This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
David Paul Hager,
Itasca County District Court
File No. K3991448
Mike Hatch, Attorney General, David S. Voigt, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
John J. Muhar, Itasca County Attorney, Courthouse, 123 4th Street NE, Grand Rapids, MN 55744 (for respondent)
John M. Stuart, State Public Defender, Mark F. Anderson, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Amundson, Judge, and Halbrooks, Judge.
Appellant David Paul Hager challenges the denial of his pretrial motion to suppress evidence obtained during an investigative stop. Appellant argues that (1) the police did not have a reasonable basis to conduct a pat search; (2) his 45-minute detention while a canine “sniff” was conducted was unwarranted; and (3) the foundation for the “chain of custody” of the drug evidence was insufficient. We affirm.
On August 4, 1999, Officer James Denny was on patrol in Grand Rapids when he saw appellant’s car making a turn without signaling. Given that an accident had occurred minutes earlier at the same intersection because of a driver’s failure to signal, the officer decided to stop and cite the driver. Appellant attempted to elude the officer, but was unsuccessful. He was pulled over at approximately 1:30 p.m.
As the officer approached the vehicle, he recognized appellant because of past contact with him. Prior to this traffic stop, a confidential reliable informant (CRI) had informed the officer that appellant was selling methamphetamine. Officer Denny was also aware that the Deer River Police Department was investigating appellant for narcotics activity.
Officer Denny asked appellant for his driver’s license and proof of insurance. When asked what he was doing in Grand Rapids, appellant was evasive. After appellant produced the requested documents, the officer returned to his squad car to run a check on the license and vehicle registration. While in his squad car, Officer Denny saw appellant making abrupt movements in his car, shifting back and forth in his seat as if putting something under the seats or retrieving something. This caused the officer to have concerns about his own safety.
Appellant’s license and vehicle registration were valid. But based on appellant’s suspicious movements within the car and the officer’s concern for his safety, he decided to conduct a pat-search for weapons. Officer Denny asked appellant to step out of his car in order to conduct the search. Appellant did not object.
As Officer Denny patted down the appellant, he felt a large lump in appellant’s front pocket. He asked appellant to remove the contents of the pocket. Appellant produced a set of keys and a large amount of cash. Based on his training, the officer concluded that the cash was packaged in a way that is common to drug trafficking. When asked, appellant told Officer Denny that he had only $1,000. The officer believed that there was more money than that in the roll. When counted later, the amount was more than $3,000. Appellant initially explained the large sum of cash by stating that he withdrew it from a bank. But appellant later changed his story and said he got the money working at Anderson Glass. Officer Denny had a backup officer contact Anderson, and it was learned that appellant had never been employed there.
Because of the suspicious nature of the large amount of cash, the officer concluded that appellant might have controlled substances. The officer asked for permission to search the vehicle, but appellant refused. Trooper Brad Timm of the state patrol was summoned to the scene with a canine unit trained in finding narcotics. The canine unit arrived at 2:15 p.m. The dog walked around appellant’s car and “alerted” at the driver’s door. Based on the dog’s alert, appellant’s evasiveness and overall demeanor, and the CRI’s information, Officer Denny arrested appellant. He was handcuffed and taken to the Itasca County jail.
The officers obtained a search warrant for the vehicle and recovered 3.4 grams of methamphetamine from between the seats of appellant’s car. Appellant was charged with third-degree controlled substance crime and careless driving in violation of Minn. Stat. §§ 152.023, subds. 2(1), 3(a), and 169.13, subd. 2 (1998). Appellant was released on bond, but then failed to appear in court on August 23, 1999. A bench warrant was issued.
On August 28, 1999, on an unrelated matter, Deputy Darin Shevich of Itasca County and Officer Alan Wilhelm from the Deer River Police Department went to the residence of Clarence Pequette. As the officers approached the house, they saw and recognized appellant, who was running from the back door toward a wooded area. Deputy Shevich, who was aware of the outstanding bench warrant, apprehended appellant about 150 yards into the woods.
Appellant was handcuffed, brought back to the deputy’s squad car, and searched. Deputy Shevich found what appeared to be methamphetamine in a folded piece of paper in appellant’s front pants pocket. The suspected methamphetamine was put on the trunk of the squad car while Shevich completed the search and then placed in an envelope.
Upon arrival at the Itasca County Sheriff’s Office, Deputy Shevich placed the suspected methamphetamine in a locked evidence locker. Because he was going on vacation, Deputy Shevich put the key to the evidence locker in an unlocked desk drawer of Investigator Dean Scherf. These events occurred on Saturday, August 28, 1999.
The following Monday, Investigator Scherf took the key from his desk, removed the suspected methamphetamine from the locker, and photographed and weighed it. Scherf ran a preliminary field test that indicated the presence of methamphetamine. He then resealed the evidence bag and gave it to Deputy Kirk Skelly for transportation to the BCA laboratory in St. Paul. Lab testing confirmed that the bag contained 0.6 grams of methamphetamine. Appellant was charged with fifth-degree controlled substance crime and failure to appear in violation of Minn. Stat. §§ 152.025, subd. 2(1), and 609.49 (1998).
At the October 25, 1999 omnibus hearing, appellant challenged his detention following the traffic stop and the subsequent search of his vehicle. The omnibus court found that the stop, detention, and search were proper.
Thereafter, appellant waived his right to a jury trial on the charges of third-degree controlled substance crime and careless driving. He was convicted following a court trial on a stipulated record. At the subsequent jury trial on the charges of failure to appear and fifth-degree controlled substance crime, appellant challenged the admission of the methamphetamine on foundational, “chain of custody” grounds. The trial court denied appellant’s motion to suppress and he was found guilty of both charges.
D E C I S I O N
Appellant does not challenge the traffic stop or the basis for which he was initially detained. Instead, he maintains that, although the initial stop was justified, the officer should have sent him on his way upon confirmation that appellant’s license and registration were valid. Specifically, appellant challenges the officer’s actions in ordering appellant from his vehicle, performing the pat search, and detaining him until a canine unit arrived.
A police officer may, as a matter of course, order the driver of a lawfully stopped car to get out of his vehicle without violating Fourth Amendment protections. Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct. 330, 333 (1977) (concluding that “[w]hat is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer’s safety.”). The issue here becomes whether, under these circumstances, the subsequent pat search was justified.
An officer may conduct a limited protective weapons frisk of a lawfully stopped person if the officer reasonably believes that the suspect might be armed and dangerous and capable of immediately causing permanent harm.
State v. Varnado, 582 N.W.2d 886, 889 (Minn. 1998) (citing Terry v. Ohio, 392 U.S. 1, 24, 27, 30, 88 S. Ct. 1868, 1881, 1883, 1884 (1968)). The justification for a pat-down search amounts to “‘reasonable suspicion’ entertained by a police officer based upon the officer’s experience.” Wold v. State, 430 N.W.2d 171, 174 (Minn. 1988).
Here, appellant initially attempted to evade police. Evasive conduct is a circumstance that can give rise to reasonable suspicion. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff’d, 508 U.S. 366, 113 S. Ct. 2130 (1993). Once stopped, Officer Denny observed appellant making furtive movements in his car, shifting back and forth in his seat as if placing or retrieving something from under the seats. Appellant’s furtive movements provide further objective foundation for Officer Denny’s reasonable belief that appellant might be carrying a weapon and, therefore, posed a potential danger. See Wold, 430 N.W.2d at 174 (holding officer’s decision to conduct pat-down search must rest on objective foundation). We conclude that a pat-down search was justified on this record.
As a result of the search, Officer Denny found a large amount of cash that was packaged in a way that he knew to be consistent with drug trafficking. Based on the suspicious nature of the large sum of cash, appellant’s evasive explanation for it, and the officer’s professional training and experience, Denny believed that appellant may also be in possession of controlled substances. Appellant refused a request to search his vehicle, prompting the officer’s call for the canine unit.
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).
Reasonable suspicion is “not readily, or even usefully, reduced to a neat set of legal rules.” Ornelas v. United States, 517 U.S. 690, 695-96, 116 S. Ct. 1657, 1661 (1996) (quoting Illinois v. Gates, 462 U.S. 213, 232, 103 S. Ct. 2317, 2329 (1983)). Determination of reasonable suspicion requires the consideration of the totality of circumstances. State v. Martinson, 581 N.W.2d 846, 852 (Minn. 1998). In arriving at a “reasonable suspicion of criminal activity,” an officer may make inferences and deductions that might elude an untrained person. Appelgate v. Commissioner of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987). Officer Denny’s experience told him that a large quantity of money, packaged in this way, was indicative of drug trafficking. In addition, a CRI had previously informed Officer Denny that appellant was selling methamphetamine, and he was aware that the Deer River Police Department was investigating appellant for narcotics activity. Officer Denny had a reasonable articulable suspicion that appellant possessed controlled substances to justify the detention beyond the license and registration validation. The ruling by the omnibus court that, based on the totality of the circumstances, the detention was permissible is well supported by this record.
Appellant contends that the state failed to show a sufficient chain of custody for the controlled substance that was found in his pocket on August 28, 1999.
The “chain of custody” rule, requiring the prosecution to account for the whereabouts of physical evidence connected with a crime from the time of its seizure to its offer at trial, serves the dual purpose of demonstrating that (1) the evidence offered is the same as that seized, and (2) it is in substantially the same condition. It insures that the items seized have not been exchanged for others more incriminating, and that they have not been contaminated or altered.
State v. Johnson, 307 Minn. 501, 504, 239 N.W.2d 239, 242 (1976) (citations omitted).
Appellant’s argument on this issue is based on the undisputed fact that the key to the evidence locker containing the controlled substance was left in the unlocked desk drawer of the investigator from Saturday to Monday. There is no evidence that the methamphetamine was moved or tampered with.
Chain-of-custody issues are generally left to the sound discretion of the trial court. Id. This court reviews the adequacy of foundation for the admission of evidence under an “abuse of discretion” standard. McDonald v. State, 351 N.W.2d 658, 660 (Minn. App. 1984). Proper chain of custody requires
testimony of continuous possession by each individual having possession, together with testimony by each that the object remained in substantially the same condition during its presence in his possession.
State v. Hager, 325 N.W.2d 43, 44 (Minn. 1982) (citation omitted). However,
[a]dmissibility should not depend on the prosecution negativing all possibility of tampering or substitution, but rather only that it is reasonably probable that tampering or substitution did not occur. Contrary speculation may well affect the weight of the evidence accorded it by the factfinder but does not affect its admissibility.
Johnson, 307 Minn. at 505, 239 N.W.2d at 242; see also Berendes v. Commissioner of Pub. Safety, 382 N.W.2d 888, 891 (Minn. App. 1986) (chain of custody found sufficient where it was established with reasonable probability that no tampering occurred).
Respondent produced all of the witnesses in the chain of custody. Each testified to his continuous possession of the methamphetamine during the relevant time period. Appellant’s theory is based on speculation, and, at best, goes to the weight of the evidence rather than its admissibility. The trial court did not abuse its discretion in admitting the methamphetamine into evidence.