State v. Burgess

• Decision Date: 30 March 1983
• Docket Number: No. 14304,14304
• Citation: 104 Idaho 559,661 P.2d 344
• Parties: The STATE of Idaho, Plaintiff-Respondent, v. Cary Gene BURGESS, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 344

661 P.2d 344

104 Idaho 559

The STATE of Idaho, Plaintiff-Respondent, v. Cary Gene BURGESS, Defendant-Appellant.

No. 14304.

Court of Appeals of Idaho.

March 30, 1983.

Klaus Wiebe, Boise, for defendant-appellant.

James T. Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Neil L. Tillquist, Deputy Atty. Gen., Boise, for plaintiff-respondent.

WALTERS, Chief Justice.

Cary Burgess was convicted by a jury of attempted burglary and of possession of burglarious instruments. He appeals the denial of his motion to suppress evidence, arguing that the evidence was the product of an unconstitutional search. We hold that the search was reasonable within the meaning of the Fourth Amendment, and we affirm the order of the district court denying the suppression motion.

At approximately 3:00 a.m. on December 1, 1980, the Boise Police Department received a call from a private alarm company, informing them that detection systems at the Fireside Inn indicated that a burglary might be in progress. An audio alarm system, which monitored noise in and around the Fireside Inn, conveyed scraping sounds, scuffling and slight pounding noises. A separate alarm system indicated that apparently an attempt had been made to force a door open.

Upon receipt of this information, police officers Graybill and Field, who were parked in separate vehicles approximately four blocks away, immediately drove to the Fireside Inn. Upon their arrival, they observed the defendant, Cary Burgess, walking across the parking lot some twenty feet from the Fireside Inn building. Officer Graybill drove up to Burgess, got out of his car and inquired as to Burgess' identity and the reason for his presence. Burgess gave his name, produced identification, which verified his identity, and stated that he was walking to his girl friend's house from an all night restaurant.

Noting that Burgess' purported path would have taken him past the location where the officers had been parked for the previous thirty minutes, Officer Graybill asked whether Burgess had observed any police cars parked along his route. Burgess answered in the negative. Following this conversation, which lasted for two to three minutes, Graybill frisked Burgess and discovered a small carpenter's nail puller, a pen light flashlight and a can of mace on Burgess' person. Burgess was subsequently arrested and charged with attempted burglary, a felony, and with possession of burglarious instruments, a misdemeanor. Following a jury trial, Burgess was convicted on both counts.

Burgess contends that his motion to suppress evidence--the mace, flashlight and nail puller--should have been granted because they were the products of a search which violated the Fourth Amendment proscription of unreasonable searches and seizures. He concedes that under the stop and frisk doctrine of Terry v. Ohio, 392 U.S. 1, 89 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the officer made a valid stop. Under Terry, if the stop is valid, the officer may frisk for weapons if he has a reasonable belief that the suspect is armed and the officer is concerned for his safety. See also Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

However, Burgess argues that an officer must be able to state with particularity the facts which lead him to conclude that the suspect is armed and dangerous in order to justify a frisk for weapons. If the officer cannot articulate such facts, the frisk is not permissible.

We acknowledge, as a general proposition, that a frisk is not permissible unless the officer can articulate, with particularity, facts which reasonably justify a frisk for weapons. See Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Adams v. Williams, supra; Terry v. Ohio, supra. Our Supreme Court has previously applied this standard to measure the constitutionality of investigative stops. See State v. Post, 98 Idaho 834, 573 P.2d 153 (1978), rev'd on other grounds, State v. Bottelson, 102 Idaho 90, 625 P.2d 1093 (1981); State v. Allgood, 98 Idaho 525, 567 P.2d 1276 (1977); State v. Hobson, 95 Idaho 920, 523 P.2d 523 (1974). See also Mason v. State, Dept. of Law Enforcement, 103 Idaho 748, 653 P.2d 803 (Ct.App.1982).

Burgess contends that Officer Graybill's conduct in conversing with him for up to three minutes before frisking him, belied the officer's subsequent testimony that the frisk was for the purpose of checking for weapons. Thus, Burgess argues, the frisk was alleged to have been for the sole purpose of searching for evidence to provide probable cause for an arrest.

In support of his position, Burgess cites United States v. Kirsch, 493 F.2d 465 (5th Cir.1974); State v. Giltner, 56 Hawaii 374, 537 P.2d 14 (Hawaii 1975); State v. McDougall, 59 Hawaii 305, 580 P.2d 847 (Hawaii 1978); Commonwealth v. Pinney, 474 Pa. 210, 378 A.2d 293 (Penn.1977); Whitten v. U.S., 396 A.2d 208 (D.C.1978); People v. Dotson, 37 Ill.App.3d 176, 345 N.E.2d 721 (Ill.1976). In these cases, the facts as articulated did not justify a frisk for weapons. We believe these cases may be distinguished from the present case.

In Kirsch, supra, the defendant was stopped for driving in a suspicious manner. At trial, the officer stated that at no time was he in fear of life or limb, and he did not articulate any other reasons for believing that the defendant might be armed. In Giltner, and McDougall, police had no reason to believe criminal activity was occurring or imminent. Their frisks were based only on the knowledge that one of the several people involved in each case was a character known to the police or who was known as having been previously armed. In Dotson, a police officer sought to justify his frisk for weapons, by stating that Dotson had shifted his weight on his feet, had placed his hands in his pockets, and had taken three steps backwards away from the officer. The court noted that no other justification was present and that the stop had occurred in winter weather. The court decided that Dotson's actions suggested not a reason for police suspicion but an individual trying to stay warm. In Whitten, the court held that a frisk for weapons of a suspected shoplifter was not reasonable where there was no evidence suggesting that the police officer was concerned about safety and the frisk entailed lifting one coat from the suspect's arm to reveal another coat which had just been stolen. Finally, in Pinney, the court found it unreasonable to frisk an individual who matched the description of a murder suspect only in that he was young, white, and had long hair. The court noted that there were no other facts which justified a search for weapons.

In our view, all of the foregoing...