ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Bryan L. Cook Jeffrey A. Modisett
Indianapolis, IN Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
DEREK WILSON, )
Defendant-Appellant, )
)
v. ) 55S01-0104-CR-208
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE MORGAN SUPERIOR COURT
The Honorable G. Thomas Gray, Judge
Cause No. 55D01-9901-CM-013
________________________________________________
On Petition To Transfer
April 16, 2001
DICKSON, Justice
As a result of a handgun found during a police pat-down search in the
course of a traffic stop for speeding, the defendant, Derek Wilson, was
convicted of possession of a handgun without a license, a class A
misdemeanor.[1] The Court of Appeals affirmed. Wilson v. State, 727
N.E.2d 775 (Ind. Ct. App. 2000). The defendant seeks transfer, asserting
that the pat-down search was a violation of the Fourth Amendment. We grant
transfer and reverse.
On January 17, 1999, an Indiana State Police trooper observed
Wilson's vehicle traveling at 72 m.p.h. When Wilson stopped for a red
traffic light, the trooper pulled immediately behind. Wilson's vehicle
then turned right without displaying a turn signal, and the trooper made a
traffic stop. When the trooper approached the stopped vehicle, he observed
that Wilson had red, glassy eyes and detected a strong odor of alcohol on
his breath. The trooper also saw alcoholic beverage containers in Wilson's
vehicle. After inspecting Wilson's driver's license, the trooper asked him
to step out of the car and accompany the officer to his police car to
further investigate whether Wilson was intoxicated. In keeping with the
trooper's personal practice of patting down any person he intends to place
in his car, the trooper patted down Wilson. The trooper testified, "Before
I put anybody in my car, whether they're broke down on the side of the
highway or what, I pat them down for weapons for my own safety." Record at
66. Prior to and at the time of the pat-down search, Wilson had not
exhibited any violent, resistant, or furtive movements, and the trooper did
not have any suspicion that Wilson was armed. Upon performing the pat-down
search, the trooper found that Wilson was carrying a handgun.
The trial court denied Wilson's motion to suppress all evidence from
the pat-down search. When the evidence was offered at trial, Wilson timely
objected, asserting that the search and seizure violated the federal and
state constitutions.[2]
"A routine traffic stop . . . is a relatively brief encounter and 'is
more analogous to a so-called 'Terry stop' . . . than to a formal arrest.'"
Knowles v. Iowa, 525 U.S. 113, 117, 119 S.Ct. 484, 488, 142 L.Ed.2d 492,
498 (1998)(quoting Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138,
3150, 82 L.Ed.2d 317, 334 (1984)). The United States Supreme Court in
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), explained
that police officers may employ investigative techniques short of arrest on
less than probable cause without violating Fourth Amendment interests. The
principal issue is whether the police action in question was reasonable
under all the circumstances. Pennsylvania v. Mimms, 434 U.S. 106, 108-09,
98 S.Ct. 330, 332, 54 L.Ed.2d 331, 335 (1977). To determine whether an
investigative stop was reasonable "our inquiry is a dual one—whether the
officer's action was justified at its inception, and whether it was
reasonably related in scope to the circumstances which justified the
interference in the first place." Terry, 392 U.S. at 19-20, 88 S.Ct. at
1879, 20 L.Ed.2d at 905.
Wilson does not challenge the propriety of the initial stop, but only
the subsequent pat-down search. Terry permits a:
reasonable search for weapons for the protection of the police
officer, where he has reason to believe that he is dealing with an
armed and dangerous individual, regardless of whether he has probable
cause to arrest the individual for a crime. The 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.
Id. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909.
The Fourth Amendment allows privacy interests protected by the Fourth
Amendment to be balanced against the interests of officer safety. Id. at
23-27, 88 S.Ct. at 1881-83, 20 L.Ed.2d at 907-09. The State emphasizes
that any time a police officer is in his car with a suspect, the officer's
"vulnerability" is increased. Br. of Appellee at 7. We recognize that law
enforcement personnel face significant risks when making traffic stops.
However, to subject the stopped motorist to a frisk for weapons is
permissible only if "a reasonably prudent man in the circumstances 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. at 1883, 20 L.Ed.2d at 909. Police may not
frisk for weapons "on less than reasonable belief or suspicion directed at
the person to be frisked." Ybarra v. Illinois, 444 U.S. 85, 94, 100 S.Ct.
338, 343, 62 L.Ed.2d 238, 247 (1979). An officer's authority to conduct a
pat-down search is dependent upon the nature and extent of his
particularized concern for his safety and that of others. Mitchell v.
State, --- N.E.2d ---, --- (Ind. 2001), No. 49S00-9906-CR-343, slip op. at
6-7.
The State argues that whenever an officer places someone in the
officer's car, it is reasonable, prudent, and warranted for the officer to
conduct a preliminary pat-down frisk for weapons. We acknowledge that,
when an officer places a person into a patrol car that will be occupied by
the officer or other persons, there is a significantly heightened risk of
substantial danger to those in the car in the event the detainee is
armed.[3] We believe that this increased risk is sufficient to satisfy the
requirements of Ybarra, and that it is generally reasonable for a prudent
officer to pat-down persons placed in his patrol car, even absent a belief
of dangerousness particularized to the specific detainee. The question
presented by today's case, however, is slightly different because the
totality of circumstances here involves the reasonableness during a routine
traffic stop of placing a motorist in the police car thereby subjecting him
to a preliminary pat-down search.
Law enforcement personnel must use the "least intrusive means
reasonably available to verify or dispel the officer's suspicion in a short
period of time." Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325-
26, 75 L.Ed.2d 229, 238 (1983). Within this mandate we can envision
various particularized circumstances (including, for example and without
limitation, inclement weather, the lack of available lighting for
paperwork, the need to access equipment with the detained motorist, etc.)
that may make it reasonably necessary for police to require a stopped
motorist to enter a police vehicle. See, e.g., Burkett v. State, 691
N.E.2d 1241 (Ind. Ct. App. 1998)(placing an apparently intoxicated motorist
in police car for transport to county jail for a certified breath test),
trans. denied. But we decline to hold that the Fourth Amendment permits
the police routinely to place traffic stop detainees in a police vehicle if
this necessarily subjects the detainee to a preliminary pat-down frisk. An
officer is not using the least intrusive means to investigate a traffic
stop if, without a particularized justification making it reasonably
necessary, he places a person into his patrol vehicle and thereby subjects
the person to a pat-down search. See State v. Pease, 531 N.E.2d 1207, 1212
(Ind. Ct. App. 1988).
In the present case, the trooper testified that there was a range of
field sobriety tests that could have been performed outside his patrol
vehicle, and even the horizontal gaze test the officer planned to
administer did not require being in his vehicle. Record at 71-72. The
officer also had the option of allowing Wilson to stay in his car and take
a portable breath test. Id. at 71. With all the options that were
available to the officer, neither the officer nor the State has identified
any reasonably necessary basis to place Wilson in the police car justifying
the heightened intrusion of a pat-down search. The trooper stated that at
the time of the pat-down he did not believe Wilson was armed. Record at
69. Because the pat-down search was not supported by a particularized
reasonable suspicion that Wilson was armed, and because there was no
reasonably necessary basis for placing Wilson in the squad car, the search
of Wilson violated the Fourth Amendment. The motion to suppress should
have been granted.
Conclusion
Transfer is granted. The judgment of the trial court is reversed.
As to all other issues, the Court of Appeals is summarily affirmed.
Ind.Appellate Rule 11(B)(3).[4]
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
-----------------------
1 Ind.Code § 35-47-2-1.
[1] Because Wilson does not argue that the search and seizure
provision in the Indiana Constitution requires a different analysis than
the federal Fourth Amendment, his state constitutional claim is waived, and
we consider only the federal claim. Williams v. State, 724 N.E.2d 1093,
1097 n.5 (Ind. 2000); Brown v. State, 703 N.E.2d 1010, 1015 n.4 (Ind.
1998); Fair v. State, 627 N.E.2d 427, 430 n.1 (Ind. 1993).
[2] This is not an imagined scenario. See, e.g., Lambert v. State,
643 N.E.2d 349, 351 (Ind. 1994)(officer shot and killed while transporting
arrestee to jail).
[3] New Ind.Appellate Rule 58(A)(2).