KIRSCH, J.
. . . [W]e find the following issue dispositive: whether the warrantless search of Washington’s vehicle to find a handgun that Washington admitted he had and for which he possessed a valid permit, violated the Fourth Amendment when the officer lacked an articulable basis of concern for officer safety.
. . . .
On September 17, 2008, at approximately 12:30 a.m., Indianapolis Metropolitan Police Officer Danny Reynolds was on patrol on the north side of Indianapolis when he saw a car travelling on the road with one of its headlights not working. Officer Reynolds activated his emergency lights, initiated a traffic stop, and approached the car to speak with the driver, later identified as Washington. As a matter of his own practice, the officer inquired as to whether Washington had any weapons or guns in the car that the officer “should be aware of.” Tr. at 12. Washington informed Officer Reynolds that he did have a handgun, and it was located beneath the driver’s seat. He also informed the officer that he had a valid license to carry the handgun. Officer Reynolds had Washington step out of the car and placed him in handcuffs so that Officer Reynolds could safely secure the handgun. The officer directed Washington to a nearby curb while he recovered the gun.
Because he did not know the exact orientation of the weapon under the seat, and to prevent accidental discharge, Officer Reynolds shined his flashlight under the driver’s seat to find the handgun. As he did so, Officer Reynolds observed a baggie containing what he recognized to be marijuana next to the handgun. After retrieving the baggie and handgun, Officer Reynolds learned that Washington did indeed have a valid handgun permit. Officer Reynolds issued Washington a summons to appear in court, unloaded the handgun, and put it in the trunk of the car before releasing Washington.
. . . .
In the present case, prior to the search for the handgun, Officer Reynolds did not express any concerns for officer safety. He had initiated a traffic stop on Washington because one of Washington’s headlights was not working. Officer Reynolds approached the driver’s side of the car to speak with Washington. As a matter of his own practice, the officer inquired as to whether Washington had any weapons or guns in the car, and Washington replied that he had a handgun, which was located underneath the driver’s seat. Washington also informed Officer Reynolds that he had a valid permit for the handgun. Although Washington admitted that a handgun was present inside of the car, he was at all times totally cooperative with Officer Reynolds. The testimony at the suppression hearing indicated that, during the traffic stop, Washington made no furtive movements, answered the officer’s questions, and showed no disrespect to the officer. At the time he searched for the handgun, Officer Reynolds had no information that any crime or violation of law had been or was about to be committed, except for the inoperable headlight infraction. Further, at the suppression hearing, Officer Reynolds did not testify that he had any specific concern for officer safety during his traffic stop of Washington. He merely testified that, as a matter of general practice, he inquired as to whether Washington had any weapons, and when Washington stated he had a handgun, Officer Reynolds searched under the driver’s seat to retrieve it. . . . [W]e conclude that in the absence of an articulable basis that either there was a legitimate concern for officer safety or a belief that a crime had been or was being committed, the search of Washington’s car for a handgun was not justified. Here, because neither of these conditions was satisfied, the search was illegal, and the trial court should have suppressed the evidence.
DARDEN, J., concurs.
MAY, J., concurs in result with separate opinion:
While I concur with the majority’s result, I would reach that result with a slightly different analysis and, thus, I write separately to explain.
Last year, the United States Supreme Court held:
Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.
Arizona v. Gant, __ U.S. __, 129 S. Ct. 1710, 1723-24 (2009). Gant and his two passengers had been removed from his car, handcuffed, and placed in separate police cars. The Court held concern for officer safety could not justify searching Gant’s car because no suspect could have accessed any weapon that might be in his car. Therefore, drugs found in the car had to be suppressed.
While we are dealing here with a traffic stop, rather than an arrest, the fact remains that Washington, like Gant, was removed from his car and handcuffed. Accordingly, Washington’s statement there was a gun under his seat simply could not justify a search of his car based on concern for officer safety. See id.
I whole-heartedly concur with the majority’s sentiment that “[o]fficer safety is of paramount importance.” . . . However, Gant created a rule that relieves all of us from the burden of determining whether subjective facts (such as cooperation, respectfulness, and furtive movements) create “an articulable basis” that a search is necessary for officer safety. . . . Such determinations cannot be easy for police officers amidst the ever-changing environment of a traffic stop, and I know they are difficult for judges who simply cannot know what was happening “in the moment.” Thus, it seems to me, the rule articulated in Gant simultaneously increases protection for two important interests: the safety of our police officers and the constitutional rights of our citizens. As we all too frequently must choose between competing interests when deciding cases, I believe we ought to take full advantage of this opportunity.
I would decline to determine whether the State violated Washington’s Fourth Amendment rights based on his cooperation, respectfulness, or furtive movement. Nevertheless, like the majority, I would reverse the denial of Washington’s motion to suppress, and therefore I concur in result.