2003 OK CR 24"> 2003 OK CR 24, ___ P.3d ___, Decided 8/22/2003">

S U M M A R Y  O P I N I O N

STRUBHAR, JUDGE:

 ¶1  Appellant, Veronica Coronado, was convicted of Trafficking in Illegal Drugs in the District Court of Tulsa County, Case No. CF-2001-4931.  The jury trial was held before the Honorable Jefferson D. Sellers.  The jury assessed punishment at ten years imprisonment and imposed a fine of $25,000.00.  The trial court sentenced Appellant accordingly.

¶2  After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we reverse. In reaching our decision, we considered the following proposition of error and determined this result to be required under the law and the evidence:

I.                     The search of Appellant’s person was in violation of the Fourth and Fourteenth Amendments of the United States Constitution, as well as Article II, § 30 of the Oklahoma Constitution.  The contraband seized as a result of the search and seizure must be suppressed.

DECISION

¶3  The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. The Supreme Court, in Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889 (1968), held that if an officer is justified in believing that an individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, the officer may take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.  However, before the officer can legally conduct a self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.  Id. 392 U.S. at 27, 88 S.Ct. at 1883.  See also Loman v. State, 1991 OK CR 24 , ¶ 17, 806 P.2d 663, 667.  It is only when an officer is justified in believing that the individual whose behavior he is investigating at close range may be armed and dangerous that he may conduct a limited protective search for concealed weapons.  Terry, 392 U.S. at 30, 88 S.Ct. at 1884.  The requirements articulated in Terry are not limited to pat-down searches for weapons but have also been applied to situations such as the one presented here where the officer asked the individual to lift her shirt.  See United States v. Baker, 78 F.3d 135, 137-38 (4^th Cir.1996). 

¶4 In the present case, Trooper Humdy articulated no particular facts from which he reasonably inferred that Appellant was armed and dangerous.  Rather, the record indicates that Trooper Humdy conducted a weapons search of Appellant merely as a matter of course.  This is an overt violation of the Fourth Amendment’s protection from unreasonable searches.

¶5  Appellant also asserts that once Trooper Humdy had completed his visual search and assured himself that she was not armed, he had no authority to seize the package.  Appellant is correct.  According to the record before this Court, the only thing the trooper was sure of after he saw the brick shaped object was that it was not a weapon.  The record makes clear that the identity of the contents of the package was not immediately apparent to this trooper. Thus, even if he had viewed it legally, he had no authority to seize it without a warrant.  Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334 (1993).

¶6 Under the facts of this case, Appellant was subjected to a search and seizure that violated her rights under the Fourth Amendment and the evidence obtained therefrom should have been suppressed.

¶7  The Judgment and Sentence of the trial court is REVERSED with instructions to DISMISS.

APPEARANCES AT TRIAL JEFFREY FISCHER 403 SOUTH CHEYENNE, STE 1100 TULSA, OKLAHOMA 74103 ATTORNEY FOR APPELLANT RUSSELL ANDERSON 500 S. DENVER TULSA, OKLAHOMA 74103 ATTORNEY FOR THE STATE

APPEARANCES ON APPEAL STUART SOUTHERLAND 423 S. BOULDER, STE 300 TULSA, OKLAHOMA 74103 ATTORNEY FOR APPELLANT W.A. DREW EDMONDSON ATTORNEY GENERAL OF OKLAHOMA WILLIAM R. HOLMES ASSISTANT ATTORNEY GENERAL 112 STATE CAPITOL BUILDING OKLAHOMA CITY, OKLAHOMA 73105 ATTORNEYS FOR APPELLEE

OPINION BY:  STRUBHAR, J.
JOHNSON, P.J.:  CONCUR
LILE, V.P.J.:  CONCUR IN RESULT
LUMPKIN, J.:  CONCUR IN RESULT
CHAPEL, J.:  CONCUR