State v. Curtis, 42283

• Decision Date: 09 July 1971
• Docket Number: No. 42283,42283
• Parties: STATE of Minnesota, Respondent, v. George Carpenter CURTIS, Appellant.
• Court: Minnesota Supreme Court

Page 631

190 N.W.2d 631

290 Minn. 429

STATE of Minnesota, Respondent, v. George Carpenter CURTIS, Appellant.

No. 42283.

Supreme Court of Minnesota.

July 9, 1971.

Rehearing Denied Oct. 27, 1971.

Syllabus by the Court

An arrest for a minor traffic violation does not justify a routine search of the motorist's person, either for weapons or for contraband, unless the police have probable cause for believing he is armed and dangerous.

C. Paul Jones, Public Defender, Roberta K. Levy, Doris O. Huspeni, Asst. Public Defenders, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., James M. Kelley, Asst. Atty. Gen., St. Paul, William B. Randall, County Atty., Steven C. DeCoster, Asst. County Atty., St. Paul, for respondent.

Heard before KNUTSON, C.J., and NELSON, OTIS, ROGOSHESKE, and KELLY, JJ.

OPINION

OTIS, Justice.

Defendant appeals from a conviction for possession of marijuana in violation of Minn.St. 618.02. The only issue is whether the search which resulted in the discovery of marijuana following defendant's arrest for a minor traffic violation was valid. We hold that it was not, and the evidence thus obtained should therefore have been suppressed.

On September 29, 1968, at about 10 p.m., Officers Thomas Burke and Robert R. Patsy of the St. Paul Police Department observed defendant driving south on Victoria Street in a car with defective taillights. He stopped at Selby Avenue and turned right without signaling. Thereupon, the officers curbed the defendant. As he got out of his automobile and headed toward the squad car, the officers observed him take an object from his pocket or belt and throw it on the front seat of his car. The officers emerged from their vehicle and Officer Patsy searched defendant for weapons before putting him in the squad car. Officer Patsy testified that he felt the outside of defendant's pockets. He detected some object but coldn't tell what it was. It did not feel like a gun or knife. As the officer reached into the pocket, defendant seized a package from it and dumped part of the contents, later identified as marijuana, inside the squad car and on the ground. While this search was being conducted, Officer Burke walked to defendant's car and found a loaded .45 automatic revolver on the front seat.

Defendant moved to suppress the marijuana. After an extensive hearing the trial court denied the motion, holding that the search was reasonable as an incident of the arrest. At the so-called Rasmussen hearing, Officer Patsy testified that his purpose in stopping defendant was to check his driver's license. He was acquainted with defendant and had previously warned him against driving after suspension. At the time defendant was searched, Officer Patsy did not know defendant was driving without a license or that Officer Burke had found the loaded gun. Neither officer suspected defendant of having marijuana on his person or of being armed. ¹ The only purpose in stopping defendant was to make a license check after observing his defective taillights and his failure to signal for a turn. ²

The justification which the officers offered for searching defendant was the fact that they were about to put him in the squad car. Officer Patsy testified:

'A We check everyone that gets into our squad car, yes.

'Q Do you, as a matter of course, go immediately into people's pockets to do this?

'A When I put them in the squad car I do.'

In the same vein, Officer Burke testified:

'Q And as a matter of course, if you are going to place somebody in that back seat you are going to search before you do, or at least frisk him?

'A Yes, we are.

'Q That's a matter of course, is it not?

'A Yes, sir.

'Q Usually you will feel down and see whether there is anything suspicious as a weapon or anything might be dangerous to you, is that right?

'A Yes, we do.'

Neither officer expressed any concern for his personal safety. There was no testimony that they suspected defendant of any other criminal activity or were aware of any dangerous propensities on his part.

1. This was a routine arrest for a trivial traffic offense and nothing more. Under such circumstances, the weight of authority holds that a search of the driver's person is unlawful and violates U.S.Const. Amend. IV. ³ The marijuana seized should therefore have been suppressed. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933.

The United States Supreme Court has held that a police officer may make a reasonable search for weapons for his own protection where he has reason to believe he is dealing with an armed and dangerous individual. The test is whether a reasonably prudent man would be warranted in the belief that his safety or that of others was in danger. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889, 909; Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 1903, 20 L.Ed.2d 917, 935. Because in Sibron the officer thrust his hand into defendant's pocket and seized narcotics which he was looking for, the court found that the search was not in fact one for weapons but for contraband which it held to be inadmissible. As we have indicated, the officers in the matter before us pointed to no facts from which they could infer, before he was searched, that defendant was carrying a gun.

Two previous decisions have suggested the result we here reach. In State v. Harris, 265 Minn. 260, 268, 121 N.W.2d 327, 333, certiorari denied, 375 U.S. 867, 84 S.Ct. 141, 11 L.Ed.2d 94, we held that police officers may not ordinarily make searches incident to simple traffic violations, and in State v. Clifford, 273 Minn. 249, 254, 141 N.W.2d 124, 127, we held:

'* * * A search for evidence in defendant's possession, incident to an arrest without a warrant, is reasonable if it is to seize weapons which may be used to assault an officer or effect an escape, or to prevent the loss or destruction of the fruits of the crime or the implements used in accomplishing it. Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777, 780. None of these purposes has any application in the context of a relatively trivial traffic violation.'

2. Although the authorities seem to agree that minor traffic violations do not justify a search for contraband where there is no evidence constituting the fruits or instrumentality of the offense, courts are divided with respect to the circumstances under which a search for weapons is lawful. A leading case which liberally construes U.S.Const. Amend. IV was decided by the New York Court of Appeals in People v. Marsh, 20 N.Y.2d 98, 281 N.Y.S.2d 789, 228 N.E.2d 783. There, defendant was arrested for speeding. A search of his person produced policy slips for which he was prosecuted and convicted. Chief Judge Fuld, speaking for a majority of the court, held (20 N.Y.2d 101, 281 N.Y.S.2d 792, 228 N.E.2d 785):

'Although, as a general rule, when an individual is lawfully arrested, the police officer may conduct a contemporaneous search of his person 'for weapons or for the fruits of or implements used to commit the crime' * * *, we do not believe that the Legislature intended the rule to cover arrests for traffic violations. It is obvious that, except in the most rare of instances, there can be no 'fruits' or 'implements' of such infractions and the search, to be upheld, would have to be justified as one for weapons. But there is something incongruous about treating traffic offenders as noncriminals, on the one hand, and subjecting them, on the other, to the indignity of a search for weapons.

'The search for weapons is a special exception to the proscription against warrantless searches, and it should not be extended beyond its purpose of securing the safety of the officer and preventing an escape. A motorist who exceeds the speed limit does not thereby indicate any propensity for violence or iniquity, and the officer who stops the speeder has not even the slightest cause for thinking that he is in danger of being assaulted. We can only conclude that, even though the 'rules of criminal law are generally applicable' to traffic violations * * *, the Legislature never intended to authorize a search of a traffic offender unless, when the vehicle is stopped, there are reasonable grounds for suspecting that the officer is in danger or there is probable cause for believing that the offender is guilty of a crime rather than merely a simple traffic infraction.'

The court concluded that no search for weapons is authorized as incident to an arrest for a minor traffic infraction unless the officer has reason to fear an assault or has probable cause for believing the defendant has committed a more serious crime. The court there cited as authority Sobel, Current Problems in the Law of Search and Seizure, pp. 119--124, and People v. Watkins, 19 Ill.2d 11, 166 N.E.2d 433. Mr. Justice Sobel in his treatise stated that there can be no lawful search incident to an arrest for a traffic violation because there are no fruits of such crimes and only rarely will a search be required to protect a police officer's personal safety. However, he observed that if there are indications a more serious offense is involved the officer may detain the suspect for investigation without a search.

The Illinois decision to which the Marsh opinion referred was written by another distinguished jurist, Mr. Chief Justice Walter Schaefer. That court recognized as invalid searches arising from minor traffic violations but held that under the circumstances it was reasonable for the arresting officers to assume they were dealing with a more serious offense. The search which produced policy tickets was found constitutionally justified.

In Amador-Gonzalez v. United States (5 Cir.) 391 F.2d 308, the defendant was convicted of importing narcotics, and the United States Court of Appeals reversed. Defendant had been arrested for making an improper left turn, speeding, and failing to have a driver's license. The arrest was held to be a...