This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Wayne Thomas McGriff,
Dakota County District Court
File No. K301128
Karl E. Robinson, Winthrop & Weinstine, P.A., 3200 Minnesota World Trade Center, 30 East Seventh Street, St. Paul, MN 55101 (for appellant)
Mike A. Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
James C. Backstrom, Dakota County Attorney, Lawrence F. Clark, Assistant County Attorney, Helen R. Brosnahan, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)
Considered and decided by Minge, Presiding Judge, Stoneburner, Judge, and Mulally, Judge.
On appeal from a felony theft conviction, appellant Wayne McGriff argues that the police officer’s search of him was unconstitutional because (1) the police officer’s search was not incident to a lawful arrest; (2) the officer could not have had a reasonable suspicion that appellant was armed and dangerous, justifying a protective pat-down search; and (3) the officer’s search exceeded the lawful scope of a pat-down search. Because we find that the officer’s search was not incident to a lawful arrest, and because the officer exceeded the lawful scope of a pat-down search, we reverse.
The facts of this case are undisputed. On January 10, 2001, Burnsville Police Officer Christopher Juul attempted to apprehend an individual wanted on an outstanding warrant. Juul received information that the individual, Dwight McGriff, was present in room 105 of the Red Roof Inn in Burnsville. The individual was described as “a black male, approximately 20 years of age, with a medium build.” After driving his squad car to the motel, Juul observed the exterior of room 105, which was visible from outside the motel building. He saw people looking out of the window of the room. He then saw an individual exit room 105, whose appearance was “very close” to the description he had received for Dwight McGriff. The individual was not Dwight McGriff, but was instead his brother, appellant Wayne McGriff.
Juul approached appellant as he walked towards a car parked in front of room 105 and called him to the officer’s squad car. Juul testified that he believed appellant “to possibly be the suspect wanted on the warrant.” Juul asked appellant for his name, and he identified himself as Wayne McGriff. He also asked appellant for his identification, and appellant stated that the identification information was in his car. Appellant began to take steps toward the car and away from Juul. Juul told appellant to stop, but he again took steps backward, away from the officer. Juul testified that appellant was fidgety, nervous and began to look around, causing Juul to believe that he might flee. Juul said that he had to repeat his command that appellant stand still two or three times. On cross-examination, Juul testified that appellant made no furtive movements, such as reaching in his pockets, and that he was otherwise cooperative. At this point, a second officer came to assist Officer Juul.
Juul then performed a pat-down search of appellant, testifying that he did so because he was concerned for his safety. During the search, he discovered two wallets on appellant’s person, one in his front pocket, and one in his back pocket. On direct examination, Juul testified that he removed appellant’s wallet “in an attempt to identify him” and on cross-examination he stated that it was immediately apparent to him that the objects in appellant’s pockets were wallets. When he removed one of the wallets, he found that the identification it contained belonged to a person other than appellant. Juul later discovered that the wallet had been stolen a short time before his encounter with appellant.
Juul testified that he made two attempts to ascertain appellant’s identity by running a check on appellant’s name and birth date. First, soon after his initial contact with appellant, but before the pat search, Juul transmitted appellant’s name and birth date by radio. After a computer search, a dispatcher informed him that appellant’s information came back “not on file.” Although it is unclear when, at some point after Juul’s first attempt to verify appellant’s information by running a check, a second attempt was successful and appellant was correctly identified. Juul could not explain why the first attempt to determine appellant’s identity was unsuccessful. Although the record is not clear, at some point after Juul initially made contact with appellant, other officers arrived at the motel and located appellant’s brother, Dwight McGriff inside room 105.
On January 12, 2001, appellant was charged with theft and possession of stolen property. On April 11, 2001, at the omnibus hearing, Juul testified regarding the search and seizure of the wallet. On June 8, 2001, the district court issued an order denying appellant’s motion to suppress the wallet. On September 26, 2001, the district court found appellant guilty of theft and appellant preserved the issue of the seizure of the wallet for appeal. He now appeals.
“When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (citation omitted).
Appellant contends that the officer’s search violated his rights under the United States and Minnesota Constitutions. The Fourth Amendment to the United States Constitution and Article I of the Minnesota Constitution prohibit unreasonable searches and seizures of “persons, houses, papers and effects.” U.S. Const. amend. IV; Minn. Const. art. I., § 10.
Appellant first argues that the search was not justified as one incident to a lawful arrest. Warrantless searches are per se unreasonable, subject only to a few narrow exceptions. Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S. Ct. 2130, 2135 (1993). One of those exceptions is a search of an individual’s person incident to a lawful arrest, which allows an officer to ensure that an officer removes weapons an arrestee may access. State v. Robb, 605 N.W.2d 96, 100 (Minn. 2000) (citing Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 2040 (1969)).
Appellant argues that Juul was not justified in conducting a search incident to a lawful arrest, because he did not have probable cause to arrest appellant based on the warrant for his brother. The parties do not dispute that the outstanding arrest warrant for Dwight McGriff supplied probable cause to arrest a person carrying that identification. However, appellant contends that Juul could hot have reasonably mistaken him for Dwight McGriff. The arrest of a person who the police mistakenly believe is someone else is constitutional if the arresting officer (1) has probable cause to arrest the person sought; and (2) reasonably mistakes the person arrested for the person sought. Hill v. California, 401 U.S. 797, 802, 91 S. Ct. 1106, 1110 (1971).
In Hill, police officers went to an apartment looking for Archie Hill, a suspect in a robbery. Id. at 799, 91 S. Ct. at 1108 (1971). A person who was not Hill but matched the description of him answered the door, and the officers arrested him. Id. The person who answered the door produced identification proving that he was Miller, not Hill, but the police searched the apartment anyway. Id. The Court ruled that because the police had probable cause to arrest Hill and had “a reasonable, good faith belief that the arrestee Miller was in fact Hill” the arrest of Miller was a valid arrest. Id. at 802, 91 S. Ct. at 1110. Ultimately, the Court held that because the arrest of Miller was valid, the search of the apartment was also valid. Id. at 804, 91 S. Ct. at 1111.
Appellant contends that the description provided for Dwight McGriff—“a black male, approximately 20 years of age with a medium build”—was too vague and general to support Juul’s mistake of identity. Appellant points to two Minnesota Supreme Court decisions that address this issue. In State v. Frazier, 318 N.W.2d 42, 43 (Minn. 1982), officers mistakenly believed that Eartha Mae Frazier was Terri Norman, for whom they had an arrest warrant. They detained Frazier in a squad car after spotting her outside a bar that Norman was known to frequent. Id. Frazier and Norman were significantly different in appearance. Frazier was shorter and heavier, twice as old and had two prominent scars on her face. Id. at 44. After Frazier denied that she was Norman, officers asked Frazier whether she had identification. Id. She responded that she did, and that it was in her wallet, which was in her purse. Id. Without consent, an officer searched her purse and discovered a gun. Id. In ruling that the arrest was illegal, the court relied on Hill v. California, holding that the officers could not have reasonably believed that Frazier was Norman. Id. at 43-44.
Appellant also cites State v. Sanders, 339 N.W.2d 557 (Minn. 1983) where officers mistakenly stopped Wilson Sanders, believing he was Ronald French, whom they had probable cause to arrest. When Sanders tossed away bindles of cocaine, he was arrested. Id. at 559. The court held that the officer reasonably believed that Sanders was French because both individuals were black and both had a similar facial structure. Id. at 560. The court also held that the officer reasonably believed that French had a grey streak in his hair and that he would be driving a Cadillac, two characteristics attributable to Sanders. Id.
We hold that the officer’s search of appellant was not incident to a lawful arrest. It was not reasonable for Juul to mistake appellant for his brother. The description given for Dwight McGriff was vague at best. As in Frazier, appellant’s presence in the same place as Dwight McGriff was known to be was not enough for Juul to believe he was in fact Dwight McGriff. Unlike Sanders, Juul did not have information about specific characteristics upon which he could base his mistake of identity. Considering that appellant gave the officer a name, and that he told the officer his identification information was in the nearby car, we do not feel that the officer could have reasonably believed that he was dealing with Dwight McGriff without first checking appellant’s identification or having the second officer do so. We also do not believe there was probable cause to arrest appellant for giving a false name. Again, considering that respondent told the officer that his identification was in the car, it was not reasonable to instead rely on a radio transmission of appellant’s information in order to determine his identity. Appellant should not bear the risk of a faulty computer search. Without probable cause to arrest appellant, we find that the officer was not justified in searching him incident to arrest.
Appellant next contends that the pat-down search performed by Juul was unjustified because he could not have formed a reasonable suspicion that appellant was armed and dangerous. However, even if appellant’s nervousness justified the officer in forming a reasonable suspicion that appellant was armed and dangerous, we find that appellant’s Fourth Amendment rights were violated when the officer exceeded the legal scope of a pat-down search.
If, during a protective pat-down search, an officer locates what he immediately and without further manipulation has probable cause to believe is evidence of a crime, then the officer may legally seize that evidence. Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S. Ct. 2130, 2136-37 (1993). If, however, during the search the officer feels an object that he knows is not a weapon, a further search is not authorized. Id. at 378, 113 S. Ct. 2138-39. Contraband may be seized if an officer “lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent.” Id. at 376-77, 113 S. Ct. at 2137. Officer Juul’s testimony demonstrates that he removed the wallet “in an attempt to identify” appellant, not because he thought it was a weapon or contraband. We thus conclude that the officer exceeded the lawful scope of a Terry search by removing the wallet from appellant’s pocket and reverse his conviction.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.