A unanimous United States Supreme Court has already addressed the issue before us, although the Supreme Court in [Arizona v. Johnson, 555 U.S. 323 (2009)] held that, in a traffic-stop setting,
the first Terry condition—a lawful investigatory stop—is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. To justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.
555 U.S. at 327.
We now apply Johnson to this case. [Footnote omitted.] Because Officer Hicks lawfully pulled over Deborah for a traffic violation, the officers did not need to have cause to believe that Westmoreland was involved in criminal activity. However, to justify the pat down of Westmoreland, which led to the discovery of marijuana, the officers must have had reasonable suspicion that he was armed and dangerous. But no evidence was presented at the suppression hearing to support a reasonable belief that Westmoreland was armed and dangerous. Although Officer Forrest testified that he patted down Westmoreland for officer safety, Officer Forrest conceded that Westmoreland did not make any furtive movements. In addition, neither officer testified that Westmoreland was hostile, belligerent, or even uncooperative during the traffic stop. But most compelling is the State’s concession on appeal that “Officer Forrest did not have any particularized articulable facts for believing that [Westmoreland] was armed and dangerous.” Appellee’s Br. p. 7. We therefore conclude that the officers did not have reasonable suspicion that Westmoreland was armed and dangerous. Because Officer Forrest performed an illegal pat down on Westmoreland, the trial court erred in denying his motion to suppress the marijuana found as a result of that pat down. And without this marijuana, there is simply no evidence to support the possession of marijuana charge against Westmoreland. We therefore reverse the trial court and remand with instructions for the court to dismiss Westmoreland’s possession of marijuana charge.
ROBB, C.J., and NAJAM, J., concur.