This opinion will be unpublished and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,
Mario Perez Jr.,
Filed July 30, 2002
Scott County District Court
File No. 0012877
Mike Hatch, Attorney General, Suite 500, 525 Park Ave., St. Paul, MN 55103; and
Thomas J. Harbinson, Scott County Attorney, Michael J. Groh, Assistant County Attorney, Scott County Government Center, 200 West Fourth Avenue, Shakopee, MN 55379 (for respondent)
John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, Suite 600, 2829 University Ave. SE, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Anderson, Judge.
U N P U B L I S H E D O P I N I O N
After the district court denied Mario Perez Jr.’s suppression motion, Perez entered a guilty plea to first-degree controlled substance crime, preserving his Fourth Amendment issues for appeal consistent with State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). On review of his Fourth Amendment claims, we conclude that the police impermissibly expanded the scope of the speeding stop to initiate investigation unrelated to the stop’s original purpose and unsupported by a reasonable, articulable suspicion of other illegal activity, and we reverse.
F A C T S
The Southwest Drug Task Force received information that Mario Perez Jr. was selling marijuana and cocaine out of his home. About one month later, on July 6, 2000, the task force received additional information from a confidential informant that Perez had cocaine in his possession. That same day, the task force confirmed that Perez owned a white Camero with orange stripes that was parked on the 300 block of Minnesota Street in Shakopee.
A task-force agent contacted the Shakopee Police Department and requested that they stop Perez when he drove the car from Minnesota Street. A Shakopee police sergeant instructed a patrol officer to follow the car until he developed a basis for a routine traffic stop and then notify the drug-task-force agents. The patrol officer was not provided any further information or specifically told that Perez might have drugs in his possession.
The patrol officer learned from surveillance that the Camero was leaving its location. The patrol officer followed the Camero and observed it traveling 40-45 mph in a 30-mph zone and then observed it traveling over 60 mph in a 50-mph zone. When the Camero turned into a driveway, the officer pulled in behind, activated the patrol car’s flashing lights, and parked about six to eight feet behind the Camero.
Perez got out of the car, and the officer told him to stop because he needed to talk to him about speeding. Perez walked toward the officer and apologized for speeding. According to the officer, Perez appeared to be nervous but readily cooperated. After the officer asked to see his driver’s license, Perez started toward his house to retrieve it. The officer told him he could not go into his house. The officer testified that he did not want Perez to leave his sight because the task force had asked him to detain Perez. He also testified that for safety reasons he would not let a suspect walk into his house to retrieve his license.
The officer asked Perez to step to the side of the squad car. Although he had not observed any bulge in Perez’s clothing or any suspicious conduct, the officer asked Perez “if he had anything in his pockets.” Perez said, “yes,” and pulled out a small bag of green, leafy substance about the size of a thumb, which he said was marijuana.
Two task-force agents arrived about this time. One of the agents estimated that they arrived within one minute of the initial stop. After further questioning, Perez told them that he had another bag of marijuana in the car, but none was found. The patrol officer and one of the agents did a pat-down search because of “that bag of marijuana” and found, in addition, a large amount of cash, a small bag of a white powder substance in Perez’s rear pocket and another in his sock. The white powder was later identified as cocaine.
The state charged Perez with first-degree controlled-substance crime. The district court denied Perez’s motion to suppress the cocaine as the product of an unlawful search, and Perez entered a guilty plea conditioned on his right to appeal the order denying suppression.
Detention of an individual during the stop of an automobile, even for a brief period, constitutes a “seizure” protected by the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809-10, 116 S. Ct. 1769, 1772 (1996) (citing Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1395 (1979)). The decision to stop or “seize” an automobile and its occupants is reasonable when police have probable cause or a particularized basis to believe a traffic violation has occurred. Whren, 517 U.S.at 810, 116 S. Ct. at 1772; see also State v. Smallwood, 594 N.W.2d 144, 155 (Minn. 1999) (limiting seizure to purposes for stop). When the police have an adequate basis to believe a driver has violated a traffic regulation, their subjective motivation for enforcing the traffic laws is not relevant to a Fourth Amendment analysis. Whren, 517 U.S.at 813, 116 S. Ct. at 1774.
Perez does not dispute that the patrol officer observed him exceed the speed limit or that the stop was relatively short in duration. Perez instead contends that the search that produced the cocaine was not reasonably related in scope to the purpose of the traffic stop and was therefore constitutionally unreasonable.
A routine traffic stop is analogous to a Terry stop. Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 3150 (1984). The detention following a Terry stop must be “sufficiently limited in scope and duration.” Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1326 (1983); see State v. Wiegand, 645 N.W.2d 125, 136 (Minn. 2002) (applying both federal and Minnesota constitutions to determine whether Terry stop was reasonable in scope and duration). With respect to duration, the detention should last “no longer than is necessary to effectuate the purpose of the stop.” Royer, 460 U.S. at 500, 103 S. Ct. at 1325. Likewise, the scope of the detention must be “carefully tailored to its underlying justification.” Id. at 498-500, 103 S. Ct. at 1324-25.
Investigative techniques—including the use of questioning—must be limited to the purpose of the stop. Id.; United States v. Barahona, 990 F.2d 412, 416 (8th Cir. 1993). This purpose may include a protective search for weapons. Wiegand, 645 N.W.2d at 136. If the detainee’s responses or other circumstances give rise to a reasonable, articulable suspicion of additional criminal activity within the time necessary to resolve the original purpose of the stop, an officer may broaden his inquiries and satisfy those suspicions. Id.
The state did not establish a reasonable relationship between the purpose of the stop—speeding—and the patrol officer’s question of whether Perez had anything in his pockets. The officer testified that he had no information about Perez that would indicate he had contraband in his pockets, and he saw nothing that caused him to suspect that Perez had anything illegal or dangerous in his pockets. An officer investigating a speeding violation may be justified in asking the driver to get out of the car, see Ohio v. Robinette, 519 U.S. 33, 38, 117 S. Ct. 417, 420-21 (1996); asking for a driver’s license and proof of insurance, see Delaware v. Prouse, 440 U.S. 648, 658-59, 99 S. Ct. 1391, 1399 (1979);asking to examine the vehicle VIN number, New York v. Class, 475 U.S. 106, 116, 106 S. Ct. 960, 967 (1986); and even asking about the intended destination of the driver and about the reason for speeding. Because the question about the content of Perez’s pockets was not reasonably related in scope to the circumstances which justified the interference in the first place—speeding—the resulting detention and inquiry were unreasonable.
Second, the undisputed evidence demonstrates that the officer had no reasonable, articulable suspicion that Perez was carrying a weapon or that other criminal activity was occurring that would justify expanding the scope of the speeding investigation. The officer was aware that the drug task force wanted him to develop a basis for a traffic stop of Perez, but he had no further information. The officer observed that Perez was nervous but stated that he was cooperative and nonthreatening. The officer specifically testified that he made no personal observation that would cause him to believe that Perez had or was in the process of committing any offense other than speeding. He stated that he was familiar with Perez from other contacts and had no reason to believe that he had a weapon, and he saw no bulge in Perez’s clothing that suggested he was concealing a weapon. Cf. Pennsylvania v. Mimms, 434 U.S. 106, 111-12, 98 S. Ct. 330, 334 (1977) (holding that noticeable bulge in jacket of detained motorist justified conducting limited search for weapons). Under these facts, the officer had no reasonable, articulable suspicion that Perez was armed and no reasonable, articulable suspicion of any additional criminal activity that would justify expanding the scope of the investigation by inquiring into the contents of Perez’s pockets.
We reject the state’s argument that the relatively short duration of the stop brings it within the requirements of reasonableness. Scope and duration are two separate concepts. Activities that exceed the scope of a stop are not made reasonable because they are short in duration. See Wiegand, 645 N.W.2d at 136-37 (recognizing that police did not exceed the duration of a traffic stop by using a drug-sniffing dog to detect contraband but holding the stop unconstitutional because police had no reasonable, articulable suspicion of criminal activity beyond burned-out headlight).
Investigative questioning for purposes unrelated to the stop should not be used for intimidation or fishing expeditions; such unrelated questioning seeks a potentially incriminating response and encourages deception. Pretextual traffic stops are evaluated on objective criteria, but they may not be transformed into impermissible questioning that is not tailored to the purpose of the stop or the protection of the officer. See, e.g., State v. Bell, 557 N.W.2d 603, 606 (Minn. App. 1996) (holding that officer exceeded scope of traffic stop for speeding when officer issued warning ticket, then requested and obtained consent to search defendant’s car with no particularized or objective basis for requesting the search), review denied (Minn. Mar. 18, 1997).
The officer’s question of whether Perez had anything in his pockets was beyond the scope of the stop and constitutionally impermissible. Thus, the marijuana discovered as a result of this questioning was the product of an invalid search. Because the marijuana provided the basis for the further search that produced the cocaine, that search was likewise invalid, and the cocaine must be suppressed.