09AP2934-CR State v. Buchanan

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Search and Seizure
Protective searches

Where the officer saw the defendant make furtive movements and was visibly nervous, had a record of arrests for violent crimes, and a drug delivery arrest that had occurred nearby a short time before, the officer was justified in conducting a protective search.

“We hold that under the totality of the circumstances in this case, the trooper’s observation of Buchanan’s furtive movements and visible nervousness, a record of arrests for violent crimes, and a drug delivery arrest that had occurred nearby a short time before the stop constitute ‘specific and articulable facts which, taken together with the rational inferences from those facts’ create reasonable suspicion and justify a protective search for the officer’s safety. The protective search was therefore justified. The subsequent discovery of contraband was made in the course of the search while the item was within plain view; because there was a basis for a protective search, the trooper had a right to be in a position to view it. The trooper’s recognition of the smell and appearance of the marijuana, together with the other suspicious circumstances, provided probable cause to believe that it was contraband and that he could validly seize it. There is therefore no basis for suppressing the evidence that was obtained as a result of these actions.

Affirmed.

09AP2934-CR State v. Buchanan

Crooks, J.

Attorneys: For Appellant: Wickman, Tyler William, Ashland; For Respondent: Balistreri, Thomas J., Madison; Marsolek, Jeri A., Whitehall

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