State v. Henderson

¶1dissenting:

¶2The majority holds that Schiavi did not have a reasonable articulable suspicion that Henderson might have been armed and dangerous. It points out that the stop took place in the daytime, in a place not known for drug activity. In addition, the police had no information that Henderson was associated with drug dealing, Henderson obeyed the officer’s commands, and the police officers outnumbered the suspects five to three. The majority concludes, “we cannot hold that simply accompanying another person reasonably suspected of having committed felony drug charges, without anything more, gives rise to a reasonable articulable suspicion that the companion is presently armed and dangerous.”

¶3In reaching its conclusion, the majority ignores almost all of Schiavi’s undisputed testimony. Schiavi testified that he has made approximately 260 narcotics-related arrests. In his experience, “drug traffickers often protect their assets and their supply with weapons and.associates. And they also have their plans in place to prevent from being apprehended ... [a]nd we wanted to take all means necessary to *1068safely execute our warrant and to see that the individuals with Mr. Jones were also kept from any unnecessary force or violence that could occur with executing the warrant.”19 Sehiavi also explained that drug dealers and their associates remain dangerous even when engaged in seemingly harmless activities, like playing basketball:

Q. And you would agree with me that even drug dealers take time off from their dealings, their work, and engage in recreational activities where there’s no activity going on that’s related to drugs?

A. I can’t answer that a hundred percent. I mean, I don’t — I

Q. You’ve never done surveillance and seen drug dealers go to the movies and do things?

A. Yes, I’ve done surveillance and have seen them — I’ve also seen them during the course of what you would say, go to the movies, conduct drug transactions as well.20

¶4Finally, Sehiavi explained that his procedure, when making an arrest is “I want to secure and make sure the person is not going to put up any active resistance until I feel safe to ask questions, look for identification, anything like that.”21

¶5The State satisfied its burden of showing that Sehiavi had a reasonable articula-ble suspicion that Henderson was armed. Sehiavi knew that Henderson either was the drug dealer (Jones) or an associate of a drug dealer. From his experience, he knew that drug dealers and their associates tend to be armed. He also explained that, when effecting an arrest, there is a danger that the person being arrested, or his associates, will resist. Even with other officers present and the vehicle blocked, the arrest could have become violent if one or more of the people being detained had a weapon.

¶6In sum, Sehiavi was “warranted in the belief that his safety or that of others was in danger.”22 He properly acted “in the context of the totality of the circumstances as viewed through the eyes of a reasonable, trained police officer in the same or similar circumstances, combining objective facts with such an officer’s subjective interpretation of those facts.”23 Accordingly, I dissent.