This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
State of Minnesota,
Gary Dean Johnson,
Martin County District Court
File No. K19964
Mike Hatch, Minnesota Attorney General, and Natalie E. Hudson, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Terry W. Viesselman, Martin County Attorney, 923 North State Street, Suite 130, Fairmont, MN 56031 (for respondent)
Lawrence Hammerling, Deputy State Public Defender and Michael F. Cromett, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Klaphake, Presiding Judge, Harten, and Anderson, Judge.
Appellant Gary Dean Johnson challenges the denial of his pretrial motion to suppress evidence seized during an investigative stop. Appellant contends that police, who received a report of a vehicle at a cemetery at night and observed appellant’s car a short distance away from the same cemetery, did not have articulable suspicion warranting a stop. Appellant also argues that police did not have reasonable suspicion warranting continuation of the detention to permit a canine “sniff” of the vehicle for possible narcotics. We affirm.
The Fairmont police stopped a single vehicle, at approximately 9 p.m. on March 20, 1999, on a deserted, dead-end street within 100 yards of a cemetery closed for the evening after the caretaker had called police reporting suspicious activity. Officer Thomas Gray asked for appellant’s license and proof of insurance. Appellant explained to Gray that he had been having problems with his wife. Officer Lowell Spee arrived in a second car just after appellant’s car was stopped. While Gray was running the license check, both officers observed appellant slouching down in his seat as if he was reaching under the passenger’s seat. Although the license was valid, vehicle plate records indicated the car was owned by someone else.
Gray returned to appellant’s vehicle. When asked about the title to the car, appellant produced a four-month-old bill of sale from a car dealer. Gray testified that appellant was extremely nervous when questioned about the title to the car. Gray then asked appellant for consent to search his vehicle. Appellant refused to allow the search.
Gray told appellant that he was free to leave, but that the car would have to remain at the scene so that a canine unit could do a walk-around of the car. Appellant chose to stay with the vehicle. Within ten minutes, Officer Bradley Buhmann arrived with his dog.
When the canine officer arrived, Gray asked appellant to step out of his vehicle for appellant’s safety while the search was performed. As appellant was exiting the vehicle, he grabbed something with his right hand and put it in his jacket pocket. Spee, concerned appellant may have a weapon, immediately yelled, “What did you grab?” Gray then grabbed appellant’s arm. Appellant’s arm moved enough to disclose a crack pipe in appellant’s pocket. Appellant was placed under arrest. Appellant resisted, but the officers were able to get him under control and handcuff him. Additional crack pipes, lighters, and money were found on his person.
After putting appellant in a squad car, Buhmann performed the canine search. The dog reacted to the ditch area two feet from appellant’s vehicle under very windy conditions. Buhmann believed that the scent his dog had indicated came from the car. Police found a fanny pack under the passenger seat containing cocaine, marijuana, and some money. Appellant’s car was towed to the police department where another container containing crack cocaine was found under the driver’s seat.
The state charged appellant with various controlled-substance crimes. Appellant sought to suppress all evidence obtained and challenged the stop and search of his vehicle. The district court denied appellant’s motion at an omnibus hearing.
Appellant subsequently waived his right to a jury trial. Thereafter, on January 10, 2000, the state submitted an amended charge of controlled-substance crime in the second degree, in violation of Minn. Stat. § 152.022 (1998), on stipulated facts for court trial, which resulted in a conviction.
In reviewing a district court's determinations of the legality of a limited investigatory stop, we review questions of reasonable suspicion de novo. State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999). “A brief investigatory stop of a person is lawful if the officer is able to articulate a particularized and objective basis for suspecting the particular person stopped of criminal activity.” State v. Haataja, 611 N.W.2d 353, 354 (Minn. App. 2000) (citations omitted), review denied (Minn. July 25, 2000). “The factual basis required to support a stop is minimal.” Knapp v. Commissioner of Public Safety, 610 N.W.2d 625, 628 (Minn. 2000) (citation omitted). “All that is required is that the stop not be the product of mere whim, caprice, or idle curiosity.” Marben v. Department of Pub. Safety,294 N.W.2d 697, 699 (Minn. 1980) (quotations omitted). An investigatory stop does not require probable cause, and an actual violation need not be detectable. Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 1879-80 (1968). In fact, “wholly lawful conduct [can] justify the suspicion that criminal activity is afoot.” State v. Britton, 604 N.W.2d 84, 89 (Minn. 2000). Officers may make their assessment on the basis of all of the relevant circumstances, drawing on inferences and making deductions that “might elude an untrained person.” Holm v. Commissioner of Pub. Safety,416 N.W.2d 473, 474 (Minn. App. 1987) (citations omitted).
These circumstances include the officer’s general knowledge and experience, the officer’s personal observations, information the officer has received from other sources, the nature of the offense suspected, the time, the location, and anything else that is relevant.
Appelgate v. Commissioner of Pub. Safety,402 N.W.2d 106, 108 (Minn. 1987).
Gray received a call after dark that a suspicious car was parked at the entrance to Fairview Cemetery. The call came from the known caretaker of the cemetery and not an anonymous caller. The caller felt the suspicious party might be dumping garbage, an illegal activity. In addition, Gray had frequently responded to calls involving criminal activity at the cemetery in the past. When Gray arrived minutes later, appellant’s car was spotted within 100 yards of the cemetery gate on the only road leading in or out of the cemetery and was the only vehicle in the area. Appellant’s car was the only car on the road. Gray knew the cemetery was closed after dark. Gray clearly had reasonable articulable suspicion for stopping appellant’s vehicle. See Thomeczek v. Comm. of Public Safety, 364 N.W.2d 471, 472 (Minn. App. 1985) (finding sufficient factual basis to suspect unlawful activity where police encountered a truck that was legally parked in front of a vacant lot at 11:18 p.m. in a residential development, with its lights on and with its motor running); Olmscheid v. Commissioner of Public Safety, 412 N.W.2d 41, 42 (Minn. App. 1987) (investigatory stop upheld where police stopped a car on a dead-end street behind businesses afterhours, without observing any illegal activity or driving conduct, and having not received any calls reporting illegal activity that evening or the previous evening).
Appellant also challenges the duration of the stop. But courts have not imposed a rigid time limit on the permissible duration of a detention that follows a lawful stop. State v. Blacksten, 507 N.W.2d 842, 846 (Minn. 1993). The general rule is that an investigatory detention “may not continue indefinitely but only as long as reasonably necessary to effectuate the purpose of the stop.” State v. Bell, 557 N.W.2d 603, 606 (Minn. App. 1996) (citation omitted), review denied (Minn. Mar. 18, 1997). “[A]s long as the reasonable suspicion for the detention remains, the police may continue the detention provided they act diligently and reasonably.” State v. Moffatt, 450 N.W.2d 116, 119 (Minn. 1990).
Gray stopped appellant on the suspicion that he was involved in illegal activity and therefore properly asked for appellant’s license and proof of insurance. See Deleware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401 (1979) (holding that asking to see a driver's license is unconstitutional unless there is articulable and reasonable suspicion that a motorist is unlicensed, that the vehicle is unregistered, or that the vehicle or any of its occupants is involved in illegal activity). Appellant was unable to provide proof of insurance, a misdemeanor, appeared nervous, and was visibly shaking while handing over his driver’s license.
While Gray was running the license check, he and Spee observed appellant slouching and moving in his seat in a furtive manner. This court has previously held that “[f]urtive gestures can provide a basis for probable cause.” State v. Munoz, 385 N.W.2d 373, 376 (Minn. App. 1986). The license check also revealed that appellant was not the registered owner of the vehicle. While appellant did provide a bill of sale for the vehicle, Gray asked to search the vehicle because of appellant’s nervous demeanor and furtive movements while Gray was performing the license check. Appellant refused. Given the totality of the circumstances, it would not have been unreasonable for officers to conclude that appellant was likely concealing either a weapon or contraband. At this point, they arguably had probable cause to search under the front seats of appellant’s car for their own safety. But officers took a reasonable and more limited approach and instead summoned the canine unit.
The canine unit arrived within ten minutes. Appellant chose to stay with the car. Appellant argues that when officers asked him to exit the vehicle for his own safety, he was in effect seized. But this is incorrect. Officers, having made a proper stop of a motor vehicle, may order drivers out of the car as a matter of course without violating Fourth Amendment protections. Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 333 (1977).
As appellant left the car, he grabbed a crack pipe from his seat and hastily attempted to stuff it in his pocket. The officers, understandably concerned for their own safety, and not knowing what appellant had in his hand, wrestled the item from appellant’s grasp as he was putting it in his pocket. They then informed appellant that he was under arrest. The crack pipe, by itself, gave officers probable cause to arrest appellant, search his person and search the passenger compartment of his car. See State v. White, 489 N.W.2d 792, 794 (Minn. 1992) (“[W]hen a police officer has made a lawful custodial arrest of the occupant of an automobile, the officer may, as a contemporaneous incident of the arrest, search the passenger compartment of the car and any containers found within the passenger compartment”). Furthermore, the United States Supreme Court has previously concluded that a canine “sniff” search is an “investigative technique” that does not constitute a “search” within the meaning of the Fourth Amendment. United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644-45 (1983). Once the canine “sniff” indicated the presence of drugs, the officers had probable cause to search the remainder of the vehicle.
There is nothing in the record to suggest that the police officers did anything to delay their efforts any longer than necessary to effectuate the purpose of the stop.