Lockett v. State, 02S03-0004-CR-00232.

• Citation: 747 N.E.2d 539
• Case Date: May 21, 2001
• Court: Supreme Court of Indiana

747 N.E.2d 539

Geoffrey C. LOCKETT, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee

No. 02S03-0004-CR-00232.

Supreme Court of Indiana.

May 21, 2001.

747 N.E.2d 540

P. Stephen Miller, Fort Wayne, IN, Attorney for Appellant

Jeffrey A. Modisett, Attorney General of Indiana, Teresa Dashiell Giller, Deputy Attorney General, Rosemary L. Borek, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition To Transfer

DICKSON, Justice.

Charged with carrying a handgun without a license as a class C felony,¹ the defendant-appellant brought this interlocutory appeal challenging the denial of his motion to suppress the handgun seized by police during a routine traffic stop. The Court of Appeals reversed, finding that a police officer may not as matter of routine practice question about the presence of weapons during a traffic violation stop. Lockett v. State, 720 N.E.2d 762 (Ind.Ct. App.1999). We granted transfer and now affirm the trial court, holding that the Fourth Amendment does not prohibit police from routinely inquiring about the presence of weapons.

747 N.E.2d 541

On October 2, 1998, Fort Wayne Police Officer Jon Bonar, in uniform and driving a marked police squad car, observed a vehicle operated by the defendant, Geoffrey C. Lockett, turning without using a turn signal, making wide turns, driving at inconsistent speeds, and using the entire roadway. Believing that the driver might be impaired, Officer Bonar signaled to Lockett to pull over and walked up to the driver's side of Lockett's car. Two other persons were passengers, one in the right front seat and one in the rear seat. Lockett lowered his window and the officer noticed a strong odor of spilled alcohol. Pursuant to his usual routine, Officer Bonar asked Lockett for identification and asked whether Lockett had any weapons in the vehicle. The officer then requested that Lockett get out of the car for a sobriety check. Lockett did not respond to the weapons inquiry but simply handed the officer his identification and exited the car. As Lockett was stepping from the vehicle, the officer once again asked him whether he had any weapons on his person or in the vehicle. The defendant responded, "Yes, sir, underneath the driver's seat." Record at 59. Officer Bonar looked down and saw a handgun on the floor sticking out from under the driver's seat, and he took the weapon for his own safety. After unloading the handgun and placing it in the squad car, Officer Bonar returned and performed a pat-down search and a sobriety breath test of the defendant. Lockett was not arrested for driving while intoxicated but for driving with a suspended license, and for carrying a handgun without a license

The defendant's motion to suppress claimed that the search of his vehicle violated the Fourth Amendment to the United States Constitution and Article 1, Section 11, of the Indiana Constitution. In neither the motion nor the supporting brief did the defendant argue that the standard under the Indiana Constitution is different from that under the United States Constitution. On appeal from the denial of his motion, the defendant's only reference to the Indiana Constitution is his assertion that the officer's weapons inquiry "is a violation of the 5th and 4th amendments of the United States Constitution and of sections 11 and 14 of Article 1 of the Indiana Constitution." Appellant Br. at 7. Because the defendant presents no authority or independent analysis supporting a separate standard under the state constitution, any state constitutional claim is waived. Williams v. State, 724 N.E.2d 1093, 1097 n. 5 (Ind.2000); Brown v. State, 703 N.E.2d 1010, 1015 n. 4 (Ind.1998); Fair v. State, 627 N.E.2d 427, 430 n. 1 (Ind.1993). The defendant contends that Officer Bonar violated his right under the Fourth Amendment to be free from unreasonable search and seizure by asking, during a traffic stop, whether the defendant had any weapons. The defendant challenges only the officer's inquiry regarding weapons, not the officer's actions in initiating the traffic stop.

A traffic stop is more akin to an investigative stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), than a custodial arrest. Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317, 334 (1984). The United States Supreme Court in Terry stated the issue of unreasonableness of an investigative stop properly considers whether the officer's actions were "reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 19-20, 88 S.Ct. at 1879, 20 L.Ed.2d at 905. In Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), the Supreme Court observed that "an investigative detention must be temporary and last no longer than

747 N.E.2d 542

is necessary to effectuate the purpose of the stop" and that "the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time." Id. at 500, 103 S.Ct. at 1325-26, 75 L.Ed.2d at 238

In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), the United States Supreme Court, confronting a claim that a weapon was improperly seized during a routine traffic stop, explained:

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." Terry v. Ohio, 392 U.S. 1, 19[, 88 S.Ct. 1868, 20 L.Ed.2d 889] (1968). Reasonableness, of course, 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, 422 U.S. 873, 878[, 95 S.Ct. 2574, 45 L.Ed.2d 607] (1975).

Id. at 108-09, 98 S.Ct. at 332, 54 L.Ed.2d at 335-36. The safety of police officers is a "legitimate and weighty" justification for intrusion. Id., at 110, 98 S.Ct. at 333, 54 L.Ed.2d at 336. In Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), the Court declared, "Regrettably, traffic stops may be dangerous encounters," and noted that "in 1994 alone, there were 5,762 officer assaults and 22 officers killed during traffic pursuits and stops." Id. at 413, 117 S.Ct. at 885, 137 L.Ed.2d at 47.

The Supreme Court further acknowledged its concern for officer safety in Knowles v. Iowa:

This is not to say that the concern for officer safety is absent in the case of a routine traffic stop. It plainly is not. See Mimms, [434 U.S.] at 110; Wilson, [519 U.S.] at 413-414. But while the concern for officer safety [during a traffic stop]

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