This opinion will be unpublished and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

C8-01-1654

 

State of Minnesota,

Respondent,

 

vs.

 

Sin Yang, a/k/a Sim Yang,

Appellant.

 

Filed June 25, 2002

Affirmed

Hanson, Judge

 

Ramsey County District Court

File No. K7-01-1091

 

Mike Hatch, Attorney General, 525 Park Street, Suite 600, St. Paul, MN 55155-6102; and

 

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

 

John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge, Klaphake, Judge, and Hanson, Judge.

U N P U B L I S H E D  O P I N I O N

HANSON, Judge

Appellant challenges his conviction for being a felon in possession of a firearm, arguing that the evidence obtained when police officers seized him, following an investigative stop of the vehicle in which he was a passenger, should have been suppressed.  Appellant argues that (1) the officers did not have any reasonable suspicion directed at him as the passenger (2) they had no basis to detain him after they arrested the driver (3) they unlawfully seized him when they asked him to exit the car (4) they had no basis to frisk him or ask for his consent to a search (5) his consent to the search was not voluntary and (6) his post-arrest statements were the fruit of the illegal search.  We affirm.

FACTS

On March 20, 2001, 15 shots were fired at a home located at 741 Pierce Butler Route in St. Paul.  The police officers who investigated determined that appellant Sin Yang, a/k/a Sim Yang was one of the occupants at the home. 

At roll call the following evening, Officer James Halverson, one of the officers who had responded to the shooting, advised fellow officers of the situation he had observed at 741 Pierce Butler Route.  He told the officers the number of shots fired, that some of the residents had gang ties, that he believed the shooting was gang-related, and that he was concerned about the possibility of retaliation.

Later that evening, Officer Chad Degree observed a vehicle abruptly change its course, then fail to signal a turn.  Officer Degree pulled the driver over to investigate.  Yang was a passenger in the car.  When Officer Degree asked the driver for his insurance card, Officer Degree saw the owner’s address was 741 Pierce Butler Route.  Remembering that Officer Halverson had mentioned the address during roll call, Officer Degree ran a warrant and driver’s license check and called Officer Halverson to ask him to come by the stop.  Officer Thomas Reis also went to the scene to assist Officer Degree.

Officer Degree discovered that the driver had an outstanding felony juvenile warrant.  He also noticed that the car was a different color than the one described on the insurance card and suspected it might be stolen.  Officer Degree asked Officer Reis to check the car’s vehicle identification number to determine whether the car was stolen.  While Officer Reis did so, both the driver and Yang asked whether the police had discovered who was responsible for the shootings at 741 Pierce Butler Route, and the driver referred to it as “my house.”  Officer Reis was aware that the previous night’s shooting was thought to be gang-related and knew from his experience that gang members often carry guns.  He told Officer Degree he was concerned for his safety.

After Officer Degree arrested the driver on the outstanding warrant, Officer Reis asked Yang to exit the car.  Officer Reis asked Yang whether he had any drugs or weapons.  According to Officer Reis, Yang responded, “No, go ahead and check.”  When Officer Reis patted down Yang, he felt a gun.  Officer Degree removed the gun from Yang’s waistband.  When the officers arrested Yang for gross-misdemeanor possession of a firearm in a motor vehicle, they ran a record check and discovered that his name was Sin Yang and that he had prior felonies on his record. 

After his arrest, Yang spoke with the police on several occasions.  In the squad car on the way to police headquarters, Yang mentioned the previous day’s shooting to Officer Reis and said he had the gun for protection.  The following day, Sergeant Jane Laurence interviewed Yang after advising him of his Miranda rights.  During the interview, Yang told her he was associated with a gang, he resided at 741 Pierce Butler Route, he carried the gun for protection and had done so for two to three weeks although he knew he was ineligible to carry a firearm, and he was afraid of whomever did the shooting. 

Yang also spoke with Officer Mark Reding approximately 10 minutes after the interview with Sergeant Laurence had ended.  Officer Reding asked Yang whether he was still aware of the rights Sergeant Laurence had just read him and Yang answered affirmatively.  Officer Reding explained he wanted to talk about the previous night’s shooting and Yang told Officer Reding he did not want the conversation tape-recorded.  During the approximately 30-minute conversation that followed, Yang told Officer Reding that he thought the shooters were members of the 612 O.R.B. gang, he was afraid, and he wanted to keep the gun for protection.

Yang was charged with being an ineligible person in possession of a firearm, a violation of Minn. Stat. § 624.713, subds. 1(b), 2 (2000).  Yang moved to suppress the evidence obtained during the traffic stop and evidence of his post-arrest statements to officers.  After a contested omnibus hearing, the district court denied his motion.  Yang waived his right to a jury trial and his case was submitted on stipulated facts pursuant to the procedure authorized in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  The district court found Yang guilty as charged, ordered him to pay a $200 fine and sentenced him to 60 months in prison.  This appeal followed.  


D E C I S I O N


When reviewing a pretrial order denying a motion to suppress evidence, an appellate court “may independently review the facts and determine, as a matter of law, whether the district court erred in * * * not suppressing [] the evidence.”  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (citation omitted).

Yang does not dispute the validity of the initial stop.  Instead, he argues that because police officers had no articulable suspicion directed at Yang as the passenger, they could not justify detaining and seizing him and the district court erred by denying his motion to suppress the handgun obtained as a result of the unlawful detention and seizure. 

Detention

An investigatory detention “may not continue indefinitely but only as long as reasonably necessary to effectuate the purpose of the stop.”  State v. Bell, 557 N.W.2d 603, 606 (Minn. App. 1996) (quotation omitted), review denied (Minn. Mar. 18, 1997).  After the original suspicion justifying a stop is dispelled, a police officer may not continue to detain a person absent additional reasonable suspicion.  State v. Lopez, 631 N.W.2d 810, 814 (Minn. App. 2001), review denied (Minn. Sept. 25, 2001).

Under our facts, we conclude that the continued detention of Yang was justified for either of two reasons. 

First, it cannot be said that the purpose for the traffic stop ended when the driver was arrested.  Because the person who had previously been in control of the car was not going to be able to drive it away, police were faced with the question what to do with the car.  This question necessarily involved Yang, who continued to sit in the car.  Thus, the purpose for the traffic stop did not end until the car was ultimately towed away.

Second, even if the original purpose of the stop had been dispelled by the arrest the driver, police had uncovered additional facts that provided reasonable suspicion of criminal activity, sufficient to justify continuing the passenger’s detention.  See Lopez, 631 N.W.2d at 814.  Officer Degree suspected that the car might have been stolen when he noticed the discrepancy between the car’s actual color and the color noted on the insurance card.  He also discovered the car’s registered owner’s address was 741 Pierce Butler Route – the same address at which a shooting had occurred the previous evening.  While Officer Reis checked the vehicle’s identification number, both the driver and Yang asked whether the police had discovered who was responsible for the shootings at 741 Pierce Butler Route, and the driver referred to it as “my house.”  This provided the officers with reasonable suspicion that Yang had been one of the targets of a gang shooting and might be among those who would retaliate.

Seizure

The United States Supreme Court has stated that a police officer may remove a passenger from a stopped vehicle “pending completion of the stop” based in part on its recognition that the passenger may increase the risk to the officer.  Maryland v. Wilson, 519 U.S. 408, 414-15, 117 S. Ct. 882, 886 (1997) (cited in Starks v. City of Minneapolis, 6 F. Supp 2d 1084, 1088 (D. Minn. 1998) (stating that an officer was justified in asking the passenger to exit the vehicle where, after, making a proper traffic stop, the officer observed the passenger making furtive movements); Shane v. Comm’r of Pub. Safety, 587 N.W.2d 639, 642 (Minn. 1998) (noting that under Wilson, police officers’ removal of the passenger from the vehicle “pending completion of the stop” sufficiently protected the officers, under the circumstances).  The Supreme Court stated that such a seizure is legal because the interest of officer safety justifies the minimal intrusion into the passenger’s personal liberty interest.  Wilson, 519 U.S. at 413-15, 117 S. Ct. at 886.

We recognize that when Officer Degree asked Yang to exit the car, Yang was “seized” for purposes of the Fourth Amendment.  However, based on Wilson, the seizure was legal because the investigation regarding the car’s ownership status and the investigation into the driver and passenger’s relationship to the previous evening’s incident at 741 Pierce Butler Route was ongoing.  Moreover, Officer Reis’ request that Yang exit the car was justified by the officers’ need to remove Yang so the car could be towed.  Finally, the request was justified by concerns for officer safety. 

Frisk

When Yang exited the car, Officer Reis asked whether he had any weapons or drugs on him.  This question was appropriate for officer safety.  Officer Reis did not conduct a search until Yang had volunteered his consent to a search, stating “go ahead and check.”  The district court found Officer Reis’ testimony about Yang’s consent to be credible and that the consent was voluntary.  That finding was not clearly erroneous.

Yang argues that the search was illegal because he did not engage in any furtive actions or otherwise contribute to any circumstances that would cause the officers to believe he was armed.  That argument is irrelevant because the district court found that Yang consented to the search.  But even if Yang had not consented, Officer Reis was justified in making a limited pat-down search.

“[T]he right of officers to ‘frisk’ is not the automatic sequel of a valid stop.”  State v. Eggersgluess, 483 N.W.2d 94, 97 (Minn. App. 1992) (citation omitted).  Under the protective-frisk exception to the Fourth Amendment’s prohibition against warrantless searches, the

officer may conduct a limited protective weapons frisk of a lawfully stopped person if the officer reasonably believes that the suspect might be armed and dangerous and capable of immediately causing permanent harm. 

 

State v. Varnado, 582 N.W.2d 886, 889 (Minn. 1998) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884-85 (1968).  The district court found that Officer Reis had an objective, reasonable suspicion that Yang was armed and possibly dangerous when he searched him.  That finding was not clearly erroneous.

We conclude that the purpose for the stop continued after the driver’s arrest, Officer Reis’ request that Yang exit the vehicle was a valid seizure, and Yang’s consent, together with Officer Reis’ reasonable suspicion, justified the search of Yang.  Accordingly, the gun found on Yang was admissible in evidence.  Similarly, because Yang’s detention, seizure and search were lawful, his post-arrest statements to law-enforcement officials were also admissible.  The district court appropriately denied Yang’s motion to suppress this evidence.

Affirmed.