This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
Christopher John Conner,
Hennepin County District Court
File No. 98086202
Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John G. Westrick, Westrick & McDowall-Nix, P.L.L.P., 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101
Considered and decided by Crippen, Presiding Judge, Klaphake, Judge, and Shumaker, Judge.
Appellant contends that circumstances in this case did not permit the officer to lawfully conduct a pat-down frisk after he was stopped on a misdemeanor charge. We affirm.
Appellant was pulled over by Minneapolis police officers while driving on Lake Street in Minneapolis. The cause for the stop, excessive noise from appellant’s car stereo, is not disputed. Once stopped, appellant was asked to leave the car. The police officer then frisked appellant, whereupon the officer felt a large bulge that he was “almost a hundred percent positive” was a rock of crack cocaine. The trial court denied appellant’s motion to suppress the crack cocaine the officer seized, and appellant was convicted based on stipulated facts.
When reviewing the legality of a search, this court “will not reverse the trial court’s findings unless clearly erroneous or contrary to law.” Welfare of G.M., 560 N.W.2d 687, 690 (Minn. 1997) (citation omitted). Although this court defers to trial court findings of fact, we must independently apply the law to those facts. State v. Eggersgluess, 483 N.W.2d 94, 96 (Minn. App. 1992).
Following a lawful stop, a police officer may conduct a pat-down search of a person when the officer is “‘justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous.’” G.M., 560 N.W.2d at 692 (quoting Terry v. Ohio, 392 U.S. 1, 24, 88 S. Ct. 1868, 1881 (1968)). See also State v. Varnado, 582 N.W.2d 886, 889 (Minn. 1998) (examining whether officer “reasonably believes” suspect might be armed and dangerous and capable of immediately causing permanent harm). Seizure may be lawfully made of any evidence discovered during a legitimate Terry frisk if without further intrusion the officer has probable cause to believe the item seized is contraband. G.M., 560 N.W.2d at 692-93. This probable cause exists only when the incriminating character of the object is immediately apparent. Id., at 693. Appellant does not dispute the officer’s cause to seize the crack cocaine after the pat down occurred but rather questions whether the pat down was justified.
A combination of circumstances identified in the trial court’s findings is sufficient to establish the officer’s lawful cause to conduct a pat-down search: (1) appellant did not immediately pull over when signaled to do so; (2) the police officers observed appellant slouch down in his seat and adjust something near his legs prior to pulling over; and (3) the police officer observed a large lump in appellant’s pants pocket when he approached appellant’s car. See State v. Munoz, 385 N.W.2d 373, 376 (Minn. App. 1986) (furtive gestures can provide a basis for probable cause). Under these circumstances, the officer’s belief that appellant was armed and dangerous was reasonable, and the pat down was justified.
Appellant suggests that any suspicion prompted by his slow stop and the slouching and reaching was necessarily dissipated once the officer approached appellant and could see no evidence that appellant had a weapon. To the contrary, the first two reasons for suspicion were directly related to the third cause for concern. Having seen the lump and with other events having already occurred the officer had cause to believe a weapon was present.
Appellant disputes the finding of a lump in his pants pocket, due to the trial court’s expressed misgivings on this issue. Although the misgivings of the trial court were candid and may have been required by the testimony he heard, it is evident that the court resolved those misgivings because it made a specific finding of fact about the existence of the lump. That finding is adequately supported by the evidence.
Even if the pat-down search was lawful, appellant suggests that under the Minnesota Constitution, an officer who has conducted a lawful pat down has cause to seize only contraband he can see in plain view. As appellant acknowledges, this constricted view of probable cause is not recognized under the federal constitution. See Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S. Ct. 2130, 2137 (1993) (where a police officer lawfully pats down a suspect’s outer clothing, and feels an object whose identity is immediately apparent, if the object is contraband its warrantless seizure is justified by the same considerations that inhere in the plain-view context). If, during the course of a pat-down search an officer locates “what he immediately and without further manipulation has probable cause to believe is evidence of a crime,” then the officer may seize that evidence. State v. Harris, 590 N.W.2d 90, 104 (Minn. 1999).
A “state supreme court may interpret its own state constitution to offer greater protection of individual rights than does the federal constitution.” State v. Carter, 596 N.W.2d 654, 657 (Minn. 1999) (quotation omitted). But appellant did not raise the state constitutional issue before the trial court, which deprives us of the power to review this issue. Were we to nonetheless explore this issue in the interests of justice, appellant has identified no unique reason to disregard federal authority on the topic, either in the language or the history of the Minnesota Constitution.