State v. Luxem

MORGAN, Justice

(concurring specially).

I concur in the result on the basis of the application of the Terry v. Ohio decision.1 I think that the dissent reads People v. Long, 413 Mich. 461, 320 N.W.2d 866 (1982), too narrowly. The Michigan Court affirmed the test of Terry, to-wit: “To justify the warrantless protective search ‘a reasonably prudent man in the circumstances [should] be warranted in the belief that his *276safety or that of others was in danger.’ ” Long, 320 N.W.2d at 869 quoting from Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889, 909. I read Long to say that under the circumstances there present Terry did not apply. In Long there were two officers and only one person in the car. One officer had the driver under control at the rear of the car while the other proceeded with the search. Here, there was only one officer with four persons in the car.

In State v. Heumiller, 317 N.W.2d 126 (S.D.1982), we noted that any warrantless search is unconstitutional unless there is a showing that the action was reasonable and based on probable cause and that exigencies of the situation made the course imperative. We further held that the exigent circumstances were to be applied to the facts as perceived by the police at the time of the action, not as subsequently uncovered. Here, the officer had already found one person in the group to be armed; it is hard to conceive that anyone carries a knife in his pocket with the blade open unless he intends to use it in the near future. The officer was alone, away from the main traveled portion of the street. He had not been alerted to the possibility of the presence of marijuana by any smells eminating from the car or the person as often is the case. He was faced with a dangerous situation and in my opinion he acted prudently.

. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).