NO. 412-99







Johnson, J., filed a dissenting opinion, in which Meyers, Price, and Holland, JJ., join.

D I S S E N T I N G  O P I N I O N

I respectfully dissent.

The majority asserts that the timing of the pat-down is irrelevant. Ante, at __ (slip op. at 13). I disagree. Although the officer noticed that appellant was wearing a "belt-knife" (1) throughout the inspection, he did not, at that time, request appellant to remove it. Nor did the officer, upon noticing the knife, perform a pat-down search for his own safety. It was not until after the entire inspection had been completed that the officer asked appellant to remove the knife and subsequently performed the pat-down search. The record is not clear as to the amount of time that elapsed from the moment when the officer saw the knife until he performed the pat-down, although it appears, based on the following events, that it was more than just a brief moment.

Pursuant to the traffic stop on April 11, 1997, the officer approached appellant and informed him that he would perform a safety inspection of appellant's commercial vehicle. The officer began the inspection by testing the front of the vehicle for high beam lights, low beam lights, right turn signal, left turn signal, windshield wipers, identification lights, clearance lights and horn. The officer then returned to the cab of the truck and informed appellant of the next steps of the inspection. The officer observed the side marker lights on the side of the trailer, then walked to the back of the truck, where he tested the brake lights, right turn signal, left turn signal, license plate light, and identification lights. Upon completion of these steps, he walked back up the right side, inspecting the side markers on the right side. At that time, the officer went all the way around the truck, inspecting all of the lights, then examined the tires on the vehicle for tread wear. The officer then stepped up on the running boards to inspect two devices located inside the cab of the truck. The officer continued his inspection inside the cab with appellant, noting the safety triangles and fire extinguisher, then inspecting the sleeper. The officer performed all of these procedures without conducting a pat-down, apparently believing that appellant was not dangerous. It was not until after the officer completed the inspection that he told appellant that he would "let him sit inside the front seat" of the patrol car, after conducting a pat-down.

Barring routine procedure, the record is devoid of any reason, such as seeking protection from inclement weather, (2) that would necessitate appellant sitting in the patrol car. (3) In fact, after performing the search, placing appellant under arrest, and handcuffing him, the officer did not put appellant in the patrol car, but left him standing against the side of the patrol car while he and another officer inventoried the truck. Therefore, I discern no reason for appellant to get in the patrol car, other than as a matter of routine.

A reasonably prudent officer may have believed that his safety might be in danger when the officer noticed the weapon or when the officer and appellant were together in the cab of the truck, and I agree with the majority that the officer would have been justified in patting appellant down at that time. See ante, at __ (slip op. at 13). However, because the officer waited until after he had completed the inspection, after appellant had willingly removed the belt-knife, and when the officer was no longer in a confined space with appellant, I do not believe that the officer was justified in patting appellant down at the time that the pat-down was actually done.

The majority acknowledges that the validity of the search should be analyzed by determining whether, after considering all of the facts available to the officer at the time of the search, a reasonably prudent person would have believed that the action taken was appropriate. See ante, at __ (slip op. at 6-7). The facts available at the time of the search were (1) that the officer was alone with appellant at about 3:30 a.m.; (2) that appellant had readily removed the knife, leaving it in the cab of the vehicle and out of his reach; (3) that the officer had just spent an apparently significant amount of time in close proximity with appellant, without incident nor trepidation; (4) that the officer and appellant were no longer in a confined space; and (5) that appellant had complied with the requests of the officer, including helping the officer complete the vehicle inspection. On balance, I do not believe that these facts are sufficient to warrant an officer of reasonable caution to believe that the pat-down search of appellant was necessary; it was done merely "as a matter of routine." Thus, the search violated the "narrow scope" of Terry. (4) Ybarra v. Illinois, 444 U.S. 85, 93, 100 S.Ct. 338, 343, 62 L.Ed.2d 238 (1979).

In rejecting the state's argument that the officer's routine alone justifies a pat-down, the majority properly recognizes that

taking the State's logic [that a routine pat-down search is permissible] to its natural conclusion would completely dispense with the rule in Terry. The Supreme Court has stated that a police officer can, as a matter of routine, order a suspect out of his car during a traffic stop. Under the State's theory, once an officer has ordered a person out of his car, the officer could always, as a matter of routine, order the person to sit in the patrol car, and then always, as a matter of routine, frisk for weapons before allowing the suspect into the car. So every single traffic stop could be transformed, as a matter of routine, into a Terry stop. This would violate the "narrow scope" of Terry and dispense with any need for an officer to have specific and articulable facts to justify his actions. As the Sikes court noted, we have held that "the Fourth Amendment protection against seizures cannot be whittled away by police regulation."

Ante, at __ (slip op. at 11-12) (emphases added) (citations omitted).

While expressing concern for and denouncing the use of such tactics as violating Fourth Amendment protections, the majority, by its holding, has sanctioned just such action. In the instant case, the officer, "as a matter of routine, order[ed] [appellant] out of his [truck] during a traffic stop." After appellant was out of his truck, the officer, "as a matter of routine, order[ed] [appellant] to sit in the patrol car." Then the officer, "as a matter of routine, frisk[ed] [appellant] for weapons before allowing [appellant] into the car." (5) This completed inspection stop was "transformed, as a matter of routine, into a Terry stop," violating Terry's narrow scope. (All emphases added.) This practice is exactly what the majority professes to reject as a violation of Fourth Amendment rights.

Because the officer did not have sufficient specific and articulable facts to warrant the pat-down search of appellant, I believe that appellant's Fourth Amendment rights were violated and the fruits of the illegal arrest should have been suppressed. Because the majority holds otherwise, I dissent.

Johnson, J.

Date Delivered: September 20, 2000


1. The officer testified that it was not an illegal knife.

2. Nothing in the record indicates that it was raining, stormy, windy, particularly hot, or particularly cold.

3. In order to complete the inspection report, the officer testified that he would need access to his radio to run a check on appellant's driver's license and that he would need appellant to be present to answer questions. However, requiring his presence does not require that appellant sit inside the patrol car.

4. The "narrow scope" of the pat-down exception to the warrant requirement "does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked." Ybarra, 444 U.S. at 93, 100 S.Ct. at 343.

5. Although the officer performed the pat-down for weapons as a matter of routine to ensure his safety, he testified that he does not pat-down female truck drivers, albeit admitting that women can be dangerous.