# O'HARA v. State

> Court of Criminal Appeals of Texas · September 20, 2000 · 27 S.W.3d 548

URL: https://www.frixlaw.com/law-library/cases/9748451

## Case

- **Full name:** Phillip George O’HARA, Appellant, v. the STATE of Texas
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** September 20, 2000
- **Citations:** 27 S.W.3d 548; 2000 Tex. Crim. App. LEXIS 83; 2000 WL 1347932
- **Precedential status:** Published
- **Opinion:** Concurrence by Mansfield
- **Judges:** Keasler, McCormick, Mansfield, Keller, Womack, Johnson, Meyers, Price, Holland
- **Cited by:** 223 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9748451

## How later opinions describe it (automated extraction)

- stating that whether a violation of the Fourth Amendment has occurred does not turn on the officer’s actual state of mind at the time the challenged action was taken but rather on an objective assessment of the facts and circumstances confronting him
- holding that even after defendant’s “belt knife” was removed, pat-down was justified prior to entering patrol vehicle “since other weapons could be in [defendant’s] possession but hidden from view”
- holding that officer’s testimony that he was not afraid of the defendant was irrelevant to an objective analysis as to whether a reasonably prudent person would believe his safety was in danger
- holding that the issue is not whether officer subjectively feared suspect but whether a reasonably prudent person would justifiably believe that his safety or that of others was in danger
- stating that the removal of an obvious weapon from the suspect does not negate the need to frisk since other weapons could be in the suspect’s possession and hidden from view

## Opinion text

MANSFIELD, J.,
delivered the concurring opinion.
The facts of this case are largely undisputed. DPS Trooper Muhler, while on routine patrol alone near Premont, Texas, stopped appellant’s tractor-trailer truck because the track’s side marker lamps were malfunctioning. It was 8:30 AM at the time of the stop and the area where the stop occurred is very rural. Trooper Muhler told appellant to get his paper work and to meet him at the patrol car. He also told appellant to leave his belt knife in the cab of his truck. 1
Once appellant arrived in front of the patrol car, Trooper Muhler told him he could sit inside the patrol car but that he would first have to pat down appellant to make sure appellant had no weapons. Trooper Muhler testified he always patted down persons before allowing them into his patrol car “for his own safety.” While doing a pat down of appellant, Trooper Muhler felt a hard metallic object in appellant’s left front pocket, which turned out to be a clip inside a bag of marihuana. Appellant was arrested for possession of marihuana and then for possession of cocaine after he was observed dropping packets of cocaine on the ground.
Generally, a police officer may search a suspect where there is reason to believe a suspect is armed and dangerous and the suspect is suspected of a violent crime or dealing in large amounts of drugs. However, for minor offenses, such as the traffic offense for which appellant was initially stopped, there must be other circumstances present. These circumstances may, but not necessarily, include: a bulge in the suspect’s pocket, information the suspect was known to have carried a weapon, an aggressive attitude of the suspect, or some other factor requiring the officer to turn away from the suspect and thus leaving himself vulnerable. See 4 LaFave, Search and Seizure, § 9.5(a) at 252 (1996).
In the present case, the following factors were present:
(1) Trooper Muhler was on patrol by himself.
(2) It was dark at the time of his stop of the appellant, i.e., it was 8:30 AM.
(3) The location of the stop was rural, and assistance, had Trooper Muhler needed it, was not nearby.
(4) Appellant did have a weapon, though it was in plain view and appellant *556 removed it at Trooper Muhler’s request.
(5) Trooper Muhler, while completing his paperwork, had to divert his attention from appellant and thus was left vulnerable should appellant have attempted to attack him, particularly within the close quarters of his patrol car.
Given the above facts and circumstances, Trooper Muhler’s pat-down of appellant was objectively reasonable. See United States v. Douglas, 964 F.2d 738, 741 (8 th Cir.1992); White v. State, 874 S.W.2d 229, 234 (Tex.App.-Houston [14 th Dist.] 1994); Michigan v. Long, 463 U.S. 1032, 1050 , 103 S.Ct. 3469, 3481 , 77 L.Ed.2d 1201 (1983). The admission by Trooper Muhler that he always pats down individuals before allowing them in his patrol car, while perhaps objectively unreasonable in some instances, was not in this instance. The applicable test is whether the pat-down is objectively reasonable, not whether the officer testifies he was actually in fear of his safety. LaFave, swpra, at 253. United States v. Baker, 47 F.3d 691, 693-694 (5 th Cir.1994). See also, United States v. Tharpe, 536 F.2d 1098, 1101 (5th Cir.1976), overruled in part on other grounds, United States v. Causey, 834 F.2d 1179 (5 th Cir. 1987).
Finally, it should be noted appellant fully consented to the pat-down search. The search would have never occurred had appellant simply declined Trooper Muhler’s invitation to enter the patrol car.„
Nothing in the record indicates appellant was under compulsion to enter the patrol car, nor were there any circumstances (e.g., bad weather) that a reasonable person would have found to have overridden the freedom of choice to stay outside the patrol car and -thereby avoid being subject to a pat-down search.
With these comments I join the opinion of the Court.
JOHNSON, J., filed a dissenting opinion, in which MEYERS, PRICE, and HOLLAND, JJ., join.
I respectfully dissent.
The majority asserts that the timing of the pat-down is irrelevant. Ante, at 554. I disagree. Although the officer noticed that appellant was wearing a “belt-knife” 1 throughout the inspection, he did not, at that time, request appellant to remove it. Nor did the officer, upon noticing the knife, perform a pat-down search for his own safety. It was not until after the entire inspection had been completed that the officer asked appellant to remove the knife and subsequently performed the pat-down search. The record is not clear as to the amount of time that elapsed from the moment when the officer saw the knife until he performed the pat-down, although it appears, based on the following events, that it was more than just a brief moment.
Pursuant to the traffic stop on April 11, 1997, the officer approached appellant and informed him that he would perform a safety inspection of appellant’s commercial vehicle. The officer began the inspection by testing the front of the vehicle for high beam lights, low beam lights, right turn signal, left turn signal, windshield wipers, identification lights, clearance lights and horn. The officer then returned to the cab of the truck and informed appellant of the next steps of the inspection. The officer observed the side marker lights on the side of the trailer, then walked to the back of the truck, where he tested the brake lights, right turn signal, left turn signal, license plate light, and identification lights. Upon completion of these steps, he walked back up the right side, inspecting the side markers on the right side. At that time, the officer went all the way around the truck, inspecting all of the lights, then examined the tires on the vehicle for tread wear. The officer then stepped up on the running boards to inspect two devices lo-
knife. *557 cated inside the cab of the truck. The officer continued his inspection inside the cab with appellant, noting the safety triangles and fire extinguisher, then inspecting the sleeper. The officer performed all of these procedures without conducting a pat-down, apparently believing that appellant was not dangerous. It was not until after the officer completed the inspection that he told appellant that he would “let him sit inside the front seat” of the patrol car, after conducting a pat-down.
Baning routine procedure, the record is devoid of any reason, such as seeking protection from inclement weather, 2 that would necessitate appellant sitting in the patrol car. 3 In fact, after performing the search, placing appellant under arrest, and handcuffing him, the officer did not put appellant in the patrol car, but left him standing against the side of the patrol car while he and another officer inventoried the truck. Therefore, I discern no reason for appellant to get in the patrol car, other than as a matter of routine.
A reasonably prudent officer may have believed that his safety might be in danger when the officer noticed the weapon or when the officer and appellant were together in the cab of the truck, and I agree with the majority that the officer would have been justified in patting appellant down at that time. See ante, at 554. However, because the officer waited until after he had completed the inspection, after appellant had willingly removed the belt-knife, and when the officer was no longer in a confined space with appellant, I do not believe that the officer was justified in patting appellant down at the time that the pat-down was actually done.
The majority acknowledges that the validity of the search should be analyzed by determining whether, after considering all of the facts available to the officer at the time of the search, a reasonably prudent person would have believed that the action taken was appropriate. See ante, at 551. The facts available at the time of the search were (1) that the officer was alone with appellant at about 3:30 a.m.; (2) that appellant had readily removed the knife, leaving it in the cab of the vehicle and out of his reach; (3) that the officer had just spent an apparently significant amount of time in close proximity with appellant, without incident nor trepidation; (4) that the officer and appellant were no longer in a confined space; and (5) that appellant had complied with the requests of the officer, including helping the officer complete the vehicle inspection. On balance, I do not believe that these facts are sufficient to warrant an officer of reasonable caution to believe that the pat-down search of appellant was necessary; it was done merely “as a matter of routine.” Thus, the search violated the “narrow scope” of Terry. 4 Ybarra v. Illinois, 444 U.S. 85, 93 , 100 S.Ct. 338, 343 , 62 L.Ed.2d 238 (1979).
In rejecting the state’s argument that the officer’s routine alone justifies a pat-down, the majority properly recognizes that
taking the State’s logic [that a routine pat-down search is permissible] to its natural conclusion would completely dispense with the rule in Terry. The Supreme Court has stated that a police officer can, as a matter of routine, order a suspect out of his car during a traffic stop. Under the State’s theory, once an *558 officer has ordered a person out of his car, the officer could always, as a matter of routine, order the person to sit in the patrol car, and then always, as a matter of routine, frisk for weapons before allowing the suspect into the car. So every single traffic stop could be transformed, as a matter of routine, into a Terry stop. This would violate the “narrow scope” of Terry and dispense with any need for an officer to have specific and articulable facts to justify his actions. As the Sikes court noted, we have held that “the Fourth Amendment protection against seizures cannot be whittled away by police regulation.”
Ante, at 553 - 554 (emphases added) (citations omitted).
While expressing concern for and denouncing the use of such tactics as violating Fourth Amendment protections, the majority, by its holding, has sanctioned just such action. In the instant case, the officer, “as a matter of routine, order[ed] [appellant] out of his [truck] during a traffic stop.” After appellant was out of his truck, the officer, “as a matter of routine, order[ed] [appellant] to sit in the patrol car.” Then the officer, “as a matter of routine, frisk[ed] [appellant] for weapons before allowing [appellant] into the car.” 5 This completed inspection stop was “transformed, as a matter of routine, into a Terry stop,” violating Terry ⅛ narrow scope. (All emphases added.) This practice is exactly what the majority professes to reject as a violation of Fourth Amendment rights.
Because the officer did not have sufficient specific and articulable facts to warrant the pat-down search of appellant, I believe that appellant’s Fourth Amendment rights were violated and the fruits of the illegal arrest should have been suppressed. Because the majority holds otherwise, I dissent.
. The knife was in plain view and hung from appellant’s belt. The record does not indicate the type and size of the knife.
. The officer testified that it was not an illegal
. Nothing in the record indicates that it was raining, stormy, windy, particularly hot, or particularly cold.
. In order to complete the inspection report, the officer testified that he would need access to his radio to run a check on appellant's driver’s license and that he would need appellant to be present to answer questions. However, requiring his presence does not require that appellant sit inside the patrol car.
. The "narrow scope” of the pat-down exception to the warrant requirement "does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked.” Ybarra, 444 U.S. at 93 , 100 S.Ct. at 343 .
. Although the officer performed the pat-down for weapons as a matter of routine to ensure his safety, he testified that he does not pat-down female truck drivers, albeit admitting that women can be dangerous.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9748451. Public record. Not legal advice.