Opinion
No. 29214
Decided November 26, 1969.
Search and seizure — Stopping automobile for traffic violation — Stopped car suspected of being used in narcotics activity — Defendant voluntarily alighted, hand in pocket — Refused request to remove hand — Officer removed hand and frisked defendant — Hand contained heroin — Evidence admissible.
A package of heroin disclosed to be in the defendant's hand which he refused to remove from a coat pocket upon request of a police officer who had a report that the car in which he found defendant was involved in narcotics violations is admissible in evidence on the basis that the officer had reasonable cause to believe both that a felony had been committed and that defendant might have a weapon in such hand.
Mr. John Kessler, for plaintiff.
Mr. Selwyn C. Jackson, for defendant.
Defendant, Henry, was indicted for unlawful possession of narcotic drugs. Upon his plea of not guilty the cause was tried to the court, a jury having been waived.
The sole issue has to do with the admissibility of the incriminating evidence, to wit: heroin. The issue was first raised, tried and decided adversely on Henry's motion to suppress. The court permitted the issue to be retried and the matter has been again submitted upon all the evidence and Henry's brief on his propositions of law and authority.
The facts are now clearly revealed. During the routine investigation of the driver of a motor vehicle for a traffic violation, the police officer was informed from police headquarters via radio that the driver and the motor vehicle were carrying forged prescriptions for narcotic drugs. Acting upon this information the officer approached the motor vehicle to investigate. Henry, a passenger, while engaged in conversation with the officer, voluntarily alighted with his right hand concealed in his coat pocket. Upon this confrontation the officer requested Henry to remove his hand from the pocket. Upon his refusal the officer removed the hand and frisked him. At no time did the officer go into any hidden places upon Henry's person. Clutched in the removed hand was a small, yellow envelope which the officer extracted therefrom and upon observing its contents arrested Henry upon the charge for which he has been tried.
The record is clear that the officer had probable cause to believe that the vehicle was involved in criminal activity. A person does not ordinarily alight from an automobile with a hand inserted in a pocket. When the hands are free such person has better maneuverability to accomplish this task. Thus when the hand did not come out after one or more routine questions by the officer, he certainly by this time had probable cause to initiate reasonable precaution for his own safety. Under such facts and circumstances the frisk for weapons was not unreasonable.
We must be sensible and realistic. Had Henry alighted in the presence of the officer with his hands in the open and free of any object there would have been no probable cause for any encounter whatsoever. Henry was not under arrest and under such circumstances there would have been no probable cause for arrest and Henry would have been free to have moved along and away or remained to entertain and pursue any legitimate undertaking.
It is conceded that the police officer is not entitled to seize and search every person he sees on the street or of whom he makes inquiries. Further, before he places his hand on the person of a citizen in search of anything, he must have constitutionally adequate reasonable grounds for doing so.
This case is distinguishable on the facts and circumstances from Sibron v. New York, 392 U.S. 40. The only similarity is that the arrest followed the search. In Sibron, however, the warrantless search was predicated solely on the proposition that the arresting officer had probable cause to believe that Sibron was in possession of narcotics because he had seen him conversing with a number of known addicts over an eight-hour period.
In fact the Supreme Court of the United States said in Sibron, supra, "If Patrolman Martin lacked probable cause for an arrest, however, his seizure and search of Sibron might still have been justified at the outset if he had reasonable grounds to believe that Sibron was armed and dangerous." Citing Terry v. Ohio, 392 U.S. 1001, 88 S. Ct. 1868.
Applying the standards and guidelines as pronounced by the court of last resort, this court is of the opinion that upon the whole of the facts and circumstances presented that the officer had reasonable grounds to believe that Henry was armed and dangerous.
Where a police officer commences an investigation at a place where he had a right to be and a person within the confines of that area exhibits by his conduct a propensity to inflict bodily harm, the officer may search for weapons and such search is constitutionally reasonable. State v. Mericle, 15 Ohio Misc. 202. The fruits of such a search are admissible against the person searched. Further, without deciding the point, it appears that, so long as the search is reasonable, contraband extracted while searching for weapons would be admissible even if taken from a pocket where the frisk reveals some substantial object that may relate to a weapon.
It is clear that the heroin taken from Henry is admissible in evidence against him because as a result of reasonable grounds to search for weapons Henry himself brought the envelope containing the heroin from his pocket, after which it was then in plain view.
The court finds under all the facts and circumstances, beyond a reasonable doubt, that the defendant, Lawrence Gene Henry, is guilty of unlawful possession of narcotic drugs.