to search him terminated and the warrantless search of the pocket was unlawful. See Neal v. State, 696 P.2d 508 (Okl.Cr.1985).

Therefore, the order of the Tulsa District Court is AFFIRMED.

LANE, V.P.J., and JOHNSON, J., concur. BRETT, J., concurs in results. LUMPKIN, J., dissents.