State v. Evans

• Decision Date: 22 September 1993
• Docket Number: No. 92-311,92-311
• Citation: 67 Ohio St.3d 405,618 N.E.2d 162
• Parties: , 62 USLW 2230 The STATE of Ohio, Appellant, v. EVANS, Appellee.
• Court: Ohio Supreme Court

Page 405

67 Ohio St.3d 405

618 N.E.2d 162, 62 USLW 2230

The STATE of Ohio, Appellant, v. EVANS, Appellee.

No. 92-311.

Supreme Court of Ohio.

Submitted February 17, 1993.

Decided Sept. 22, 1993.

SYLLABUS BY THE COURT

1. The driver of a motor vehicle may be subjected to a brief pat-down search for weapons where the detaining officer has a lawful reason to detain said driver in a patrol car.

2. When an officer is conducting a lawful pat-down search for weapons and discovers an object on the suspect's person which the officer, through his or

her sense of touch, reasonably believes could be a weapon, the officer may seize the object as long as the search stays within the bounds of Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.

In the early morning hours of April 23, 1989, East Cleveland Police Officers Carl Green and Jamie Travano were on routine patrol when they observed a vehicle being driven westbound on Glynn Road with one of its headlights burned out. The officers flashed the cruiser's lights and stopped the vehicle by a nearby intersection. Both officers got out of the patrol car and approached the vehicle, which they discovered was being driven by the defendant-appellee, Dwayne Evans. Officer Green advised defendant why he had been stopped and asked that he produce his driver's license. Defendant did not have his driver's license.

While questioning defendant in connection with the traffic violation, the officers received a broadcast over their portable radios. Officer Green testified that they were informed by the police dispatcher that a male wearing a red jogging suit with "Reebok" written across the back "had just made a drug transaction" and that he was believed to be driving westbound on Glynn Road in a gray car. In addition, Officer Travano was able to recall at the suppression hearing that the dispatcher had stated that the car was a Datsun 280Z. The officers observed that defendant's clothing and car matched the description of the individual described in the radio broadcast. Officer Green testified that he did not know whether the tip had been given by an anonymous informant.

Officer Green, assisted by Officer Travano, asked defendant to step out of his car. While conducting a pat-down search of defendant's person, Officer Travano felt a large bulk in the left front pocket. Officer Travano placed his hand in this pocket and removed a large wad of money on top of which was a small packet of crack cocaine. Defendant was placed in the cruiser and arrested.

On June 5, 1989, defendant was indicted by the Cuyahoga County Grand Jury in a four-count indictment, to wit, three counts of drug violations (R.C. 2925.03 and 2925.13) and one count of possession of criminal tools (R.C. 2923.24). After defendant's motion to suppress evidence was denied by the trial court, defendant changed his previously entered pleas of not guilty to pleas of no contest. He was found guilty of all counts as charged in the indictment.

The court of appeals reversed defendant's convictions in a split decision, with one judge concurring in judgment only and one judge dissenting. The court of appeals held that the trial court erred in denying defendant's motion to suppress.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

Stephanie Tubbs Jones, Cuyahoga County Pros. Atty., and George J. Sadd, Asst. Pros. Atty., for appellant.

Edward S. Wade, Jr., and James R. Willis, Cleveland, for appellee.

MOYER, Chief Justice.

In determining whether defendant's constitutional rights were violated, we must consider two issues arising under the Fourth Amendment. First, having lawfully detained defendant for a traffic violation, did the police officers have the authority to conduct a pat-down search of defendant's body after ordering him out of his car? Second, if the officers had legal authority to search defendant, did they exceed the permissible scope of that pat-down search for weapons?

I

The propriety of the initial stop of defendant's vehicle cannot be reasonably disputed under the facts of this case. The officers' suppression hearing testimony, indicating that defendant was pulled over because of a burned-out headlight, is uncontroverted and served as the lawful basis for the stop. The focus of our inquiry, therefore, is on the officers' request that defendant step out of the vehicle and on the ensuing pat-down search for weapons.

The United States Supreme Court, in Pennsylvania v. Mimms (1977), 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331, held that a police officer may order a motorist to get out of a car, which has been properly stopped for a traffic violation, even without suspicion of criminal activity. What is now referred to as a "Mimms order" was viewed by the court as an incremental intrusion into the driver's personal liberty which, when balanced against the officer's interest in protection against unexpected assault by the driver and against accidental injury from passing traffic, is reasonable under the Fourth Amendment. In this regard, the court stated:

" * * * We think this additional intrusion can only be described as de minimis. The driver is being asked to expose to view very little more of his person than is already exposed. The police have already lawfully decided that the driver shall be briefly detained; the only question is whether he shall spend that period sitting in the driver's seat of his car or standing alongside it. Not only is the insistence of the police on the latter choice not a 'serious intrusion upon the sanctity of the person,' but it hardly rises to the level of a ' "petty indignity." ' Terry v. Ohio [ (1968), 392 U.S. 1, 17, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889, 903]. What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer's safety." Pennsylvania v. Mimms, 434 U.S. at 111, 98 S.Ct. at 333, 54 L.Ed.2d at 337.

Other courts have relied on Mimms in holding constitutional a police officer's additional order that the driver be seated in the patrol car. See State v. Mertz (N.D.1985), 362 N.W.2d 410, 413, where the Supreme Court of North Dakota held that this "additional increment of intrusion" into a driver's personal liberty "does not outweigh public-policy concerns for the safety of police officers and in North Dakota, with its varying weather conditions, concerns for the protection of both the officer and driver." See, also, United States v. Manbeck (C.A.4, 1984), 744 F.2d 360, 377-378.

Mimms merely dispenses with the requirement that the police officer possess reasonable suspicion of criminal activity before the officer may order the driver out of an already lawfully stopped vehicle. Accordingly, the ordering of defendant to get out of his car was proper even if the officers were unable to articulate a reasonable suspicion which prompted this action.

Contrary to the lower court's opinion, the order to step out of the vehicle is not a stop separate and distinct from the original traffic stop. It is so minimal and insignificant an intrusion that the Mimms court refused to apply the requirements for an investigatory stop. Unlike an investigatory stop, where the police officer involved "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion," Terry v. Ohio (1968), 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906, a Mimms order does not have to be justified by any constitutional quantum of suspicion.

We turn now to the propriety of a police officer's pat-down search for weapons--a search governed by the dictates of Terry v. Ohio, supra. Under Terry, a limited protective search of the detainee's person for concealed weapons is justified only when the officer has reasonably concluded that "the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others * * *." Id. at 24, 88 S.Ct. at 1881, 20 L.Ed.2d at 908. Justice Harlan's concurring opinion in Terry emphasizes that "the right to frisk must be immediate and automatic" where the lawfully stopped detainee is under suspicion for a crime of violence. Id. at 33, 88 S.Ct. at 1886, 20 L.Ed.2d at 913. "The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence * * *." Adams v. Williams (1972), 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 617. "Where a police officer, during an investigative stop, has a reasonable suspicion that an individual is armed based on the totality of the circumstances, the officer may initiate a protective search for the safety of himself and others." State v. Bobo (1988), 37 Ohio St.3d 177, 524 N.E.2d 489, paragraph two of the syllabus.

A Mimms order does not automatically bestow upon the police officer the authority to conduct a pat-down search for weapons. In analyzing the ensuing Terry frisk, the question we must ask is whether, based on the totality of the circumstances, the officers had a reasonable, objective basis for frisking defendant after ordering him out of the car. See State v. Andrews (1991), 57 Ohio St.3d 86, 565 N.E.2d 1271. "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.' " Mimms, supra, 434 U.S. at 108-109, 98 S.Ct. at 332, 54 L.Ed.2d at 335, quoting Terry, supra, 392 U.S. at 19, 88 S.Ct. at 1878-1879, 20 L.Ed.2d at 904.

The transcript of the suppression hearing reveals that the officers' actions were motivated by two possible concerns: (1) the information received from the radio broadcast, and (2) the defendant's failure to properly identify himself by producing his driver's license. ¹ Officer Green agreed with defense counsel on cross-examination that the request to def...