This opinion will be unpublished and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,
David Roy LaBore,
Washington County District Court
File No. KX-99-483
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Douglas Johnson, Washington County Attorney, Richard D. Hodsdon, Assistant County Attorney, Washington County Government Center, 14949 62nd Street North, Stillwater, MN 55082 (for respondent)
Mary M. McMahon, Special Assistant State Public Defender, McMahon & Associates Criminal Defense, Ltd., 2499 Rice Street, Suite 140, Roseville, MN 55113-3724 (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Lansing, Judge, and Huspeni, Judge.*
U N P U B L I S H E D O P I N I O N
On stipulated facts, following denial of a suppression motion, the district court found David LaBore guilty of fifth-degree possession of a controlled substance and possession of a small amount of marijuana in a motor vehicle. LaBore appeals, arguing that the police search that produced marijuana and methamphetamine violated his constitutional rights. Because we conclude that LaBore was searched incident to a valid arrest, we affirm.
This contested search of David LaBore stems from a Washington County deputy sheriff’s traffic stop of a car in which LaBore was a passenger. The deputy activated his red lights after the car turned in front of him onto Highway 61 without signaling, which forced him to brake to avoid colliding with it.
The driver stopped the car in a parking lot and started to walk back toward the deputy. The deputy directed the driver back to her own car, and when the car door opened the deputy detected a strong odor of burnt marijuana. As the deputy talked with the driver he noticed that LaBore, sitting in the car’s front-passenger seat, was not wearing a seatbelt. The deputy described LaBore’s demeanor as unusual in that he avoided eye contact and continued to look straight ahead even when the deputy asked for identification, preliminary to issuing a citation for not wearing a seat belt. LaBore said he had no identification, and the deputy asked him to step out of the car and accompany him back to the patrol car. Before getting into the patrol car, the deputy asked LaBore if he had any contraband in the vehicle or on his person, and LaBore said that he did not. The deputy then told LaBore that he was going to search for weapons before they entered the patrol car.
During the frisk, the deputy felt a small, hard, cylindrical object. He removed the object, a marijuana pipe, together with a cellophane bag containing a small amount of green leafy substance that was later identified as marijuana. The deputy also retrieved an open package of cigarettes containing a small cellophane bag holding what was later determined to be 0.1 grams of methamphetamine.
Before trial, LaBore moved to suppress the evidence obtained from the search. The district court found that the frisk was a constitutional weapons search and denied the motion. LaBore waived his right to a jury trial and submitted the case to the district court on stipulated facts. The district court found LaBore guilty of fifth-degree possession of a controlled substance in violation of Minn. Stat. § 152.025, subd. 2(1) (1998), and possession of a small amount of marijuana in a motor vehicle in violation of Minn. Stat. § 152.027, subd. 4 (1998). LaBore appeals, contending the search violated his constitutional rights.
The Fourth Amendment to the United States Constitution and Article I of the Minnesota Constitution protect against unreasonable searches and seizures by the government. U.S. Const. amend. IV; Minn. Const. art. I, § 10. Warrantless searches are per se unreasonable, subject to a few “specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967) (footnote omitted). Three separate exceptions have been relied on at different points in this case: a limited weapons frisk, the “automobile” exception, and a search incident to arrest. Because each argument is based on the stipulated and undisputed facts, we independently review the district court’s Fourth Amendment ruling to determine whether the evidence must be suppressed. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).
A police officer may conduct a limited weapons frisk of a lawfully stopped person if the officer reasonably believes that the suspect might be armed and dangerous and capable of presently causing harm. Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883 (1968). LaBore does not dispute that the car in which he was riding was validly stopped, but he argues that the weapons search violated his constitutional rights because his behavior could not have led the deputy to believe that LaBore had a weapon.
“[D]uring a routine stop for a minor traffic violation, a pat-down search is improper unless some additional suspicious or threatening circumstances are present.” State v. Varnado, 582 N.W.2d 886, 890 (Minn. 1998); see also 3 Wayne R. LaFave, Search and Seizure, § 9.5(a), at 256-57 (3d ed. 1996) (stating that courts generally require “other circumstances present,” such as a threatening movement, to justify a protective search for weapons). The deputy did not provide any reason to believe that LaBore was armed or dangerous. Instead, he testified that LaBore was cooperative and non-threatening, LaBore’s appearance and clothing did not suggest the possibility of a concealed weapon, and LaBore did not make any evasive or sudden movements toward a pocket or other area where he could conceal a weapon. See Varnado, 582 N.W.2d at 890 (concluding that weapons search was not justified where suspect fully cooperated with police and did not make any furtive or evasive movements). We agree that under the circumstances, a weapons search was constitutionally unreasonable.
We also agree that LaBore was not validly searched under the “automobile exception” to the Fourth Amendment warrant. Under this exception, in the case of exigent circumstances and probable cause to believe a vehicle contains criminal evidence, police may search a vehicle without first obtaining a warrant. Carroll v. United States, 267 U.S. 132, 153-54, 45 S. Ct. 280, 285 (1925); State v. Munoz, 385 N.W.2d 373, 375 (Minn. App. 1986). Probable cause for an automobile search is found if "the totality of the circumstances created a fair probability the vehicle * * * contained contraband." Munoz, 385 N.W.2d at 376 (citing Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317 (1983)).
Smelling burnt marijuana provides probable cause for a search of a car. State v. Schinzing, 342 N.W.2d 105, 109 (Minn. 1983) (detecting odor of alcohol coming from car gave officer probable cause to believe that a search of car’s passenger compartment would yield open alcohol containers); State v. Pierce, 347 N.W.2d 829, 833 (Minn. App. 1984) (“It has long been held that the detection of odors alone, which trained police officers can identify as being illicit, constitutes probable cause to search automobiles for further evidence of crime.” (citations omitted)). If probable cause justifies a search of the vehicle, “it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” United States v. Ross, 456 U.S. 798, 825, 102 S. Ct. 2157, 2173 (1982). But a person may not be searched along with the car’s contents. See United States v. Di Re, 332 U.S. 581, 587, 68 S. Ct. 222, 225 (1948) (“We are not convinced that a person, by mere presence in a suspected car, loses immunities from search of his person to which he would otherwise be entitled.”); State v. Bigelow, 451 N.W.2d 311, 312-13 (Minn. 1990) (stating that the search of a vehicle’s containers is different from the search of a person who is merely present in the car).
Although we agree that the deputy’s search of LaBore cannot be justified as part of a search of the car, we separately analyze whether the officer had probable cause to arrest LaBore and search him incident to arrest. We note that the United States Supreme Court has recently upheld a warrantless custodial arrest for the minor moving traffic violation of failure to wear a seatbelt when the driver could not produce a driver’s license. Atwater v. Lago Vista, 121 S. Ct. 1536, 1557 (2001). It is not necessary for us to determine whether an arrest would be permissible under the Minnesota Constitution because the officer’s inquiries were prompted not only by the seatbelt violation, but also by his suspicion of drug activity.
Probable cause to arrest requires police to reasonably believe that a certain person has committed a crime. In re Welfare of G.M., 560 N.W.2d 687, 695 (Minn. 1995). The probable-cause-to-arrest test requires the court to objectively consider the facts and the circumstances to decide if a “person of ordinary care and prudence would entertain an honest and strong suspicion that a crime has been committed.” Id. (citation omitted). Police who have probable cause to arrest a suspect can conduct a search incident to an arrest even if the search occurs before the arrest. See id. A search incident to an arrest may extend to small containers located on the person searched, and the search may be followed by a warrantless seizure of discovered contraband. Id. (citing United States v. Robinson, 414 U.S. 218, 236, 94 S. Ct. 467, 477 (1973)).
The strong marijuana smell, together with LaBore’s lack of identification and unusual demeanor when in the car, including persistently looking straight ahead rather than at the officer and plainly attempting to avoid eye contact, supports the deputy’s arrest of LaBore on suspicion of drug crimes, and the search incident to that arrest. See State v. Hodgman, 257 N.W.2d 313, 314-15 (Minn. 1977) (holding arrest and search constitutional when police officer smelled marijuana and saw a plastic pill bottle containing paper used to package drugs); State v. Wicklund, 295 Minn. 403, 405, 205 N.W.2d 509, 511 (1973) (holding that marijuana smell together with driver’s furtive movements provided probable cause for search and arrest).
Other jurisdictions have upheld an arrest of a validly-stopped car’s passengers based solely on police recognizing the smell of marijuana coming from the car. See Brunson v. State, 940 S.W.2d 440, 442 (Ark. 1997) (holding that the smell of marijuana provides probable cause to arrest a vehicle’s occupants); State v. Mitchell, 482 N.W.2d 364, 368 (Wis. 1992) (holding that based on the presence of marijuana odor and smoke in car, officer had probable cause to believe that driver or passenger or both had been smoking marijuana and thus, officer had probable cause for arrest); see also 2 LaFave, supra, § 3.6(b), at 290-91 (citing additional cases in which courts have found probable cause to arrest car’s passengers when marijuana odor could be smelled emanating from the car).
The district court did not err in denying the motion to suppress the evidence obtained as a result of the valid search incident to arrest.
* Retired judge of the Court of Appeals, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.