Clark v. State

¶1concurring specially.

¶2I concur fully in Division 1.

¶3As to Division 2,1 am compelled to concur because of the limitations on weapon pat-downs pronounced in Ybarra v. Illinois, 444 U. S. 85 (100 SC 338, 62 LE2d 238) (1979). The justification for a pat-down of any person must be based on a reasonable belief, tied to what is observed about that particular person, that the person is armed and presently dangerous. Id. at 92-94.3 Although the Supreme Court gen*575erally instructs that the totality of the circumstances must be taken into account when considering search and seizure questions,4 these circumstances cannot alone provide the basis for the pat-down. That is, they do not alone legally justify a belief that the person is armed and presently dangerous; although the officer’s belief may be real, it is not reasonable legally. The frisk of Coley may have been “supported by a reasonable belief that he was armed and presently dangerous,” which is “the predicate to a patdown of a person for weapons,”5 but it was not a constitutionally acceptable belief because it was not Coley-specific. The environment or setting and activity are insufficient to give rise to a belief because it is not particularized and unique to the person whom the officer wishes to frisk.

¶4Yet it would seem that the circumstances of the execution of the search warrant at the particular place in this case would permit the limited pat-down. They differ from those in Ybarra, where the state statute was identical to Georgia’s OCGA § 17-5-28. Of course, the statute must be construed in conformity with the Fourth and Fourteenth Amendments; it cannot be construed to allow, more liberally than would the Fourth Amendment, the search of a person on premises being searched. That is clear from Ybarra.

¶5The reasonable belief or suspicion that will warrant a frisk must be directed at the person to be frisked and cannot proceed just because he is on premises where an authorized search is in progress. In Ybarra, “the State [was] unable to articulate any specific fact that would have justified a police officer at the scene in even suspecting that Ybarra was armed and dangerous.” Ybarra, 444 U. S. at 93. But that should not mean that the total environment cannot be the foundation for the reasonable belief or suspicion that Coley had a weapon. In Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868; 20 LE2d 889) (1968), the Supreme Court instructed that “[t]he officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.”

¶6In this instance about ten officers were involved in execution of the warrant at this “bikers’ bar, strictly a biker bar,” which was known for the sale of methamphetamine. And of course alcohol was sold there. The police “get numerous complaints from that area on a *576weekly basis.” The location was a high crime area, in which “a lot of the (motorcycle) bike crowd hangs out. . . , a lot of the Meth users, and they’re all considered fairly dangerous people on the Methamphetamine.”

¶7In preparation for execution for the warrant, which was based on observation that the two owners were in possession of “large quantities of Methamphetamine” and the bartender was “in possession of cocaine,” “[everybody (i.e., the officers) was advised to be careful of their weapons and just, you know, be on the lookout for violence in general — ‘cause it is known to be rather rough in there ... in that particular bar.”

¶8When the police entered, the band was playing, there was a lot of noise, there were a lot of people, and it was crowded and smokey. The police had the band quit and informed everyone why the police were there “and began a patdown for weapons,” the reason for which was “[sjtrictly for officers’ safety.” They patted them down because of their knowledge of who was there, and “their appearance [had] a lot to do with it.” The testifying officer “probably knew half the people in there.” He patted people down, he testified, “for my own safety.” Six or seven of the patrons were known to the officer as members of the Iron Cross Motorcycle Gang, including a past president whom the officer knew as “Big George.”

¶9The owner admitted having a pistol on him, which was unlicensed. He explained that he carried the weapon because “ ‘The clientele that I have here, I have to carry a weapon because I carry money on me at all times.’ ” Coley was a part of the clientele that night.

¶10The officers knew this saloon, as it had been under surveillance for quite some time and they had previously obtained a search warrant for methamphetamine and cocaine for the place but they did not execute it because the club lost its liquor license. So they knew what kind of dangerous situation they were entering. They “did a patdown for weapons for officers’ safety.” “We did not search anyone other than doing a patdown for weapons until we found a weapon, on them (and marijuana on Coley) and placed them under arrest.” A testifying officer had met with the owners several times and had been in the bar “many a time.” This was a Friday night, when more drug activity is expected, according to police testimony. They found marijuana on the floor, on Coley, in a jacket and on a couple of patrons, although they did not find methamphetamine or cocaine. It could easily have been destroyed before the police got to it.

¶11Clark had a weapon on him, too, and Pollard, a female, admitted having a small pistol in her overalls pocket. Coley did not have a weapon but did have, detectable by touch, what the pat-down officer believed were two marijuana cigarettes in his vest pocket; Coley acknowledged they were his.

¶12All told, the picture differs in significant aspects from that in Ybarra, and each case must be judged on its own facts. It is a known fact that guns are often associated with the drug trade.6 Considering the information the police had and the specific information which formed the basis for the warrant, it would seem reasonable to believe that patrons as well as the owner had weapons. That belief was borne out.

¶13The rationale presented by the State in its appellate brief is logical but must yield to Ybarra. In addition, Bramblett v. State, 205 Ga. App. 290 (422 SE2d 18) (1992), wherein the Court ruled that the pat-down was authorized under OCGA § 17-5-28, does not assist. Neither does Brown v. State, 181 Ga. App. 768, 770 (1) (a) (353 SE2d 572) (1987).

¶14Regardless of the circumstances, the police cannot enter a premises to execute a search warrant and pat everyone down because they are there. Their presence itself, no matter how great a risk to officer safety is posed by the surroundings and activity to which those present are related, is not enough.