State v. Zearley, Cr. N

• Decision Date: 18 July 1989
• Docket Number: Cr. N
• Citation: 444 N.W.2d 353
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. Jeffrey ZEARLEY, Defendant and Appellee. o. 880322.
• Court: North Dakota Supreme Court

Page 353

444 N.W.2d 353

STATE of North Dakota, Plaintiff and Appellant, v. Jeffrey ZEARLEY, Defendant and Appellee.

Cr. No. 880322.

Supreme Court of North Dakota.

July 18, 1989.

Brian David Grosinger (argued), Asst. State's Atty., Mandan, for plaintiff and appellant.

Feldner & Danielson, Mandan, for defendant and appellee; argued by Rodney K. Feldner.

MESCHKE, Justice.

The State appealed from an order suppressing evidence of possession of a controlled substance. The evidence was discovered during a patdown and pocket search of a guest in a home being lawfully searched for drugs pursuant to a no-knock warrant. We reverse and remand for reconsideration.

Drug Enforcement agent Maixner and a team of Mandan police officers searched the Metzner home for drugs and related items. The no-knock search warrant did not reach other persons or property. While the other officers were at the front door with the warrant, Maixner knocked and entered the kitchen door. He identified himself to Penny Metzner but she attempted to stop Maixner from entering the hallway to the rest of the home. Metzner shouted, "Jeff, the police are here to search the house."

In the living room, Jeff Zearley heard shouting and went to see what the trouble was, though he testified that he did not understand what was shouted. Maixner, not knowing who "Jeff" was nor how many people were in the house, entered the hallway alone. There he met Zearley. Zearley attempted to block Maixner's way and they had a brief "pushing match." Maixner was in plain clothes without a badge, did not have the warrant, and did not identify himself to Zearley until after the pushing match. Maixner testified Zearley's manner was hostile. Maixner pushed Zearley against the wall until the other officers got to the hallway. Zearley claimed that he did not realize Maixner was an agent until he saw the other officers.

Maixner then patted Zearley down for weapons. Feeling a two-inch-long pipe and a one and one-half inch square key ring ornament in Zearley's pocket, Maixner reached into the pocket and pulled out a drug pipe and packets of methamphetamine. Maixner later testified that he "expected" the pipe to be a knife.

Charged with possession of a controlled substance, Zearley moved to suppress the evidence. The trial court ruled that the pipe and the packets of methamphetamine were inadmissible because the search contravened the Fourth Amendment and Article 1, Sec. 8 of the North Dakota Constitution on reasonable searches and seizures:

"There is nothing in the record to establish that the Defendant was aware that Maixner was a law enforcement agent. Maixner did not identify himself to Defendant until after the pat-down search and seizure of the items in Defendant's pockets. It is reasonable to determine that Defendant did not understand Penny Metzner's exclamation. Under the circumstances in this case, Maixner should not have reasonably believed Defendant was carrying a concealed weapon.

"The search warrant covered the search of the Metzner residence only. There was no articulable basis for searching the Defendant."

The State appealed, contending that the patdown was a reasonable frisk for weapons and that the pocket search was reasonable to determine if the pipe was a knife. Zearley countered that Maixner lacked reasonable cause for suspicion that Zearley was armed and dangerous and that Maixner lacked reasonable grounds to believe that Zearley's pocket contained a weapon. We reverse and remand for reconsideration.

PATDOWN

In State v. Grant, 361 N.W.2d 243 (N.D.1985), police, with a warrant, were searching a house when Grant entered with the owner. An officer questioned Grant for a few minutes and requested to see her purse, telling her that she had no choice in the matter. Grant was charged with possession of marijuana, but the trial court granted her motion to suppress the evidence found in her purse. This court ruled that the State's appeal was untimely and ineffective. Nevertheless, this court went on to point out that the search of Grant's purse was not based on a reasonable belief that she was armed, quoting Terry, infra, Ybarra, infra, and Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). Grant, at 245. In Grant, we rejected the idea that officers executing a search warrant may routinely frisk for weapons anyone present at the scene of a valid search, but we did not foreclose a patdown search for weapons where circumstances created any valid concern for safety.

In limited circumstances, police may stop and pat down an individual, checking for weapons without probable cause to arrest. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967). The United States Supreme Court held that "stop and frisk" procedures were searches and seizures protected by the Fourth Amendment. Id., at 16-17, 88 S.Ct. at 1877-78. The Court focused on the governmental interest in protecting officers and citizens and on the reasonableness of the action. Id., at 23-24, 88 S.Ct. at 1881-82. The Court ruled that a "Terry stop" was permissible "We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot ... where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing ... serves to dispel his reasonable fear for his own or others' safety, he is entitled ... to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons...." Id., at 30, 88 S.Ct. at 1884-85.

but, mindful of the intrusive nature of a stop and patdown, narrowly tailored the ruling:

Where a stop of a person without a warrant is justified, "a carefully limited search of the outer clothing" for potential weapons is permissible for safety reasons. Reasoning from Terry, we readily conclude that Maixner's patdown of Zearley was justifiable.

In a remarkably similar case, a California appellate court arrived at a similar conclusion. People v. Thurman, 209 Cal.App.3d 817, 257 Cal.Rptr. 517 (1989). In Thurman the appellant, relying on Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), claimed that there was no reason to believe he was armed and dangerous and therefore, under Terry, the search was unlawful. The California appellate court rejected that contention, stating:

"We have no hesitation whatever in holding that Officer Azuar acted reasonably and prudently in conducting the pat search of appellant in the circumstances. Here, a neutral and detached magistrate had judicially approved a warranted search for evidence of drug trafficking at the private residence where appellant was found. The officers whose duty required them to execute the warranted search were thus well aware they were engaged in an undertaking fraught with the potential for sudden violence. They were necessarily cognizant of the very real threat that the occupants of the residence were within an environment where weapons are readily accessible and often hidden, nor could they discount the possibility that one or more of the individuals found inside were personally armed.

"In this atmosphere Officer Azuar, a 10-year veteran of police work, came upon appellant, at close range, quietly seated on a sofa. That appellant's posture, at that moment, was non-threatening does not in any measure diminish the potential for sudden armed violence that his presence within the residence suggested. To require an officer to await an overt act of hostility, as appellant suggests, before attempting to neutralize the threat of physical harm which accompanies an occupant's presence in a probable drug trafficking residential locale, would be utter folly." Thurman, supra, 257 Cal.Rptr., at 519-520.

Relying on Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S.Ct. 330, 333, 54 L.Ed.2d 331 (1977), the California court concluded:

"The brief, relatively private intrusion upon appellant's personal security pales in significance when balanced against the officer's need to protect himself and others from the documented potential for violence inherent in a judicially sanctioned search for narcotics in a private residence. The risk of approaching an occupant of a private residence which is the probable site of drug trafficking corresponds to, if not exceeds, '... the inordinate risk confronting an officer as he approaches a person seated in an automobile.' " Thurman, [257 Cal.Rptr.] at 520.

In Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), based on an informant's statements, police obtained a warrant to search a bar and the bartender for evidence of possession of illegal drugs. Upon entering the bar, the police announced that they were going to conduct a "cursory search for weapons," authorized by an Illinois statute. Id., at 88-89, 100 S.Ct. at 340-41. The officer removed nothing from Ybarra's pocket during the initial patdown. After everyone in the bar had been patted down, the officer returned to The Court found that the police had no probable cause to search Ybarra because patrons were not included in the warrant and because Ybarra gave them no indication of criminal activity. Id., at 90-91, 100 S.Ct. at 341-42. "[A] person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person." Id., at 91, 100 S.Ct. at 342. The Court held that a search must be supported by "probable cause particularized with respect to that person." Id. Presence at premises covered by a search warrant is not sufficient. Id. The patdown of Ybarra was not justified because it was "not supported by a reasonable belief" that he was armed and dangerous. Id., at 92, 100 S.Ct. at 342-43. The Court reminded police that Terry created a very narrow exception to the probable cause requirement:

Ybarra and removed a packet of...