Suppression of illegally obtained evidence...a recent win.

One of the attorneys I work for on a regular basis recently had a case where a client was a passenger in a car stopped by police. After citing the driver for operating without insurance, the officer advised he was having the car towed. The passenger, John, asked the officer if he could leave and walk home. The officer directed John to empty his pockets first. John complied. The officer then conducted a patdown search and reached into John's pocket, finding a 1 gram packet of marijuana. John was arrested and jailed.

On suppression counsel challenged the search as illegal based upon a lack of exigent circumstances, officer safety, or valid consent. The controlling case for suppression was State v. Chihak, No. 9-090/08-0452 (Iowa App. 3/11/2009) (Iowa App., 2009), where the Court reversed and remanded the denial of suppression based upon an illegal pat down search. The Chihak Court held:

"Warrantless searches and seizures are per se unreasonable unless they fall within one of the carefully drawn exceptions to the warrant requirement. State v. Simmons, 714 N.W .2d 264, 271 (Iowa 2006). Valid exceptions to the warrant requirement include searches based on (1) consent, (2) plain view, (3) probable cause coupled with exigent circumstances, (4) searches incident to arrest, and (5) those based on the emergency aid exception. State v. Lewis, 675 N.W.2d 516, 522 (Iowa 2004). The State has the burden of proving by a preponderance of the evidence that a warrantless search falls within one of the exceptions to the warrant requirement. Id.
It is not contested in this appeal that the officers had a right to stop the vehicle because of the loud muffler. Additionally, Chihak does not contest that the officers had a right to search the vehicle in which Chihak was a passenger based on Murley's consent, nor does Chihak dispute that the officers had the right to order him out of the car to facilitate the lawful consent search of the vehicle. Rather, the crux of the appeal is based on what occurred after the officer ordered Chihak out of the car. Specifically, we must determine whether Officer Lowrey was justified in performing a pat-down search of Chihak.

As stated above, after Chihak exited the car at the request of Officer Lowrey, the officer stated "I'm going to pat you down, make sure you don't have any bombs, guns, knives or anything that can stick me." The State argues Officer Lowrey had a right to conduct this pat-down search of Chihak prior to searching the car in order to ensure his own safety. Officer Lowrey testified he just wanted to "make sure [Chihak] didn't have a gun in his pocket or a knife in his pocket or something that [Chihak] could harm me in some way when I put him to the rear of the vehicle" while he was assisting in the search of the vehicle. Additionally, he testified "[a]ny time I have anybody to my back it tends to be an officer safety issue." The State argues the pat-down Officer Lowrey performed was justified under the officer safety exception. The issue here is controlled by the landmark decision of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and its progeny. Under Terry, an officer has authority to conduct a reasonable search for weapons for the officer's own protection, 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. Terry, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909; see also Michigan v. Long, 463 U.S. 1032, 1047-50, (1983); Ybarra v. Illinois, 444 U.S. 85, 92-94,(1979); Pennsylvania v. Mimms, 434 U.S. 106, 112, (1977).
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. Terry, 392 U.S. at 27. In justifying this particular intrusion upon individuals' constitutionally protected interests the officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21. The Fourth Amendment requires that at some point the reasonableness of a particular search or seizure can be subjected to the neutral, detached scrutiny of a judge. Id. The judge must then evaluate the reasonableness in light of the particular circumstances, and in making that assessment must employ an objective standard:

"would the facts available to the officer at the moment of the seizure or search `warrant a man of reasonable caution in the belief' that the action taken was appropriate?" Id. at 21-22.

Officer Lowrey testified he was going to conduct the pat-down search of Chihak to ensure his safety. However, he also testified that Chihak was cooperative (the driver was also cooperative), gave him his ID, made no movements and was not moving around, was not threatening, and that Chihak was not a danger to him when he asked
him to step out of the car. This testimony demonstrates that Officer Lowrey did not have the requisite "reasonable belief" that Chihak was armed and presently dangerous to justify the initiation of a pat-down search. Furthermore, not only is there no testimony from the officer that he had any belief that Chihak was armed or dangerous, we cannot find that the facts available to the officer at the time of the search would have warranted a person of reasonable caution to believe that he was.

The court ruled in favor of the defense, citing the officer's error in ordering the defendant to empty his pockets and then conducting a further search "in hopes of finding fruits of a crime." This case was won because the attorney took the time to question the legality of the search. It could have been easy to plead the client out to a misdemanor and unsupervised probation with a fine. But instead the client was cleared of the arrest and did not suffer the harm of a conviction.

Chalk a win up for the defense.

Craig-

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