State v. Zearley

• Decision Date: 18 April 1991
• Docket Number: Cr. N
• Citation: 468 N.W.2d 391
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Jeffrey ZEARLEY, Defendant and Appellant. o. 900240.
• Court: North Dakota Supreme Court

Page 391

468 N.W.2d 391

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

Cr. No. 900240.

Supreme Court of North Dakota.

April 18, 1991.

Brian David Grosinger, Asst. State's Atty., Mandan, for plaintiff and appellee; submitted on brief.

Rodney K. Feldner, Mandan, for defendant and appellant; submitted on brief.

GIERKE, Justice.

Jeffrey Zearley appeals from an order denying his motion to suppress evidence of possession of a controlled substance. The evidence was discovered during a patdown and pocket search of Zearley who was a guest in a home being lawfully searched for drugs pursuant to a no-knock warrant. We affirm.

While other police officers were at the front door of the Metzner home with the search warrant, Drug Enforcement agent Maixner knocked and entered the kitchen. He identified himself to Penny Metzner and she attempted to stop him from entering the hallway to the rest of the house. Upon entering the hallway, he met Zearley. Zearley attempted to block Maixner's way and they engaged in a "pushing match". Maixner pushed Zearley against the wall until the other officers got to the hallway. Then Maixner patted Zearley down for weapons. Feeling an object that he expected to be a knife, Maixner reached into Zearley's pocket and pulled out a drug pipe and packets of methamphetamine.

Charged with possession of a controlled substance, Zearley moved to suppress the evidence. The trial court ruled that the pipe and the packets of methamphetamines were inadmissible because the search contravened the Fourth Amendment and Article 1, Sec. 8 of the North Dakota Constitution on reasonable searches and seizures. 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. We concluded that Maixner's patdown of Zearley was a reasonable search for safety reasons, but reversed and remanded for reconsideration of the suppression order with instructions to the trial court that it must determine whether the pocket search following the constitutionally permitted patdown was reasonable. State v. Zearley, 444 N.W.2d 353 (N.D.1989) (Zearley I ).

On appeal, Zearley argues that the objects in his pocket could not reasonably be believed to constitute a weapon or threat of danger to Maixner. In Zearley I, we held that a pocket search is distinct from the preceding patdown. We stated: "A patdown is not simply a routine preliminary to a more extensive search. Before going further, the officer must have an articulable and reasonable suspicion that a person is armed and dangerous." Zearley, supra at 359. See also, Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

In a remarkably similar case, the California Appellate Court had the opportunity to consider the patdown and pocket search issues. People v. Thurman, 209 Cal.App.3d 817, 257 Cal.Rptr. 517 (1989). In Thurman, the trial court denied the motion to suppress. The appellate court looked separately at the patdown and at the pocket search. That patdown for weapons was also motivated by reasons of safety. In Thurman, the defendant was quietly sitting on a sofa and the...