Lockett v. State

¶1concurring in result.

¶2I agree the trial court correctly denied Lockett's motion to suppress because the record shows that onee Lockett was ordered out of his car the officer observed a handgun protruding from under the driver's seat. The law is now clear that a police officer may order a driver as well as a passenger to exit a car during a traffic stop. Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 137 LEd.2d 41 (1997); Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 LEd.2d 381 (1977). And the law is well settled that an officer may properly seize an item observed in plain view. Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2801, 110 L.Ed.2d 112 (1990); Middleton v. State, 714 N.E.2d 1099, 1101 (Ind.1999); see also Trigg v. State, 725 N.E.2d 446, 449 (Ind.Ct.App. 2000) (declaring that when the defendant exited the car at the officer's request during a traffic stop, the officer properly seized a crack pipe he saw on the driver's seat pursuant to the plain view doctrine). *544Thus, I concur in the result reached by the majority in this case.

¶3However, I disagree with the majority's conclusion that an officer may, as a matter of routine practice, ask a driver stopped for a traffic violation if he has a weapon in the vehicle or on his person. Rather, it is my view that the Fourth Amendment mandates that an officer have an objectively reasonable safety concern before making such an inquiry.

¶4In Terry v. Oho, 392 U.S. 1, 88 S.Ct. 1868, 20 LEd.2d 889 (1968), the United States Supreme Court established the rule that an officer ean stop and briefly detain an individual for investigatory purposes if, based upon specific and articulable facts, the officer has a reasonable suspicion of criminal activity even if the officer lacks probable cause to make an arrest. Id. at 21-22, 88 S.Ct. 1868. To determine whether a Terry stop is unreasonable, the Court established a two-part test: "whether the officer's action was justified at its inception, and whether it was reasonably related in seope to the circumstances which justified the interference in the first place." Id. at 19-20, 88 S.Ct. 1868; see also Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 18319, 75 LEd.2d 229 (1983) (holding that the scope of a Terry stop must "be carefully tailored to its underlying justification."). The reasonableness of a Terry stop is judged against an objective standard because "[alnything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction." Terry, 392 U.S. at 21-22, 88 S.Ct. 1868. Traffic stops are analyzed under Terry and its progeny. Berkemer v. McCarty, 468 U.S. 420, 489, 104 S.Ct. 3138, 82 L.Ed.2d 817 (1984).

¶5The United States Supreme Court has expanded the scope of a traffic stop beyond that which rendered its initiation permissible-but only when "such steps [are] reasonably necessary to protect [an officer's] safety." United States v. Hensley, 469 U.S. 221, 285, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). For example, an officer can perform a "patdown" of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous, Terry, 392 U.S. at 27, 88 S.Ct. 1868, and conduct a "Terry patdown" of the passenger compartment of a vehicle limited to those areas in which a weapon may be placed or hidden upon reasonable suspi-clon that an occupant is dangerous and may gain immediate control of a weapon. Michigan v. Long, 468 U.S. 1032, 1049, 108 S.Ct. 3469, 77 LEd.2d 1201 (1983). In such cases "[t]he officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the cireumstances would be warranted in the belief that his safety or that of others was in danger." Terry, 392 U.S. at 27, 88 S.Ct. 1868. However, permitting an officer to routinely inquire about the presence of weapons during a traffic stop goes beyond the scope of the cireum-stances which rendered its initiation permissible and furthermore does not require the officer to have an objectively reasonable suspicion that his safety is threatened.3

¶6*545Additionally, although the United States Supreme Court has yet to rule on this issue, it does appear the Court disfavors bright-line rules in the Fourth Amendment context. See, eg., Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) (declaring "we have consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry."). In my view the bright-line 'rule the majority has adopted in this case-allowing an officer, as a matter of routine practice, to ask a driver stopped for a traffic violation if he has any weapons-is both unwise and unnecessary. It seems to me that before inquiring about the presence of weapons, a police officer is required by the Fourth Amendment to have an objectively reasonable belief that his safety is threatened.4 In this regard the observations of the Tenth Circuit Court of Appeals are instructive:

[Allowing a police officer to immediately ask the driver of a vehicle about the presence of weapons] could conceivably result in a full-blown search of the passenger compartment of the detainees vehicle, no matter how minor the traffic infraction that initially prompted the stop, and even if the officer had no reasonable safety concerns when he posed the question. In our view, this goes too far.

¶7United States v. Holt, 229 F.3d 931, 940 (10th Cir.2000). I agree.