Summary
finding protective search justified where officers saw defendant push something under his seat after a traffic stop
Summary of this case from State v. MooreOpinion
No. 78-411
Decided December 7, 1978.
Criminal law — Search and seizure — Warrantless search — Limited search for weapons.
Where a police officer stops and approaches a motor vehicle at night for a traffic violation and sees the driver, while exiting the car, furtively conceal something under the front seat, a limited search of that area is reasonable for the purpose of the officer's protection. ( Terry v. Ohio, 392 U.S. 1; Adams v. Williams, 407 U.S. 143; Chinel v. California, 395 U.S. 752, controlling.)
APPEAL from the Court of Appeals for Cuyahoga County.
Testimony was given by two Cleveland police officers that while on routine patrol at approximately 3:40 a.m. on January 22, 1976, the officers observed a northbound brown and white station wagon run a red stop light at E. 65th and Wade Park Avenue. Officer Mark Lynch activated the patrol car's red zone light and the two officers pursued the vehicle for the purpose of issuing a traffic citation. Almost immediately, the station wagon pulled over. The patrol car pulled behind and slightly to the left of the vehicle. Both officers exited the car. As Officer Lynch approached the station wagon, the driver's door opened and the defendant-driver, Ilor H. Smith, turned sideways to alight, placing one foot out of the vehicle. As he did so, Officer Lynch observed the defendant push something under the front driver's side of the seat with his right hand. At this time, Officer Lynch was approximately six feet away from the driver.
The officer ordered the defendant out of the automobile, told him to move back to the second door of the station wagon, and to place his hands on top of the vehicle. Keeping a close eye on the defendant, Officer Lynch positioned himself in the open doorwell of the auto, outside the vehicle, and crouched down facing the defendant to survey the area toward which the defendant's prior suspicious conduct had been directed. At this point the officer observed the barrel portion of a weapon beneath the front driver's seat. Subsequent seizure revealed a fully loaded six-shot .357 Magnum Colt Trooper pistol with six inch barrel. The officers issued the defendant a traffic citation for the stoplight violation and arrested him for carrying a concealed weapon in violation of R.C. 2923.12.
The defendant moved to suppress the weapon on the ground that it was the product of an illegal search. The motion was overruled and the defendant, following a plea of no contest, was subsequently convicted of carrying a concealed weapon.
The defendant appealed, alleging that the trial court erred by denying the motion to suppress. The Court of Appeals agreed, and accordingly reversed the conviction and ordered the defendant discharged.
This cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. John T. Corrigan, prosecuting attorney, and Mr. George J. Sadd, for appellant.
Mr. Edgar H. Boles, for appellee.
The only issue before this court is whether the officer's search and seizure of the weapon located beneath the driver's seat constituted an unreasonable, and therefore unlawful, search and seizure, in violation of the Fourth and Fourteenth Amendments to the United States Constitution, so as to require suppression of the weapon from introduction in evidence. Mapp v. Ohio (1961), 367 U.S. 643.
The Fourth Amendment prohibits only those searches and seizures which are unreasonable. Harris v. United States (1947), 331 U.S. 145. Searches conducted outside the judicial process, without a warrant, are per se unreasonable, subject to a few specifically established exceptions. Katz v. United States (1967), 389 U.S. 347, 357. One of these exceptions is set forth in Terry v. Ohio (1968), 392 U.S. 1, which this court now holds governs this appeal.
In Terry, the court was concerned with striking a balance between the safeguarding of a person's right to be free from unreasonable searches and seizures and protecting a police officer from bodily harm and preventing and deterring crime where there is less than probable cause to make an arrest and conduct a full incidental search of a suspect. The court found, at page 27, that the proper balance must "permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." An officer may therefore initiate a protective search when his suspicions are reasonably aroused.
The permissible scope of such a search is stated by the court, at pages 25 and 26, as follows:
"A search for weapons in the absence of probable cause to arrest * * * 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, and may realistically be characterized as something less than a `full' search, even though it remains a serious intrusion."
In Adams v. Williams (1972), 407 U.S. 143, at page 146, the court restated the permissible scope of a Terry-type search:
"* * * So long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose."
Although Terry and Adams involved intrusions of one's person, the policy which justified an incidental and limited search of the person likewise permits an officer to conduct a restricted protective search of an area where suspicious conduct is observed. We would be hard pressed to explain how an officer may stop and frisk an individual under the authority of Terry where suspicious movements give rise to reasonable fears, yet not allow the officer a limited inspection of the same location where the movement was sighted which aroused the fear that justified the stop and frisk. The United States Supreme Court stated in Chimel v. California (1969), 395 U.S. 752, at page 763, in the context of a search incident to an arrest, that:
In support of this proposition, see: Commonwealth v. Silva (1974), 366 Mass. 402, 318 N.E.2d 895; State v. Wausnock (Del. 1973), 303 A.2d 636; United States v. Thomas (D.C.App. 1974), 314 A.2d 464; United States v. Green (C.A.D.C. 1972), 465 F.2d 620.
"* * * There is ample justification * * * for a search of the arrestee's person and the area `within his immediate control' — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence." The authority cited by the court to permit such area searches was Terry, based on its holding that searches motivated and limited by the objective of protection are reasonable.
Our inquiry must, therefore, be twofold: whether the search and seizure of the weapon was initiated under justifying circumstances, and if so, did the scope of the search exceed permissible purposes?
The propriety of the officers' act of stopping the defendant for running a red light is not disputed. What began as an ordinary traffic violation, however, ceased to be routine when Officer Lynch observed the defendant's furtive movement under the front seat, a movement in apparent response to the officer's approach. The fact that Officer Lynch apprehended possible danger is indicated by the precautionary actions he took. The defendant was ordered to get out of the vehicle and place his hands atop the station wagon by the side rear door. The officer also positioned himself so as to carefully observe the defendant while he, the officer, checked the area of the suspicious movement.
Subjective fear is not sufficient though. An officer's concern must be reasonable; i.e., "it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or search `warrant a man of reasonable caution in the belief' that the action taken was appropriate? * * *" Terry, supra, at pages 21-22.
A consideration of the totality of facts leads this court to find that the officer's search was reasonably initiated. The confrontation occurred at approximately 3:40 a.m. in an area apparently alluded to by the trial court as being unsafe. In this setting Officer Lynch observed the suspicious movement of the defendant, in combination with the defendant's seeming attempt to remove himself from the vehicle, and the vicinity of the weapon, on his own initiative. The law does not require that an officer wait until the point of peril to take protective action. It is sufficient that he has a reasonable basis to believe that his safety requires a search or seizure. The search was thus proper at its inception.
Indeed, we believe these facts would be sufficient to establish probable cause to conduct such a search, a higher standard than need be met under Terry, supra. Carroll v. United States (1925), 267 U.S. 132; State v. Kessler (1978), 53 Ohio St. 204.
The second and final inquiry is whether the search, proper in its inception, exceeded permissible bounds. Based on Terry, Adams and Chimel, supra, we believe that it did not. The officer's search was narrowly confined to the area toward which the defendant's suspicious conduct was directed. The fact that this involved a restricted search of the vehicle rather than the defendant's person does not make the search unreasonable in scope. An accessible weapon presents no less danger to an officer when located in close proximity to, rather than on, a suspect. As the search was properly circumscribed by the officer's purpose to proceed with business without fear of danger to his safety, this court finds that the search and seizure of the weapon was reasonable in its inception and scope, and therefore consistent with the protections guaranteed by the Fourth and Fourteenth Amendments.
For reasons stated herein, the judgment of the Court of Appeals is hereby reversed.
Judgment reversed.
LEACH, C.J., HERBERT, CELEBREZZE, W. BROWN, SWEENEY and LOCHER, JJ., concur.