STATE OF IOWA, Plaintiff-Appellant, vs. BRIAN WAYNE MAKIN, Defendant-Appellee.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 9-698 / 08-1940
Filed October 21, 2009
STATE OF IOWA,
Plaintiff-Appellant,
vs.
BRIAN WAYNE MAKIN,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Fayette County, Nathan A.
Callahan, District Associate Judge.
The State seeks discretionary review of a district court ruling granting a
defendant’s motion to suppress evidence found as a result of a search conducted
by a police officer, contending that the officer conducted a valid pat-down search
that resulted in the discovery of marijuana. REVERSED AND REMANDED.
Thomas J. Miller, Attorney General, Mary Tabor and Karen Doland,
Assistant Attorneys General, and W. Wayne Saur, County Attorney, for appellant.
Mark C. Smith, State Appellate Defender, and Stephan Japuntich,
Assistant Appellate Defender, for appellee.
Considered by Vaitheswaran, P.J., and Mansfield, J., and Schechtman,
S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
2
VAITHESWARAN, P.J.
The State seeks discretionary review of a ruling granting Brian Makin’s
motion to suppress marijuana found in his pocket.
I.
Background Facts and Proceedings
Officer Ted Phillips of the Oelwein Police Department stopped a vehicle
with an exposed license light. Brian Makin was a passenger in the vehicle. After
the driver consented to a search of the vehicle, Officer Phillips ordered Makin
and another passenger out of the car.
By this time, Officer Tommasin had
arrived at the scene.
Officer Tommasin, who was standing with the passengers, noticed “a
large bulge in the front left pocket” of Makin’s pants. He ordered Makin to take
his hands out of his pockets. Initially, Makin did not comply. Officer Tommasin
repeated the order. This time, Makin removed his hands and placed them on his
head.
Officer Tommasin performed a pat-down search which uncovered no
weapons but did uncover a bag of marijuana.
The State charged Makin with “Manufacturing or Possession of a
Controlled Substance with Intent to Manufacture or Deliver a Controlled
Substance.” Makin moved to suppress the evidence obtained in the search.
Following a hearing, the district court granted the motion. The State applied for
and was granted discretionary review.
II.
Analysis
As a preliminary matter, we note that no one questions the validity of the
initial stop of the vehicle, the validity of the vehicle search, or the validity of
Officer Phillips’s command to have Makin exit the vehicle. The sole argument
3
pertains to Officer Tommasin’s pat-down search of Makin. On this point, Makin
contends that the search “was impermissible under the Fourth Amendment [to
the United States Constitution].”1
The United States Supreme Court recently addressed the validity of a patdown search under similar circumstances. In Arizona v. Johnson, __ U.S. __,
129 S. Ct. 781, 172 L. Ed. 2d 694 (2009), an officer ordered back-seat passenger
Lemon Johnson out of a validly-stopped vehicle based on signs that Johnson
might be involved in gang activity and based on the officer’s desire to question
him about that activity at a distance from the front-seat passenger. Johnson, __,
U.S., 129 S. Ct. at 785, 172 L. Ed. 2d at 701. When Johnson was ordered out,
the officer already suspected he might have a weapon.
Id.
The officer
conducted a pat-down search which uncovered a gun. Id.
After summarizing the “stop and frisk” case law that began with Terry v.
Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the court held as
follows:
To justify a patdown of the driver or a passenger during a traffic
stop, however, just as in the case of a pedestrian reasonably
suspected of criminal activity, the police must harbor reasonable
suspicion that the person subjected to the frisk is armed and
dangerous.
Id. at __, 129 S. Ct. at 784, 172 L. Ed. 2d at 700. The Court did not decide
whether the facts afforded the officer reasonable suspicion to conduct the patdown search of Johnson, noting that the state appellate court “assumed without
1
Although Makin’s motion also cited the relevant provision of the Iowa Constitution, no
argument has been made under the Iowa Constitution.
4
deciding” this issue. Id. at __, 129 S. Ct. at 788 n.2, 172 L. Ed. 2d at 705 n.2.
The Court left the issue open for consideration on remand. Id.
Our record allows us to decide the question of whether Officer Tommasin
had reasonable suspicion to believe Makin was armed and dangerous. Review
of this issue is de novo. State v. Kreps, 650 N.W.2d 636, 640 (Iowa 2002).
As in Johnson, Officer Tommasin suspected that Makin might have a
weapon. He testified, “Mr. Makin was facing me and had both hands in his
pockets; and there was a large bulge in the front left pocket.” He continued, “At
that point in time I became fearful for my safety and Officer Phillips’s safety as to
what the object was in the front left pocket.” He described the nature of the
search as follows:
I felt along the side of his pockets, and I asked him what it
was that was in his pocket. He was—He said it was butane fuel. I
asked if I could pull it out and he said I could. I felt—Underneath
that was an object I felt could be a knife. I reached in and grabbed
both objects out. And as I pulled them out, I noticed a small bag of
marijuana in there.
In describing what he believed to be the weapon, Officer Tommasin stated:
It did not feel like a squared-off regular Zippo a rounded-off Bic like
a typical lighter would be. With the small oblong shape as it was, I
thought it could definitely be a knife. And I have a knife similar to
that, that is that small in nature.
Additionally, Officer Phillips testified that he had earlier observed Makin acting
nervous and fidgety.
We conclude this combination of facts could have objectively led Officer
Tommasin to fear for his safety and the safety of Officer Phillips. See Terry, 392
U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909 (“The officer need not be
absolutely certain that the individual is armed; the issue is whether a reasonably
5
prudent man in the circumstances would be warranted in the belief that his safety
or that of others was in danger.”). Accordingly, we reverse the district court’s
suppression ruling and remand for further proceedings.2
REVERSED AND REMANDED.
2
The State also argues that Officer Tommasin’s reach into Makin’s pocket was
consensual. We find it unnecessary to decide this issue.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
