NO. 94-258

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

STATE OF MONTANA,

Plaintiff and Appellant,

APPEAL FROM: District Court of the Nineteenth Judicial District,

In and for the County of Lincoln,

The Honorable Robert S. Keller, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Scott B. Spencer, County Attorney, Libby, Montana

Hon. Joseph P. Mazurek, Attorney General, Cregg

Coughlin, Ass't Attorney General, Helena, Montana

For Respondent:

KathleenHufstetler, Lincoln County Public Defender,

Libby, Montana

Filed:

Submitted on Briefs: January 26, 1995

Decided: March 30, 1995
Justice W. William Leaphart delivered the Opinion of the Court.

The State of Montana appeals from an order of the Nineteenth

Judicial District Court, Lincoln County, suppressing evidence in a

criminal case against Steven Richard Stubbs (Stubbs) We reverse.

BACKGROUND

The facts are essentially undisputed. Late on the night of

July 3, 1993, Lincoln County Reserve Deputy Steven Bayer (Bayer)

was patrolling east of Libby when he observed a car rapidly

approaching him from behind. Boyer testified that he was traveling

45 miles per hour in an area with a 45 mile per hour speed limit

when the car passed him. Boyer also observed the car weaving

across the center line and fog line.

He attempted to pull the car over by activating his overhead

lights, but the driver of the car would not pull over. Eventually,

Boyer flashed his high beams, activated his siren, air horn, and

spot light in attempts to get the car to pull over. Boyer

testified that the car did not start to slow down until Boyer

accelerated and pulled out alongside it. The car then turned off

the highway onto a county road and stopped approximately 100 feet

up the road. Boyer testified that the car travelled about three or

four miles from the time he activated his overhead lights until the

car finally stopped.

Boyer informed the dispatcher that he was pulling over a

person possibly driving under the influence. After stopping, Boyer

2
approached the car on foot. As he approached, Boyer noticed the

driver fumbling around and looking towards the passenger seat.

Boyer shined his flashlight into the vehicle where he could see

that Stubbs, the driver, was the lone occupant. Boyer also saw

handguns on the passenger side, several rounds of ammunition on the

dash, and an empty pistol holster.

Boyer ordered Stubbs out of the car at gunpoint and handcuffed

him. He then did a pat down search of Stubbs and retrieved several

rounds of ammunition from his pants pocket and a small brass pipe

from his coat pocket which Boyer seized as drug paraphernalia.

Boyer testified that after handcuffing Stubbs and having him turn

around, he smelled alcohol on Stubbs' breath, Stubbs' speech was

slurred, his eyes were bloodshot, and he was having trouble

standing erect. Boyer did not have Stubbs perform any field

sobriety tests. Boyer arrested Stubbs for driving under the

influence of alcohol or drugs and for possession of drug

paraphernalia. After Stubbs was placed in custody, officers

discovered a plastic bag containing marijuana which was not

discovered at the roadside. Stubbs later submitted to a blood test

to determine the amount cf intoxicants in his system.

Stubbs was charged with the following misdemeanors:

possession of dangerous drugs for the possession of .05 grams of

marijuana, possession of drug paraphernalia, and driving under the

influence. On January 28, 1994, Stubbs was convicted on all

charges after a bench trial in the Justice Court of Lincoln County.

Stubbs appealed his conviction to the District Court for a trial &

3
m. Prior to his trial in District Court, Stubbs moved to

suppress all the physical evidence Bayer seized, and all evidence

procured after Boyer arrested Stubbs.

On May 12, 1994, the court conducted a hearing on Stubbs'

motion to suppress. On May 17, 1994, the court issued its order

suppressing evidence. The court concluded that the seizure of the

brass pipe was unauthorized and that the pipe had some influence on

Bayer's determination that Stubbs was driving under the influence.

Accordingly, the court suppressed all evidence seized prior to, or

as a result of Stubbs' arrest. The State appeals from this order.

The sole issue raised on appeal is whether the District Court

erred in suppressing evidence gathered against Stubbs.

STANDARD OF REVIEW

We review a district court's ruling on a motion to suppress to

determine whether there is substantial credible evidence to support

the court's findings of fact, and whether the court correctly

applied the findings as a matter of law. State v. Rushton (1994),

264 Mont. 248, 254, 870 P.2d 1355, 1359. We have also stated that

in reviewing a district court's ruling on a motion to suppress, we

determine whether the court's interpretation and application of the

law is correct. State v. Pastas (Mont. 1994), 887 P.2d 199, 201,

51 St.Rep. 1441, 1442; citing State v. McCarthy (1993), 258 Mont.

51, 55, 852 P.2d 111, 113.

DISCUSSION

Stop and Frisk

At the suppression hearing, both parties and the District

4
Court analyzed this case as a "stop and frisk" case. On appeal,

the parties continue to argue this case as a stop and frisk case.

Therefore, we first discuss stop and frisk searches and seizures.

We note at the outset that warrantless searches are considered

per se unreasonable under the Fourth Amendment to the United States

Constitution. McCarthy, 852 P.2d at 113; citing Katz v. United

States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576.

However, both federal and state law recognize certain exceptions to

the warrant requirement. McCarthy, 852 P.2d at 113; citing

California v. Acevedo (1991), 500 U.S. 565, 111 S.Ct. 1982, 114

L.Ed.2d 619; and State v. Evjen (1988), 234 Mont. 516, 756 P.2d

708.

One recognized exception to the warrant requirement is the

stop and frisk. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868,

20 L.Ed.2d 889. A Montana statute authorizes the use of a stop and

frisk, and this Court has recognized stop and frisk searches as an

exception to the warrant requirement. Section 46-5-402, MCA; State

v. Gopher (19811, 193 Mont. 189, 192, 631 P.2d 293, 295; State v.

Kills On Top (1990), 243 Mont. 56, 83, 793 P.2d 1273, 1291.

An officer may conduct a stop and frisk without having

probable cause to arrest the suspect. Generally, the stop and

frisk is performed in the interests of crime detection and in the

interests of protecting the investigating officer. Terry, 392 U.S.

at 22-23. The United States Supreme Court has stated that "in

determining whether the [stop and frisk] seizure and search were

'unreasonable' our inquiry is a dual one - whether the officer's

5
action was justified at its inception, and whether it was

reasonably related in scope to the circumstances which justified

the interference in the first place." Terry, 392 U.S. at 19-20.

The United States Supreme Court has had occasion to apply the

Terry "stop and frisk" rationale to vehicle stops. In Michigan v.

Long (19831, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201, the

Court addressed a situation not unlike that in the present case.

The hour was late and area rural. Long was driving his automobile

at excessive speed, and his car swerved into a ditch. The officers

had to repeat their questions to Long, who appeared to be under the

influence of some intoxicant. The officers did not frisk Long

until they noticed that there was a large knife in the interior of

the car into which Long was about to reenter. Their subsequent

search of the car was restricted to those areas to which Long would

generally have immediate control, and that could contain a weapon.

Citing Pennsylvania v. Mimms (1977), 434 U.S. 106, 98 S.Ct. 330, 54

L.Ed.2d 331, the Court noted that "investigative detentions

involving suspects in vehicles are especially fraught with danger

to police officers." Lonq, 463 U.S. at 1047. The Court went on to

state:

Our past cases indicate then that protection of police

and others can justify protective searches when police

have a reasonable belief that the suspect poses a danger,

that roadside encounters between police and suspects are

especially hazardous, and that danger may arise from the

possible presence of weapons in the area surrounding a

suspect.

Lonq, 463 U.S. at 1049. The Court in Lonq held that, in order to

protect themselves, the officers were entitled to conduct a Terry

6
search of the area surrounding a suspect as well as the person of

the suspect.

The concerns expressed by the United States Supreme Court in

~onq are particularly relevant in a situation such as this where

the suspect was weaving and speeding down a rural highway late at

night; where he refused to stop for a distance of some four miles

and where he had numerous firearms within his immediate reach.

This Court has established that for a vehicle stop and frisk

to be valid at its inception, the State must satisfy two criteria:

1) the officer had objective data from which an experienced

officer can make certain inferences, and 2) the officer had a

resulting suspicion that the occupant of a certain vehicle was or

had been engaged in wrongdoing or was a witness to criminal

activity. Gopher, 631 P.2d at 296.

Stubbs concedes that Boyer was justified in conducting a stop

and frisk search but contends that Boyer went beyond the

permissible scope of the search. In particular, Stubbs argues that

Bayer's search was prompted by the fact that he saw an empty

holster on Stubbs' passenger seat. Stubbs argues that although the

pipe, which was about two and one-half inches long and threequarters of an inch wide, could have been mistaken for a derringer

or another dangerous weapon, it was much too small to have been

mistaken for the large pistol missing from the empty holster. In

its order granting Stubbs' motion to suppress, the District Court

agreed with Stubbs' argument. After concluding that the empty

holster gave rise to Bayer's concerns, the District Court stated
that "if [Boyerl had asked, 'Where is the gun for that holster?',

[Stubbs] would have pointed it out to him on the passenger seat of

the car and there would have been no need for a search." However,

we believe that the District Court's analysis is much too narrow in

light of the facts of this case.

Boyer stopped Stubbs after observing him speeding and weaving

over the center line and the fog line. Stubbs only stopped after

Boyer had activated numerous lights, siren, and air horn. Stubbs

then pulled off on a rural county road. When Bayer approached

Stubbs' car, he noticed Stubbs fumbling around on the passenger

side of the car. When Boyer looked inside Stubbs' car, he observed

several weapons, ammunition, and an empty holster on the passenger

side of the car. In this situation, we think it unrealistic to

limit the officer's search to a weapon of a specified size or type.

Boyer testified that when he frisked Stubbs, he was looking

for weapons. When asked whether he was looking for any particular

kind of weapon, he responded, "Not anything in particular, no."

Boyer testified that when he felt the lump in Stubbs' jacket

pocket, he thought it could have been a knife or a derringer. As

we have noted, one purpose of a stop and frisk is to protect the

officer from deadly weapons. It would not make sense for an

officer attempting to protect himself or herself to ignore a

possible weapon simply because it does not feel large enough to fit

an empty holster seen in the suspect's car. Ignoring the potential

weapon would have been especially absurd in the present case where

Boyer had seen more than one weapon in Stubbs' car along with

8
numerous rounds of ammunition.

We next consider whether contraband may be seized when it is

discovered during a stop and frisk in which an officer is searching

for weapons. Stubbs argues that the seizure of the pipe went

beyond the scope of a search for a particular weapon. In support

of his argument, he cites to Minnesota V. Dickerson (1993), _

U.S. -, 113 S.Ct. 2130, 124 L.Ed.2d 334. Dickerson involved a

pat down search in which the officer felt a small plastic bag

through the suspect's clothes. After squeezing and manipulating

the object, the officer determined that it probably contained

drugs, The officer seized the bag, which contained cocaine. The

Dickerson Court stated:

The question presented today is whether police officers

may seize nonthreatening contraband detected during a

protective patdown search of the sort permitted by Terry.

We think the answer is clearly that they may, so long as

the officer's search stays within the bounds marked by

Terry.

Dickerson, 113 S.Ct. at 2136. The Supreme Court recognized that

contraband which is discovered through "plain touch" is subject to

seizure the same as that discovered through "plain view." Thus, if

a police officer is lawfully engaging in a Terrv stop and frisk and

pats down a suspect's clothing and feels an object whose contour or

mass makes its identity "immediately apparent," there has been no

invasion of the suspect's privacy beyond that already authorized by

the officer's search for weapons. Dickerson, 113 S.Ct. at 2137.

The Dickerson Court held that the officer did not stay within

the bounds of a Terry search because the officer made no claim that

he suspected the object to be a weapon, and he was not immediately

9
able to discern that the material in the plastic bag was drugs

without manipulating the contents of the bag. Dickerson, 113 S.Ct.

at 2138. The Court stated that:

Although the officer was lawfully in a position to feel

the lump in respondent's pocket, because Terry entitled

him to place his hands upon respondent's jacket, the

court below determined that the incriminating character

of the object was not immediately apparent to him.

Rather, the officer determined that the item was

contraband only after conducting a further search, one

not authorized by Terry or by any other exception to the

warrant requirement. Because this further search of

respondent's pocket was constitutionally invalid, the

seizure of the cocaine that followed is likewise

unconstitutional.

Dickerson, 113 S.Ct. at 2139.

The situation in the present case is clearly distinguishable.

Boyer testified that he thought the lump in Stubbs' pocket could

have been a deadly weapon such as a knife or derringer. Therefore,

he removed the item to make certain that it was not a deadly

weapon, not because he suspected that it was contraband. We hold

that this was within the bounds of a proper stop and frisk.

Once the brass pipe was removed, it was in Bayer's plain view

We recently stated that a valid plain view seizure requires 1) that

the officer have a prior justification for the intrusion, and 2)

that the officer inadvertently discover a piece of evidence. State

v. Williams (Mont. 19941, 887 P.2d 1171, 1174, 51 St.Rep. 556, 558;

citing Coolidge v. New Hampshire (19711, 403 U.S. 443, 466, 91

S.Ct. 2022, 2038, 29 L.Ed.2d 564, 583. An additional element not

listed in Williams is that the incriminating character of the item

seized must be apparent. State v. Hembd (19891, 235 Mont. 361,

369, 767 P.2d 864, 869.

10
We have already determined that Boyer was justified in

performing the pat down search and removing the pipe from Stubbs'

jacket pocket. Boyer testified without contradiction that he was

searching for weapons on Stubbs' person, and there is no indication

that the search was used as a pretext to discover illicit drugs or

paraphernalia. This is supported by the fact that Boyer did not

seize a plastic bag of marijuana which was later seized during a

custodial search. Thus, we conclude that Boyer inadvertently

discovered the pipe. Finally, the U.S. Supreme Court has examined

how apparent the incriminating nature of the seized item must be.

See Texas v. Brown (19831, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d

502. In upholding the seizure of an opaque balloon containing

illegal drugs, the Brown Court rejected the argument that for the

incriminating nature of a seized item to be apparent, the officer

must have a near certainty that the item is illicit. Brown, 460

U.S. at 741. The Court held that it was sufficient that the

officer had probable cause to believe that the balloon in plain

view held illicit drugs. Brown , 460 U.S. at 743. We hold that

Boyer, like the officer in Brown, had probable cause to conclude

that the brass pipe was drug paraphernalia as defined in § 45-IO101(l) (k), MCA.

We hold that the District Court erred in concluding that Boyer

exceeded the scope of a stop and frisk search when he removed the

brass pipe, and that the plain view doctrine justified Boyer's

seizure of the pipe.

11
Search Incident to an Arrest

Stubbs advances an alternative argument under which he

contends that we must affirm the District Court's suppression of

the evidence. Stubbs argues, as he did in the District Court, that

Boyer actually placed him under arrest before the search. He

argues that the "arrest" was made without probable cause, and

therefore, all subsequent fruits of the searches conducted after

the flawed arrest must be suppressed. The State argues that Stubbs

did not file a cross-appeal, and therefore this Court cannot

address the issue. The record discloses that the alternative basis

for suppression was argued at the District Court but was not

addressed by that court due to its erroneous reliance on the stop

and frisk rationale. However, we have held that we will affirm a

district court's decision, if correct, regardless of the district

court's reasoning in reaching its decision. Hagan v. State (1994),

265 Mont. 31, 35, 873 P.2d 1385, 1387 (citations omitted). In

Haqan, we upheld the district court's decision in favor of the

State on a different basis than that used by the district court,

despite the fact that the State had not cross-appealed. Hasan, 873

P.2d at 1387. Here, if Stubbs were improperly arrested, then the

evidence seized subsequent to the arrest is the fruit of an illegal

arrest, and the District Court's order suppressing the evidence

would be correct. Thus, we will address Stubbs' alternative

argument concerning search incident to an arrest.

Stubbs argues that when Boyer pointed his weapon at Stubbs and

placed handcuffs on him, that Stubbs was under arrest. Stubbs

12
argues that, at that time, Bayer did not have probable cause to

arrest him for driving under the influence, possession of drug

paraphernalia, or possession of dangerous drugs

We note that several courts have held that pointing a weapon

at a suspect and placing him in handcuffs, while increasing the

intrusiveness of a Terry-type search, does not necessarily amount

to an arrest requiring probable cause. See U.S. v. Perdue (10th

Cir. 1993), 8 F.3d 1455, 1463; U.S. v. Smith (7th Cir. 1993), 3

F.3d 1088, 1094; U.S. v. Crittendon (4th Cir. 1989), 883 F.2d 326,

329; U.S. v. Taylor (9th Cir. 1983), 716 F.2d 701, 709; State v.

Lovato (N.M. App. 1991), 817 P.2d 251, 256; State v. Clevidence

(Ariz. App. 19871, 736 P.2d 379, 383.

However, none of these cases interpreted an arrest statute

similar to our own. Section 46-6-104(l), MCA, states: "An arrest

is made by an actual restraint of the person to be arrested or by

the person's submission to the custody of the person making the

arrest." We agree with Stubbs' position that by placing Stubbs in

handcuffs at gunpoint, Boyer actually restrained Stubbs and

arrested him. However, we disagree with Stubbs' contention that

the arrest was improper.

Section 46-6-311(l), MCA, provides:

[a] peace officer may arrest a person when a warrant has

not been issued if the officer has probable cause to

believe that the person is committing an offense or that

the person has committed an offense and existing

circumstances require immediate arrest.

Boyer had more than a reasonable suspicion of criminal activity

when he pulled Stubbs' car over and proceeded to search. Bayer had

13
probable cause to arrest Stubbs for speeding, reckless or careless

driving (55 61-8-301(l) (a) and 61-E-302, MCA), and for eluding a

peace officer (5 61-8-301(l) (b), MCA). Given the facts that Bayer

observed Stubbs speeding, driving recklessly and eluding an

officer, and had seen numerous weapons in Stubbs' vehicle, Bayer

had probable cause to arrest Stubbs and had a reasonable

justification for searching him on the scene.

Finally, an officer conducting a search incident to a valid

arrest may search the arrestee to protect the officer from attack.

Section 46-5-102(l), MCA. A search to protect the officer from

attack necessarily includes a search for weapons. Thus, our

reasoning upholding a stop and frisk search and seizure is also

applicable in upholding the search incident to arrest.

For the foregoing reasons, we reverse the order of the

District Court suppressing the evidence and remand for trial.

We concur
Justice Terry N. Trieweiler dissenting.

I dissent from the majority's conclusion that the seizure of

Steven Stubbs' brass pipe by Deputy Steven Boyer was permissible

pursuant to the stop-and-frisk exception to the warrant requirement

under either the Fourth Amendment to the United States

Constitution, or Article II, Section 11, of the Montana

Constitution.

The majority correctly notes that our standard of review is

whether there was substantial credible evidence to support the

District Court's findings, but then ignores that standard of review

by substituting itself for the District Court as the finder of

fact. This is particularly objectionable since the District

Court's factual findings were the basis for its application of the

restrictive language set forth in Terryv. Ohio (1968), 392 U.S. 1, 88

S. Ct. 1868, 20 L. Ed. 2d 889.

For example, in Terry, the Supreme Court upheld the validity of

a protective search for weapons in the absence of probable cause to

arrest where there is an articulable suspicion that an individual

is armed and dangerous, but restricted the circumstances permitting

such a search and the scope of any search conducted under these

circumstances. Here, Stubbs does not disagree that a

stop-and-frisk search was justified in the first instance. He

contends that the search of his pocket and withdrawal of a brass

pipe exceeded the permissible scope of the search because it was

plainly not the weapon with which the investigating officer was

15
concerned when he commenced the search. 1n that regard, the

Supreme Court stated in Terry that:

This Court has held in the past that a search which is

reasonable at its inception may violate the Fourth

Amendment by virtue of its intolerable intensity and

scope. Kremen v. United States, 353 U.S. 346 (1957) ; Go-Burt

Importing Co. v. United States, 282 U.S. 344, 356-358 (1931); see

UnitedStates v. Di Re, 332 U.S. 581, 586-587 (1948). The

scope of the search must be "strictly tied to and

justified by" the circumstances which rendered its

initiation permissible. Wardenv.Hayden, 387 U.S. 294, 310

(1967) (Mr. Justice Fortas, concurring); see, e.g., PreStOa

v. UnitedStates, 376 U.S. 364, 367-368 (1964); Agnellov. United

States, 269 U.S. 20, 30-31 (1925).

. . .

And in determining whether the seizure and

search ,ere "unreasonable" our inquiry is a dual one--

whether the officer's action was justified at its

inception, and whether it was reasonable related in scone

to the circumstances which justified the interference in

the first place.

Terry, 392 U.S. at 17-20 (emphasis added).

In Terv, the court went on to add that:

A search for weapons in the absence of probable cause to

arrest, however, must, like any other search, be strictly

circumscribed by the exigencies which justify its

initiation. Warden v. Hayden, 387 U.S. 294, 310 (1967) (Mr.

Justice Fortas, concurring). . . .

. . . .

. . Thus, evidence may not be introduced if it was

discovered by means of a seizure and search which were

not reasonably related in scope to the justification for

their initiation. Warden v. Hayden, 387 U.S. 294, 310

(1967) (Mr. Justice Fortas, concurring).

. . . The sole justification of the search in the

present situation is the protection of the police officer

and others nearby, and it must therefore be confined in

scope to an intrusion reasonably designed to discover

16
guns, knives, clubs, or other hidden instruments for the

assault of the police officer.

Terry, 392 U.S. at 25-29.

The significance of the above language is that in this case,

it was a fact-finding function of the District Court to determine

whether when Officer Boyer discovered and removed a brass pipe from

Stubbs' pocket he was acting within the scope of his original

justification for frisking Stubbs. In performing that fact-finding

function, after listening to the direct testimony and

cross-examination of Officer Boyer, the District Court found that:

Office Boyer saw a holstered gun on the Defendant's

passenger seat and an emotv holster on the same seat (of

a size sufficient to hold a fair-sized sidearm). . . .

Officer Eoyer made it clear that his apprehension

was created by the empty holster on the seat of the car,

coupled with what appeared to be movement by the

Defendant of the Defendant's hands just before Officer

Boyer ordered the Defendant to place his hands in view,

and the absence of the sidearm that belonged in the empty

holster. In the course of the patdown search, Officer

Boyer found a small "marijuana" pipe in the Defendant's

jacket pocket, as well as some rounds of .38 ammunition

in the defendant's trouser pocket. The pipe was about 2%

inches long with an outside diameter of about 3/4 of an

inch . . .

Officer Bayer's "articulable suspicion" was that the

empty holster gave rise to concern that the Defendant may

still have that weapon. . Once Officer Boyer

commenced his search, however, he did it in the manner

that Officer Byrnes had taught him, i.e., a custodial

search. The custodial search exceeded the scope of Terry,

and the evidence acquired by that search should be

suppressed.

The District Court's finding that removal of a two and

one-half inch long brass pipe with a three-quarter inch diameter

from Stubbs' pocket was beyond the scope of a pat-down search,

1 7
justified by concern about the presence of a firearm with a four to

six inch barrel, is fully supported by substantial evidence in the

record.

While the majority chooses that portion of Bayer's testimony

which indicates he was looking for weapons at the time he frisked

Stubbs, the District Court was justified in relying on that part of

Bayer's testimony which indicated that his sole justification for

frisking Stubbs was the missing revolver from the empty holster on

the front seat of Stubbs' car. In response to the following

question during cross-examination, Officer Boyer gave the following

answer :

Q. Why did you think there might be a weapon?

A. Well, because of the large amount of ammunition that

was on the dash, on the floor, on the seats. There were

two guns on the front seat that I could see, one in a

holster and an empty holster and I didn't know where the

gun was that belonged in the other holster, the empty

holster.

Furthermore, the State's own evidence established that a two

and one-half inch long brass pipe could not reasonably be mistaken

for a weapon.

In an effort to show that Bayer's removal of the brass pipe

was reasonable under the circumstances, the County Attorney

produced LaBeth Spain as a witness at the suppression hearing. Ms.

Spain is an investigator for the Lincoln County Public Defender's

Office who had prior training as a police officer. She was asked

to demonstrate for the court a "pat-down search" and remove

suspicious objects from the pockets of the person she searched.

18
Significantly, the person she searched in open court had a pipe

similar or identical to the one taken from Stubbs in his left rear

pocket. Spain did not find it necessary to remove the pipe as part

of a pat-down search for potential weapons.

The District Court's finding that seizure of Stubbs' brass

pipe was not reasonably related to the original justification for

frisking Stubbs is supported by the evidence presented at the

District Court's suppression hearing, and therefore, should be

affirmed. Based on those findings, the pipe should have been

suppressed pursuant to the U.S. Supreme Court's decision in Tevryv.

Ohio and could not have formed any part of the basis for Stubbs'

arrest.

Michigan y. Long (1983), 463 U.S. 1032, 103 S. Ct. 3469, 77

L. Ed. 2d 1201, does not support the majority's conclusion in this

case. The issue in that case was whether a search pursuant to the

stop-and-frisk principle is limited to the subject's person, or may

be extended to those areas of a vehicle which are within the

subject's immediate control. After holding that the principle

extended to those areas of the vehicle within the subject's

immediate control, the Supreme Court allowed seizure of contraband

which was in plain view. Stubbs' brass pipe was not in Officer

Bayer's plain view until he removed it from Stubbs' pocket.

Neither does Minnesotav. Dickerson (1993), 113 S. Ct. 2130, 124

L. Ed. 2d 334, support the majority’s decision. In that case, the

Supreme Court limited seizure of contraband pursuant to a

19
stop-and-frisk search to only those items which are immediately

identifiable based on touch. The court specifically held as

follows :

Where, as here, "an officer who is executing a valid

search for one item seizes a different item," this Court

rightly "has been sensitive to the danger . . . that

officers will enlarge a specific authorization, furnished

by a warrant or an exigency, into the equivalent of a

general warrant to rummage and seize at will." Texas v.

Brown, 460 U.S., at 748, 103 S.Ct., at 1546-1547[, 75

L.Ed.Zd 5021 (Stevens, J., concurring in judgment).

Here, the officer's continued exploration of respondent's

pocket after having concluded that it contained no weapon

was unrelated to "[tlhe sole justification of the search

[under Terry:] . . . the protection of the police officer

and others nearby." 392 U.S., at 29, 88 S.Ct., at 1884[,

20 L.Ed.2d 8891. It therefore amounted to the sort of

evidentiary search that Terry expressly refused to

authorize . . .

Dickerson: 113 S, Ct. at 2138-39.

Here, although Boyer was capable of determining, based on his

frisk of Stubbs, that the brass pipe in Stubbs' jacket pocket was

not the weapon with which Stubbs was concerned, he had no reason,

according to his testimony, to suspect that it was a pipe.

Therefore, Dickerson did not allow its seizure.

The majority bases its conclusion on Bayer's testimony that he

thought the lump in Stubbs' pocket could have been a deadly weapon,

such as a knife or a derringer. That testimony was contradicted by

other evidence, including the demonstration offered by the State in

the District Court's presence. By basing its decision on some

evidence to the exclusion of other evidence, the majority has

engaged in a balancing act reserved for the finder of fact--in this

case, the District Court.

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Furthermore, I would not, as the majority has done, consider

the merits of a search pursuant to an arrest that by the officer's

own admission had not been made. For good measure, the majority

concludes that in addition to authorization under stop-and-frisk

principles, Officer Boyer was justified in searching Stubbs' pocket

pursuant to a valid arrest. However, Boyer testified at the

suppression hearing that he had made no arrest of Stubbs at the

time that he withdrew the brass pipe from his pocket. More

importantly, the County Attorney represented to the District Court

that he was not justifying the search of Stubbs based upon a valid

arrest. The County Attorney also conceded to the District Court

that the only basis for the frisk of Stubbs was the missing gun

from the holster on the front seat of Stubbs' vehicle. The

following discussion was had:

THE COURT: The fine distinction that I'm trying to make,

the only thing that he was concerned about is the

missing, the holster. Nothing else really is giving him

a basis for the frisk.

MR. SPENCER: That is the basis

THE COURT: Just a DUI stop but there is enough there for

him to do what he did. I don't have a problem with that.

The problem that I have is he should only be looking for

something large enough for that holster and that is

different than being concerned about this person who may

be dangerous to him, better look out for himself. That

is a different situation.

The standard reads all the same. And Terry reads it from

the standpoint -- Terry is not a DUI stop.

MR. SPENCER: I agree that the gun, the missing gun

triggers it. If you don't have the missing gun, you

don't really have a reason to do what the officer did.

That is the trigger.

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In other words, the majority has not only substituted itself

for the fact finder in this case, it has suasponte raised issues that

were never raised in the District Court, and therefore, should not

be the basis for its decision.

For these reasons, I dissent from the majority opinion. I

would affirm the order of the District Court suppressing the item

seized from Stubbs' pocket during the course of Bayer's pat-down

search, and based on Bayer's testimony that the pipe was part of

the basis for his arrest of Stubbs, I would also affirm the

remainder of the District Court's order.

I

/

'Just/i&e

Justice William E. Hunt, Sr., joins in the foregoing dissenting

opinion.

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