IN THE COURT OF APPEALS OF IOWA

 

No. 3-511 / 02-1148

Filed November 26, 2003

 

STATE OF IOWA,

            Plaintiff-Appellee,

 

vs.

 

EDWARD LEROY FINCH, III,

            Defendant-Appellant.

 

 

            Appeal from the Iowa District Court for BremerCounty, Paul W. Riffel (suppression hearing) and John S. Mackey (trial), Judges. 

 

            Edward Leroy Finch, III appeals from his conviction for possession of methamphetamine with intent to deliver following a bench trial on the minutes of evidence.  AFFIRMED.

 

            Michael Pederson, Waterloo, for appellant.

            Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, and Kasey Wadding, County Attorney, for appellee.

 

            Considered by Sackett, C.J., and Miller and Hecht, JJ.

 

MILLER, J.

            Edward Leroy Finch, III appeals from his conviction for possession of methamphetamine with intent to deliver following a bench trial on the minutes of evidence.  He contends the trial court erred in overruling his motion to suppress evidence of methamphetamine found on his person after a traffic stop.  We affirm. 

I.          BACKGROUND FACTS AND PROCEEDINGS.

            Finch was a passenger in a car when it was pulled over by Officers Schneider and Luebbers of the Waverly Police Department at approximately 11:50 p.m. on July 26, 2001 for failure to have a light on the rear license plate.  After activating their top lights, the officers pursued the vehicle for three or four blocks before it pulled over and stopped.  After the vehicle stopped three occupants immediately exited the vehicle and started walking toward a nearby residence.  The officers ordered the three to return to the vehicle and they complied with the order. 

Officer Schneider had recognized the vehicle as belonging to Finch and upon approaching the vehicle he observed Finch in the front passenger seat.  He also recognized the driver as Cole Droste.  He had previously arrested Droste for drug-related and other offenses, including possession of methamphetamine and marijuana with intent to deliver.  While Officer Luebbers went up and spoke to the driver Officer Schneider went to the passenger side of the vehicle and asked Finch to exit the vehicle.  Finch complied with this request.  Schneider observed that Finch’s eyes were red and dilated and he asked Finch if he had been drinking.  Finch stated he had not been drinking and Schneider did not detect any odor of alcohol on Finch.  Schneider also noticed Finch was nervous and fidgety, was exhibiting mood swings from highly agitated to passive and calm, and had body tremors, with one of his legs steadily shaking.  Based on his prior experience in investigating drug-related offenses and contacts with people under the influence of drugs, including methamphetamine, Officer Schneider suspected Finch was under the influence of methamphetamine. 

Once Finch was out of the vehicle Officer Schneider saw a pocketknife clipped to Finch’s pants pocket.  He also noted a bulge in Finch’s front, right pants pocket.  Schneider asked Finch several times if he had any weapons on him and Finch stated he did not.  Schneider then pointed to the pocketknife and asked Finch what it was.  Finch reached for it and said, “A knife,” at which point Schneider grabbed his arm and took the knife away.  Schneider then asked Finch if he had any additional weapons or drugs on his person and Finch stated he did not.  However, Schneider did not consider the answer reliable because Finch had already lied to him once about the knife.  Finch also kept putting his hands into his pants pockets despite the fact Schneider specifically told him to keep his hands out of his pockets.  Schneider then placed Finch’s hands on the car and told him he was going to do a pat-down search for any further weapons.   

During the pat-down Schneider felt the previously noted bulge in Finch’s front, right pocket and asked Finch what it was.  Finch told him it was a packet of gum.  Schneider testified he could tell it clearly was not because of its size and shape.  At about this time Finch tried to spin away from Schneider and walk away.  Schneider testified that he did not know what the bulge was but, based on his training, believed it could be a weapon of some sort.  Therefore, Schneider took the object out of Finch’s pocket and placed it on the hood of the squad car in front of Officer Luebbers.  The object was an old Altoid tin. 

At that point Schneider no longer thought the tin was a weapon.  However, Officer Luebbers saw there was plastic sticking out the sides of the tin.  He testified he used Altoids but had never seen plastic packaging in an Altoid tin before, and knew it was common for people to hide illegal drugs in everyday containers and “instantly” believed Finch had some kind of narcotic in the tin.  Luebbers then opened the tin and found seven rocks of methamphetamine.  Four of the rocks were individually wrapped in cellophane and the other three were wrapped together in one baggie.  It was later determined the total weight of the methamphetamine was 3.89 grams.

The State charged Finch by trial information with possession of methamphetamine with intent to deliver, in violation of Iowa Code section 124.401(10)(c)(6) (2001).  Finch pled not guilty and waived his right to speedy trial.  Finch filed a motion to suppress the drug evidence claiming the officers acted illegally in detaining and searching him after stopping the vehicle.  Hearing was held on Finch’s suppression motion and the district court denied the motion.^[1] 

Finch waived his right to jury trial and agreed to a trial to the court on the minutes of evidence.  The court found Finch guilty as charged and sentenced him to a term of incarceration not to exceed ten years, suspended the sentence, placed Finch on probation, and assigned him to a residential treatment facility.

Finch appeals the district court’s denial of his suppression motion.  He concedes the stop of the vehicle for the equipment violation was a legal traffic stop.  He states as his sole issue on appeal:  “The trial court erred in upholding the warrantless search of a passenger in a vehicle stopped for a minor traffic violation.”   

II.         SCOPE AND STANARDS OF REVIEW.

            Finch challenges the district court's denial of his motion to suppress. This challenge is based on his constitutional right to be free from unreasonable searches and seizures, as guaranteed by the Fourth Amendment to the United States Constitution.^[2]  We review this constitutional question de novo in light of the totality of the circumstances.  State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001).  We give deference to the district court’s findings of fact due to its opportunity to assess the credibility of witnesses but are not bound by those findings.  Id.  The adverse ruling on Finch’s motion to suppress preserved error for our review. See State v. Breuer, 577 N.W.2d 41, 44 (Iowa 1998). 

III.        MERITS.

            The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 

 

U.S. Const. amend. IV.  Evidence obtained in violation of this provision is inadmissible in a prosecution, no matter how relevant or probative the evidence may be.  State v. Manna, 534 N.W.2d 642, 643-44 (Iowa 1995).

Warrantless searches and seizures are per se unreasonable unless they fall within one of the carefully drawn exceptions to the warrant requirement.  Id. at 644.  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.  However, because the “constitutional reasonableness of a search or seizure is determined by an objective standard . . . the State is not limited to the reasons stated by the investigating officer in justifying the challenged search or seizure.”  State v. Cline, 617 N.W.2d 277, 280-81 (Iowa 2000).  The constitutional reasonableness of a stop does not depend on the actual motivation of the officers involved and it makes no difference that the officer’s ground for stopping a vehicle, or conducting a subsequent search, was pretextual.  Whren v. United States, 517 U.S. 806, 812-13, 116 S Ct. 1769, 1772-74, 135 L. Ed. 2d 89, 97-98 (1996). 

Finch does not claim that the traffic stop of his vehicle was in any manner illegal or improper.  He does claim, however, that certain subsequent actions of the officers were in violation of the Fourth Amendment.  Although Finch states only one issue, as quoted in division “I” of this opinion, his brief on appeal may arguably be seen as attempting to claim there was no legal basis for (1) ordering him to return to the car, (2) ordering him out of the car, (3) conducting a pat-down search once he was out of the vehicle, (4) removing the Altoid tin from his pocket during the pat-down search, or (5) opening the tin.  Thus, all of these issues arose after a valid, lawful traffic stop and our analysis proceeds from this premise.

A.        Order to Return to the Car.

As set forth above, the officers followed Finch’s car for three or four blocks with their top lights on before the vehicle stopped.  As soon as the vehicle stopped all three people in the vehicle, including Finch and Droste, immediately got out of the vehicle and began walking toward a nearby residence.  At that point the officers ordered all three to get back into the car and they complied.  Finch asserts that the officers had no legal basis for ordering him back to the car and the order was an unreasonable and unconstitutional seizure of his person in violation of the Fourth Amendment.

“The touchstone of our analysis under the Fourth Amendment is always ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’”  Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S. Ct. 330, 332 54 L. Ed. 2d 331, 335 (1977) (quoting Terry v. Ohio, 392 U.S. 1, 19, 88 S. Ct. 1868, 1878, 20 L. Ed. 2d 889, 904 (1968)).  Reasonableness, in turn, depends on “a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.”  Id. at 109, 98 S. Ct. at 332, 54 L. Ed. 2d at 336.  We reiterate that the stop of the vehicle in which Finch was a passenger was valid based on the officers’ observation of the equipment violation.  Thus, the issue here is whether Finch was unreasonably seized when, as a passenger in a vehicle lawfully stopped for a minor violation, he was ordered by the officers to return to the car after abruptly exiting it.

In Mimms the Supreme Court held that, as a matter of course, the police may order the driver out of the vehicle pending completion of the stop without violating the protections of the Fourth Amendment against unreasonable seizures.  Mimms, 434 U.S. at 111 n. 6, 98 S. Ct. at 333 n. 6, 54 L. Ed. 2d at 337 n. 6.  The Court balanced the public interest for officer safety against the individual’s right to freedom from arbitrary police interference and found that once a car was already validly stopped the additional intrusion of asking the driver to step outside the car was only a “de minimus” intrusion on the driver’s personal liberty interest.  Id. at 111, 98 S. Ct. at 333, 54 L. Ed. 2d at 337.  The Court determined that what is “at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer’s safety.”  Id.    

In Maryland v. Wilson, 519 U.S. 408, 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997) the Supreme Court extended this rule to passengers, holding that an officer conducting a valid traffic stop may also, as a matter of course, order a passenger out of the vehicle, even where the officer has no suspicion that the passenger has been involved in a crime.  Wilson, 519 U.S. at 414-15, 117 S. Ct. at 886, 137 L. Ed. 2d at 48.  The Court determined that the danger to officers during a traffic stop is in fact even greater when there are passengers in the stopped car.  Id.  “While there is not the same basis for ordering the passengers out of the car as there is for ordering the driver out, the additional intrusion on the passenger is minimal.”  Id. 

Thus, it is clear under Mimms and Wilson that the movements of the occupants of a vehicle which is legitimately stopped may be subject to control by the officer conducting the stop, even though the officer has no suspicion that the individuals have been involved in criminal behavior.  People v. Gonzalez, 704 N.E.2d 375, 382 (Ill. 1998).  “This rule is dictated by the public’s strong interest in officer safety during potentially dangerous traffic stops when balanced against the minimal intrusion on the privacy interests of the driver and passengers.”  Id. 

Once an officer effectuates a lawful traffic stop, the passenger of that vehicle is also thereby validly stopped.  Id.; see also Tawdul v. State, 720 N.E.2d 1211, 1216-17 (Ind. Ct. App. 2000) (holding that based on the logic of Wilson the police have a limited right to briefly detain a passenger who exits the vehicle after it has been lawfully stopped).  Following the logic and rational of Mimms and Wilson, we conclude that when a passenger immediately exits a lawfully stopped vehicle an officer may instruct the passenger to return to the vehicle.  The public interest in officer safety outweighs the potential minimal intrusion on a passenger’s liberty interest in such a situation.  We find that “because the same risk of harm to officers discussed in Mimms and Wilson is present where a passenger unexpectedly exits a lawfully stopped vehicle, the officer’s need to exercise ‘unquestioned command of the situation’ is likewise present.”  Gonzalez, 704 N.E.2d at 383. 

Furthermore, we believe an officer’s order to a passenger to exit a vehicle, clearly approved of by Wilson, differs only slightly from an order to return to the vehicle or remain at the vehicle and that “to hold otherwise would lead to anomalous results.”  Gonzalez, 704 N.E.2d. at 383 (quoting People v. Boyd, 700 N.E.2d 444 (1998)).

It would be inconsistent to allow the police to order a passenger to exit a vehicle, but not to grant the police the limited authority to order the same person back to the car in order to safeguard officer safety and allow the police to conduct an initial assessment.  Moreover, simply because the driver may have been independently culpable for the traffic offenses, does not entitle the passenger to simply exit the vehicle and walk away.  Although under no suspicion of culpability, the passenger is still subject to the limited authority of the officer.

 

Tawdul, 720 N.E.2d at 1217 (citation omitted).

Accordingly, we conclude that it is reasonable for a police officer to control the movements of a passenger during a traffic stop by ordering the passenger to return to the vehicle when, as here, the passenger abruptly exits the vehicle after the stop.  This minimal intrusion on the passenger’s personal liberty interest to be free from arbitrary and unreasonable seizure is outweighed by the strong public interest of officer safety during potentially dangerous traffic stops.   Gonzalez, 704 N.E.2d at 382-83.  We note, however, that the detention of the passenger does not necessarily encompass detaining the individual for the entire length of the traffic stop.

The police may detain the passenger in order to ascertain the situation and alleviate any concerns the officer has for his or her safety.  If probable cause or reasonable suspicion develop during this short period of time, then the officer may be justified in detaining the individual longer in order to further investigate.

 

Tawdul, 720 N.E.2d at 1217. 

“Because ‘[w]e cannot allow the officer’s safety to depend on how fast the driver and passenger can get out of the vehicle after it has been stopped,’” we find that ordering a passenger to return to a lawfully stopped vehicle “does no more than establish the status quo at the time of the stop.”  Gonzalez, 704 N.E.2d at 383(quoting Arizona v. Webster, 824 P.2d 768, 770 (Ariz. Ct. App. 1991)).  Accordingly, we reject Finch’s contention that the officers’ command to return to the car was an unreasonable and unconstitutional seizure in violation of the Fourth Amendment.   

B.        Order to Exit the Car.

After ordering Finch and the others back to the vehicle and returning the situation to the status quo at the time of the stop, Officer Schneider approached the passenger side of the vehicle and asked Finch to get out of the car.  Although not expressly stated, Finch may be claiming that Officer Schneider had no legal basis for ordering him from the car.

However, as set forth above, the Supreme Court in Wilson held that an officer making a valid traffic stop may order passengers out of the car pending completion of the stop, even where the officer has no suspicion that the passenger has been involved in a crime.  Wilson, 519 U.S. at 414-15, 117 S. Ct. 886, 137 L. Ed. 2d 47-48.  The officer may do so without violating the protections of the Fourth Amendment because any additional intrusion on the passenger in ordering him or her out of a vehicle that is already lawfully stopped is minimal, whereas the danger to an officer during a traffic stop is greater when there are passengers.  Id.  Therefore, based on the holding in Wilson, we conclude Officer Schneider could order Finch out of the vehicle pending completion of the stop, regardless of whether he had any suspicion Finch was involved in criminal activity at that time, and in doing so did not violate Finch’s rights under the Fourth Amendment. 

C.        Pat-Down.

Finch next challenges the propriety of the pat down search conducted by Officer Schneider which resulted in the discovery of the Altoid tin containing methamphetamine in his pocket.  The question of whether a law enforcement officer may conduct a pat-down search following a lawful stop for a traffic violation is a separate inquiry from that of the legality of ordering the passenger out of the vehicle pursuant to the same traffic stop.  Neither Mimms nor Wilson provides automatic justification for the search of a passenger in a vehicle lawfully stopped for a traffic violation.  Our analysis of this question is governed by the principles set forth in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889, and its progeny.^[3] 

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, 103 S. Ct. 3469, 3480-81, 77 L. Ed. 2d 1201, 1218-19 (1983).

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, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909 (citations omitted).  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, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906.

Once Finch was outside the vehicle Officer Schneider saw a pocket knife attached with a clip to Finch’s pants pocket and noticed a bulge in his pants pocket.  He testified that Finch “kept reaching for his pockets and putting his hands in his pockets” even after he told him to “stay out of his pockets.”  Schneider testified that he asked Finch “a number of times” if he had any weapons on his person and Finch stated he did not.  Schneider specifically asked Finch if he had any knives on him and Finch said, “No.”  At that point Officer Schneider pointed to the pocket knife and asked, “What’s that”?  According to Schneider, Finch then “reached for it and said, ‘A knife’ and I grabbed his arm, put it on the car and took the knife out and put the knife on the car.”  Schneider then asked Finch if he had any other weapons on his person, to which Finch responded he did not.  However, Schneider testified he did not consider that answer to be reliable because Finch had already lied about possessing the pocket knife.  Officer Schneider proceeded to conduct a pat-down search of Finch for additional weapons. 

Schneider had seen a pocket knife attached to Finch’s pocket and inquired about weapons or knives.  He additionally noticed a bulge in Finch’s pants pocket.  Finch had repeatedly, falsely told Schneider he had no weapons or knives.  Under these circumstances we find it was reasonable for Officer Schneider to conduct a pat-down search of Finch for any additional weapons, for purposes of officer safety.  There were clearly specific and articulable facts which, taken together with rational inferences from those facts, reasonably warranted this intrusion.  The facts available to Schneider at the moment of the pat-down for weapons would “‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate.”  Id. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906.  The facts and circumstances in the record are sufficient to create a reasonable suspicion that Finch was armed and a threat to Officer Schneider’s safety or the safety of others around him and thus it was reasonable for Schneider to conduct a limited pat-down search at that time.  Accordingly, the pat-down search itself serves as no basis for suppressing the methamphetamine subsequently found on Finch.    

D.        Removal of Tin from Pocket.

            Finch next appears to argue that Officer Schneider did not have a legal basis to remove the Altoid tin, which contained the methamphetamine, from his pocket.  In the course of conducting the lawful pat-down search of Finch’s outer clothing for additional weapons Officer Schneider came across the bulge he had previously noticed in Finch’s front pants pocket.  Schneider asked Finch what it was and Finch said it was “a packet of gum.”  Schneider testified he could tell the object was “obviously not a packet of gum” but he was “unsure what it was” and so he emptied Finch’s pockets.  On cross-examination Schneider testified that he believed the bulge could have been one of many “new weapons that have been found by police officers.  Pagers with guns in them.  Pagers with knives in them or razor blades.  Cell phones with guns in them.  Lighters that carry a singe 22 cartridge.  Several things.” 

We conclude Officer Schneider did not exceed the scope of a Terry weapons search here because he had probable cause to believe the object in Finch’s pocket was a weapon or contained a weapon.  The scope of a lawful weapons search is exceeded where

the officer’s continued exploration of respondent’s pocket after having concluded that it contained no weapon was unrelated to “[t]he sole justification the search [under Terry:] . . . the protection of the police and others nearby.”  It therefore amounted to the sort of evidentiary search that Terry expressly refused to authorize, and that we have condemned in subsequent cases.    

 

Minnesota v. Dickerson, 508 U.S. 366, 378, 113 S. Ct. 2130, 2138-39, 124 L. Ed. 2d 334, 347-48 (1993) (emphasis added) (citations omitted); see also State v. Scott, 518 N.W.2d 347, 349 (Iowa 1994). 

            Here, Officer Schneider could not identify with certainty the object in Finch’s pocket.  However, he could tell it was not a packet of gum as Finch claimed when Schneider asked him what it was,^[4] he already knew Finch had lied about having weapons on his person and in fact had a knife on him, and he was aware based on his training that pagers, cell phones, and cigarette lighters could contain weapons such as guns, knives, or razor blades.

Therefore, based on the facts and circumstances in the record we conclude Officer Schneider did not overstep the bounds of the “strictly circumscribed” search for weapons allowed under Terry because he had probable cause to believe the item in Finch’s pocket was a weapon or contained a weapon before he seized it.  See Dickerson, 508 U.S. at 378, 113 S. Ct. at 2138, 124 L. Ed. 2d at 347.  The object’s contour and mass, together with Finch’s lie that he had no weapon and his lie that the object in his pocket was a pack of gum, made it reasonable for Schneider to believe the object in Finch’s pocket was a weapon or contained a weapon.  Thus, the removal of the item was not an invasion of Finch’s privacy beyond that already authorized by the officer’s lawful search for weapons and the warrantless seizure of the tin was justified by the “same practical considerations that inhere in the plain-view context.”  Id. at 375-76, 113 S. Ct. at 2137, 124 L. Ed. 2d at 346.

E.        Opening of the Tin.

As previously noted, after Office Schneider placed the Altoid tin on the hood of the squad car and Officer Luebbers saw plastic sticking out of the tin Officer Luebbers opened the tin and found the methamphetamine inside.  The question that remains is whether this warrantless search of the Altoid tin was constitutionally reasonable. 

One exception to the Fourth Amendment’s warrant requirement exists where there is probable cause for the search and exigent circumstances require that the search be conducted immediately.  State v. Cline, 617 N.W.2d 277, 282 (Iowa 2000).  “In the context of a warrantless search, probable cause exists ‘when a reasonably prudent person would believe that evidence of a crime will be discovered in the place to be searched.’”  Id. (quoting State v. Moriarty, 566 N.W.2d 866, 868 (Iowa 1997)). 

Finch exhibited signs of intoxication.  Those signs were inconsistent with alcohol intoxication, and were consistent with methamphetamine intoxication.  Officer Schneider suspected Finch was under the influence of methamphetamine.  Finch lied to Office Schneider about the contents of his pants pocket and tried to leave when Officer Schneider came across the Altoid tin while conducting the pat-down for weapons.  The tin was old, beat up, and its lid was dented.  Officer Luebbers observed plastic coming out the side of the tin, and knew Altoid tins did not contain plastic.  He was familiar with drugs being kept in various similar containers.  Based on the officers’ observations of Finch, Officer Luebbers’s experience with how drugs are concealed in containers, and Officers Luebbers’s observations of the Altoid tin, including its condition and the protruding plastic, Officer Luebbers “instantly” believed the tin contained some sort of drug.  Based on the totality of the described circumstances we conclude a reasonably prudent person would harbor the same belief.  We therefore conclude probable cause existed to believe that evidence of a crime, possession of a controlled substance, would be discovered in the Altoid tin. 

Among the situations in which exigent circumstances exist is one where there is a probability that, unless immediately seized, evidence will be concealed or destroyed.  State v. Naujoks, 637 N.W.2d 101, 108 (Iowa 2001).  Any absence of exigent circumstances at the time of the actual search is irrelevant, as exigent circumstances are necessary only initially.  State v. Edgington, 487 N.W.2d 675, 678 (Iowa 1992).  Here the exigent circumstances requirement was readily satisfied by the portability and concealability of the Altoid tin and its contents and the likelihood they would not be found again if released to Finch until a warrant was obtained. 

We conclude the search of the Altoid tin by Officer Luebbers was reasonable based on the presence of probable cause coupled with exigent circumstances.

IV.       CONCLUSION.

            Based upon our de novo review of the record, we conclude the district court did not err in denying Finch’s suppression motion.  We affirm Finch’s conviction for possession of methamphetamine with intent to deliver.

            AFFIRMED.