State v. Ortiz, 8636

Citation67 Haw. 181,683 P.2d 822
Decision Date23 May 1984
Docket NumberNo. 8636,8636
PartiesSTATE of Hawaii, Respondent-Appellant, v. Larry James ORTIZ, Petitioner-Appellee.
CourtSupreme Court of Hawai'i

Syllabus by the Court

1. The hallmark of the protective weapons search sanctioned in Terry is the probable presence of a dangerous weapon. Because a weapon is involved, the search need not be preceded by probable cause and a warrant if, from the specific conduct of the defendant, from reliable information, or from attendant circumstances, the police officer reasonably infers the person stopped is armed and presently dangerous.

2. A protective weapons search is judged by an objective standard of reasonableness, taking into account the totality of the circumstances.

3. Police officers need not risk a shot in the back by returning containers which they reasonably suspect contain a dangerous weapon but may lack probable cause to seize.

4. An encounter between a police officer and an armed detainee is a situation in which the exclusionary rule has little deterrent effect; when an officer is threatened by a concealed weapon, self-protection provides far more motivation to search than the exclusionary rule could ever deter.

5. If the police have an objectively reasonable belief a detainee is armed, they may make a protective weapons search of the area or a container within the detainee's conceivable grasp. By the same token, however, the police may not search an area or container within their exclusive control or outside the detainee's reach.

6. A protective weapons search must be reasonably related in scope to the circumstances which justified the interference in the first place; its reasonableness is determined by balancing the State's interest in searching against the individual's interest in freedom from unreasonable government intrusions.

7. A protective weapons search lawful at its inception can nevertheless violate the Fourth Amendment because its manner of execution unreasonably infringes possessory interests protected by the Fourth Amendment's prohibition on unreasonable seizures.

Arthur E. Ross, Deputy Pros. Atty., Honolulu, for respondent-appellant.

Mark R. Zenger, Honolulu (Michael K. Tanigawa, Deputy Public Defender, Honolulu, on the writ and supplemental brief), for petitioner-appellee.

Before LUM, C.J., and NAKAMURA, PADGETT, HAYASHI and WAKATSUKI, JJ.

HAYASHI, Justice.

We granted certiorari in this case to determine whether a search warrant was required before a police officer opened a knapsack made of thin material through which he felt, after lawfully seizing the sack, what seemed to be the butt of a handgun. The trial court suppressed the gun, ruling that the officer was not entitled to open the knapsack once it was removed from the immediate control of the defendant. The Intermediate Court of Appeals reversed, upholding the search under a "plain feel" rule. State v. Ortiz, 4 Haw.App. 143, 662 P.2d 517, (1983). We affirm the intermediate court's result but vacate its "plain feel" ruling; instead we find that the warrantless search here was a valid protective weapons search under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and its progeny.

On August 12, 1981, at approximately 2 o'clock in the morning, Officer Brad Bennett was driving alone in the Wahiawa business area in his police car. He observed defendant Ortiz carrying a knapsack across an empty parking lot adjacent to some business establishments. When Ortiz saw the police car he ran to the side of one of the buildings. Bennett drove into the parking lot, exited, and found Ortiz hiding next to some trash cans and boxes, seated on the ground with his knapsack about six inches to his right.

Bennett approached Ortiz and asked him what he was doing there. Ortiz responded that he didn't know. When asked by Bennett whose knapsack it was, Ortiz answered it was his, but when asked what was in it, he responded, "Nothing" and grabbed for the knapsack with his right hand. Feeling "something was wrong," 1 Bennett reached down and took the sack away from Ortiz, immediately feeling "what seemed like a butt to a handgun" through the thin fabric. Bennett unzipped the bag and verified that it contained a handgun and holster. He then placed Ortiz under arrest and took Ortiz and the gun to the police station. At the station Bennett examined the gun and found it was loaded. Ortiz was subsequently indicted for possession of a firearm by a felon in violation of Hawaii Revised Statutes (HRS) § 134-7(b).

Prior to trial Ortiz moved to suppress the handgun, contending that once a law enforcement officer reduces personal property to his possession, the officer may not search the property either as incident to a valid investigative stop, see e.g., Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) or as incident to a lawful arrest, relying on United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) and State v. Jenkins, 62 Haw. 660, 619 P.2d 108 (1980). The State sought to justify the warrantless search under several exceptions to the warrant requirement: as a protective search for weapons under Terry, as incident to an arrest, and under a "plain feel" or "plain touch" analog of the "plain view" exception.

The trial court suppressed the gun. In its modified findings, the court concluded (1) Officer Bennett made a valid stop to question Ortiz; (2) Ortiz's claimed ignorance and furtive reach for the bag gave Bennett "reason to believe that criminal activity was afoot, and that defendant might be armed and dangerous"; (3) Bennett properly seized the knapsack even though he lacked probable cause to make an arrest; (4) when Bennett felt the gun butt he then had probable cause to arrest Ortiz; and (5) "once the bag was removed from the immediate control of the defendant Ortiz, that Officer Bennett exceeded the scope of the search incident to arrest, and he at that time violated defendant's rights under the Fourth Amendment," 2 citing State v. Kaluna, 55 Haw. 361, 520 P.2d 51 (1974).

On appeal, the Intermediate Court of Appeals held (1) Ortiz had a reasonable expectation of privacy in the handbag; (2) Bennett's initial stop of Ortiz and seizure of the knapsack were valid under Terry; (3) the search was an invalid search incident to arrest under Kaluna and State v. Jenkins, 62 Haw. 660, 619 P.2d 108 (1980) "because the knapsack was in Bennett's exclusive control when it was searched," 4 Haw.App. at ---, 662 P.2d at 529; but (4) the search was valid under the "plain feel" doctrine, citing United States v. Ocampo, 650 F.2d 421 (2d Cir.1981). We granted certiorari to consider the wisdom of recognizing yet another exception to the warrant requirement.

I.

We begin our discussion with the principle that warrantless searches are presumptively unreasonable unless they fall within a specifically-established and well-delineated exception to the warrant requirement. Jenkins, 62 Haw. at 662, 619 P.2d at 110; State v. Elderts, 62 Haw. 495, 498, 617 P.2d 89, 92 (1980); State v. Kender, 60 Haw. 301, 307, 588 P.2d 447, 451 (1978). The exception we find applicable here is the protective search for weapons incident to a valid investigative stop, first announced in Terry, 392 U.S. at 30-31, 88 S.Ct. at 1884-1885. Because there is no question that the initial stop of Ortiz and seizure of his knapsack were valid, 3 the only issue presented to us for decision is the validity of the trial court's conclusion that a weapons search of the knapsack was improper once it was removed from Ortiz's immediate control.

As noted in Terry, a protective weapons search must be "reasonably related in scope to the circumstances which justified the interference in the first place." 392 U.S. at 20, 88 S.Ct. at 1879. "[A] seizure lawful at its inception can nevertheless violate the Fourth Amendment because its manner of execution unreasonably infringes possessory interests protected by the Fourth Amendment's prohibition on 'unreasonable seizures.' " United States v. Jacobsen, 466 U.S. 109 - ----, 104 S.Ct. 1652, 1662, 80 L.Ed.2d 85 (1984). The reasonableness of a weapons search is determined by balancing the State's interest in searching against the individual's interest in freedom from unreasonable government intrusions. Terry, 392 U.S. at 21, 88 S.Ct. at 1879; see also, Jacobsen, 104 S.Ct. at 1662; United States v. Place, 462 U.S. ---- , ----, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983).

Here, Ortiz argued and the trial court agreed that once Officer Bennett had the knapsack in his hand, he should have taken Ortiz and the unopened knapsack to the police station and there obtained a search warrant. Two strong interests, however, supported Officer Bennett's immediate search of the knapsack. First and foremost, a dangerous weapon was involved. Second, without opening the knapsack he may not have had the requisite probable cause to arrest Ortiz and obtain a search warrant and thus may have had to return the knapsack to Ortiz unexamined.

A.

The hallmark of the protective weapons search sanctioned in Terry is the probable presence of a dangerous weapon. 4 Because a weapon is involved, the search need not be preceded by probable cause and a warrant if, from the specific conduct of the defendant, from reliable information, or from attendant circumstances, the police officer reasonably infers the person stopped is armed and presently dangerous. State v. Madamba, 62 Haw. 453, 457, 617 P.2d 76, 78 (1980); State v. Ward, 62 Haw. 459, 462, 617 P.2d 565, 567 (1980); State v. Barnes, 58 Haw. 333, 338, 568 P.2d 1207, 1212 (1977); State v. Uddipa, 3 Haw.App. 415, 419, 651 P.2d 507, 510 (1982). The search is judged by an objective standard of reasonableness, taking into account the totality of the circumstances. See, Uddipa, 3 Haw.App. at 418-19, 651 P.2d at 510.

In the present case, there are specific facts which support Bennett's objectively reasonable belief that Ortiz was armed...

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