FOR PUBLICATION

ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

MICHELLE F. KRAUS    JEFFREY A. MODISETT
Deputy Public Defender    Attorney General of Indiana
Fort Wayne, Indiana
             J.T. WHITEHEAD
            Deputy Attorney General
            Indianapolis, Indiana

RICHARD D. WALLS,              )
                                    )
    Appellant-Defendant,            )
                                    )
        vs.                         )    No.  02A04-9810-CR-520
                                    )
STATE OF INDIANA,                   )
                                    )
    Appellee-Plaintiff.             )

                                

reasonable suspicion that Walls had been engaging or was about to engage in criminal activity. Indeed Officer Stier's suspicions had nothing to do with criminal activity being afoot. Rather, he simply questioned why a person who was merely a passenger in a car would walk away from the scene after the car was stopped by police. That is not enough. True, the record shows that the location at which the car was stopped and from which Walls was leaving was known as a drug- trafficking area. However, the fact that one turns away from the police in a high crime neighborhood is not sufficient to establish reasonable suspicion of criminal activity. Tumblin v. State, 664 N.E.2d 783, 785 (Ind. Ct. App. 1996).
    Further, we reject the notion that for purposes of taking "command of the situation" or maintaining a "tactical advantage" a police officer may routinely order the passenger of a car to remain at the scene of a traffic stop.See footnote 3 In our view such an intrusion upon the liberty of a private citizen who has been observed engaging in no illegal activity, and whose only transgression is his untimely presence in a car that has been stopped for a minor traffic violation, is not de minimis. The Fourth Amendment is satisfied only if the facts known to the officer at the moment of the stop are such that a person "of reasonable caution" would believe that the "action taken was appropriate". Terry, 392 U.S. at 22, 88 S. Ct. at 1880; Gipson v. State, 459 N.E.2d 366, 368 (Ind. 1984). In this case, Officer Stier's own testimony shows that when the officer ordered Walls to return to the scene, he had no reason to believe that Walls posed a threat or danger to him of any kind. Essentially, Officer Stier lacked the

reasonable articulable suspicion necessary to justify an investigatory stop. Absent reasonable articulable suspicion, the Officer's subsequent search of Walls and resultant seizure of the cocaine were unreasonable and exceeded constitutional limits. Therefore the trial court erred in denying Walls' motion to suppress.
    Judgment reversed.
DARDEN, J., concurs.
SULLIVAN, J., dissents with opinion.

RICHARD D. WALLS,    )
            )
    Appellant-Defendant,     )
            )
        vs.    )    No. 02A04-9810-CR-520
            )
STATE OF INDIANA,    )
            )
    Appellee.    )

SULLIVAN, Judge, dissenting

    The majority opinion confines its analysis to a single issue, i.e. whether an officer who makes a valid traffic stop not only may order a passenger, as well as the driver, to exit the vehicle but also may direct the passenger, who begins to walk away, to return to the vicinity of the vehicle. The majority does not consider whether the officer, for protective purposes, was entitled to conduct a pat-down of the passenger, which resulted in seizure of the knife, which in turn contained smears of cocaine; nor do I.
    At the outset, I would note that the officer here did not order the occupants to exit the vehicle. Instead, while the officer was contacting the radio dispatcher and checking the license plate, Walls “jumped out of the passenger side of the vehicle and shut the door and

started to walk away.” Record at 95. The officer believed that he was being placed at a "tactical disadvantage" and that his "safety" as well as the integrity of his investigation were being compromised, because allowing either party to leave the scene would have risked losing sight of a possible source of danger. Record at 97-98. Therefore, he ordered Walls to return to the car. The officer's belief was not unreasonable given the fact that “this was . . . a situation involving a lone police officer in a high crime area.” See Banks v. State (1997) Ind.App., 681 N.E.2d 235, 239.
    The long established rationale underlying the decision in Pennsylvania v. Mimms (1977) 434 U.S. 106, 98 S.Ct. 330, as quoted by the majority here, appropriately focused upon the balance between safeguarding the officer from unnecessary risks during a routine traffic stop and the minimal intrusion upon a motorist who has already been validly detained for the traffic violation. In Maryland v. Wilson (1997) 519 U.S. 408, 117 S.Ct. 882, the same rationale was used to validate ordering a passenger out of the vehicle.
    Prior to Maryland v. Wilson, supra, other jurisdictions had extended the holding of Mimms to passengers. In State v. Smith (1994) N.J., 637 A.2d 158, the court noted that several New Jersey Appellate Court decisions had already extended the Mimms rationale to passengers and approved those holdings by validating a police order to a passenger to exit the car and holding a subsequent pat-down to be reasonable. In doing so, the court cited numerous cases from other jurisdictions holding that because “a passenger presents as significant a danger to the safety of a police officer as a driver,” the officer may order the passenger out of the car. See Smith, supra, 637 A.2d at 164-165. The court, however, noted

that the intrusion upon a passenger's privacy is greater than upon that of a driver and upon that basis refused to apply a per se rule allowing passengers to be ordered out of vehicles in all traffic stops and under all circumstances. In my view, such caveat does not invalidate the action of the police officer here.
    In another pre-Wilson case, People v. Robinson (1989) N.Y., 543 N.E.2d 733, 734, cert. denied, 493 U.S. 966, 110 S.Ct. 411, the New York Court of Appeals presaged Wilson in holding that ordering passengers out of a car during a stop for a traffic violation was justified in that “the risks in these police/civilian vehicle encounters are the same whether the occupant is a driver or a passenger.”
     As noted by the majority here, however, the Wilson court expressly declined to address the question of whether once ordered from the vehicle a passenger may be detained for the entire duration of the stop.
     Be that as it may, the Wilson court itself gave us an indication of a prospective ruling in that it found “guidance by analogy” from Michigan v. Summers (1981) 452 U.S. 692, 101 S.Ct. 2587. Wilson, supra, 519 U.S. at 414, 117 S.Ct. at 886. In that case, the court upheld action by police who arrived to serve a search warrant and found Summers coming down the front steps of the residence. The decision held that the police could legitimately require Summers to re-enter the house and to remain while they conducted the search. In doing so, the court reasoned that “[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.” Summers, supra, 452 U. S. at 702-03. 101 S. Ct. at 2594.

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