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State v. Lafond4/3/2003
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In the first, facts and circumstances unique to the particular suspect and/or factual context may give rise to a reasonable suspicion the suspect may be armed, such as a suspect with a bulge in his clothing that appears to be a weapon or a suspect who is hesitant in denying that he is armed and aggressively approaches the officer immediately upon being stopped. In the second scenario . . . the inherent nature of the crime being investigated lead to the reasonable suspicion that the suspect may be armed. . . . Crimes that, by their nature, suggest the presence of weapons include: "robbery, burglary, rape, assault with weapons, homicide, and dealing in large quantities of narcotics. . . . But for other types of crimes, such as trafficking in small quantities of narcotics, possession of marijuana, illegal possession of liquor, ... driving under the influence and lesser traffic offenses . . ." there must be particular facts which lead the officer to believe that a suspect is armed.
Id. (quoting 4 Wayne R. LaFave, Search and Seizure § 9.5(a), at 255-56 (3d ed. 1996)) (citations omitted). See Carter, 707 P.2d at 660 (" police officer may lawfully frisk a burglary suspect [because] ' t is reasonable . . . to believe that a burglar may be armed with weapons . . . and that a pat-down search is necessary for the officer's safety.'") (citation omitted).
The State does not argue that the frisk of Lafond can be justified under the second scenario, i.e., that the inherent nature of the crimes being investigated in this case--illegal consumption of alcohol and possession of drugs--automatically provides the requisite reasonable suspicion that Lafond was armed and dangerous. See State v. White, 856 P.2d 656, 664-66 (Utah Ct. App. 1993) (holding that officer's suspicion of cocaine use did not justify immediate frisk of defendant because that crime is not inherently violent). Rather, the State contends that facts and circumstances unique to Officer Salis's encounter with Lafond gave rise to a reasonable belief that Lafond was armed with weapons that may be used against him. Specifically, the State relies upon the following testimony from Officer Salis:
Well, she had removed two bags from the vehicle before exiting the vehicle. As she was walking towards me, she had both hands in her pockets. She was wearing two layers of clothes. She was wearing a large pair of camouflage pants over other clothing. She, also, had a large sweater on. And as she's walking towards me, after she removes her hands from her pockets, I could see both of her pockets are bulging, and she's also very nervous and very evasive, doesn't want to come into contact with me.
We have previously held that because nervous behavior, such as "avoidance of eye contact, is consistent with innocent as well as criminal behavior," such conduct "can be afforded no weight in determining a detaining officer's reasonable suspicion of criminal activity." State v. Robinson, 797 P.2d 431, 436 (Utah Ct. App. 1990). We are likewise reluctant to assign any particular importance to nervous conduct when determining reasonable suspicion in the context of a Terry frisk for weapons, at least, as in this case, when the nervousness is unaccompanied by any hostile, threatening, or aggressive behavior. Although "an officer making a traffic stop may order passengers to get out of the car pending completion of the stop," Maryland v. Wilson, 519 U.S. 408, 415, 117 S. Ct. 882, 886 (1997), it is not difficult to understand why such an experience would make a person nervous.
Absent Lafond's nervous and evasive behavior, the State's justifications, derived from Officer Salis's testimony, essentially boil down to these: (1) Lafo
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