This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Kevin Patrick Tri,
Filed January 28, 2003
Reversed and remanded
Olmsted County District Court
File No. K3013351
Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and
Raymond F. Schmitz, Olmsted County Attorney, Scott A. Buhler, Assistant County Attorney, Government Center, 151 Fourth Street Southeast, Rochester, MN 55904-3710 (for appellant)
Duane A. Kennedy, Suite #3, 724 First Avenue Southwest, Rochester, MN 55902 (for respondent)
Considered and decided by Shumaker, Presiding Judge, Lansing, Judge, and Minge, Judge.
U N P U B L I S H E D O P I N I O N
The state appeals the district court’s suppression of evidence obtained through investigative questioning following a routine traffic stop and the court’s subsequent dismissal of charges. Because the evidence shows that the questioning was based on a reasonable, articulable suspicion of criminal activity, we reverse and remand.
F A C T S
Kevin Tri was charged with fifth-degree controlled-substance crime and speeding following a routine traffic stop. The evidence supporting the controlled-substance charge consisted of 13.2 ounces of marijuana that Tri surrendered to a sheriff’s deputy during questioning about drugs and weapons at the conclusion of the traffic stop. The district court granted Tri’s motion to suppress the marijuana on the grounds that the deputy detained Tri beyond the time necessary to investigate the speeding violation without a reasonable, articulable suspicion of wrongdoing. As part of the suppression order, the district court also granted Tri’s motion to dismiss the charges.
The traffic stop was based on an Olmsted County deputy’s observation that Tri’s vehicle was traveling at a high rate of speed. At the suppression hearing, the deputy testified that while explaining to Tri the reason for the stop he noticed a box of baggies on the floor of the passenger’s side of the car and a soft-drink carton on the rear floor. The deputy testified that during this time Tri would not look at him, that he kept his head down, and that he was wringing his hands. After Tri told the deputy that he did not have his driver’s license or other form of identification with him, the deputy asked Tri to step out of the car and write his name on the deputy’s notepad. Tri complied, but took “a long time” to write his name and date of birth, such that the deputy “didn’t know if he was giving * * * the right name or not.” During this time the deputy also observed that Tri was “obviously shaking” and that “[h]is hand was quivering.” By the time Tri had finished writing his name, he was “visibly shaking” and “it seemed like he would get more and more shaky and his whole body started to kind of go into the whole thing.”
Tri waited in his car while the deputy ran a records check. The check confirmed that Kevin Tri was licensed, that the car was registered to Tri, and that Tri had no outstanding warrants. Police records also provided a physical description that matched Tri’s appearance. The deputy testified that he therefore decided to issue Tri a warning for speeding.
The deputy described the next phase of the traffic stop as follows:
[A]s I started to walk back up * * * it felt odd to me why he was getting so nervous. I thought he was giving me a false name initially, something seemed more than what was up at this point.
And then trying to put that plastic bags together too, maybe I was thinking he could have narcotics in the vehicle. He was being the owner or transporter or something.
* * * *
I [then] walked back up to the driver’s side door of the vehicle and I told Mr. Tri I’m going to give him a warning for speeding.
While I’m looking at Mr. Tri, he continued to not look at me and he kept his head down. I don’t think at one time during the entire stop he actually looked up and looked at me, using his face. * * * He was visibly shaking, his hands were, at least.
On cross-examination, the deputy testified to the unusual nature of Tri’s behavior:
It’s not the norm for a person at a traffic stop, * * * regardless if they’re mad, they’re happy, they’re indifferent when you stop them at a traffic stop most of the time that attitude when they make contact with law enforcement will change and they’ll settle down and they’ll feel more comfortable with you. This was just the opposite. His demeanor and everything just kept getting more exaggerated * * * .
After warning Tri on the speeding violation, the deputy asked him whether he had any weapons or narcotics in his car. Tri stated that he did not. After the deputy next asked whether he could search the car, Tri replied, “I need to get home, I’m kind of in a hurry.” The deputy then said, “So, you do have narcotics in your vehicle, don’t you,” to which Tri replied, “Yes, I do, sir” and handed the deputy the soft-drink box. Inside the box were two plastic bags containing marijuana.
In suppressing the marijuana, the district court concluded that the deputy detained Tri beyond the time necessary to investigate the speeding offense and that Tri’s nervousness and the presence of the box of baggies did not provide the deputy with the reasonable, articulable suspicion of criminal activity necessary to justify that detention. The state now challenges the exclusion of the marijuana and the district court’s subsequent dismissal of the speeding charge.
D E C I S I O N
This court will reverse a pretrial suppression of evidence only if the state demonstrates clearly and unequivocally that the district court has erred in its judgment and that the error will critically impact the outcome of the trial. State v. Paul, 548 N.W.2d 260, 263-64 (Minn. 1996). Because the controlled-substance charge was dismissed based on the suppression, the critical-impact element is not at issue.
When the facts are undisputed, “the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.” State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992) (citation omitted). Law enforcement may continue a detention “as long as the reasonable suspicion for the detention remains * * * provided they act diligently and reasonably.” State v. Smallwood, 594 N.W.2d 144, 155 (Minn. 1999) (quotation omitted). Reasonable suspicion is determined from the totality of the circumstances. State v. Lande, 350 N.W.2d 355, 357-58 (Minn. 1984). If police continue a detention without reasonable suspicion of wrongdoing, any fruit of the detention must be suppressed. See In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1993).
The state argues that the district court erred in concluding that the deputy’s questioning of Tri about drugs and weapons constituted a separate Fourth Amendment intrusion requiring independent reasonable suspicion. Because we conclude that the post-warning questioning was founded on a reasonable, articulable suspicion that Tri was engaged in drug-related criminal activity, we need not consider whether the probable cause underlying the initial traffic stop justified the questioning.
Three factors provided the deputy with sufficient reasonable suspicion to detain Tri for further investigative questioning. First, Tri exhibited a degree of nervousness that was markedly disproportionate to the seriousness of the traffic offense. The deputy testified that Tri was visibly shaking, that he avoided all eye contact, that he sat in his car with his head bowed, and that he spoke very softly. The deputy also observed that Tri’s outward manifestations of nervousness intensified throughout the stop, whereas normally an individual becomes more relaxed during a police encounter. An officer’s perception of nervousness may contribute to reasonable suspicion. State v. Tomaino, 627 N.W.2d 338, 341 (Minn. App. 2001). Extreme and continued nervousness “is entitled to somewhat more weight.” United States v. Williams, 271 F.3d 1262, 1268 (10th Cir. 2001) (quotation omitted).
Second, the deputy also observed a box of baggies on the floor of the car—bags that, according to his testimony, the deputy knew from training and experience to be commonly used in marijuana distribution. Possession of items used in drug trafficking may contribute to a reasonable suspicion. See, e.g., State v. Harris, 590 N.W.2d 90, 104 (Minn. 1999) (finding that a bus passenger’s extreme nervousness, his possession of plastic bindles used to package cocaine, his attempt to hide his arm from view, and a large bulge in his sleeve provided reasonable, articulable suspicion warranting a frisk); State v. Munoz, 385 N.W.2d 373, 376 (Minn. App. 1986) (finding probable cause to search a car based on officer’s observation of glassine envelopes inside the car, information provided by an informant, officer’s personal knowledge regarding the suspect, and the suspect’s furtive movements).
Finally, Tri’s behavior when asked to write his name also contributed to a reasonable suspicion. The deputy testified that Tri was not only shaking when he began to write, but that he also took “a long time” and “it seemed like he was actually thinking about it.” This hesitance led the deputy to suspect that Tri was not providing his real name. Coupled with Tri’s claim that he had no identification, this behavior suggests an evasiveness that may be considered by police to justify investigative inquiry. See State v. Johnson, 444 N.W.2d 824, 826-27 (Minn. 1989).
Therefore, under the totality of the circumstances, we conclude that the deputy had reasonable grounds for suspecting Tri of drug-related criminal activity based on Tri’s extreme nervousness, his evasive behavior when asked to write his name, and the box of baggies in his car. The district court accordingly erred in suppressing the marijuana.
The state also contends that the district court erred in dismissing the speeding charge. Specifically, the state argues that because the facts necessary to establish the speeding offense were known to the deputy prior to the alleged violation of Tri’s constitutional rights, suppression of the marijuana should not have resulted in dismissal of the speeding charge.
A district court may, at its discretion, dismiss a complaint in the furtherance of justice. Minn. Stat. § 631.21 (2000). In this context, we note that the deputy initially determined that a warning was the appropriate resolution of the speeding violation. Tri apparently would not have been prosecuted for speeding had the deputy not subsequently developed probable cause to support a separate criminal charge.
The procedural circumstances of this appeal, however, make it unnecessary for us to consider whether the furtherance of justice would warrant dismissal. Appellate courts generally do not consider matters unless they have been argued and considered in the district court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). Although the state moved for reconsideration of the district court’s suppression and dismissal orders and filed a lengthy memorandum in support of that motion, the state did not address the dismissal of the speeding charge in that motion. We therefore conclude that the right to appeal dismissal of the speeding charge has been waived.
Reversed and remanded.