State v. Broadnax

• Decision Date: 31 March 1980
• Docket Number: No. 7353-2-I,7353-2-I
• Parties: STATE of Washington, Respondent, v. Clifton BROADNAX, Jr., Beotis Bea Lashley, Defendants, and Steven Arthur Thompson, Appellant.
• Court: Washington Court of Appeals

Page 704

25 Wn.App. 704

612 P.2d 391

STATE of Washington, Respondent, v. Clifton BROADNAX, Jr., Beotis Bea Lashley, Defendants and Steven Arthur Thompson, Appellant.

No. 7353-2-I.

Court of Appeals of Washington, Division 1.

March 31, 1980.

[612 P.2d 392] Rebecca M. Baker, Republic, for appellant.

J. Robin Hunt, Deputy Pros. Atty., Seattle, for respondent.

WILLIAMS, Judge.

Steven Arthur Thompson was charged and convicted of illegal possession of a narcotic drug, heroin. The question presented is whether the trial court was correct in ruling admissible a balloon of heroin taken from Thompson during a warrant search of a house where he was present.

The facts may be summarized as follows: A magistrate issued a warrant for the search of a Seattle residence upon the basis of an affidavit containing information that within the previous 24 hours narcotics had been offered for sale at the house by a person residing there. Four police officers conducted the search. One of them, Detective Buckland, was posted to guard the back door while the other three entered through the front door. After they had done so, Buckland went in to find Thompson and another man each standing with his hands on his head. Buckland asked one of the officers whether Thompson had been searched, was told he had not been, and proceeded to frisk Thompson for weapons. While doing so, he felt a small bulge in Thompson's left shirt pocket. Detective Buckland, an experienced narcotics officer, testified concerning the bulge as follows Q And based on your patting or feeling this substance in the pocket did you recognize it at that particular time? A I recognized a feeling in a tactile sense as something that has been very familiar in other instances that I have found. Q Can you describe that. A A small bulge that has a it gives. Q And what have you known this to be on other occasions? A I have found it on other occasions to be balloons of heroin, or some other substance. Q Now, Detective, you previously mentioned that you checked the belt area and other areas for possible weapons. You also mentioned a wallet. . . . Q You didn't have any belief at all it was a weapon? A No, I didn't believe it was a weapon, that's correct. Q You believed it was a balloon of heroin? A That's what I believed it to be, yes.

Buckland then removed a balloon, later found to contain heroin, from Thompson's pocket.

Thompson contends that the heroin should be suppressed as evidence because the search of his person violated his Fourth Amendment rights. Specifically, he argues that the frisk was not justified under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and that, in any event, Detective Buckland exceeded the permissible scope of a Terry frisk in reaching into his pocket to remove the balloon. In that case, the United States Supreme Court said at page 24, 88 S.Ct. at 1881:

When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.

Under the circumstances, nothing could have been more reasonable than for the officer to conduct a pat down search for weapons while performing this inherently dangerous court-ordered duty. United States v. Peep, 490 F.2d 903, 905 (8th Cir. 1974); State v. Sloughter, 14 Wash.App. 814, 545 P.2d 32, review denied, 87 Wash.2d 1003 (1976); People v. Finn, 73 Misc.2d 266, 340 N.Y.S.2d 807, 814-16 (1973).

In the recent case of Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) the frisk for weapons was conducted upon customers in a public tavern at a time when the police were executing a search warrant covering the tavern and its bartender. The warrant had been issued upon the advice of an informant that the bartender, while on duty, was selling packets of heroin. The Supreme Court held that the search of Ybarra, a customer, was not justified because

the agents knew nothing in particular about Ybarra, except that he was present, along with several other customers, in a public tavern at a time when the police had reason to believe that the bartender would have heroin for sale.

Ybarra v. Illinois, supra at 91, 100 S.Ct. at 342.

The court in deciding that there was not probable cause to believe that any of the customers would be involved said:

a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Sibron v. New York, 392 U.S. 40, 62-63 (88 S.Ct. 1889, 1902, 20 L.Ed.2d 917).

Ybarra v. Illinois, supra at 91, 100 S.Ct. at 342.

In this case, Thompson was not searched because of mere propinquity to a bartender in a tavern where he was a customer. Rather, he was one of two adults in a house where narcotics had probably been sold within the preceding 24 hours by a person residing therein. It would be unwise to suggest that the police should ignore the individuals present on the assumption that they were unarmed and uninvolved.

Detective Buckland's subsequent seizure of the balloon from Thompson's shirt pocket was justified because he had recognized the bulge as a balloon containing narcotics. Detective Buckland then had probable cause to arrest and seize the balloon as contraband and as evidence of crime. State v. Hammond, 24 Wash.App. 596, 603 P.2d 377 (1979). As was said in State v. Gluck, 83 Wash.2d 424, 426-27, 518 P.2d 703, 706 (1974):

Probable cause (to arrest) exists where the facts and circumstances within the arresting officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in a belief that an offense has been or is being committed.

Probable cause may be based upon knowledge gained through any of the senses. State v. Hammond, supra; State v. Huckaby, 15 Wash.App. 280, 291, 549 P.2d 35, review denied, 87 Wash.2d 1006 (1976); State v. Compton, 13 Wash.App. 863, 538 P.2d 861 (1975). Logically, there is no difference in power of recognition between use of the tactile rather than the visual sense. An object may be perceived by touch equally as well as by sight.

It should be noted that this result squares with the principles of the plain view doctrine. That doctrine has three requirements:

a prior justification for intrusion, an inadvertent discovery of incriminating evidence, and immediate knowledge by police that they have evidence before them.

State v. Murray, 84 Wash.2d 527, 534, 527 P.2d 1303, 1307 (1974) quoting State v. Dimmer, 7 Wash.App. 31, 33, 497 P.2d 613 (1972).

Those criteria were met in this case.

Affirmed.

SWANSON, Acting C. J., concurs.

SWANSON, Acting Chief Judge (concurring).

I concur in the court's decision, and I wish to emphasize my reasons for doing so. ¹

The initial search for weapons of defendant Thompson was permissible under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), which held that Terry did not justify a cursory search for weapons of a tavern patron when a search warrant for the tavern was being executed, is factually distinguishable. In Ybarra, the petitioner was one of 9 to 13 persons in a public establishment. The officers did not recognize Ybarra and had no reason to believe he might assault them. Further, he made no gestures, and he generally acted in a nonthreatening manner. The Supreme Court summarized, "In short, the State is unable to articulate any specific fact that would have justified a police officer at the scene in even suspecting that Ybarra was armed and dangerous." (Emphasis added.) Ybarra, 444 U.S. at 93, 100 S.Ct. at 343, 62 L.Ed.2d at 247.

This case stands in sharp contrast to Ybarra. Here, the search warrant was for a private residence. The officers had information that "within the last 24 hours the informant was present at the above address and saw what the informant recognized to be Heroin and Dilaudid that was being offered for sale by a negro male known as Clifford and who resides at the above address."

In executing the warrant, Detective Buckland was directed to stand guard at the rear door. Sergeant Scheuffele and Detectives Baylor and Roesler entered the house through the front door. The officers discovered a teenage girl, a baby, and two adult males in the living room. The males were the defendant Thompson and one Clifton Broadnax, evidently the "Clifford" referred to in the affidavit for the search warrant. ² Scheuffele, who was in charge of the unit, instructed Broadnax and Thompson to raise their arms over their heads, and he and Detective Baylor remained with the suspects while Roesler continued through the house.

Buckland meanwhile had been at his position at the rear door for about 30 seconds when he saw that the other officers had entered the house. He then went around to the front and entered, observing Broadnax and Thompson, arms overhead. At this point, no one apparently had been searched. Scheuffele testified that as long as the suspects had their arms raised, he wasn't too concerned about weapons. ³ However, he said he did notice a bulge in Broadnax' pocket "that piqued my interest and I was concerned about my own safety and the safety of my detectives . . ." He further stated that "like I say, there was a bulge in the pocket that I didn't want any hand near except my own or someone else's, some detective's." By this time Roesler had returned from a bedroom where he had discovered contraband in plain view and a woman. Scheuffele ordered Roesler to search Broadnax. At about the same time Buckland, who assumed Thompson and Broadnax were under arrest, asked Scheuffele if Thompson had been searched: "I asked...