This opinion will be unpublished and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

C9-00-1894

 

State of Minnesota,

Respondent,

 

vs.

 

Quentin Marcus Moore,

Appellant.

 

 

Filed September 18, 2001

Affirmed

Amundson, Judge

 

Ramsey County District Court

File No. K0-00-645

 

Mike Hatch, Attorney General, 525 Park St., Suite 500, St. Paul, MN 55103; and

 

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

 

John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, 2829 University Ave. Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge, Amundson, Judge, and Lindberg, Judge.*


U N P U B L I S H E D  O P I N I O N

AMUNDSON, Judge

            In this first-degree controlled-substance offense case, the district court denied appellant’s motion to suppress cocaine seized from his person.  Appellant waived his right to a jury trial and stipulated to the facts for purposes of a court trial.  The court found appellant guilty and sentenced him to 110 months.  We affirm.

FACTS

            On February 25, 2000, Officer Diana Olsem of the St. Paul Police Department was patrolling University Avenue in her squad car with a new recruit she was training.  About 9 p.m., the officers stopped at Arnella’s Bar (Arnella’s), in whose parking lot three serious altercations had occurred the night before.  Olsem testified that Arnella’s was an area of “high drug activity,” where frequent altercations and even a few homicides had occurred.  She further testified that she had purposely stopped several times at Arnella’s that day to establish a “police presence,” hoping to prevent “retribution fights” carrying over from the night before.

            When Olsem and the recruit entered Arnella’s parking lot, they saw a car parked with the engine running and two passengers seated inside.  Olsem walked up to the front passenger window, motioned for the occupant to roll down the window, and asked her what she was doing.  The passenger replied that they were waiting for the driver who had gone into the bar.  The passenger, who appeared to be under 21, did not have any identification but gave her name as Tiffany Perkins.

            According to Olsem, as she spoke with Perkins she shined her flashlight into the vehicle to check for weapons.  She saw what appeared to be marijuana and marijuana seeds laying on the floor by Perkins’s feet.  Olsem asked Perkins to step out of the car and, as she opened the door, Olsem smelled the fresh odor of marijuana.   She then pat-searched Perkins.

            During the pat-search, Olsem observed a male come around the corner of the bar and approach the car.  Upon seeing the police car, the individual stopped and fled.  Olsem quickly put Perkins in the back seat of the squad car and pursued the male, whom she suspected was the driver of the idling car.  But she lost sight of him.  Olsem testified that in her experience, drivers frequently left their cars idling in Arnella’s parking lot while they went into the bar to buy drugs.  She testified that she was concerned that either the passengers or the suspected driver might be armed.

            After giving up the pursuit of the fleeing suspect, Olsem returned to the idling car and spoke with the male passenger in the back seat, who identified himself as Quentin Moore.  Olsem asked Moore to step out of the vehicle and asked him if he had anything illegal.  As Moore stepped out of the car, Olsem, according to her testimony, could smell the odor of marijuana emanating from him.  When asked for identification, Moore produced a card from California.  Olsem then proceeded to pat-search Moore and felt a “wad” in Moore’s left pocket.  Moore told her the bulge in his pocket was money, and said the driver of the car was in the bar.

            Olsem placed Moore in the back seat of the squad car along with Perkins.  She and the recruit then thoroughly searched the idling vehicle.  They did not find anything in the car, other than the marijuana seeds and marijuana residue that Olsem had earlier identified.

            According to Olsem’s subsequent testimony, after returning to the squad car, she remembered receiving a memo about suspects, particularly those from “Asian gangs,” possessing tiny handguns hidden in their shoes.  She remembered that Moore had said he did not feel afraid walking around with the wad of money in his pocket.  Olsem then asked Moore to take his right shoe off.  She looked in the shoe and saw no weapon.  When she returned the shoe, Moore, according to Olsem, asked whether she wasn’t going to check the other one.  When she did so, she noticed the left shoe had a hump in the sole.  She lifted up the sole and saw two baggies containing crack cocaine.  She immediately arrested and handcuffed Moore.  When she looked in the right shoe again, she found $1,870 hidden beneath the sole.

            Moore testified at the omnibus hearing that he was not smoking marijuana in the car on February 25, and that he did not see Officer Olsem shine a flashlight into the vehicle.  He testified that, after the first pat search, Olsem told him to take his shoes off.  Moore denied volunteering to allow a search of the other shoe.

            The district court denied a motion to suppress based on an unreasonable search and seizure.  In so doing, the court dismissed Moore’s testimony at the omnibus hearing as lacking in credibility and concluded that the police “actions were lawful in all respects,” but did not specify under which theory the search was reasonable.  Moore then entered into a Lothenbach stipulation, waiving a jury trial and stipulating to the facts, in order to expedite appellate review.  The district court found Moore guilty of first-degree possession of cocaine with intent to sell.  This appeal followed. 

D E C I S I O N

In reviewing pretrial orders on motions to suppress, we independently review the facts and determine as a matter of law whether the evidence should be suppressed.  See State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  Where the facts are in dispute, a clearly erroneous standard is applied to the district court’s findings of fact.  In re Welfare of G.M., 560 N.W.2d 687, 690 (Minn. 1997).

Appellant argues that the search violated his right to be protected from unreasonable searches and seizures under both the United States and Minnesota constitutions.  The state argues that the search was permissible as an exception to warrantless searches under Terry v. Ohio[1] and as a search incident to arrest.

Here, the stop, which did not occur until after Perkins voluntarily spoke with Olsem, was unquestionably legal.  Olsem saw marijuana seeds and residue in the car in plain view.  When Perkins complied with Olsem’s request to exit the car, Olsem also smelled the odor of marijuana.  At that point, Officer Olsem had probable cause to search the car.  See 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).

Moore argues that the authority to search him was not derived from probable cause to search the vehicle in which he was a passenger.  Even if a vehicle may properly be searched, 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 Olsem was not entitled to search Moore incident to her search of the car, she did have probable cause to arrest him.  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).

Here, the search of the car did not turn up any additional contraband.  However, when Moore complied with her request that he step out of the vehicle, Officer Olsem noticed the smell of marijuana emanating from Moore.  That fact, combined with the fact that Officer Olsem saw marijuana seeds and residue in the vehicle, constituted probable cause for Moore’s arrest and a search incident to that arrest.  See State v. Hodgman, 257 N.W.2d 313, 314-15 (Minn. 1977) (holding officer who smelled burned marijuana, saw pill bottle and four youths in car, one of whom appeared to be in a stupor, had probable cause to arrest and to search incident to arrest); State v. Wicklund, 295 Minn. 403, 205 N.W.2d 509, 511 (1973) (holding that officers, following lawful stop, and smelling odor of marijuana and observing an occupant’s furtive movements, had probable cause to search occupant). 

At the omnibus hearing, defense counsel raised the argument that possession of a small amount of marijuana is a petty misdemeanor that does not warrant a custodial arrest.  The amount of marijuana found during the investigation was a “small amount,” see Minn. Stat. § 152.01, subd. 16 (2000), and its possession constituted a petty misdemeanor.  Minn. Stat. § 152.027, subd. 4 (2000).  But this conclusion does not end the inquiry.  The rules of criminal procedure clearly allow a custodial arrest for any offense if there is a “substantial likelihood” the accused would not respond to a citation.

[l]aw enforcement officers acting without a warrant * * * shall issue citations to persons subject to lawful arrest for misdemeanors, unless it reasonably appears to the officer that * * * there is a substantial likelihood that the accused will fail to respond to a citation.

Minn. R. Crim. P. 6.01, subd. 1(a)(1).  Moore appeared to be California a resident; he presented a California identification card.  After running a warrant search with the passengers’ identifications, Olsem learned that Perkins, his co-passenger, was reported missing from California as a juvenile.  These circumstances presented a substantial likelihood that a citation would not be sufficient to compel Moore’s presence to answer the marijuana charge.  See Carradine v. State, 494 N.W.2d 77, 83 (Minn. App. 1992) (holding that nonresident status of both occupants of car, along with accused’s California drivers license and fact he was headed for airport, along with other facts, created substantial likelihood he would not respond to citation), aff’d in part, rev’d in part and remanded 511 N.W.2d 733 (Minn. 1994) (not addressing search or arrest issue).

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.  Because the search constituted a lawful search incident to arrest, it is unnecessary to determine whether the search was valid under Terry v. Ohio

            Affirmed.



* Retired judge of the district court, serving as judge of the Minnesota Court of  Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] 392 U.S. 1, 88 S. Ct. 1868 (1968).