State v. Gilberts

Decision Date23 February 1993
Docket NumberCr. N
Citation497 N.W.2d 93
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Craig A. GILBERTS, Defendant and Appellant. o. 920207.
CourtNorth Dakota Supreme Court

Robert Allan Freed (argued), Asst. State's Atty., Jamestown, for plaintiff and appellee.

Paulson and Merrick, Jamestown, for defendant and appellant, argued by Thomas E. Merrick.

MESCHKE, Justice.

Craig Gilberts appeals from his conviction for unlawful possession of cocaine. Gilberts entered a conditional guilty plea under NDRCrimP 11(a)(2), reserving the right to appeal from the trial court's denial of his motion to suppress evidence. We hold that the officer's search of Gilberts's jacket violated Gilberts's Fourth Amendment rights against unreasonable search and seizure, and that the trial court erred in refusing to suppress the evidence from that invalid search. We reverse the conviction and remand with directions that Gilberts be allowed to withdraw his guilty plea.

Gilberts was a passenger in the front seat of a car that was stopped for speeding at about 1:00 p.m., October 5, 1991, by Highway Patrolman Bradley Smith. Another passenger was sitting in the back seat of the car. When the driver could not produce a driver's license, Smith asked him to sit in the patrol car. A radio check by Smith disclosed that the driver's operating privileges were suspended, and Smith arrested the driver.

Smith testified that he "secured the driver in the back seat of my patrol vehicle" and then went back to search the car "incident to the arrest of the driver." Smith opened the front passenger door and asked Gilberts to "step out and just walk around to the front of the vehicle." As Gilberts stepped out, Smith picked up a jacket "sitting on the seat right where [Gilberts] was sitting," intending to give it to Gilberts, "because it was cold out." Smith asked Gilberts if the jacket was his, and Gilberts said that it was. As Smith handed the jacket to Gilberts, he noticed an unspecified "large amount of cash" in the inside pocket. Smith testified that there were actually two jackets, one with the sleeves inside the other, and that the cash was located in a pocket in the inside jacket. Seeing the cash, Smith reached into the pocket and pulled out the cash and a small box. The box was marked on the outside that it contained a gram scale. Smith opened the box, pulled out the scale, and saw that there was "white powder residue" on the inside of the scale. Smith told Gilberts that he was going to keep the scale to have the powder analyzed. Gilberts replied that he knew the scale had been used to weigh cocaine. Smith then arrested Gilberts for unlawful possession of a controlled substance.

Gilberts argues that Smith violated his rights under the Fourth Amendment and Art. I, Sec. 8 of the North Dakota Constitution against unreasonable search and seizure. First, he asserts that it was unreasonable for Smith to order him, a passenger, to step out of the car following the driver's arrest. Secondly, he asserts that Smith's search of his jacket incident to the driver's arrest was unreasonable.

Some of Smith's activities were clearly valid and are not contested by Gilberts. Smith had an articulable and reasonable suspicion that the driver was violating the law by speeding, and Smith made a valid investigative stop of the car. Wibben v. North Dakota State Highway Commissioner, 413 N.W.2d 329 (N.D.1987). When the driver could not produce a license and Smith learned by radio that the driver's license was suspended, Smith had probable cause to arrest the driver for the class B misdemeanor of operating a vehicle with a suspended license. NDCC 39-06-42. Smith was then entitled to make a custodial search incident to the driver's arrest. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). Incident to the arrest, Smith was entitled to search the arrestee's person and the area within the arrestee's immediate control where he might have a weapon or destructible evidence. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The right to search an automobile incident to arrest of its occupants includes the right to search the entire passenger compartment of the automobile. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). Gilberts does not dispute Smith's right to conduct these activities leading up to and following the driver's arrest.

However, Gilberts asserts that his Fourth Amendment rights were violated when Smith asked him to exit the automobile and when Smith searched Gilberts's jacket. Within the meaning of the Fourth Amendment, a seizure occurs whenever an officer stops an individual and restrains his freedom, and that seizure must be reasonable. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In determining reasonableness, we balance the public interest with the individual's right to personal security free from arbitrary interference by police officers. State v. Mertz, 362 N.W.2d 410 (N.D.1985). The focus of our analysis then is whether Smith's order that Gilberts exit the car was reasonable.

The United States Supreme Court has held that, once a motor vehicle has been lawfully stopped, a police officer may order the driver to get out of the vehicle and, in doing so, does not violate the driver's Fourth Amendment rights. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). The rationale of Mimms is police safety. By ordering the driver out of the stopped vehicle, the officer can better watch the driver's movements while he is investigating the situation, and can have the driver step to a safe place away from traffic.

Gilberts asserts that this case is different. He argues that neither the lawful stop of the vehicle in which he was a passenger nor the arrest of the driver justified Smith's invasion of Gilberts's privacy by ordering him out of the car. Gilberts emphasizes that he had not violated any traffic laws, and that he was not under suspicion of having committed any other crime when Smith asked him to exit the car.

We believe there are two grounds that justify Smith's request that Gilberts exit the car, and that make this brief intrusion upon Gilberts's privacy both reasonable and permissible under the Fourth Amendment. First, an officer is justified by safety reasons in ordering both the driver and the passengers out of a lawfully detained vehicle. Bethea v. Commonwealth, 14 Va.App. 474, 419 S.E.2d 249 (1992); People v. Martinez, 187 Mich.App. 160, 466 N.W.2d 380 (1991); State v. Ferrise, 269 N.W.2d 888 (Minn.1978). When the state's interest in the protection and safety of its police, who patrol the roadways, is weighed against the minor intrusion on a passenger's liberty in momentarily leaving a vehicle, safety predominates. Secondly, Smith was entitled to search the passenger compartment of the vehicle incident to the driver's arrest. Belton. To conduct the search safely and thoroughly, it was both necessary and reasonable for Smith to ask Gilberts and the other passenger to briefly leave the car. United States v. Bell, 762 F.2d 495 (6th Cir.1985). We hold that Gilberts's constitutional right to be free of unreasonable seizure was not encroached when Smith ordered him out of the car for the search after the driver's arrest.

Gilberts also argues that Smith's search of his jacket was unreasonable and violated his Fourth Amendment rights. The State counters that, under the Supreme Court's rationale in Belton, Smith was entitled to search the entire passenger compartment of the car and all containers in it, including Gilberts's jacket, incident to the driver's arrest. In the alternative, the State argues that Smith's search of the jacket was legal, because Smith had probable cause to believe that Gilberts and the other car occupants were involved in illegal drug trafficking and that the jacket might contain contraband.

We begin our discussion of this question with a brief analysis of Belton. In that case, the United States Supreme Court announced a bright-line rule for the scope of the search of an automobile after the lawful arrest of all of its occupants. In Belton, where all four occupants were arrested, the Court held:

[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.

It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach.... Such a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.

453 U.S. at 460-61, 101 S.Ct. at 2864, 69 L.Ed.2d at 775, [Citations omitted, emphasis added.] Following Belton, this court in State v. Hensel, 417 N.W.2d 849 (N.D.1988), held that the lawful custodial arrest of a person, who was found "slumped over" in the front seat of a car and who was then in physical control of the car, justified the officer's search of the arrestee's suitcase and jacket in the passenger compartment of the car. In Belton and Hensel, all occupants of the vehicles were arrested before the search of the vehicles.

Consequently, neither Belton nor Hensel dealt with an officer's search of a non-arrested occupant. Here, Gilberts was not an arrestee, but merely a passenger in the vehicle with a driver who was driving without a license. We believe this factual distinction limits a Belton search of the vehicle.

Warrantless searches, to be valid, must fall within a narrow and specifically delineated...

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