Pace v. State , 219 Ga. App. 583 ( 1995 )

Beasley, Chief Judge.

Charles Pace was convicted of possession of cocaine with intent to distribute. In his sole enumeration of error, Pace asserts the trial court erred in denying his motion to suppress evidence which he contends was the result of an illegal detention and search.

The evidence in favor of the trial court’s ruling is construed most favorably to uphold the judgment. State v. Corley, 201 Ga. App. 320 (411 SE2d 324) (1991).

Two officers were patrolling in a car at 9:00 p.m. and included some apartments which were checked frequently because of the drug and prostitution activity there. One of the officers, who was a detective in the vice and narcotics squad, had seen drug transactions at this location, had made drug arrests there himself, and had seen other drug arrests made there. The officers saw defendant, who was standing in the parking lot. He stood there, alone, for about eight minutes before the officers approached him in the car. He did not seem to be waiting to meet anyone or to go inside, so they were suspicious that he was there to sell drugs to drivers-in, the scenario known as “stop and cop.”

When they drove up to defendant in the marked police car, with them in uniform, he looked at the vehicle and turned around and started to walk away, towards the “porch” (a cement slab) of an apartment, at an angle towards the rear of the apartments. They exited the car and called for him to come to the police car. He began acting very nervous and continued to walk away but they walked up to him and he reached towards his right pocket and attempted several times to reach into it. They stopped him from going into the pocket because they were concerned for their safety, knowing that if a suspect is intent on harming the police it will be done with something in his hands. They feared he was going for a weapon. The detective, who had seen suspects pull weapons on officers with quick movements from their pockets, reached down and stopped the hand from going all the way into the pocket. They asked him to put his hands on the police car, and the officer reached into the pocket and found the razor blade and drugs. The officer wanted to remove what he thought would be a weapon. He testified that “he (defendant) was obviously reaching for something that we felt was a threat to us.”

They did not do a pat-down first, although the officer testified at the motion hearing that they did a pat-down after they placed him on the vehicle, and at first testified at trial that they did a pat-down before they “put him on our vehicle.” He made clear at trial that no pat-down occurred before the search of defendant’s pocket. The legal analysis thus is not based on whether they felt a weapon or what they thought was a weapon. The search of the pocket was prompted not by a tactile detection by the police, but by defendant’s actions, which alerted them to thinking he was retrieving a weapon. They reasonably believed that their safety had already been demonstrably compromised, just as it would have been if they felt what could have been a weapon. Defendant did have a razor blade (and a piece of cellophane with nine pieces of crack cocaine).

The officers did have a right to stop Pace from going into the pocket; they explained amply why they did it. The law permits law enforcement officers to protect themselves from harm even when conducting a non-coercive lawful stop. Their safety is entitled to assurance at that stage just as well. “ ‘ “The key question in all cases remains whether the protective measures taken by the officer were reasonable under the circumstances.” (Cits.)’ [Cit.]” Chaney v. State, 207 Ga. App. 72, 73 (427 SE2d 63) (1993). “ ‘ “An officer may take appropriate self-protective measures when he lawfully confronts an individual and reasonably believes him to be armed or otherwise dangerous to the officer or others. The usual police response will be to conduct a frisk, patting the individual’s clothing in search of a weapon. (Cits.)” ’ ” Id. at 72-73. A pat-down is not a prerequisite, however. Hayes v. State, 202 Ga. App. 204, 206 (414 SE2d 321) (1991). In Hayes, intrusion into a pocket based upon safety concerns and defendant’s behavior, rather than what was felt in a pat-down, was upheld; defendant turned away when a pat-down reached a certain pocket; he was told to place his hands on the car and the officer then reached into the pocket without feeling it first.

“ ‘Supreme Court holdings sculpt out, at least theoretically, three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief “seizures” that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.’ ” State v. Davis, 206 Ga. App. 238 (424 SE2d 878) (1992). Under the first tier, a police officer may approach an individual and ask a few questions without triggering Fourth Amendment scrutiny. State v. Westmoreland, 204 Ga. App. 312 (1) (418 SE2d 822) (1992). See also Sabel v. State, 248 Ga. 10 (1) (282 SE2d 61) (1981). Accordingly, the officers were authorized to pull into the parking lot and ask Pace what he was doing. See Ward v. State, 193 Ga. App. 137 (1) (387 SE2d 150) (1989); Vance v. State, 205 Ga. App. 201 (421 SE2d 730) (1992).

In order for an officer to protect himself from injury, there need not first be established a reasonable, articulable suspicion that the person who is being lawfully questioned has committed or is committing a crime. The risk of injury justifies reasonably tailored protective reaction to a citizen’s threatening action even in “tier-one” investigative encounters. Were it not so, the cost would be too high for such encounters. “Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” Terry v. Ohio, 392 U. S. 1, 23 (88 SC 1868, 20 LE2d 889) (1968). Whether a limited protective search of the person is justified requires a reasonable belief that the officer’s safety or that of others is in danger. Terry, supra at 27.

The following “safety search” cases illustrate other circumstances in which weapon searches were ruled reasonable and thus permitted. In Louis v. State, 196 Ga. App. 276 (396 SE2d 25) (1990), defendant was in a phone booth next to a car where others were engaged in drug activity. He turned his back to the officers and reached for his crotch, where the officers knew weapons are often concealed. In Clark v. State, 131 Ga. App. 583 (2) (206 SE2d 717) (1974), it was held: “When the detective advised defendant at the scene that he was a police officer, and defendant reached in his pocket, the detective had a right to stop and frisk defendant in order to protect himself,” citing Terry.

The question is whether a reasonably prudent person in the circumstances would be warranted in the belief that his safety or that of others was in danger. Terry, supra at 27. See also Michigan v. Long, 463 U. S. 1032 (III) (103 SC 3469, 77 LE2d 1201) (1983). The officer was “able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” Sibron v. New York, 392 U. S. 40, 64 (88 SC 1889, 20 LE2d 917) (1968).

The officer invaded the pocket with his hand only when he had a reasonable belief that defendant was reaching for a weapon, based on all the circumstances described above, including defendant’s efforts to avoid the police and then nervously seek something from his pocket. The belief, objectively, was not merely the product of an “inventive imagination,” nor was the search “an act of harassment.” Terry, supra at 28. The detention was effected in order to determine whether a weapon was within defendant’s reach and control. It was a limited and appropriately directed reaction, prompted by the citizen’s hand movements in the context of all the surrounding circumstances when the officers tried to communicate with him.

The officers were acting lawfully when they sought to ask Pace what he was doing. “[E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, [cits.]; ask to examine the individual’s identification, [cits.]; ... — as long as the police do not convey a message that compliance with their requests is required.” Florida v. Bostick, 501 U. S. 429, 434-435 (111 SC 2382, 115 LE2d 389) (1991). Here the questioning had not even commenced; the officer had just asked defendant to stop when he escalated the general safety hazard to which police are subjected and created a specific one by attempting to retrieve what was in his pocket. This justified the limited intrusion.

Judgment affirmed.

McMurray, P. J., Birdsong, P. J., Pope, P. J., and Andrews, J., concur. Johnson, Blackburn, Smith and Ruffin, JJ., dissent.