Summary
upholding protective search of defendant where officer knew defendant was a convicted felon who was under investigation for cocaine trafficking and it was the officer's experience that cocaine dealers normally carry weapons, even absent any obvious signs of carrying a weapon
Summary of this case from State v. BriggsOpinion
No. COA95-701
Filed 16 April 1996
Searches and Seizures § 82 (NCI4th) — lawfully detained vehicle — driver ordered to exit — no unreasonable search and seizure — reasonable grounds to believe driver armed and dangerous The Fourth Amendment's proscription of unreasonable searches and seizures was not violated when the police ordered defendant, the driver of a lawfully detained vehicle, to exit the vehicle; furthermore, the evidence could support a conclusion that the officer had reasonable grounds to believe the defendant might be armed and dangerous so that a "pat-down" of defendant for weapons was lawful, even though he was cooperative and presented no obvious signs of carrying a weapon, since defendant was a convicted felon, a fact known to the arresting officer; defendant was under investigation by the arresting officer for drug trafficking; and it was the officer's experience that cocaine traffickers "normally carry weapons."
Am Jur 2d, Searches and Seizures §§ 51, 78.
Law enforcement officer's authority, under Federal Constitution's Fourth Amendment, to stop and briefly detain, and to conduct limited protective search of or "frisk," for investigative purposes, person suspected of criminal activity — Supreme Court cases. 104 L.Ed.2d 1046.
Appeal by defendant from judgment entered 20 April 1995 in Scotland County Superior Court by Judge B. Craig Ellis. Heard in the Court of Appeals 21 February 1996.
Attorney General Michael F. Easley, by Assistant Attorney General Elizabeth Rouse Mosley, for the State.
Doran J. Berry and Ronnie M. Mitchell for defendant-appellant.
Judge SMITH dissenting.
Tony Ray McGirt (defendant) appeals from the trial court's order, denying his motion to suppress a gun found during a search of his person. After the trial court denied defendant's motion, defendant pled guilty to possession of a firearm by a felon, in violation of N.C. Gen. Stat. § 14-415.1, and carrying a concealed weapon, in violation of N.C. Gen. Stat. § 14-269.
It is undisputed that on 27 October 1994 at about 9:30 a.m., Deputy Tommy Butler (Butler) of the Scotland County Sheriff's Department stopped defendant, who was driving a vehicle on a public street, for failure to wear his seat belt. Butler testified at the suppression hearing that he "had been looking for [defendant's] vehicle the previous night" and was "conducting an investigation on [defendant] for cocaine trafficking." Butler knew, at the time, that defendant had prior felony drug convictions and in his experience knew that "cocaine traffickers normally carry weapons."
The trial court found that after stopping defendant for the seat belt violation, Butler asked defendant for his license, which defendant produced, and asked defendant to exit the vehicle. Defendant complied with Butler's request and exited the vehicle, at which point Butler asked defendant if he had anything on him. Defendant answered, "No," and raised his hands. Butler then frisked defendant and felt a hard object, which Butler believed to be a gun. Butler asked defendant to identify the object, to which defendant replied that it was a pistol and handed the .22 caliber pistol to Butler. At that point, Butler arrested defendant for carrying a concealed weapon and possession of a weapon by a felon.
The trial court then concluded as a matter of law that Butler had probable cause to stop defendant's vehicle, because of defendant's seat belt violation. The trial court further concluded that Butler possessed "reasonable grounds to ask the defendant to exit his car and had [a] reasonable articulable suspicion which gave him the right to pat down the defendant for weapons." Finally, the trial court concluded that the search did not violate defendant's statutory or federal or state constitutional rights. Accordingly, defendant's motion to suppress was denied.
The issues are (I) whether Butler had the authority to ask defendant to exit his car; and if so, (II) whether Butler had a right to "pat-down" defendant for weapons.
We first note that the stop of defendant's vehicle for a seat belt violation may have been pretextual and thus unconstitutional. State v. Morocco, 99 N.C. App. 421, 427, 393 S.E.2d 545, 548 (1990) (police may not make stops "merely on the pretext of a minor traffic violation"). The nature of the stop, however, has not been raised by the defendant as a basis to support his motion to suppress.
I
Assuming that the stop itself was lawful, did the officer have the authority to ask the defendant to exit the automobile? This requires a weighing of the interest of the State in the personal safety of the officer and the interest of the defendant against an intrusion into his personal liberty. Pennsylvania v. Mimms, 434 U.S. 106, 109-11, 54 L.Ed.2d 331, 336-37 (1977). Because face-to-face confrontations outside the automobile "reduce the likelihood that the officer will be the victim of an assault" and because exiting the automobile is not a "serious intrusion upon the sanctity of the person," the Fourth Amendment's proscription of unreasonable searches and seizures is not violated when the police order the driver of a lawfully detained vehicle to exit the vehicle. Id.
II
A routine traffic stop, as we have in this case, is similar to a street encounter for investigation and does not justify in every instance a protective search for weapons. "To allow the police to routinely search for weapons in all such instances would . . . constitute an 'intolerable and unreasonable' intrusion into the privacy of the vast majority of peaceable citizens who travel by automobile." 3 Wayne R. LaFave, Search and Seizure § 5.2(h), at 96 (3d ed. 1996) (quoting United States v. Robinson, 471 F.2d 1082 (D.C. Cir. 1972)). The police are, however, permitted to conduct a "pat-down" for weapons once the defendant is outside the automobile, and if the circumstances give the police reasonable grounds to believe that the defendant may "be armed and presently dangerous." Mimms, 434 U.S. at 112, 54 L.Ed.2d at 337; United States v. Robinson, 471 F.2d 1082, 1097 (D.C. Cir. 1972), rev'd on other grounds, 414 U.S. 218, 38 L.Ed.2d 427 (1973) (note 6, Court only addresses full custodial arrest situation); see Terry v. Ohio, 392 U.S. 1, 20-22, 20 L.Ed.2d 889, 905-06 (1968).
In this case, the evidence can support a conclusion that the officer had reasonable grounds to believe the defendant might be armed and dangerous. The evidence reveals: (1) defendant was a convicted felon and this was known to the arresting officer; (2) defendant was under investigation, by the arresting officer, for cocaine trafficking; and (3) it was the officer's experience that cocaine traffickers "normally carry weapons." The totality of these circumstances, even in the face of a cooperative defendant who presents no obvious signs of carrying a weapon, supports the conclusion of the trial court and thus its order denying the motion to suppress.
Although argued by the State as an alternative basis to support the order of the trial court, we do not reach the question of whether the defendant consented to the search, because the State asserts no cross-assignment of error to support that argument in this Court. N.C. R. App. P. 10(d).
Affirmed.
Judge LEWIS concurs.
Judge SMITH dissents.