State v. Luxem

HENDERSON, Justice

(specially concurring).

This officer was acting alone and was dealing with four individuals unknown to him, one of whom had an open knife in his pants pocket and two others who were acting in a suspicious manner. Before continuing with his traffic investigation, it was not unreasonable under these circumstances for this officer to take some limited steps to assure his own safety. Factually, it is to be further noted that the automobile was not registered in the name of the driver or any of the occupants thereof. When the officer asked for the registration certificate of the vehicle, defendant Luxem began reaching for the glove compartment when defendant Walters advised that it was above Luxem’s head. Luxem hesitated and then continued to reach for the glove compartment and rummage around in the glove compartment before looking to the sun visor above his head. Defendant Luxem eventually pulled a clip from the sun visor and handed it to the officer who determined that none of the occupants owned the vehicle. At this juncture, it would not have been unreasonable for the officer to have some type of conviction that the motor vehicle was possibly stolen. According to the officer, defendant Luxem mumbled, spoke without clarity, and had difficulty with his balance. Additionally, the officer observed a large paper sack partially opened between the legs of defendant Walters (this, after he had taken the knife from defendant Luxem) and thereupon asked defendant Walters to turn the sack so that he, the officer, could see what was inside of it. Instead of complying with the officer’s request, defendant Walters said nothing and moved the sack in a quick, furtive manner so that the officer could not see into the sack and pushed the sack quickly towards defendant Wright. At this point in time, the officer made no search; rather, he made a seizure, i.e., he grabbed the sack that was being pushed toward defendant Wright. Under the circumstances then existing, the officer did not know whether there was a knife, gun, or other weapon of some kind in the sack. It turned out to be marijuana and other drug paraphernalia. It only takes one furtive movement in an automobile to put an officer on the ground — dead.

Obviously, this was a warrantless seizure. As criminals or peddlers in narcotics use a mobile instrument such as the automobile to sell their wares and swiftly move about, and accompany themselves with weapons to accomplish their evil purposes, must our law enforcement officers be subjected to grave danger as they proceed to enforce the law? I think not. This officer acted instinctively to preserve his safety by grabbing the sack, the contents of which he knew not.

The United States Supreme Court has concluded that the diminished expectation of privacy surrounding the automobile is *277due to subjection of its occupants to public view and to its use for transportation rather than for storing personal effects, and by its extensive regulation of government generally. Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 2845, 69 L.Ed.2d 744 (1981); Arkansas v. Sanders, 442 U.S. 753, 761, 99 S.Ct. 2586, 2591-92, 61 L.Ed.2d 235, 243 (1979); United States v. Chadwick, 433 U.S. 1, 12-13, 97 S.Ct. 2476, 2484-85, 53 L.Ed.2d 538, 548-49 (1977); Cardwell v. Lewis, 417 U.S. 583, 590-91, 94 S.Ct. 2464, 2469-70, 41 L.Ed.2d 325, 334-35 (1974); Cady v. Dombrowski, 413 U.S. 433, 440-42, 93 S.Ct. 2523, 2527-28, 37 L.Ed.2d 706, 714-15 (1973). In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), a cornerstone was established; namely, that an individual’s expectation of privacy is reduced in anything he voluntarily exposes to public view. Obviously, when the occupant of a car places items on the dashboard, seat, or floor, and these items are visible, they are no longer private. We do not have a case here of a locked or unlocked glove compartment, or a suitcase locked inside of an automobile trunk. These defendants had no reasonable expectation of privacy concerning the paper sack on the floor of this automobile. The sack was not even underneath the seat; it was partially open when the officer first saw it. Certainly, an individual may protect his privacy by taking precautions. When an occupant of an automobile places items out of sight, be they enclosed compartments or not, an occupant is taking precautions to protect his privacy. I see no attempt at privacy under this set of facts.

I join the majority and not the dissent because the dissent refuses to extrapolate and has a far too narrow approach regarding the law of search and seizure and the cases it cites. Further, the majority decision supports the concept that law enforcement officers, under circumstances such as outlined here, have a right to reasonably apprehend danger and seize what they believe to be dangerous objects or weapons to preserve their life. It was simply impractical for the officer to handle this situation by proceeding to get a search warrant.