Shaver v. State

John Wesley SHAVER v. STATE of Arkansas

CR 97-520                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 25, 1998


1.   Search & seizure -- traffic stop -- extent of permissible
     search. -- The U. S. Supreme Court has held that an officer
     making a traffic stop may order passengers to get out of the
     vehicle pending completion of the stop; the Arkansas Supreme
     Court has held that, after a lawful stop, the police are
     permitted to search the outer clothing of an individual and
     the immediate vicinity for weapons if the facts available to
     an officer would warrant a person of reasonable caution to
     believe that a limited search was appropriate; when an officer
     is justified in believing that an individual whose suspicious
     behavior he is investigating at close range is armed and
     presently dangerous to the officers or others, a patdown
     search may be conducted to determine whether the person is in
     fact carrying a weapon and to neutralize the threat of
     physical harm.

2.   Motions -- suppression -- review of. -- In reviewing a trial
     judge's ruling on a motion to suppress, the supreme court
     reviews the evidence most favorable to the appellee; the
     supreme court reviews a trial court's suppression ruling under
     the totality of the circumstances, deferring to the superior
     position of that court to evaluate questions of credibility,
     and reverse only if the ruling is clearly against a
     preponderance of the evidence.

3.   Search & seizure -- traffic stop -- limited search of
     passenger justified under circumstances. -- The circumstances
     leading to appellant's patdown included the officers'
     knowledge that there were two guns in the vehicle, seeing a
     leather holster next to appellant's seat, seeing a tee shirt
     in appellant's lap, and appellant's agitation and "bowing up"
     before patdown; to insure the officers' safety, the officer
     felt compelled to check the "big bulge" in appellant's pocket,
     and while, in doing so, he found a bag of white powdery
     substance but remained uncertain regarding what else was in
     appellant's pockets; the trial court was not clearly wrong in
     finding the officer justified in conducting a limited search
     to determine that appellant had no weapon on his person; the
     denial of the motion to suppress was affirmed.

     Appeal from White Circuit Court; Robert Edwards, Judge;
affirmed.
     Paul Petty, for appellant.
     Winston Bryant, Att'y Gen., by:  David R. Raupp, Sr. Asst.
Att'y Gen., for appellee.

     Tom Glaze, Justice.
     Appellant John Wesley Shaver brings this appeal after entering
a conditional plea of guilty of possession of methamphetamine with
intent to deliver and receiving a sentence of 120 months in the
department of correction.  His sole point for reversal is that the
trial court erred in failing to grant his motion to suppress
evidence recovered as a result of an unlawful search and seizure. 
We affirm the trial court's ruling.
     Shaver's arrest ensued from incidents that occurred at 2:40
a.m. on July 7, 1996.  Greg Henry was driving Shaver's truck 76 
miles per hour in a 55-mile-per-hour zone when Officers Larry
Mitchell and Phillip Hydron stopped Henry for speeding.  Shaver was
a passenger in his truck.  After Henry exited the vehicle and gave
his driver's license to Officer Mitchell, Mitchell saw what
appeared to be leather straps next to the passenger seat, and
noticed that Shaver was seated with an old tee shirt or towel over
his lap.  Mitchell asked Henry if there were any weapons in the
vehicle, and Henry responded, saying Shaver had two.  Mitchell then
alerted Officer Hydron of the presence of the guns and asked him to
remove Shaver from the truck.  Hydron obliged, had Shaver place his
hands on the truck, and began to pat him down.  As Hydron reached
to pat Shaver down, he noticed a bulge in Shaver's front pocket. 
At the same time, Shaver "bowed up," causing Hydron to press him
against the truck and to tell Shaver to calm down and keep his
hands on the truck.  Officer Hydron then decided to reach inside
Shaver's pocket to determine what caused the bulge.  Hydron pulled
out a bag of white powdery substance, and he told Officer Mitchell
that "it looks like we have discovered contraband."  Hydron
continued to pull out a substance from both of Shaver's pockets
that he suspected was methamphetamine.  Hydron testified that,
initially, he had no idea what was in Shaver's pockets, but only
knew there was a "big bulge."  Hydron said that the bulge did not
feel like a weapon, but added he was uncertain what the contents
were.  On cross examination, Hydron related that his intent was to
pull everything out of Shaver's pockets, regardless.
     Recently, the Supreme Court held that an officer making a
traffic stop may order passengers to get out of the vehicle pending
completion of the stop.  Maryland v. Watson, 519 U.S. ____, 117 S. Ct. 882 (February 19, 1997); see also Wright v. State, 327 Ark.
558, 940 S.W.2d 432 (1997).  We have also held that, after a lawful
stop, the police are permitted to search the outer clothing of an
individual and the immediate vicinity for weapons if the facts
available to an officer would warrant a person of reasonable
caution to believe that a limited search was appropriate.  State v.
Barter, 310 Ark. 94, 833 S.W.2d 372 (1992); Stout v. State, 304
Ark. 610, 804 S.W.2d 686 (1991); A.R.Cr.P. Rule 3.4.  Stated in
slightly different terms, when an officer is justified in believing
that an individual whose suspicious behavior he is investigating at
close range is armed and presently dangerous to the officers or
others, a patdown search may be conducted to determine whether the
person is in fact carrying a weapon and to neutralize the threat of
physical harm.  Terry v. Ohio, 395 U.S. 1 (1968).
     In seeking suppression of the drugs found on Shaver, Shaver
relies heavily on Minnesota v. Dickerson, 508 U.S. 366 (1993), for
his argument that Hydron's patdown of him exceeded the lawful
bounds of Terry.  In Dickerson, an officer responded to complaints
of drug sales taking place at an apartment building, and when the
officer arrived, he saw the defendant outside the building.  The
defendant attempted to evade the officer, and because the defendant
had just left an apartment building known for cocaine traffic, the
officer stopped and conducted a patdown of him.  The officer felt
a small lump in the front pocket, and as he examined it with his
fingers, it slid and was felt to be a lump of crack cocaine in
cellophane.  The officer then pulled a plastic bag containing crack
cocaine from the defendant's pocket and arrested him.  Defendant
Dickerson moved to suppress, but the trial court denied his motion. 
The Minnesota Court of Appeals reversed, and the Supreme Court
ultimately reviewed Dickerson's case to consider the question
concerning whether police officers may seize nonthreatening
contraband detected during a protective patdown search of the sort
permitted by Terry.  The Court determined that officers may do so,
so long as their search stays within the bounds of Terry.   
     In its review of Dickerson's case, the Supreme Court held that
the officer overstepped his bounds because the officer's continued
exploration of Dickerson's pocket, after having concluded that it
contained no weapon, was unrelated to the sole justification of the
search under Terry -- the protection of the police officers and
others nearby.
     The Dickerson holding is simply not controlling here.  We
first point out that, in reviewing a trial judge's ruling on a
motion to suppress, this court reviews the evidence most favorable
to the appellee.  Johnson v. State, 325 Ark. 197, 926 S.W.2d 837
(1996).  This court reviews a trial court's suppression ruling
under the totality of the circumstances, deferring to the superior
position of that court to evaluate questions of credibility, and
reverse only if the ruling is clearly against a preponderance of
the evidence.  See Beshears v. State, 320 Ark. 573, 898 S.W.2d 49
(1995); State v. Osborn, 263 Ark. 554, 566 S.W.2d 139 (1978);
Grant v. State, 267 Ark. 50, 589 S.W.2d 11 (1979).
     In the instant case, the trial court found Officers Mitchell
and Hydron credible when describing their traffic stop of Shaver's
truck and subsequent patdown of Shaver, and concluded the actions
taken were reasonable to insure their safety.  The officers became
immediately aware that Shaver had two weapons inside the stopped
vehicle, and Officer Mitchell had seen a leather holster next to
where Shaver was seated.  Mitchell also saw Shaver had a tee shirt
or towel in his lap.  After Shaver was directed to get out of the
truck, and when Officer Hydron commenced a patdown, Shaver "bowed
up," causing Hydron to tell him to "calm down" and again place his
hands on the truck.  Because of these actions and events, the trial
court found it was reasonable for Hydron to reach into Shaver's
pockets to determine what was causing the bulges.  The trial court
further concluded that, although Hydron felt a plastic bag with a
rock-like substance in it, the officer still was unaware of what
else was in Shaver's pocket because he could not feel the entire
contents of his pocket.  The trial court ruled this uncertainty of
Hydron as to what else was in Shaver's pocket was sufficient reason
with all other circumstances for Hydron to search Shaver's pocket.
     In his argument, Shaver places emphasis on Hydron's testimony
that, when he searched Shaver's pocket, the bulge "did not feel
like a weapon" and that his "intent was to pull everything out of
Mr. Shaver's pockets, regardless."  In doing so, however, he
ignores the circumstances leading to the patdown of Shaver -- that
guns were present, Shaver was seen next to a leather holster with
a tee shirt or towel in his lap, and Shaver appeared "a bit
agitated" and was ordered to "calm down."  To insure the officers'
safety, Officer Hydron felt compelled to check the "big bulge" in
Shaver's pocket, and while, in doing so, he found a bag of white
powdery substance, Hydron remained uncertain regarding what else
was in Shaver's pockets.  Under these described circumstances, we
cannot say the trial court was clearly wrong in finding Officer
Hydron was justified in conducting a limited search to determine
that Shaver had no weapon on his person.
     Newbern and Imber, JJ., dissent.



     David Newbern, Justice, dissenting.  When Officer Hydron reached
into the front pocket of appellant John Wesley Shaver's blue jeans
and seized its contents, he violated Mr. Shaver's right under the
Fourth Amendment to be free from unreasonable searches and
seizures.  We should reverse the conviction and direct the Trial
Court to suppress the items seized by Officer Hydron.
     The majority opinion erroneously asserts that Officer Hydron's
actions may be condoned under the rule announced by the United
States Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968).  In the
Terry case, the Supreme Court held that a police officer may stop
and detain an individual, even in the absence of probable cause to
arrest, if the officer has a "reasonable suspicion," based upon
"specific and articulable facts," that the individual is involved
in criminal activity.  The Terry case further held that, if the
officer also reasonably suspects that the person he has detained is
"armed and presently dangerous," the officer is "entitled for the
protection of himself and others in the area to conduct a carefully
limited search of the outer clothing" of the individual "in an
attempt to discover weapons which might be used to assault him." 
Id. at 30.  If, during the exterior "weapons frisk," the officer
detects an item that he reasonably believes is a weapon, he may,
according to the Terry case, seize the item.
     A Terry weapons frisk is not "justified by any need to prevent
the disappearance or destruction of evidence of crime."  Id. at 29. 
Rather, its "sole justification . . . is the protection of the
police officer and others nearby, and it must therefore be confined
in scope to an intrusion reasonably designed to discover guns,
knives, clubs, or other hidden instruments for the assault of the
police officer."  Id.  See Adams v. Williams, 407 U.S. 143, 146
(1972)("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 . . . .").
     Thus, even if an officer is reasonable in commencing a Terry
weapons frisk, the scope of the search that follows "must be
`strictly tied to and justified by' the circumstances which
rendered its initiation permissible."  Terry v. Ohio, 392 U.S.  at
19.  "A search for weapons in the absence of probable cause to
arrest . . . must . . . be strictly circumscribed by the exigencies
which justify its initiation.  Thus it must be limited to that
which is necessary for the discovery of weapons which might be used
to harm the officer or others nearby . . . ."  Id. at 26 (emphasis
added).  "[E]vidence may not be introduced if it was discovered by
means of a seizure and search which were not reasonably related in
scope to the justification for their initiation."  Id. at 29.  See
Minnesota v. Dickerson, 508 U.S. 366, 373 (1993)("If the protective
search goes beyond what is necessary to determine if the suspect is
armed, it is no longer valid under Terry and its fruits will be
suppressed."), citing Sibron v. New York, 392 U.S. 40, 65-66
(1968).
     We have followed the Terry case in several of our own
decisions.  See, e.g., State v. Barter, 310 Ark. 94, 833 S.W.2d 372
(1992); Stout v. State, 304 Ark. 610, 614, 804 S.W.2d 686 (1991);
Wright v. State, 300 Ark. 259, 778 S.W.2d 944 (1989); Cooper v.
State, 297 Ark. 478, 763 S.W.2d 645 (1989); Hill v. State, 275 Ark.
71, 628 S.W.2d 285 (1982); Webb v. State, 269 Ark. 415, 601 S.W.2d 848 (1980).  
     Our rules of criminal procedure have codified the principles
discussed in the Terry case.  Under Ark. R. Crim. P. 3.1, an
officer may stop and detain a person upon reasonable suspicion that
the person "is committing, has committed, or is about to commit (1)
a felony, or (2) a misdemeanor involving danger of forcible injury
to persons or of appropriation of or damage to property." 
"`Reasonable suspicion' means a suspicion based on facts or
circumstances which of themselves do not give rise to the probable
cause requisite to justify a lawful arrest, but which give rise to
more than a bare suspicion; that is, a suspicion that is reasonable
as opposed to an imaginary or purely conjectural suspicion."  Ark.
R. Crim. P. 2.1.  If an officer has detained an individual pursuant
to Rule 3.1, he then may proceed under Rule 3.4, which provides as
follows:

     If a law enforcement officer who has detained a person
     under Rule 3.1 reasonably suspects that the person is
     armed and presently dangerous to the officer or others,
     the officer or someone designated by him may search the
     outer clothing of such person and the immediate
     surroundings for, and seize, any weapon or other
     dangerous thing which may be used against the officer or
     others.  In no event shall this search be more extensive
     than is reasonably necessary to ensure the safety of the
     officer or others.

     Thus, the Terry case and our rules of criminal procedure allow
an officer to commence a weapons frisk when the officer (1) has
detained the suspect based on reasonable suspicion that he is
involved in criminal activity, and (2) reasonably believes the
suspect is armed and dangerous.  However, a weapons frisk also may
be permissible where the reason for the initial detention is not
that the suspect is involved in criminal activity.  Under
Pennsylvania v. Mimms, 434 U.S. 106 (1997), and Maryland v. Wilson,
___ U.S. ___, 117 S. Ct. 882 (1997), a driver or passenger, even
one who is not suspected of any criminal activity, may be ordered
from a vehicle following a valid traffic stop and thus "detained"
for Fourth Amendment purposes.  If the officer then develops reason
to believe the driver or passenger is armed and dangerous, he may
conduct a Terry weapons frisk.
     Under the rule announced in Minnesota v. Dickerson, 508 U.S. 266 (1993), an officer may seize even contraband if its
incriminating nature becomes immediately apparent to him "through
the sense of touch during an otherwise lawful" Terry search.  In
approving this "plain-feel" exception to the Fourth Amendment's
warrant requirement, the Court in Dickerson observed that, "[i]f a
police officer lawfully pats down a suspect's outer clothing and
feels an object whose contour or mass makes its identity
immediately apparent, there has been no invasion of the suspect's
privacy beyond that already authorized by the officer's search for
weapons; if the object is contraband, its warrantless seizure would
be justified by the same practical considerations that inhere in
the plain-view context."  Id. at 376-77.  
     In light of the above principles and the factual circumstances
recited in the majority opinion, I am willing to concede, for the
sake of argument, that Officer Hydron was reasonable in detaining
Mr. Shaver and in further concluding that Mr. Shaver was armed and
dangerous.  Thus, I do not dispute the majority's suggestion that
Officer Hydron was permitted by the Terry case to commence a
weapons frisk of Mr. Shaver's outer clothing.
     The facts mentioned by the majority, however, only justify the
commencement of a Terry search, not Officer Hydron's subsequent
intrusion into Mr. Shaver's pocket.  Based on Officer Hydron's own
testimony, it is clear that he exceeded the scope of the search
that he was permitted by the Terry case to undertake when he
reached into Mr. Shaver's pocket.  Officer Hydron testified that,
when he "reached to pat Mr. Shaver down," he noticed a bulge in Mr.
Shaver's front pocket.  Officer Hydron testified that he "was
uncertain as to what it was."  Significantly, he testified that the
item "did not feel like a weapon."  The officer said that he
"didn't know or have any idea what was in his pockets.  All I knew
was that there was a big bulge, so that is why I decided to reach
inside the pocket."  He emphasized that he would have emptied Mr.
Shaver's pockets "regardless."
     By his own admission, Officer Hydron intruded into Mr.
Shaver's inner clothing without first concluding that the item he
had detected in the course of the pat-down was a weapon.  That fact
renders the officer's entry into the pocket illegal under the
Fourth Amendment.  In approving the officer's conduct in the Terry
case, the Court was careful to note that the officer "did not place
his hands" in the suspects' "pockets or under the outer surface of
their garments until he had felt weapons, and then he merely
reached for and removed the guns."  Terry v. Ohio, 392 U.S.  at 30.
     In Sibron v. New York, supra, which was a companion case to
the Terry case, the Court invalidated the officer's search of the
petitioner's pocket because that extension of the initial, exterior
pat-down was not based on a reasonable suspicion that a weapon
would be found there.  The Court in Sibron distinguished the Terry
case as follows:

     The search for weapons approved in Terry consisted solely
     of a limited patting of the outer clothing of the suspect
     for concealed objects which might be used as instruments
     of assault.  Only when he discovered such objects did the
     officer in Terry place his hands in the pockets of the
     men he searched.  In this case, with no attempt at an
     initial limited exploration of arms, Patrolman Martin
     thrust his hand into Sibron's pocket and took from him
     envelopes of heroin.  His testimony shows that he was
     looking for narcotics, and he found them.  The search was
     not reasonably limited in scope to the accomplishment of
     the only goal which might conceivably have justified its
     inception--the protection of the officer by disarming a
     potentially dangerous man.

New York v. Sibron, 392 U.S.  at 65 (emphasis added).  See also
Bailey v. State, 246 Ark. 362, 367, 438 S.W.2d 321, 324-25 (1969)
(reversing appellant's conviction and stating officer's search of
appellant's pocket and seizure of pocketbook was invalid and had
"no reasonable relation to the object of the search, that being for
a weapon"); Leopold v. State, 15 Ark. App. 292, 297, 692 S.W.2d 780, 784 (1985)("An officer has the right to frisk a detainee's
possessions under Terry if there is a reasonable suspicion that
there is a weapon located there.").
     The decisions of courts in other jurisdictions also require
that an officer conducting a Terry search must, before moving the
search from the exterior to the interior of a suspect's clothing,
have a reason to believe that the item he has detected is a weapon. 
In People v. Collins, 463 P.2d 403, 406 (Cal. 1970), the Supreme
Court of California held that the scope of an exterior pat-down
"cannot be exceeded at the mere discretion of an officer, but only
upon discovery of tactile evidence particularly tending to
corroborate suspicion that the suspect is armed."  The court
observed that "[f]eeling a soft object in a suspect's pocket during
a pat-down, absent unusual circumstances, does not warrant an
officer's intrusion into a suspect's pocket to retrieve the
object."  Id.
     Numerous other cases are in accord.  See, e.g., Ellis v.
State, 573 So. 2d 724, 725 (Miss. 1990)("When an object is soft or
does not reasonably resemble a weapon, the Terry analysis does not
justify removing it from the suspect's clothing and searching
it."); United States v. Santillanes, 848 F.2d 1103 (10th Cir.
1988); State v. Collins, 679 P.2d 80 (Ariz.App. 1984); Blackburn v.
State, 414 So. 2d 651, 652 (Fla.App. 2d Dist. 1982)(seizure of item
that caused a "bulge" in appellant's shirt pocket held "not
permissible when the officer does not reasonably believe that what
he is finding is a weapon"); Francis v. State, 584 P.2d 1359, 1363
(Okl.Cr. 1978)("When in course of a frisk the officer feels an
object, he is not justified in seizing it unless it reasonably
resembles an offensive weapon."); People v. McCarty, 296 N.E.2d 862
(Ill.App. 1973) .  See generally 4 Wayne R. LaFave, Search and Seizure: 
A Treatise on the Fourth Amendment  9.5(c), at pp. 276-80 (3d ed. 1996).
     Thus, even if Officer Hydron could have legitimately commenced
a Terry search of Mr. Shaver's outer clothing, the officer's
testimony shows that he never concluded, as a result of his initial
pat-down, that the "bulge" he detected in Mr. Shaver's pocket was
a weapon.  It follows that the officer's entry into Mr. Shaver's
pocket was "not reasonably related to the circumstances which
provoked the protective search for weapons."  United States v. Del
Toro, 464 F.2d 520, 522-23 (2d Cir. 1972).  The search, therefore,
did not comply with the Terry case, and the evidence seized as a
result of the search should be suppressed.  Nor can Officer
Hydron's intrusion into Mr. Shaver's pocket be justified under the
"plain-feel" exception approved by the Supreme Court in Minnesota
v. Dickerson, supra.  Nothing in the officer's testimony suggests
that the "incriminating nature" of the bulge became "immediately
apparent" to the officer during his pat-down of Mr. Shaver's outer
clothing.  The officer testified he "had no idea" what was there.
     In the darkness of 2:40 a.m. on a July morning in the presence
of two men whose vehicle containing weapons has been stopped for
speeding, police officers are undoubtedly entitled to take
reasonable measures to protect themselves from the possibility of
being wounded if one of the men, removed from the vehicle, has a
weapon in his pocket.  The law must zealously provide for the
officers' protection.  At least equal zeal must, however, be
applied to the protection of this principle: "The right of the
people to be secure in their persons ... and effects, against
unreasonable searches and seizures shall not be violated ...." 
U.S. Const., amend. 4.  Obviously, a balance must be achieved by
interpreting the word "unreasonable," and then a line must be
drawn.    
     To avoid the Fourth Amendment being swallowed by the need to
protect the officers, and to avoid the need to protect the officers
from being swallowed by the Fourth Amendment, the United States
Supreme Court has drawn the line, described in the cases cited
above, to be followed by all courts, including this one.  In this
instance this Court has clearly overstepped that boundary.
     I respectfully dissent.
     Imber, J., joins in this dissent.