Lockett v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
P. Stephen Miller Jeffrey A. Modisett
Fort Wayne, Indiana Attorney General of Indiana

Teresa Dashiell Giller
Deputy Attorney General

Rosemary L. Borek
Deputy Attorney General
Indianapolis, Indiana

In The
INDIANA SUPREME COURT

GEOFFREY C. LOCKETT ) Supreme Court No.
Defendant-Appellant, ) 02S03-0004-CR-00232
)
v. ) Court of Appeals No.
) 02A03-9905-CR-184
STATE OF INDIANA )
Plaintiff-Appellee. )
________________________________________________

APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D04-9810-CF-551
________________________________________________

On Petition To Transfer

May 21, 2001

DICKSON, Justice

Charged with carrying a handgun without a license as a class C
felony,[1] the defendant-appellant brought this interlocutory appeal
challenging the denial of his motion to suppress the handgun seized by
police during a routine traffic stop. The Court of Appeals reversed,
finding that a police officer may not as matter of routine practice
question about the presence of weapons during a traffic violation stop.
Lockett v. State, 720 N.E.2d 762 (Ind. Ct. App. 1999). We granted transfer
and now affirm the trial court, holding that the Fourth Amendment does not
prohibit police from routinely inquiring about the presence of weapons.
On October 2, 1998, Fort Wayne Police Officer Jon Bonar, in uniform
and driving a marked police squad car, observed a vehicle operated by the
defendant, Geoffrey C. Lockett, turning without using a turn signal, making
wide turns, driving at inconsistent speeds, and using the entire roadway.
Believing that the driver might be impaired, Officer Bonar signaled to
Lockett to pull over and walked up to the driver's side of Lockett's car.
Two other persons were passengers, one in the right front seat and one in
the rear seat. Lockett lowered his window and the officer noticed a strong
odor of spilled alcohol. Pursuant to his usual routine, Officer Bonar
asked Lockett for identification and asked whether Lockett had any weapons
in the vehicle. The officer then requested that Lockett get out of the car
for a sobriety check. Lockett did not respond to the weapons inquiry but
simply handed the officer his identification and exited the car. As
Lockett was stepping from the vehicle, the officer once again asked him
whether he had any weapons on his person or in the vehicle. The defendant
responded, "Yes, sir, underneath the driver's seat." Record at 59.
Officer Bonar looked down and saw a handgun on the floor sticking out from
under the driver's seat, and he took the weapon for his own safety. After
unloading the handgun and placing it in the squad car, Officer Bonar
returned and performed a pat-down search and a sobriety breath test of the
defendant. Lockett was not arrested for driving while intoxicated but for
driving with a suspended license, and for carrying a handgun without a
license.
The defendant's motion to suppress claimed that the search of his
vehicle violated the Fourth Amendment to the United States Constitution and
Article 1, Section 11, of the Indiana Constitution. In neither the motion
nor the supporting brief did the defendant argue that the standard under
the Indiana Constitution is different from that under the United States
Constitution. On appeal from the denial of his motion, the defendant's
only reference to the Indiana Constitution is his assertion that the
officer's weapons inquiry "is a violation of the 5th and 4th amendments of
the United States Constitution and of sections 11 and 14 of Article 1 of
the Indiana Constitution." Appellant Br. at 7. Because the defendant
presents no authority or independent analysis supporting a separate
standard under the state constitution, any state constitutional claim is
waived. 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). The defendant contends that Officer Bonar
violated his right under the Fourth Amendment to be free from unreasonable
search and seizure by asking, during a traffic stop, whether the defendant
had any weapons. The defendant challenges only the officer's inquiry
regarding weapons, not the officer's actions in initiating the traffic
stop.
A traffic stop is more akin to an investigative stop under Terry v.
Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) than a custodial
arrest. 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 stated
the issue of unreasonableness of an investigative stop properly considers
whether the officer's actions were "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. In Florida v.
Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), the Supreme
Court observed that "an investigative detention must be temporary and last
no longer than is necessary to effectuate the purpose of the stop" and that
"the investigative methods employed should be the least intrusive means
reasonably available to verify or dispel the officer's suspicion in a short
period of time." Id. at 500, 103 S.Ct. at 1325-26, 75 L.Ed.2d at 238.
In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331
(1977), the United States Supreme Court, confronting a claim that a weapon
was improperly seized during a routine traffic stop, explained:
The touchstone of our analysis under the Fourth Amendment is always
"the reasonableness in all the circumstances of the particular
governmental invasion of a citizen's personal security." Terry v.
Ohio, 392 U.S. 1, 19 (1968). Reasonableness, of course, depends "on a
balance between the public interest and the individual's right to
personal security free from arbitrary interference by law officers."
United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975).

Id. at 108-09, 98 S.Ct. at 332, 54 L.Ed.2d at 335-36. The safety of police
officers is a "legitimate and weighty" justification for intrusion. Mimms,
434 U.S. at 110, 98 S.Ct. at 333, 54 L.Ed.2d at 336. In Maryland v.
Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), the Court
declared, "Regrettably, traffic stops may be dangerous encounters," and
noted that "in 1994 alone, there were 5,762 officer assaults and 22
officers killed during traffic pursuits and stops." Id. at 413, 117 S.Ct.
at 885, 137 L.Ed.2d at 47.
The Supreme Court further acknowledged its concern for officer safety
in Knowles v. Iowa:
This is not to say that the concern for officer safety is absent
in the case of a routine traffic stop. It plainly is not. See Mimms,
[434 U.S.] at 110; Wilson, [519 U.S.] at 413-414. But while the
concern for officer safety [during a traffic stop] may justify the
"minimal" additional intrusion of ordering a driver and passengers out
of the car, it does not by itself justify the often considerably
greater intrusion attending a full field-type search. . . . [O]fficers
have other, independent bases to search for weapons and protect
themselves from danger. For example, they may order out of a vehicle
both the driver, Mimms, supra, at 111, and any passengers, Wilson,
supra, at 414; perform a "patdown" of a driver and any passengers upon
reasonable suspicion that they may be armed and dangerous, Terry v.
Ohio, 392 U.S. 1 (1968); conduct a " Terry patdown" of the passenger
compartment of a vehicle upon reasonable suspicion that an occupant is
dangerous and may gain immediate control of a weapon, Michigan v.
Long, 463 U.S. 1032, 1049 (1983); and even conduct a full search of
the passenger compartment, including any containers therein, pursuant
to a custodial arrest, New York v. Belton , 453 U.S. 454, 460 (1981).

525 U.S. 113, 117-18, 119 S.Ct. 484, 488, 142 L.Ed.2d 492, 498 (1998). In
comparison to ordering a motorist stopped for a traffic violation to exit
the car, which is permitted under the Fourth Amendment, asking whether the
stopped motorist has any weapons is far less intrusive and presents
insignificant delay.
The federal circuits are divided as to whether the Fourth Amendment
permits an officer during a traffic stop to ask questions unrelated to the
purpose of the stop. Compare United States v. Shabazz, 993 F.2d 431 (5th
Cir. 1993)(holding an officer may ask traffic stop detainee questions
unrelated to the purpose of the stop so long as it does not unduly prolong
the stop) with United States v. Holt, 229 F.3d 931 (10th Cir. 2000)(holding
an officer may not ask traffic stop detainee questions unrelated to the
purpose of the stop without independent reasonable suspicion).
In the present case, the officer validly stopped the defendant's
vehicle for a traffic infraction. When the officer approached the vehicle,
he smelled alcohol, and this prompted the officer to investigate whether
the driver was intoxicated. During this investigation, the officer asked
the defendant whether he had any weapons. The question was justified by
police safety concerns, and it did not materially extend the duration of
the stop or the nature of the intrusion. We hold that Officer Bonar's
questions were not an unreasonable search and seizure under the Fourth
Amendment.
The defendant also contends that the question by the officer
effectively rendered him in custody entitling him to the protections under
Miranda.[2] Ordinarily, persons detained for traffic stops are not "in
custody" for purposes of Miranda. Berkemer, 468 U.S. at 440, 104 S.Ct. at
3150, 82 L.Ed.2d at 334-35. This is not to say a traffic stop may not turn
into a custodial situation based upon the conduct of the officer. Id; see,
e.g., Conwell v. State, 714 N.E.2d 764 (Ind. Ct. App. 1999)(finding
detainee in custody when officer immediately ordered driver out of car,
handcuffed him, and placed him in a choke hold).
In the present case, however, Officer Bonar's traffic stop of the
defendant, the officer's request that the defendant exit the car, and the
officer's questioning the defendant regarding weapons did not constitute a
custodial interrogation. This was a conventional traffic stop, and no
Miranda warnings were required as the defendant was not in custody. We
affirm the trial court's denial of the defendant's motion to suppress.
This cause is remanded to the trial court for further proceedings.

SHEPARD, C.J., and SULLIVAN, and BOEHM, JJ., concur. RUCKER, J.,
concurs in result with separate opinion.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

P. STEPHEN MILLER KAREN M. FREEMAN-WILSON

Fort Wayne, Indiana Attorney General of Indiana

ROSEMARY L. BOREK
Deputy Attorney General
Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

GEOFFREY C. LOCKETT, )
)
Appellant-Defendant, ) Supreme Court Cause Number
) 02S03-0004-CR-232
v. )
) Court of Appeals Cause Number
STATE OF INDIANA, ) 02A03-9905-CR-184
)
Appellee-Plaintiff. )

APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D04-9810-CF-551

ON PETITION TO TRANSFER

May 21, 2001

RUCKER, Justice, concurring in result

I agree the trial court correctly denied Lockett’s motion to suppress
because the record shows that once 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 (1997); Pennsylvania v. Mimms, 434 U.S. 106, 111 (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 (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). Thus, I concur in the result reached
by the majority in this case.
However, 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.
In Terry v. Ohio, 392 U.S. 1 (1968), the United States Supreme Court
established the rule that an officer can 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. 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 scope to the
circumstances which justified the interference in the first place.” Id. at
19-20; see also Florida v. Royer, 460 U.S. 491, 500 (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 “[a]nything 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. Traffic stops are analyzed under
Terry and its progeny. Berkemer v. McCarty, 468 U.S. 420, 439 (1984).
The 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, 235 (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, 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 suspicion that an occupant is dangerous and may gain
immediate control of a weapon. Michigan v. Long, 463 U.S. 1032, 1049
(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 circumstances would be warranted in the belief that his safety or that
of others was in danger.” Terry, 392 U.S. at 27. However, permitting an
officer to routinely inquire about the presence of weapons during a traffic
stop goes beyond the scope of the circumstances which rendered its
initiation permissible and furthermore does not require the officer to have
an objectively reasonable suspicion that his safety is threatened.[3]
Additionally, 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, e.g., Ohio v. Robinette, 519 U.S. 33, 39
(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 detainee’s 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.

United States v. Holt, 229 F.3d 931, 940 (10th Cir. 2000). I agree.
-----------------------
[1] Ind.Code § 35-47-2-1; Ind.Code § 35-47-2-23.

[2] Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1630, 16
L.Ed.2d 694, 726 (1968).
[3] I acknowledge that the United States Supreme Court declared in
Mimms that an officer can, as a matter of routine practice, order a driver
out of his car during a traffic stop. However, the Court described this
intrusion as “de minimis” and a “mere inconvenience” because it essentially
amounted to “whether [the driver would] spend that period sitting in the
driver’s seat of his car or standing alongside it.” Mimms, 434 U.S. at
111. Here, on the other hand, the intrusion is more serious because an
affirmative response is likely to be incriminating. Further, the Mimms
Court observed that it was dangerous for an officer to stand by the
driver’s door in the path of oncoming traffic. Id. This concern is not
implicated here.

[4] I also observe, the notion that asking a driver if he has any
weapons somehow advances officer safety is suspect. In reality a driver
could in fact be heavily armed and simply say no to an officer’s inquiry.
Indeed, the law is settled that during a Terry stop a person may refuse to
answer any questions posed by the officer. Royer, 460 U.S. at 497-98.