This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Keven Eugene Revels,
Filed April 3, 2001
Ramsey County District Court
John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)
Mike Hatch, Minnesota Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for Respondent)
Considered and decided byKlaphake, Presiding Judge, Amundson, Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N
Appellant appeals his conviction for possession of a firearm by an ineligible person. He argues that the police officers who stopped him and tried to talk with him and his companion as he was walking in the middle of the street, lacked a reasonable suspicion to support an investigative stop. Appellant also argues that the officer's frisk of appellant was not supported by a reasonable suspicion that he was armed and dangerous. We affirm.
F A C T S
At 11:50 p.m. on February 9, 2000, St. Paul police officers Robert Kruse and Trygve Sand were driving north on Bates Avenue in a marked car, approaching Fourth Street. The neighborhood is a high-crime area, with many robbery calls, burglaries, narcotics complaints, aggravated assaults, and disorderly people.
The officers noticed a man, later identified as Keven Eugene Revels, walking north on Bates Avenue in the middle of the traffic lane and another man walking parallel with Revels on the sidewalk. Sidewalks were available on both sides of the street. Sand slowed the car as he drove closer to Revels. Revels turned, noticed the squad car, and quickly turned back to walk out of the street. The officers pulled over and stopped. As the officers observed Revels, he put his hands in his pockets and was continually lifting up his pants and adjusting something in his pants. While he was walking away, the officers asked Revels if they could talk to him for a minute. Revels did not respond and the officers repeated their request. At that point, Revels stopped, threw up both of his hands, and approached the officers.
Kruse testified that he became concerned because he “couldn’t see [Revels's] hands and they were in his pockets, we didn’t know what he had in there. He—he was moving his waist and his pants around with his hands in his pockets.” Kruse testified that “our initial stop was to let him know not to walk in the middle of the street when there’s two sidewalks on either side of the street that are open and available to walk on.” However, both officers also testified that Revels was free to walk away at any time.
Kruse asked Revels if he had any weapons on him. Revels did not reply and Kruse repeated the question. Again, Revels did not reply and Kruse asked Revels if he could check for weapons. Revels still did not reply, but laced his fingers together, put them behind his head, and leaned against the front driver’s side fender of the squad car. Kruse again asked Revels if he had any weapons on him and Revels did not answer. Kruse then patted down Revels and discovered a semiautomatic handgun in the groin area inside Revels’s pants.
After the denial of his pretrial motion to suppress, Revels, pursuant to State v. Lothenbach, waived his right to a jury trial and agreed to have his case tried before a judge on the record from the omnibus hearing. 296 N.W.2d 854 (Minn. 1980). After the trial, Revels was found guilty of possession of a firearm by an ineligible person, in violation of Minn. Stat. § 624.713, subds. 1(b), 2 (1998). This appeal followed.
In reviewing pretrial suppression orders, an appellate court independently reviews the facts and determines as a matter of law whether the trial court erred in its decision. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). We accept the trial court's findings of fact unless they are clearly erroneous, but independently apply the law to the facts. See Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).
Revels first contends that Officers Kruse and Sand did not have sufficient justification to stop him under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968). Claiming that a Terry investigative stop is permissible only when police are investigating a “serious offense” and the stop is “necessary” to enforce the law, Revels argues that the petty misdemeanor for which he was stopped, failure to use the sidewalk in violation of Minn. Stat. § 169.21, subd. 5 (1998), was not the type of “serious offense” contemplated by Terry and that stopping him was not “necessary” to enforce the statute.
The Minnesota Supreme Court has held that a traffic stop must be justified by “an objective legal basis.” State v. George, 557 N.W.2d 575, 578 (Minn. 1997); see also Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769 (1996) (holding that a police officer may make a routine traffic stop where he or she has a “valid objective basis” for making the stop). “Ordinarily, if an officer observes a violation of a traffic law, however insignificant, the officer has an objective basis for stopping the vehicle.” George, 557 N.W.2d at 578; see alsoState v. Varnado, 582 N.W.2d 886, 889 (Minn. 1998) (upholding stop based on officer’s observation of broken windshield); State v. Pleas, 329 N.W.2d 329, 331 (Minn. 1983) (upholding stop based on officer’s observation of broken windshield, no front license plate, and rear plate upside down);State v. Barber, 308 Minn. 204, 205, 241 N.W.2d 476, 476 (1976) (upholding stop based on officer’s observation that license plate was wired on rather than bolted on). We see no reason not to apply this standard to a pedestrian stop. A police officer may stop a person to enforce even a parking violation if a stop is necessary to enforce the violation. See State v. Holmes, 569 N.W.2d. 181, 185 (Minn. 1997).
Officers Kruse and Sand witnessed Revels violating Minn. Stat. § 169.21, subd. 5, which prohibits pedestrians from walking on a roadway where sidewalks are available. Both officers testified that they saw Revels walking down the center of the roadway and attempted to stop and to talk to him. That stop was legal since Revels was committing an offense. The stop does not fall under Terry, as Revels argues, because it was not an investigatory stop performed without any observed violation of the law. Here, the officers directly observed illegal activity and were justified in stopping Revels. Despite Revel’s assertion that the officers would have ultimately let him go without a citation, their decision to stop him was justified.
Revels next contends that once stopped, no justification existed to search him because the officers could not articulate a particularized and objective basis for suspecting that he was armed and dangerous.
Because an officer's decision to frisk a suspect is not the "automatic sequel" of a valid stop, law enforcement officials must submit a constitutionally valid reason for doing so. State v. Eggersgluess, 483 N.W.2d 94, 97 (Minn. App. 1992) (quoting State v. Payne, 406 N.W.2d 511, 513 (Minn. 1987)). An officer may conduct a pat-down search of a lawfully-stopped person if the officer can point to specific, articulable grounds for the belief that the suspect is armed and dangerous. Wold v. State, 430 N.W.2d 171, 175 (Minn. 1988) (citing Terry, 392 U.S. at 30, 88 S. Ct. at 1884-85). A frisk is improper during a routine stop for a minor violation absent additional suspicious or threatening circumstances. State v. Vornado, 582 N.W.2d 886, 890 (Minn. 1988); In reWelfare of M.D.B., 601 N.W.2d 214 (Minn. App. 1999), review denied (Minn. Jan. 18, 2000). We employ an objective standard to evaluate whether the facts available to the officer at the time of the search would warrant the belief by a person of reasonable caution that the action taken was appropriate. Wold, 430 N.W.2d at 175 (citing Terry, 392 U.S. at 21-22, 88 S. Ct. at 1880).
Revels relies on Varnadoand M.D.B. in arguing that the search was not proper. In Varnado, the Minnesota Supreme Court found that a frisk for weapons was not warranted where a motorist was stopped at night in an area with suspected drug trafficking, the officers knew that the motorist’s car belonged to a suspected drug dealer, and the motorist could not produce a valid driver’s license. 582 N.W.2d at 898-99. The supreme court found that the search was not proper because, prior to the search, the officers did not see any bulge, the motorist fully cooperated with the officers’ requests, and she did not make any furtive or evasive movements. Id. at 890.
Likewise, in M.D.B., we found that a protective search was unconstitutional where the officer who stopped the suspect, M.D.B., was concerned that he might flee the scene and decided to secure M.D.B. in his squad car, but before doing so, asked M.D.B. if he had any weapons. 601 N.W.2d at 215. At that point M.D.B. started flailing his arms and yelling for the officer not to beat him. Id. While the officer put M.D.B. in a bear hug to subdue him, a gun was tossed from M.D.B.’s waistband. Id. We concluded that the officer did not have a reasonable suspicion that M.D.B. was armed and dangerous because M.D.B. was stopped for a minor traffic violation and the officer did not see a gun or any evidence of a weapon, M.D.B. made no furtive gestures or uncooperative remarks, and M.D.B. could not have walked away. Id.at 216-17.
However, evasive conduct, furtive gestures, and situations in known high-crime areas are all factors that may be considered when evaluating a reasonable suspicion that a person is armed and dangerous. See State v. Dickerson, 481 N.W.2d 840, 842-43 (Minn. 1992) (fact that defendant, after making eye contact with police, stopped, turned around, and took a sidewalk to an alley, combined with location in area with history of drug activity justified a pat down search after a valid stop); aff'd 508 U.S. 368, 113 S. Ct. 2130 (1993); State v.Richmond, 602 N.W.2d 647, 651 (Minn. App. 1999) (protective search justified by furtive movement, nervous and fidgety suspect, unwillingness to answer officers’ questions during a stop).
Here, the officers testified that in their experience people often carry concealed weapons in their waistband or groin area. The officers both observed Revels adjusting something in his groin area after he noticed their presence. Throughout his contact with the officers, Revels frequently put his hands in his pockets, made adjustments, and also at some point faced away from the officers while doing so. Furthermore, Revels was in a high-crime area late at night. Sufficient evidence of a dangerous situation was presented to warrant a protective search. The fruits of that search were properly admitted.