State v. Miller , 142 Vt. 49 ( 1982 )

Barney, C.J.

The defendant was convicted of unlawful possession of marijuana under 18 V.S.A. § 4224(a), after a trial by court. His conviction was based on evidence pulled from his pocket during a search claimed to be unconstitutional. The defendant’s attempt to have the evidence suppressed or excluded on those grounds was denied. He now appeals the conviction on the grounds that the evidence against him was unconstitutionally obtained and therefore admitted in error.

Starting about 12:30 in the morning on October 24, 1980, officers of the Winooski Police Department were carrying out a search, under warrant, of an apartment on West Lane for evidence of drug sales. At about 1: 30 a.m. the defendant, having been invited to spend the night, knocked on the door, unaware of the police activity within. Someone said “Come in,” and he entered carrying a suitcase, a laundry bag and a plastic bag of household utensils. On entering he was patted down and frisked. A pipe with marijuana residue and a cellophane bag with three grams of marijuana were pulled from his pants pocket. It is the constitutionality of that seizure that is at issue.

Although the issue of consent to the search, which would, of course, eliminate any constitutional concern, was raised by the State, the lower court appears to have been less than satisfied with the supporting evidence. Even though we must support the decision below on any established legal ground, State v. Auger, 124 Vt. 50, 54, 196 A.2d 562, 565 (1963), having in mind the equivocal evidence and uncertain finding, we cannot support the ruling on that basis, and pass immediately to the justifying issue upon which the trial court rested its position.

The State seeks to sustain the seizure of the pipe and drug materials on the authority of Terry v. Ohio, 392 U.S. 1 (1968), which permits, under certain circumscribed circumstances, a police officer to conduct a “pat down” search for weapons for the protection of the officer. The defendant argues that the search in this case was outside the permissive limits of Terry, having in mind the defining of those limits in Sibron v. New York, 392 U.S. 40 (1968), decided the same day.

In Terry, Chief Justice Warren stated the test in the following language:

Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The 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. And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or “hunch,” but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. (Citations omitted.)

392 U.S. at 27.

In Sibron, by contrast, Chief Justice Warren pointed out:

The police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous. Terry v. Ohio, supra. Patrolman Martin’s testimony reveals no such facts. The suspect’s mere act of talking with a number of known narcotics addicts over an eight-hour period no more gives rise to reasonable fear of life or limb on the part of the police officer than it justifies an arrest for committing a crime. Nor did Patrolman Martin urge that when Sibron put his hand in his pocket, he feared that he was going for a weapon and acted in self-defense. His opening statement to Sibron — “You know what I am after” — made it abundantly clear that he sought narcotics, and his testimony at the hearing left no doubt that he thought there were narcotics in Sibron’s pocket.

392 U.S. at 64.

The application of the standards of these cases, particularly with their reasonableness component, requires a case by case examination of the factual background. It is to this end that the suppression hearing before the trial court is directed. The issue then becomes, in this Court, one of determining whether or not the facts found by the lower court have sufficient support in the evidence and justify the ruling made below.

The evidence discloses that when the defendant knocked on the door, the police officer who opened it to admit him recognized him from previous encounters. The officer knew that he had been involved in previous assaultive behavior. The trial court pointed out in its findings that it was the defendant’s unrebutted testimony that all of the assaults involved police officers, and one incident involved confronting a police officer with a knife. It is also unchallenged that the search was, in fact, a “pat down” search such as is conducted for weapons. In fact, the rather equivocal consent evidence reveals that it was when the officer discovered a hard object and then attempted to invade the defendant’s pocket to remove it, that the defendant protested. The officer testified that he thought it might be a weapon such as a knife. The trial court also set out as proper considerations the lateness of the hour, the location in a high crime area and the presence of drug trafficking at the place being searched under the warrant.

These are ample to support the ruling below. This case is much stronger on its facts than the Terry case, since that officer’s action, while outreaching mere “hunch,” relied on inferences based on generalized experience, not on knowledge about the defendants involved. He reasoned from observation of actions not necessarily questionable that the individuals were contemplating robbery, that robbery imports violence or arms and that therefore they might be armed. Here exists the added facts that the defendant was known to the officer and also known to be assaultive.

Sibron does nothing to aid the defendant since it stands for the proposition that the court in that case found that the officer’s own testimony belied his intrusion on Sibron’s person as anything other than an unsupported search for narcotics, with no concern on the part of the officer about safety or dangerousness. It must be remembered that Sibron does not hold that narcotics may not involve danger to an officer, but merely that that element was not involved in that case.

Ybarra v. Illinois, 444 U.S. 85 (1979), is equally inapplicable here. It stands for the proposition that a warrant to search a particular place, in that instance a public tavern, does not generate justification for a routine search or frisk. It rests on the absence of the reasonable belief the trial court supportively found present here.

Judgment affirmed.