This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-01-1261

 

State of Minnesota,
Respondent,

vs.

Matthew Jaye Miller,
Appellant.

 

 

Filed February 5, 2002

Affirmed

Stoneburner, Judge

 

Hennepin County District Court

File No. 01002346

 

 

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

 

Amy Klobuchar, Hennepin County Attorney, Elizabeth V. Cutter, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

Mark D. Kelly, 400 Exchange Building, 26 East Exchange Street, St. Paul, MN 55101-2264 (for appellant)

 

 

††††††††††† Considered and decided by Stoneburner, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.

 

U N P U B L I S H E D† O P I N I O N

STONEBURNER, Judge

 

Appellant Matthew Jaye Miller challenges his convictions of first-degree controlled substance sale, first-degree controlled substance possession, and fourth-degree controlled substance possession arguing that the district court erred by denying his motion to suppress evidence.† Because we conclude that the arresting officer had reasonable and articulable suspicion to seize and search Miller, we affirm.

FACTS

Due to a number of armed robberies in the area, Brooklyn Center hotel managers requested additional police surveillance of their properties in January 2001.† While uniformed Brooklyn Center Police Officer Terrance Olson was on routine patrol in a marked squad car in an area that included the Extended StayAmericaís parking lot, he noticed the same van, over a period of four to five hours, parked in the lot, out of view of the front desk, with the engine running and a person in the passenger seat.† Olson testified that the van passenger ďpaid particular attentionĒ to Olsonís activity in the area.†

Deciding to investigate, Olson parked the squad car behind the van and approached the van.† He observed the passenger (Miller), with a bottle of window cleaner in his hand, talking on a cellular phone and apparently cleaning the dashboard or cup-holders.† Despite his earlier attention to Olson, Miller did not look at Olson until the officer knocked on the vanís window.† Miller ended the call and tried to roll the window down but was having difficulty.† Olson could see that Millerís hands were shaking and that he appeared to be very nervous.† Miller then had some difficulty unlatching the door but opened it partway.† Olson asked for identification and if Miller was staying in the hotel.† Miller said he had been staying at the hotel but could not remember his room number.† (He later recalled that he was staying in room 304.)† Miller said he was waiting for a friend who was visiting him at the hotel and who was washing dishes in Millerís room.†

Olson testified that Miller seemed unwilling to explain why he had been sitting in the van for several hours, and changed the subject when asked.† Miller repeatedly reached into his cargo-type pant pockets and reached beside the seat of the van several times despite Olsonís request that he not do so.† Olson testified that he feared Miller was reaching for a weapon, so he asked Miller to step out of the van and pat searched him.† The officer thought he felt a wallet in Millerís rear pocket.† Miller confirmed that the object was a wallet and Olson did not remove it.† In a right leg pocket, Olson felt a lumpy, uneven object that was large enough to contain a weapon.† Miller would not identify the object, so Olson removed the object, which turned out to be a pouch, opened it and found a razor knife, razors, four plastic bags and 22 tablets.† Three of the bags contained residue and one contained an off-white powdery substance that the officer believed to be either cocaine or methamphetamine.†

Olson arrested Miller.† Miller consented to a search of his room which revealed a bag containing methamphetamine, a portable camp stove, a one-gallon burner of acetone, a torch, and replacement cylinders for torches.† Three additional ounces of methamphetamine and a loaded pistol were found in a backpack in Millerís van.† A total of 107.77 grams of methamphetamine and 22 pills of MDMA (ecstasy) were seized.

The district court denied Millerís motion to suppress the evidence seized as the fruit of an illegal search and seizure.† The case was submitted to the court for trial on stipulated facts.† Miller was found guilty of all three charges and was sentenced.† This appeal followed.

D E C I S I O N

This court independently reviews the facts to determine, as a matter of law, whether a district court erred in failing to suppress evidence.† State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).† We give great deference to the district courtís determinations of witness credibility and the district courtís findings ďwill not be reversed on review unless clearly erroneous or contrary to law.Ē† State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992) (quotation omitted), affíd, 508 U.S. 366, 113 S. Ct. 2130 (1993).

Miller contends that he was seized without reasonable articulable suspicion when Olson parked his squad car behind the van because a reasonable person in Millerís circumstance would not believe he was free to leave or disregard police questions.† See State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995) (noting that a seizure occurs when ďa reasonable person would have believed that he or she was neither free to disregard the police questions nor free to terminate the encounterĒ).†

The state argues that there was not a seizure when the officer parked his squad car behind the van in which Miller was seated because the mere act of approaching and questioning a person who is sitting in a parked car is not a seizure.† See In re Welfare of E.D.J., 502 N.W.2d 779, 782 (Minn. 1993) (acknowledging that the act of approaching a person seated in a parked car and asking questions is not a seizure).

The district court, relying on State v. Reese, concluded that there was no seizure when the officer parked behind the van.† 388 N.W.2d 421, 422-23 (Minn. App. 1986) (holding officersí act of blocking a stopped, but running, vehicle in an intersection to investigate did ďnot present a seizure issueĒ because the vehicle was already stopped), review denied (Minn. Aug. 13, 1986).† The district court further concluded that the officer had a legally sufficient basis to conduct an investigatory stop.†

We agree with Miller that a reasonable person in his position would not feel free to avoid an encounter with the officer, but we agree with the district courtís conclusion that the officer had a legally sufficient basis to investigate.† As the district court noted, Millerís behavior was not only consistent with innocent activity.† And the supreme court has rejected the proposition that if observed facts are consistent with innocent activity, then a stop is invalid.† See State v. Combs, 398 N.W.2d 563, 564-66 (Minn. 1987) (holding that officers had legally sufficient basis to conduct investigatory stop of vehicle after it left a bar parking lot because officers had seen passenger drinking from a translucent plastic cup similar to type used in the bar).† ď[A]ll that is required is that the stop not be the product of mere whim, caprice, or idle curiosity.Ē† Id. at 566(quotations omitted).† Olson, an experienced officer, testified to his observations that led him to conclude that Millerís escalating behavior was consistent with the conduct of persons engaged in the distribution of controlled substances.† The district court found Olsonís testimony credible.† The stop was not the product of mere whim, caprice or idle curiosity.

Miller argues that the combination of blocking the vehicle from exiting and demanding identification and questioning him enhances the intrusiveness of the encounter and constitutes an illegal seizure.† Having determined that the officer had legally sufficient cause to investigate, we need not address this argument.

Miller also challenges the weapons frisk that led to the discovery of the drugs as beyond the scope of a frisk authorized by Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968).† Miller points out that he could have been searching for something other than a weapon when he reached into his pockets and beside the seat.† A limited pat frisk is justified when ďa reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.Ē† Id. at 27, 88 S. Ct. at 1883.† Olson articulated his concern that Miller could be reaching for a weapon, including the fact that he had directed Miller not to reach in his pockets or beside the seat and Miller continued to do so.† The frisk was limited to a search for weapons.† Olson did not remove Millerís wallet and only removed the pouch from Millerís pocket after noting by feel that it might contain a weapon and after Miller refused to identify it.† Miller argues that Olson had to set the pouch aside, out of Millerís reach, and could not look into it within the scope of the pat search.† We disagree.† Olson was not required to merely remove any items from Millerís reach without determining whether or not the item contained a weapon.† See Dickerson, 481 N.W.2d at 844 (noting that protective weapons search is permitted until officer is satisfied subject of search is not armed).†

The evidence seized from Miller, including that seized in the subsequent searches of his hotel room and van, was not the fruit of an illegal search or seizure.† The district court did not err by denying Millerís motion to suppress evidence.

Affirmed.