This opinion will be unpublished and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,
Joseph Antonio Carter,
Filed January 8, 2002
St. Louis County District Court
File No. K100600393
Mike Hatch, Attorney General, 515 Park Street, Suite 500, St. Paul, MN 55103; and
Alan L. Mitchell, St. Louis County Attorney, James Nephew, Assistant County Attorney, David M. Johnson, Assistant County Attorney, 100 N. Fifth Avenue West, #501, Duluth, MN 55802-1298 (for respondent)
John M. Stuart, State Public Defender, Charles Clippert, Assistant Public Defender, Theodora Gaitas, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Crippen, Presiding Judge, Willis, Judge, and Anderson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his conviction of possession of a pistol without a permit, arguing that he was unlawfully detained when a police officer asked for consent to search him, and therefore the pistol and appellant’s admission to possession of the pistol should have been suppressed as fruit of the illegal detention. Because we conclude that there was no illegal detention, we affirm.
Officer Cheryl Rolland was patrolling near a Duluth high school in response to complaints of underage tobacco smoking. Officer Rolland saw two young males, who were smoking and appeared to be underage, walking near the high school.
Officer Rolland approached the men, told them that she was patrolling the area for underage smoking, and requested identification. After briefly talking to them, Rolland recognized appellant Joseph Antonio Carter from a previous encounter and realized that he was not a minor. But she also recalled that Carter had an outstanding arrest warrant issued against him in Indiana, although Indiana earlier had declined to extradite him. Officer Rolland decided to call dispatch to see if Indiana had issued an order to extradite Carter or if there were new warrants for his arrest.
Meanwhile, Officer Rolland noticed that Carter’s companion was acting in a suspicious manner, and she asked him whether he had any drugs. Although he denied having any, Rolland decided to check his record with dispatch. When Officer Rolland was told that the companion had an outstanding arrest warrant, she arrested him.
Officer Rolland testified that when she also learned from dispatch that Indiana still was not seeking Carter’s extradition, she told him that he was “not under arrest” and that he was “free to leave.” Before he could do so, however, she asked him whether she could search his person for drugs. In response, Carter moved his hands to his pants pockets, while saying that he had no drugs but that Rolland could search him. Officer Rolland, however, saw a bulge in Carter’s pocket. She asked him if she could pat him down, and he said, “No.” She then asked Carter if he had a gun, and he replied, “Yes, I do have a gun.” Officer Rolland seized the gun and placed Carter under arrest.
Carter was charged with possession of a pistol without a permit, a violation of Minn. Stat. § 624.714, subd. 1 (2000). At the omnibus hearing, Carter moved to suppress the evidence seized during the investigative stop and to dismiss the case. The district court denied Carter’s motion, concluding that (1) the investigative stop was lawful; (2) prolonging Carter’s detention to check for warrants was lawful; (3) the stop was terminated when Rolland told Carter he was free to leave; and (4) Carter’s statements to Rolland after the stop was terminated were voluntary. Carter waived his right to a jury trial and stipulated to the state’s case, under the procedure outlined in State v. Lothenbach, 296 N.W.2d 854, 857-58 (Minn. 1980). The court found Carter guilty. This appeal follows.
In reviewing pretrial orders on motions to suppress, this court independently reviews the facts and determines, as a matter of law, whether the district court erred in denying suppression of the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). This court accepts the district court’s findings of fact unless they are clearly erroneous. State v. George, 557 N.W.2d 575, 578 (Minn. 1997).
Carter argues that although he was lawfully stopped based on suspicion of underage smoking, the detention was unlawfully prolonged based on a mere hunch. See State v. Hickman, 491 N.W.2d 673, 675 (Minn. App. 1992) (holding that when original suspicion justifying the stop is dispelled, police may not continue the detention without additional reasonable suspicion), review denied (Minn. Dec. 15, 1992). But after Officer Rolland discovered that Carter was not underage, she remembered the Indiana arrest warrant against him. It was not unreasonable for her to check on the current status of that warrant before letting Carter go.
Carter also contends that he was unlawfully seized when Rolland asked to search his person for drugs. A seizure occurs when an officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 1877 (1968). A person has been seized if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was neither free to disregard the police questions nor free to terminate the encounter. See State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995). This reasonable-person standard is an objective standard that does not change with the defendant’s subjective state of mind. Id.
After ascertaining the status of Carter’s arrest warrant, Officer Rolland told Carter that he was free to leave. Carter argues, however, that when Rolland asked to search his person for drugs, a reasonable person in a similar situation would not have felt free to leave. But Carter’s testimony, although ambiguous, indicates that his own subjective state of mind does not entirely support his argument:
I felt, yeah, that I could leave because she told me I was free to go. But I still wanted to straighten it out with her. And I knew that she wasn’t going to let me just walk away and she just accused me that I had drugs on me. So during that time, I pulled down my hands in my pockets, showed her I don’t have any drugs on me. You said I was free to go, so can I go?
Carter contends that because he knew that Rolland would not let him “just walk away” after accusing him of possessing drugs, he was not free to leave. See In re Welfare of E.D.J., 502 N.W.2d 779, 780 (Minn. 1993) (holding that seizure occurred when police ordered suspect to stop because a reasonable person under similar circumstances would have concluded that he or she was not free to leave). We disagree.
Officer Rolland asked Carter’s permission to search his person for drugs; she did not order him to stay. Further, Carter testified that he felt he was free to leave after Rolland asked to search him but only stayed so that he could “straighten it out.” Because Rolland told Carter that he was free to leave and Carter testified that he felt that he was free to leave, we conclude that Carter was not seized. See generally United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980) (holding that a person is “seized” if under all the circumstances a reasonable person would have believed he was not free to leave).
Carter argues that the evidence seized and his admission to possession of a gun should have been suppressed as fruits of an unlawful seizure. See Cripps, 533 N.W.2d at 392 (applying general rule that evidence obtained after illegal seizure must be suppressed). But we have concluded that there was no unlawful seizure. We further note that Carter does not argue the voluntariness of either his consent to search or his admission to having a gun.