[This decision has been published in Ohio Official Reports at
92 Ohio St.3d 74.]
THE STATE OF OHIO, APPELLANT, v. LOZADA, APPELLEE.
[Cite as State v. Lozada, 2001-Ohio-149.]
Criminal law—Motor vehicles—During routine traffic stop, it is reasonable for
officer to search driver for weapons before placing driver in patrol car,
when—During routine traffic stop, it is unreasonable for officer to search
driver for weapons before placing driver in patrol car, when.
(No. 99-2316—Submitted December 13, 2000—Decided June 20, 2001.)
APPEAL from the Court of Appeals for Portage County, No. 98-P-0098.
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SYLLABUS OF THE COURT
1. During a routine traffic stop, it is reasonable for an officer to search the driver
for weapons before placing the driver in a patrol car, if placing the driver in
the patrol car during the investigation prevents officers or the driver from
being subjected to a dangerous condition and placing the driver in the patrol
car is the least intrusive means to avoid the dangerous condition.
2. During a routine traffic stop, it is unreasonable for an officer to search the driver
for weapons before placing him or her in a patrol car, if the sole reason for
placing the driver in a patrol car during the investigation is for the
convenience of the officer.
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LUNDBERG STRATTON, J.
{¶ 1} On May 6, 1997, Ohio State Patrol Trooper Corey D. Davies stopped
a vehicle operated by the defendant, Roberto Lozada, on the Ohio Turnpike.
Trooper Davies approached the passenger side of the vehicle and informed the
defendant that he was stopped for speeding. The defendant was in the driver’s seat,
the front passenger seat was empty, and there were two passengers in the back seat.
SUPREME COURT OF OHIO
Trooper Davies asked the defendant to produce a driver’s license and registration
and then to exit the vehicle. Trooper Davies met the defendant in between his
vehicle and the patrol car. Trooper Davies asked the defendant from where he had
come and where he was going.
{¶ 2} Trooper Davies told the defendant that he was going back to his patrol
car to check the license and registration and requested the defendant to come with
him. Trooper Davies then asked the defendant “if he had guns, knives, or any hand
grenades.” The defendant denied having any weapons. Trooper Davies indicated
that he would pat down defendant to be sure he had no weapons. While executing
the pat-down search, Trooper Davies testified that “[w]hen I got to the area of his
jacket pocket, he pulled away a little bit ever so much, and that when he did that, I
thought there was something in there that could hurt me.” This prompted Trooper
Davies to reach into the defendant’s jacket pocket where he found two small bags
containing cocaine. The defendant was arrested.
{¶ 3} On October 1, 1997, the defendant was indicted on one count of
possession of cocaine. On December 26, 1997, the defendant filed a motion to
suppress the cocaine that was discovered in his jacket. The trial court overruled the
motion, and the defendant subsequently pled no contest and was found guilty.
{¶ 4} The defendant filed an appeal, alleging that there was no probable
cause justifying the trooper’s search that resulted in the discovery of the cocaine.
In a split decision, the appellate court agreed, finding that “there was no reasonable,
objective basis for Officer Davies to pat-down appellant, based upon the totality of
the circumstances,” and consequently held that the trial court erred in overruling
the defendant’s motion to suppress.
{¶ 5} This cause is now before the court pursuant to the allowance of a
discretionary appeal.
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{¶ 6} There is no dispute over the validity of the initial traffic stop for
speeding. The issue is whether it was reasonable to search the defendant for
weapons before placing him in Trooper Davies’s patrol car.
{¶ 7} The state argues that, during a traffic stop, if the detention of the driver
in a patrol car is “legitimate and lawful,” then the officer is justified in searching
the driver for weapons before placing him or her in a patrol car, even where the
officer has no belief that the driver is armed and dangerous. The state asserts three
reasons why the detention of the defendant in Trooper Davies’s patrol car would
have been legitimate and lawful: (1) it allowed Trooper Davies to use the radio in
the patrol car, away from traffic noise, which “facilitated the officer’s
investigation,” (2) it allowed Trooper Davies to stay safely away from the turnpike
traffic, and (3) it minimized the chance that Trooper Davies would be ambushed.
Finally, although the state does not argue that every traffic stop justifies a pat-down
search of the driver and placement of the driver in the patrol car, Trooper Davies
testified that it is his “standard practice” during a traffic stop to search the driver
for weapons and then place the driver in his patrol car.
{¶ 8} Typically, to conduct a pat-down search for weapons, an officer must
have a “specific and articulable” belief based on the “reasonably prudent man”
standard that an individual is armed and dangerous. Terry v. Ohio (1968), 392 U.S.
1, 21, 27,
88 S.Ct. 1868, 1880, 1883,
20 L.Ed.2d 889, 906, 909. To allow such a
search based on “[a]nything less would invite intrusions upon constitutionally
guaranteed rights based on nothing more substantial than [an] inarticulate [hunch],
a result that this Court has consistently refused to sanction.” Terry,
392 U.S. at 22,
88 S.Ct. at 1880,
20 L.Ed.2d at 906. However, this is not a Terry case because there
was no evidence that Trooper Davies believed that the defendant was armed and
dangerous. Rather, the state urges that if a person is legitimately detained in a patrol
car, the nature of the detention, i.e., placement of the detainee in close proximity to
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the officer, raises safety concerns that necessitate searching any person for weapons
before placing that person in the patrol car.
{¶ 9} Thus, we must determine, during a traffic stop, if and when
circumstances dictate that an officer may search a driver for weapons and place him
or her in a patrol car even where the officer has no belief that the driver is armed
and dangerous. As a New York court has recognized, “Although a police officer
may reasonably pat down a person before he places him in the back of a police
vehicle, the legitimacy of that procedure depends on the legitimacy of placing him
in the police car in the first place.” People v. Kinsella (1988), 139 A.D.2d 909,
911,
527 N.Y.S.2d 899, 901.
Placement of Driver in Patrol Car During Traffic Stop as Matter of Practice
{¶ 10} Trooper Davies testified that it was his “practice” during a traffic
stop to order the driver into his patrol car after performing a pat-down search for
weapons. Numerous courts have held that an officer may ask a driver to sit in his
or her patrol car to facilitate the traffic stop. See, e.g., State v. Carlson (1995), 102
Ohio App.3d 585,
657 N.E.2d 591. See, also, State v. Warrell (1987),
41 Ohio
App.3d 286, 287,
534 N.E.2d 1237, 1239, and United States v. Barahona (C.A.8,
1993),
990 F.2d 412. However, there was no evidence in these cases that the drivers
were searched for weapons before entering the patrol car.
{¶ 11} The placement of a driver in a patrol car during a routine traffic stop
may be constitutionally permissible. See Carlson, supra. However, that alone is
not a legitimate justification to subject the driver to a pat-down search for weapons.
While the intrusion of asking a driver to sit in a patrol car to facilitate a traffic stop
may be relatively minimal, the level of intrusion on the driver dramatically
increases when the driver is subject to a pat-down search for weapons before
entering the patrol car. To subject a driver to such an intrusion, when the underlying
reason for placing him or her in the patrol car is mere convenience, would
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effectively eviscerate the Terry standard without justification. As a Texas appellate
court recognized:
“[T]aking the State’s logic 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 [v. State (Tex.App.1998), 981 S.W.2d 490, 494] court
noted, we have held that ‘the Fourth Amendment protection against seizures cannot
be whittled away by a police regulation.’ We reject the State’s argument that
routine alone is sufficient to justify a pat-down.” (Footnotes omitted.) O’Hara v.
State (Tex.Crim.App.2000),
27 S.W.3d 548, 553.
{¶ 12} Thus, we hold that during a routine traffic stop, it is unreasonable for
an officer to search the driver for weapons before placing him or her in a patrol car,
if the sole reason for placing the driver in the patrol car during the investigation is
for the convenience of the officer.
{¶ 13} In this case, Trooper Davies testified that it was his practice during
a traffic stop to pat down the driver and to place the driver in his patrol car during
the investigation. To the extent that Trooper Davies’s pat-down search of the
defendant was due to this practice, the search of the defendant for weapons was
unreasonable.
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Placement of Driver in Patrol Car to Protect Officer or Driver from Dangerous
Condition
{¶ 14} The state argues that during a traffic stop, if the officer has a
“legitimate and lawful” reason to detain the driver in a patrol car, the officer is
likewise justified in searching the driver for weapons before placing him or her in
the patrol car.
{¶ 15} In State v. Evans (1993), 67 Ohio St.3d 405,
618 N.E.2d 162,
paragraph one of the syllabus, we held that “[t]he driver of a motor vehicle may be
subjected to a brief pat-down search for weapons where the detaining officer has a
lawful reason to detain said driver in a patrol car.” (Emphasis added.) In Evans,
officers stopped a vehicle driven by Dwayne Evans because a headlight on his car
was burned out. When Evans failed to produce his driver’s license, the officers
asked him to step out of his car and the officers conducted a pat-down search in
anticipation of placing him in the cruiser. The officers discovered drugs during the
pat-down search, arrested Evans, and placed him in the patrol car.
{¶ 16} Evans challenged the legality of the pat-down search. The trial court
denied his motion to suppress, but the court of appeals reversed, holding that the
search for weapons was unreasonable. This court reversed the appellate court’s
judgment and held that failure to produce a driver’s license during a traffic stop is
a “lawful” reason for detaining a driver in a patrol car, and, consequently, officers
may search such a detainee for weapons before placing the driver in the patrol car.
We found that the pat-down search was justified because we recognized that “it is
reasonable that the officer, who has a legitimate reason to so detain that person [in
a patrol car], is interested in guarding against an ambush from the rear.” Evans, 67
Ohio St.3d at 410,
618 N.E.2d at 167.
{¶ 17} In the case at bar, the defendant produced a driver’s license when
requested by Trooper Davies. Thus, under Evans, it would have been unreasonable
to subject the defendant to a pat-down search for weapons.
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January Term, 2001
{¶ 18} However, the state would have us expand the definition of when a
driver may be lawfully detained in a patrol car. The state argues that “there are
sometimes legitimate public policy concerns such as the safety of the officer and
the driver that justify an officer’s placement of a driver into his patrol car.”
{¶ 19} Although Evans was detained in the patrol car because he failed to
produce a driver’s license, paragraph one of the syllabus in Evans merely requires
that detention in a patrol car be “lawful,” to justify a pat-down search for weapons,
thereby leaving open the possibility that a driver may be detained in a patrol car for
other reasons.
{¶ 20} The Fourth Amendment sets the parameters for the detention of
motorists during a traffic stop. “A traffic stop is usually brief, and the motorist
expects that, while he may be given a citation, in the end he most likely will be
allowed to continue on his way. Moreover, the typical traffic stop is conducted in
public, and the atmosphere surrounding it is substantially less ‘police dominated’
than that surrounding the kinds of interrogation at issue in Miranda and subsequent
cases in which Miranda has been applied.” Berkemer v. McCarty (1984), 468 U.S.
420, 421,
104 S.Ct. 3138, 3140,
82 L.Ed.2d 317, 323. Syllabus of the Reporter of
Decisions of the United States Supreme Court. Consequently, investigative
methods employed during the stop should be the least intrusive means available.
See Florida v. Royer (1983),
460 U.S. 491, 500,
103 S.Ct. 1319, 1325-1326,
75
L.Ed.2d 229, 238.
{¶ 21} However, “ ‘[t]he touchstone of our analysis under the Fourth
Amendment is always “the reasonableness in all the circumstances of a particular
governmental invasion of a citizen’s personal security.” ’ ” Evans, 67 Ohio St.3d
at 409,
618 N.E.2d at 166, quoting Pennsylvania v. Mimms (1977),
434 U.S. 106,
108-109,
98 S.Ct. 330, 333-334,
54 L.Ed.2d 331, 335, quoting Terry,
392 U.S. at
19,
88 S.Ct. at 1878-1879,
20 L.Ed.2d at 904. “A determination as to the
reasonableness of a particular police procedure depends ‘on a balance between the
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public interest and the individual’s right to personal security free from arbitrary
interference by law officers.’ ” Evans, 67 Ohio St.3d at 410,
618 N.E.2d at 167,
quoting United States v. Brignoni-Ponce (1975),
422 U.S. 873, 878,
95 S.Ct. 2574,
2579,
45 L.Ed.2d 607, 614-615.
{¶ 22} Placing a driver in a patrol car during a routine traffic stop increases
the intrusive nature of the detention. Goss v. State (Fla.App.1999), 744 So.2d 1167,
1168. Subjecting a driver to a pat-down search for weapons before placing the
driver in a patrol car further increases the level of intrusion because “[e]ven a
limited search of the outer clothing for weapons constitutes a severe, though brief,
intrusion upon cherished personal security, and it must surely be an annoying,
frightening, and perhaps humiliating experience.” Terry,
392 U.S. at 24-25,
88
S.Ct. at 1881-1882,
20 L.Ed.2d at 908.
{¶ 23} On the other hand, the United States Supreme Court has recognized
that safety of police officers is “legitimate and weighty.” Pennsylvania v. Mimms,
434 U.S. at 110,
98 S.Ct. at 333,
54 L.Ed.2d at 336. Mimms addressed the
protection of officers from a potentially armed and dangerous driver even absent a
belief that the driver was armed and dangerous. However, it is equally evident that
keeping officers safe from a dangerous condition is also legitimate and weighty.
See Mimms,
434 U.S. at 111,
98 S.Ct. at 333,
54 L.Ed.2d at 336. The same is true
for the driver. Thus, it is reasonable to place the driver in a patrol car and subject
him or her to a pat-down search for weapons where placement of the driver in the
patrol car is justified to protect the officer or the driver from a dangerous condition.
For example, during a traffic stop, where a hostile crowd threatens officers or the
driver, the officers may be justified in placing the driver in a patrol car for the
duration of the traffic stop, if necessary. See, e.g., State v. Stroud (Oct. 11, 1995),
Montgomery App. No. 14832, unreported,
1995 WL 600004.
{¶ 24} We do not take lightly the encroachment into one’s personal liberty
by allowing a driver to be placed in a patrol car and subjecting him or her to a pat-
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down search for weapons. However, by comparison, we find this intrusion
relatively minimal if it protects the officers or the driver from a dangerous condition
during the traffic stop. Thus, under the Brignoni-Ponce balancing test, we find that
the safety of officers and drivers outweighs the intrusion caused by a pat-down
search upon the driver.
{¶ 25} Accordingly, we hold that, during a routine traffic stop, it is
reasonable for an officer to search the driver for weapons before placing the driver
in a patrol car, if placing the driver in the patrol car during the investigation prevents
officers or the driver from being subjected to a dangerous condition and placing the
driver in the patrol car is the least intrusive means to avoid the dangerous condition.
{¶ 26} The state argues that the defendant was placed in Trooper Davies’s
patrol car to allow Trooper Davies to use the radio in his patrol car because it was
away from traffic noise and thereby “facilitated” the investigation. We do not doubt
that using the radio in the patrol car away from traffic noise would have facilitated
the investigation. However, the state gives no reason, let alone a safety-based
reason, why the defendant would have had to accompany Trooper Davies to his
patrol car in order for the trooper to use the radio. Thus, we find the state’s
argument unpersuasive.
{¶ 27} The state also argues that placing the defendant in Trooper Davies’s
patrol car would have allowed the trooper to stay away from the turnpike traffic.
We fail to comprehend how placing the defendant in the patrol car would have
eliminated Trooper Davies from being exposed to traffic. Presumably, it could
have limited the number of trips that Trooper Davies made from his patrol car to
the defendant’s car during the stop, but it would not have eliminated Trooper
Davies’s need to initially approach the defendant’s car after the stop. Further, and
perhaps more important, in response to a question in which Trooper Davies was
asked to describe his safety training in stopping motor vehicles along the highway,
he stated:
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“The safety of stopping vehicles, I try to get the vehicles away from
guardrails. When I make the approach, I approach on the right side to stay away
from traffic. I try to get as far away from the road as I can. When the vehicle is
stopped, I try to position my vehicle so I am safe when I get out of the vehicle, and
when I make a right side approach. I also do that to stay away from traffic.”
{¶ 28} Trooper Davies executed a “right side approach” when he
approached the vehicle driven by the defendant. Thus, we find no merit in the
state’s argument because the right-side-approach method kept Trooper Davies
safely away from the traffic.
{¶ 29} Finally, the state asserts that placing the defendant in Trooper
Davies’s patrol car would have reduced the likelihood that the trooper would be
ambushed. The state claims “that the danger to a police officer is increased where
he approaches a vehicle with multiple occupants,” citing United States v. Rodgers
(C.A.6, 1999), 182 F.3d 919, unpublished opinion,
1999 WL 503460, citing
Maryland v. Wilson (1997),
519 U.S. 408,
117 S.Ct. 882,
137 L.Ed.2d 41.
{¶ 30} The state’s interpretation of Rodgers is incorrect. The court in
Rodgers found that the presence of multiple occupants in two vehicles was merely
one of the factors that led officers to believe that the occupants were armed and
dangerous, thereby justifying a pat-down search for weapons pursuant to Terry.
Rodgers, supra. The state does not argue that Trooper Davies was subject to a
dangerous condition but rather that Trooper Davies was concerned that the driver
and/or passengers were going to attack him. We find that there is no evidence to
support such a belief because even after noticing that there were multiple occupants
in the car, Trooper Davies testified that he did not suspect any criminal activity.
When asked why he wanted to place the defendant in his patrol car, Trooper Davies
stated that “I got him away from the others in the car … in case there was
something unusual inside the car, that he would be away from it.” (Emphasis
added.) To justify the placement of the defendant in Trooper Davies’s patrol car,
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January Term, 2001
which in turn would subject him to being searched for weapons, based on this
evidence, would be sanctioning the search and seizure on an “inarticulate hunch,”
something Terry prohibits. The mere fact that a car contains multiple passengers
is, by itself, an insufficient basis to justify a search.
{¶ 31} Despite the fact that Trooper Davies was not justified in placing the
defendant in his patrol car, he could have ordered the defendant and the passengers
out of the defendant’s car as a precautionary measure, regardless of whether he had
any reason to believe that they were armed and dangerous. See Mimms, 434 U.S.
at 110-111,
98 S.Ct. at 333,
54 L.Ed.2d at 336-337; Maryland v. Wilson,
519 U.S.
408,
117 S.Ct. 882,
137 L.Ed.2d 41.
{¶ 32} The Mimms court found that this is a de minimis “intrusion into the
driver’s personal liberty,” and recognized that “[e]stablishing a face-to-face
confrontation diminishes the possibility, otherwise substantial, that the driver can
make unobserved movements, [which], in turn, reduces the likelihood that the
officer will be the victim of an assault.” (Footnote omitted.) Mimms, 434 U.S. at
110,
98 S.Ct. at 333,
54 L.Ed.2d at 336. Accordingly, the court held that merely
ordering a driver out of his or her car during a traffic stop “is at most a mere
inconvenience [that] cannot prevail when balanced against legitimate concerns for
the officer’s safety.” (Footnote omitted.) Mimms,
434 U.S. at 111,
98 S.Ct. at 333,
54 L.Ed.2d at 337. Thus, pursuant to Mimms and Wilson, Trooper Davies could
have ordered the defendant, as well as the passengers, out of the car as a
precautionary measure based on a mere hunch. However, for whatever reason, he
did not use this procedure.
{¶ 33} Therefore, we find that the state has not presented sufficient
evidence that there was a dangerous condition during this traffic stop to justify
placement of the defendant in Trooper Davies’s patrol car.
Conclusion
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{¶ 34} For all of the aforementioned reasons, we hold that Trooper Davies’s
search of the defendant for weapons before placing him in the trooper’s patrol car
was unreasonable. Thus, the cocaine discovered during the pat-down search is
inadmissible because it is fruit of the poisonous tree. Accordingly, we affirm the
judgment of the court of appeals remanding the cause to the trial court for further
proceedings consistent with this opinion.
Judgment affirmed.
MOYER, C.J., F.E. SWEENEY and PFEIFER, JJ., concur.
DOUGLAS and RESNICK, JJ., concur in judgment and in paragraph one of the
syllabus but dissent to paragraph two of the syllabus.
COOK, J., concurs in judgment only.
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Victor V. Vigluicci, Portage County Prosecuting Attorney, and Kelli K.
Norman, Assistant Prosecuting Attorney, for appellant.
S. Kim Kohli, for appellee.
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