This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Andrew Scheidel,



Filed August 20, 2002


Kalitowski, Judge


St. Louis County District Court

File No. T101607970


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


Bryan F. Brown, City Attorney, Mary E. Asmus, Assistant City Attorney, 410 City Hall, Duluth, MN 55802 (for respondent)


Patrick Dinneen, Johnson & Morris, LLP, Wells Fargo Bank Building, Suite 103, Silver Bay, MN 55614 (for appellant)


            Considered and decided by Anderson, Presiding Judge, Lansing, Judge, and Kalitowski, 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 small amount of marijuana, arguing that (1) the district court did not make sufficient findings to support its conclusion that appellant consented to a weapons patdown after appellant was stopped for walking with an open container of beer; (2) the state failed to establish that the substance he possessed was marijuana; (3) the evidence against him should have been suppressed because he was not given a Miranda warning; and (4) the district court erred in applying the plain feel doctrine.  Because we conclude the officer exceeded the scope of the consensual weapons patdown, we reverse. 


            “The [district] court’s factual findings are subject to a clearly erroneous standard of review[.]”  State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996) (citation omitted), review denied (Minn. Nov. 20, 1996).  Appellant contends that the district court’s determination that appellant “willingly and knowingly consented” to a patdown is not supported by findings or evidence. 

The voluntariness of giving consent to a search is to be determined by the totality of the circumstances.  State v. Dezso, 512 NW.2d 877, 880 (Minn. 1994).  Consent is involuntary when an encounter becomes coercive and a suspect loses the right to say no to a search due to a show of official authority.  Id.  For example, merely acquiescing to a claim of police authority or submitting in the face of force is not sufficient.  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.”  Dezso, 512 N.W.2d at 880.

Here, the district court found that an officer asked appellant if the officers could conduct a brief patdown for weapons, and appellant “willfully and knowingly consented to this search.”  One of the officers present that evening gave testimony supporting this finding.  That officer testified that appellant consented to the search by saying, “Sure, yes, go ahead[.]”

The totality of the facts surrounding appellant’s encounter with the police raises a question as to whether appellant freely consented to a patdown or whether he was merely submitting to a show of official authority.  But we do not base our decision on this ground.  Even assuming appellant freely consented to a weapons patdown, we conclude the officer’s actions exceeded the scope of the patdown and thus violated appellant’s Fourth Amendment rights.

The purpose of a weapons patdown is to alleviate the officer’s fear of violence, not to discover evidence of crime.  Minnesota v. Dickerson, 508 U.S. 366, 373, 113. S. Ct. 2130, 2136 (1993).  If an officer exceeds the scope of what is necessary to determine if a suspect is armed, the search is no longer valid, and its fruits will be suppressed.  Id.  Although an officer can seize an object if he can immediately identify it as contraband during the scope of his protective weapons patdown, id. at 377, 113. S. Ct. at 2137, when an officer searches a suspect for a weapon, and the officer continues to search the suspect’s pocket after determining that it contains no weapon, the search becomes invalid and violates a suspect’s Fourth Amendment rights.  Id. at 378, 113 S. Ct. at 2138-39.

Here, we conclude the officer exceeded the scope of a weapons patdown by reaching into appellant’s pocket and pulling out a small cylindrical object that turned out to be an item of drug paraphernalia known as a “one-hitter.”  We base this conclusion on the totality of the circumstances, which include:  (1) the absence of any evidence that the officers had a basis to suspect appellant of possessing a weapon or drugs; and (2) the fact that because of its small size the item seized from appellant’s pocket was obviously not a weapon.  Assuming a properly conducted weapons patdown, the officer would have no basis to conclude that the small common-shaped item in appellant’s pocket was contraband.  Therefore, the officer’s seizure was improper, and the small amount of marijuana subsequently seized must be suppressed.  Without this evidence, appellant’s conviction cannot stand. 

Because we reverse appellant’s conviction on the ground that the officer’s search of appellant exceeded the scope of a weapons patdown, we need not address the other issues raised in this appeal.