Shaver v. State ( 1998 )

Tom Glaze, Justice.

Appellant John Wesley Shaver brings this appeal after entering a conditional plea of guilty of possession of methamphetamine with intent to deliver and receiving a sentence of 120 months in the department of correction. His sole point for reversal is that the trial court erred in failing to grant his motion to suppress evidence recovered as a result of an unlawful search and seizure. We affirm the trial court’s ruling.

Shaver’s arrest ensued from incidents that occurred at 2:40 a.m. on July 7, 1996. Greg Henry was driving Shaver’s truck 76 miles per hour in a 55-mile-per-hour zone when Officers Larry Mitchell and Phillip Hydron stopped Henry for speeding. Shaver was a passenger in his truck. After Henry exited the vehicle and gave his driver’s license to Officer Mitchell, Mitchell saw what appeared to be leather straps next to the passenger seat, and noticed that Shaver was seated with an old tee shirt or towel over his lap. Mitchell asked Henry if there were any weapons in the vehicle, and Henry responded, saying Shaver had two. Mitchell then alerted Officer Hydron of the presence of the guns and asked him to remove Shaver from the truck. Hydron obliged, had Shaver place his hands on the truck, and began to pat him down. As Hydron reached to pat Shaver down, he noticed a bulge in Shaver’s front pocket. At the same time, Shaver “bowed up,” causing Hydron to press him against the truck and to tell Shaver to calm down and keep his hands on the truck. Officer Hydron then decided to reach inside Shaver’s pocket to determine what caused the bulge. Hydron pulled out a bag of white powdery substance, and he told Officer Mitchell that “it looks like we have discovered contraband.” Hydron continued to pull out a substance from both of Shaver’s pockets that he suspected was methamphetamine. Hydron testified that, initially, he had no idea what was in Shaver’s pockets, but only knew there was a “big bulge.” Hydron said that the bulge did not feel like a weapon, but added he was uncertain what the contents were. On cross examination, Hydron related that his intent was to pull everything out of Shaver’s pockets, regardless.

Recently, the Supreme Court held that an officer making a traffic stop may order passengers to get out of the vehicle pending completion of the stop. Maryland v. Watson, 117 S.Ct. 882 (February 19, 1997); see also Wright v. State, 327 Ark. 558, 940 S.W.2d 432 (1997). We have also held that, after a lawful stop, the police are permitted to search the outer clothing of an individual and the immediate vicinity for weapons if the facts available to an officer would warrant a person of reasonable caution to believe that a limited search was appropriate. State v. Barter, 310 Ark. 94, 833 S.W.2d 372 (1992); Stout v. State, 304 Ark. 610, 804 S.W.2d 686 (1991); A.R.Cr.P. Rule 3.4. Stated in slightly different terms, when an officer is justified in believing that an individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officers or others, a patdown search may be conducted to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. Terry v. Ohio, 395 U.S. 1 (1968).

In seeking suppression of the drugs found on Shaver, Shaver relies heavily on Minnesota v. Dickerson, 508 U.S. 366 (1993), for his argument that Hydron’s patdown of him exceeded the lawful bounds of Terry. In Dickerson, an officer responded to complaints of drug sales taking place at an apartment building, and when the officer arrived, he saw the defendant outside the building. The defendant attempted to evade the officer, and because the defendant had just left an apartment building known for cocaine traffic, the officer stopped and conducted a patdown of him. The officer felt a small lump in the front pocket, and as he examined it with his fingers, it slid and was felt to be a lump of crack cocaine in cellophane. The officer then pulled a plastic bag containing crack cocaine from the defendant’s pocket and arrested him. Defendant Dickerson moved to suppress, but the trial court denied his motion. The Minnesota Court of Appeals reversed, and the Supreme Court ultimately reviewed Dickerson’s case to consider the question concerning whether police officers may seize nonthreatening contraband detected during a protective patdown search of the sort permitted by Terry. The Court determined that officers may do so, so long as their search stays within the bounds of Terry.

In its review of Dickerson’s case, the Supreme Court held that the officer overstepped his bounds because the officer’s continued exploration of Dickerson’s pocket, after having concluded that it contained no weapon, was unrelated to the sole justification of the search under Terry — the protection of the police officers and others nearby.

The Dickerson holding is simply not controlling here. We first point out that, in reviewing a trial judge’s ruling on a motion to suppress, this court reviews the evidence most favorable to the appellee. Johnson v. State, 325 Ark. 197, 926 S.W.2d 837 (1996). This court reviews a trial court’s suppression ruling under the totality of the circumstances, deferring to the superior position of that court to evaluate questions of credibility, and reverse only if the ruling is clearly against a preponderance of the evidence. See Beshears v. State, 320 Ark. 573, 898 S.W.2d 49 (1995); State v. Osborn, 263 Ark. 554, 566 S.W.2d 139 (1978); Grant v. State, 267 Ark. 50, 589 S.W.2d 11 (1979).

In the instant case, the trial court found Officers Mitchell and Hydron credible when describing their traffic stop of Shaver’s truck and subsequent patdown of Shaver, and concluded the actions taken were reasonable to insure their safety. The officers became immediately aware that Shaver had two weapons inside the stopped vehicle, and Officer Mitchell had seen a leather holster next to where Shaver was seated. Mitchell also saw Shaver had a tee shirt or towel in his lap. After Shaver was directed to get out of the truck, and when Officer Hydron commenced a patdown, Shaver “bowed up,” causing Hydron to tell him to “calm down” and again place his hands on the truck. Because of these actions and events, the trial court found it was reasonable for Hydron to reach into Shaver’s pockets to determine what was causing the bulges. The trial court further concluded that, although Hydron felt a plastic bag with a rock-like substance in it, the officer still was unaware of what else was in Shaver’s pocket because he could not feel the entire contents of his pocket. The trial court ruled this uncertainty of Hydron as to what else was in Shaver’s pocket was sufficient reason with all other circumstances for Hydron to search Shaver’s pocket.

In his argument, Shaver places emphasis on Hydron’s testimony that, when he searched Shaver’s pocket, the bulge “did not feel like a weapon” and that his “intent was to pull everything out of Mr. Shaver’s pockets, regardless.” In doing so, however, he ignores the circumstances leading to the patdown of Shaver — that guns were present, Shaver was seen next to a leather holster with a tee shirt or towel in his lap, and Shaver appeared “a bit agitated” and was ordered to “calm down.” To insure the officers’ safety, Officer Hydron felt compelled to check the “big bulge” in Shaver’s pocket, and while, in doing so, he found a bag of white powdery substance, Hydron remained uncertain regarding what else was in Shaver’s pockets. Under these described circumstances, we cannot say the trial court was clearly wrong in finding Officer Hydron was justified in conducting a limited search to determine that Shaver had no weapon on his person.

Newbern and Imber, JJ., dissent.