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Brown v. State9/19/1997
believe [the weapons] are necessary for their protection." United States v. Merritt, 695 F.2d 1263, 1273 (10th Cir. 1982), cert. denied 461 U.S. 916, 103 S.Ct. 1898, 77 L.Ed.2d 286 (1983). * * *
This holding is consistent with the recent trend allowing police to use handcuffs or place suspects on the ground during a Terry stop. Nine courts of appeals, including the Tenth Circuit, have determined that such intrusive precautionary measures do not necessarily turn a lawful Terry stop into an arrest under the Fourth Amendment.
Perdue, 8 F.3d at 1462-63.
The intrusiveness of a search or seizure will be upheld if it was reasonable under the totality of the circumstances. Perdue, at 1462 (citing Terry, 392 U.S. at 19, 88 S.Ct. at 1878). Cf. Collins, 854 P.2d at 692 (holding that to determine the reasonableness of a seizure of an individual, the court will balance the interest of the government against the nature of the intrusion upon the individual). See also United States v. King, 990 F.2d 1552, 1559 (10th Cir. 1993) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975)). In this case sufficient articulable facts existed to give Officer Stokes reasonable suspicion that precautionary measures were necessary to ensure his safety. Stokes knew that the robbery suspects were two black males with a sawed-off shotgun fleeing on foot. When Stokes decided to call for backup, he knew the time and proximity of the stop to the robbery, the race and number of passengers in the car, and the suspects' suspicious body position in their car seats. These facts and circumstances, taken in totality, give rise to the reasonable suspicion that the two in the car might be the armed suspects described in the radio transmission.
CONCLUSION
Officer Stokes had specific articulable facts which gave rise to a reasonable suspicion that Brown might be one of the armed suspects in the 7-Eleven robbery. We thus hold that because of the potential threat to the officer's safety, given the totality of the circumstances, the intrusiveness of the seizure was reasonable and did not constitute an arrest.
Brown's claim that we should suppress the evidence obtained after the police ordered Brown out of the car is predicated upon his belief that he was unlawfully arrested. Having found that the stop and subsequent arrest fall within constitutional limits, Brown's motion to suppress must necessarily fail.
Affirmed.
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