This opinion will be unpublished and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,
Jacob Daniel Kalkbrenner,
Filed July 30, 2002
McLeod County District Court
File No. K901176
Mike Hatch, Attorney General, Suite 500, 525 Park Avenue, St. Paul, MN 55103; and
Michael K. Junge, McLeod County Attorney, Mark A. Metz, Assistant County Attorney, Suite 214, 830 East Eleventh Street, Glencoe, MN 55336 (for respondent)
Barry V. Voss, Voss & Hickman, P.A., Suite 2355, 527 Marquette Avenue, Minneapolis, MN 55402 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
The district court denied Jacob Kalkbrenner’s pretrial motion to suppress methamphetamine discovered on his person during a traffic stop. Kalkbrenner waived his right to a jury trial and, preserving his Fourth Amendment issues for appeal, submitted the case to the district court on stipulated facts, consistent with the procedures outlined in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). Kalkbrenner appeals his conviction for second-degree controlled-substance crime, arguing that the search that produced the methamphetamine unconstitutionally exceeded the purpose for the stop, was unjustified as a weapons search, and was not supported by probable cause. We conclude that the search was consistent with constitutional requirements and affirm.
F A C T S
A Hutchinson police officer, on general patrol about midnight on a Sunday night-Monday morning in February, met and passed a van that tapped its brakes several times and then turned into the driveway of a house associated with drug trafficking. The officer had personally participated in arrests that involved drugs that traced back to the house and had personally observed a high volume of short term traffic at the house in the preceding week. As the officer positioned his vehicle near the house to observe the van, he saw it back out of the driveway and followed it.
The officer saw the driver making movements toward the passenger seat; the driver appeared to be fidgeting with something on his right side near the seat-belt buckle. As the officer continued to follow the van, it turned from the main traffic lane, failing to use the turning lane. The officer pulled the van over and spoke with Kalkbrenner, the driver. The stop and subsequent events were videotaped on the squad’s camera.
The officer told Kalkbrenner that he had observed him making an illegal turn and then said that he had noticed that Kalkbrenner was “digging for [something] beside his seat.” Kalkbrenner responded that he was searching for his cell phone. Kalkbrenner was unable to produce a driver’s license or any identification. He explained that he had lost his wallet two weeks ago, but then indicated he was unsure when he had lost it. The officer testified that Kalkbrenner appeared nervous and uncertain during this exchange and that his eyes were bloodshot.
The officer ran Kalkbrenner’s name and date of birth on the squad’s computer and determined that Kalkbrenner had a valid license. Upon returning to Kalkbrenner’s van, the officer asked Kalkbrenner whether he had any drugs in the van. Kalkbrenner responded, “No, sir.” Kalkbrenner began explaining that the reason that he had been moving around in the van was because he had not had his seatbelt on and was trying to put it on. The officer said that the van had drifted to the side of the road when he was reaching to the right and asked if he had stuffed anything inside his seat. Kalkbrenner said, “No,” and the officer asked if he would mind if he took a look inside the van. Kalkbrenner replied, “Yeah, go ahead.”
The officer asked Kalkbrenner to step out of the van. As he stepped out, he immediately reached down and pinched or moved something in his pants, just below the waistline. The officer observed a bulge inside the front of Kalkbrenner’s pants, near the waistline. Kalkbrenner pulled his jacket down, attempting to cover the front of his pants and put his hands in his pockets. The officer asked Kalkbrenner to take his hands out of his pockets. Kalkbrenner complied but then immediately put his right hand back in his pocket and began to dig around. The officer ordered Kalkbrenner to put his hands on the car, and he complied.
The officer reached into Kalkbrenner’s right pocket and ran his hand across Kalkbrenner’s groin area. He again saw the lump in the lower left abdomen. The officer shook Kalkbrenner’s pants to dislodge the lump. The officer asked Kalkbrenner to walk back to the squad car. As Kalkbrenner walked very stiffly toward the squad, a baggie fell from his left pant leg onto the ground. The baggie contained four separate baggies each containing a substance later determined to be methamphetamine with a total weight of more than 11 grams.
In this appeal Kalkbrenner claims that the officer’s seizure of the drugs was unconstitutional because (1) the search impermissibly exceeded the purpose of the traffic stop, (2) Kalkbrenner’s consent to the search of his van that preceded his getting out of the van was not voluntary, and (3) the search of his person was unjustified as a weapons search and unsupported by probable cause.
D E C I S I O N
In reviewing a district court’s ruling on Fourth Amendment issues based on undisputed facts, we independently determine whether the evidence must be suppressed. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).
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). The decision to stop or “seize” an automobile and its occupants is reasonable when police have a particularized basis for suspecting criminal activity or a reasonable belief that a traffic violation has occurred. Id. at 810, 116 S. Ct. at 1772. Kalkbrenner does not dispute that the officer observed him make an improper turn and, thus, had a constitutionally valid basis for stopping his van. Kalkbrenner argues, instead, that the officer’s continued detention, after determining that his license was valid, exceeded the permissible scope of the stop and violated his Fourth Amendment rights.
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. Reasonable suspicion requires that the officer “be able to articulate something more than an inchoate and unparticularized suspicion or hunch.” United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585 (1989) (quotation omitted).
Viewing the totality of the circumstances, we conclude that the officer had a reasonable, articulable suspicion of additional criminal activity—that Kalkbrenner had drugs in the van—and the further inquiry was reasonably related to that suspicion. See id. at 8, 109 S. Ct. at 1585 (stating that reasonable suspicion is determined by looking at totality of circumstances). The officer knew that Kalkbrenner’s car had just left a house in which drug trafficking had been detected; the car had been at the house for only a short time period; it was near midnight on a Sunday night-Monday morning in February; Kalkbrenner had no driver’s license or identification with him; Kalkbrenner had been moving around in the front seat while driving and had made movements toward the right side of the car; Kalkbrenner’s eyes were bloodshot and he was unusually nervous; and Kalkbrenner had, within a short timeframe, provided inconsistent explanations of these movements that the officer compared to those of a person stuffing something in or around his seat. See State v. Martinson, 581 N.W.2d 846, 852 (Minn. 1998) (explaining that “innocent factors,” viewed in their totality and combined with investigating officer’s experience, can be sufficient bases for finding reasonable suspicion).
At the suppression hearing in the district court, Kalkbrenner did not specifically challenge whether his consent to search the van was voluntary. This issue is not central to our constitutional inquiry because the methamphetamine was discovered on Kalkbrenner’s person, not in the van. Kalkbrenner apparently ties this argument to the request that he get out of the van. Further, an officer investigating a traffic violation may be justified in asking the driver to get out of the vehicle. Ohio v. Robinette, 519 U.S. 33, 38, 117 S. Ct. 417, 420-21 (1996); State v. Varnado, 582 N.W.2d 886, 891 (Minn. 1998). But because the officer’s request to look inside the van was part of the sequence that led to Kalkbrenner stepping out of the van and also extended the detention, we address the issue of whether the consent was voluntary.
The state has the burden to prove that defendant’s consent was given freely and voluntarily. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 1791-92 (1968). The voluntary nature of consent is a question of fact to be determined from a totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 226-27, 93 S. Ct. 2041, 2047 (1973). “Mere acquiescence on a claim of police authority or submission in the face of force is * * * not enough.” State v. Howard, 373 N.W.2d 596, 599 (Minn. 1985). But “involuntariness of a consent to a police request is not to be inferred simply because the circumstances of the encounter are uncomfortable for the person.” State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994). A district court’s finding of consent will only be reversed if it is clearly erroneous. State v. Hummel, 483 N.W.2d 68, 73 (Minn. 1992).
The district court found that Kalkbrenner’s consent to search his car was voluntary because the officer asked for permission only once, did not ask in a coercive manner, and had only detained Kalkbrenner for a short period when he consented to the search. Kalkbrenner contends that he was coerced into giving consent because an objectively reasonable person in his situation would not have believed he was free to disregard the officer’s questions. Kalkbrenner supports his argument by stating that he was never told he was free to leave, backup police officers had arrived to assist, and the officer’s squad lights were flashing.
In addition to those factors listed by the district court, reviewing courts also look to evidence of the tone of the officer’s questioning, the certainty or lack of certainty in the response to the request, whether the person responding was aware that he was free to refuse, whether the police had reasonable suspicion of criminal activity, whether continued seizure was lawful, and the location of the person when giving consent. Dezso, 512 N.W.2d at 880-81.
The application of these factors to the facts of this case further supports the district court’s determination that the consent was voluntary. The officer’s testimony and the videotape confirm that the officer did not use coercive or threatening language; he had a reasonable suspicion that Kalkbrenner had drugs in the van; and Kalkbrenner’s response, “Yeah, go ahead,” was immediate and certain. Although the officer did not inform Kalkbrenner that he had the right to refuse consent, this notification is not required. See Robinette, 519 U.S. at 39-40, 117 S. Ct. at 421 (stating that it is constitutionally unnecessary and generally impracticable to advise of right to refuse consent); Dezso, 512 N.W.2d at 881 (same). Finally, the backup officers had no contact with Kalkbrenner during the questioning, and Kalkbrenner was in his own van and not in the squad car when he gave his consent. The record supports the district court’s determination that Kalkbrenner’s consent to search the van was voluntary.
Warrantless searches are per se unreasonable, subject to “specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967). Two exceptions to the warrant requirement apply to this analysis—the limited frisk for weapons and the search incident to arrest. An officer may conduct a limited weapons frisk of a lawfully stopped person if the officer reasonably believes that the suspect may be armed, dangerous, and capable of causing present harm. Terry v. Ohio,392 U.S. 1, 24, 88 S. Ct. 1868, 1881 (1968). And an officer who has probable cause to arrest a suspect may conduct a search incident to an arrest. In re Welfare of G.M., 560 N.W.2d 687, 695 (Minn. 1997) (citing Rawlings v. Kentucky,448 U.S. 98, 110-111, 100 S. Ct. 2556, 2564 (1980) as permitting search either before or after formal arrest so long as probable cause exists).
The officer testified that when he observed the lump in Kalkbrenner’s clothing he suspected that it was drugs or a weapon. He further testified that he became concerned for his safety when Kalkbrenner put his hands in his pockets, and despite instructions to the contrary, returned them to his pockets. The officer acknowledged, however, that he reached directly into Kalkbrenner’s pockets and did not limit himself to a careful, search of Kalkbrenner’s outer clothing. See Terry, 392 U.S. at 30, 88 S. Ct. at 1884-85, (stating that the stop-and-frisk is “a carefully limited search of the outer clothing * * * in an attempt to discover weapons which might be used to assault [the officer]”); see also Sibron v. New York, 392 U.S. 40, 65, 88 S. Ct. 1889, 1904 (1968) (stating that a valid Terry frisk consists “solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault”).
The district court found that, at the time the officer placed his hand in Kalkbrenner’s pocket, he had probable cause to arrest for possession of drugs, and therefore the search was constitutionally valid as incident to an arrest. We agree with the district court’s analysis.
Probable cause to arrest exists when police reasonably could have believed that the person arrested has committed a crime. State v. Walker, 584 N.W.2d 763, 766-67 (Minn. 1998). This reasonable belief may be drawn from known facts and circumstances that are sufficient to warrant a belief by a person of reasonable prudence that the suspect possesses contraband. Id. This court reviews de novo the determination of “probable cause as it relates to warrantless searches.” G.M., 560 N.W.2d at 690.
The combination of facts that formed a basis for the officer’s reasonable suspicion that Kalkbrenner possessed illegal drugs included all of the facts that were available to the officer in extending Kalkbrenner’s detention: that Kalkbrenner’s car had just left a house where the officer personally knew that drug trafficking occurred and where he had noticed a high volume of short visits to the house in the preceding week; Kalkbrenner’s car was at the house for only a short time; it was near midnight on a snowy Sunday night-Monday morning in February when slippery streets would deter many drivers; Kalkbrenner had no driver’s license or identification; Kalkbrenner had been moving around in the front seat while driving and had made furtive movements toward the right side of the car; Kalkbrenner had turned from the main-traveled part of the road without using the turning lane; his eyes were bloodshot and he was unusually nervous; and he had, within a short timeframe, provided inconsistent explanations of his movements in the front seat of the car, movements which the officer observed to be similar to those of a person stuffing something in or around his seat. The officer also knew that Kalkbrenner had a large lump in the front of his pants, had attempted to cover the lump by pulling his coat over the top of his pants, had returned his hands to his pockets after being told not to and was moving his hands around within his pockets, and attempted to explain the lump as part of his anatomy even though the explanation was not credible. These facts support the officer’s formation of a strong suspicion that a crime had been committed. Furthermore, the officer testified that narcotics officers have warned him that people with illegal drugs often hide them in their pants (referred to as “crotching the drugs”) in the hope that a police officer will not thoroughly search a sensitive area.
On these facts, we agree with the district court that the totality of the circumstances provided probable cause for the officer to believe that a crime had been committed. See State v. Cornell, 491 N.W.2d 668, 672 (Minn. App. 1992) (upholding against a Fourth Amendment challenge the search of a bulge in suspect’s pants after suspect made furtive, unexplained gestures with respect to the bulge, had glossy eyes, and could not provide a believable explanation for the bulge). We affirm Kalkbrenner’s conviction for second-degree possession of a controlled substance in violation of Minn. Stat. § 152.022, subd. 2(2) (2000).