State v. Bevan , 80 Ohio App. 3d 126 ( 1992 )

I respectfully dissent from the opinion and judgment of the majority.

In concluding that the trial court erred in overruling appellant's motion to suppress, the majority holds that the cigarette pack was seized "during and as a result of the unlawful search" of the vehicle's interior. While I agree that the search of the vehicle had no constitutional support, it is my opinion that the seizure of the cigarette pack, and the cocaine hidden inside the wrapper, occurred independently of the search. This opinion is based upon the conclusion that the officers had the right to have appellant and the other passengers exit the vehicle once the stop itself was determined to be valid. Accordingly, I dissent from the decision of the majority.

In defining the parameters of an investigatory stop of a motor vehicle, the United States Supreme Court has held that a police officer can justifiably ask the driver to exit the vehicle during a stop. Pennsylvania v. Mimms (1977),434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331. Deciding that such a request was reasonable under the circumstances, the court emphasized that the public interest in protecting the safety of the officer outweighed the modest additional intrusion upon the driver's personal liberty. The court further stated that the request could be made even when there is no indication of an imminent threat to the officer.

Although a passenger was in the car during the traffic stop, the Mimms court did not address the issue of whether its holding also extended to that individual. However, in interpretingMimms, courts in other jurisdictions have held that its logic is equally applicable to a passenger:

"While the Mimms case involved only the right to order a driver to get out of the car, the Mimms analysis would seem also to justify a policy of ordering passengers out. The same concern of the officers for their own safety applies, and the intrusion on the rights of the passengers occasioned by being required to get out of the car is no greater than the intrusion on the rights of the driver." State v. Ferrise (Minn. 1978),269 N.W.2d 888, 890.

This same logic was also followed by the highest court in the state of New York:

"We conclude, as to defendant's Federal constitutional argument, * * * that precautionary police conduct directed at a passenger in a lawfully stopped vehicle is equally authorized, within Federal constitutional guideposts, as that applied to the driver. Inasmuch as the risks in these police/civilian vehicle encounters are the same whether the occupant is a driver or a passenger, `police may order persons out of an automobile during a stop for a traffic violation' (Michigan v. Long,463 U.S. 1032, 1047-1048 [103 S.Ct. 3469, 3479-3480, 77 L.Ed.2d 1201,1218-1219]). Brief and uniform precautionary procedures of this kind are not per se unreasonable and unconstitutional."People v. Robinson (1989), 74 N.Y.2d 773, 774-775,545 N.Y.S.2d 90, 91, 543 N.E.2d 733, 733-734. See, also, Warr v. State (Ind.App. 1991), 580 N.E.2d 265; People v. Maxwell (1989),206 Cal.App.3d 1004, 254 Cal.Rptr. 124.

Although some courts have reached the opposite holding on this point, I find the foregoing authority persuasive. Even in the most seemingly innocuous situation, an officer should be allowed to have a passenger leave the vehicle, so that his action can be easily monitored during the stop. Given that the intrusion is very limited, such a procedure is not unreasonable.

In this case, it is readily apparent that the request for the passengers to exit the vehicle was not specifically done for safety reasons. Appellant and the other four passengers were not asked to exit until the second officer saw the brown bag. Nevertheless, since the officers could have properly ordered the occupants to leave the vehicle for the officers' protection, this writer concludes that once it was determined that a valid stop was made, appellant's constitutional rights were not violated as a result of having to leave the vehicle. Cf. Mentor-on-the Lakev. Roberts (Dec. 29, 1989), Lake App. No. 88-L-13-168, unreported, 1989 WL 157244, in which it was held that a warrantless arrest was valid even though the offense used to support it was subsequently changed.

Once appellant had left the vehicle, his actions were sufficiently suspicious to warrant a further investigation on the part of the second officer. Moreover, by dropping the cigarette pack on the ground, appellant relinquished control of it. Given these circumstances, the officer did not violate appellant's rights by asking him to remove his foot from the pack when appellant tried to conceal what he had previously discarded.

In concluding that the discovery of the cocaine was constitutional, I would again state that I agree that the search of the vehicle's interior was improper. Such actions clearly cannot occur solely as part of a valid investigatory stop of a motor vehicle.

Pursuant to the foregoing, I conclude that the seizure of the cocaine occurred independently of the illegal search of the vehicle. Therefore, I would affirm the judgment of the trial court.