This opinion will be unpublished and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,
Traveail Dashawn Powell,
Filed January 21, 2003
Hennepin County District Court
File No. 02049284
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for appellant)
Leonardo Castro, Chief Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, 317 2nd Avenue South, Suite 200, Minneapolis, MN 55401 (for respondent)
Considered and decided by Harten, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.
The State of Minnesota appeals from a pretrial order suppressing evidence seized from respondent Traveail Dashawn Powell and dismissing a complaint charging him with being a felon in possession of a firearm under Minn. Stat. §§ 609.11, 624.713, subd. 1(b) (2000). The district court ruled that the search was illegal because the officers only had authority to cite respondent for failure to obey an order, a misdemeanor offense, and did not have authority to effect a custodial arrest under Minn. R. Crim. P. 6.01.
Because, under the facts of this case, there was a substantial basis for the officers to believe that respondent would fail to respond to a citation, we reverse the district court’s suppression order and remand for further proceedings consistent with this opinion.
On appeal from a pretrial order with a critical impact, the state must clearly and unequivocally show that the order was erroneous. State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998). Pretrial suppression orders are reviewed de novo, to determine if the district court erred as a matter of law. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).
The facts of this case are as follows. While on bicycle patrol, four police officers observed a cyclist, later identified as respondent, traveling against the flow of traffic and failing to stop for a stop sign at an intersection. One of the officers yelled out for respondent to stop, but he continued. As the officers pursued respondent, one of them continued to yell at him to stop. Respondent looked back at the officers at least twice and continued to pedal faster. One officer stated in his report that he “believed that [respondent] was attempting to get away from me because he was increasing his speed * * * after being told to stop several times.” After chasing respondent for approximately two blocks, the officers were able to pull him over by grabbing the back of his shirt and positioning their bikes in front and in back of him.
Intending to arrest him for failure to obey a lawful order, a misdemeanor under Minn. Stat. § 169.02, subd. 2 (2000), the officers handcuffed respondent. A blue duffel bag, which had been slung over respondent’s shoulder, was seized and searched. A loaded, sawed-off shotgun was found inside. Respondent was subsequently charged with being a felon in possession of a firearm and moved to suppress the evidence seized when he was arrested.
Warrantless searches are per se unreasonable unless falling within a narrow set of exceptions, one of which is a search incident to a lawful custodial arrest. State v. Richmond, 602 N.W.2d 647, 651-52 (Minn. App. 1999), review denied (Minn. Jan. 18, 2000). A warrantless search of a person incident to an arrest may extend to containers on the person or within the person’s area of control. In re Welfare of G.M., 560 N.W.2d 687, 695 (Minn. 1997) (permitting search of pouch hanging on defendant’s belt after probable cause arrest made).
As a general rule, however, if a person is arrested for a misdemeanor offense, the officer must issue a citation. See State v. Varnado, 582 N.W.2d 886, 892 (Minn. 1998). An officer may effect a custodial arrest for a misdemeanor only if
it reasonably appears to the officer that the arrest or detention is necessary to prevent bodily harm to the accused or another or further criminal conduct, or that there is a substantial likelihood that the accused will fail to respond to a citation.
Minn. R. Crim. P. 6.01, subd. 1(1)(a) (making issuance of citation for misdemeanors mandatory unless one of these exceptions is present).
The district court here concluded that “the officers had no reason to believe that [respondent] would not respond to a citation” and that if they “had asked [him] for identification at the time of the arrest,” he would have provided them with “enough information to make a positive identification.” The court concluded that “[t]his is a traffic ticket and release situation” and that there “was no basis for a custodial arrest” and subsequent search. We disagree. Even if respondent had been given an opportunity to identify himself, the officers still would have had ample reason to believe that, based on his behavior, respondent likely would not respond to a citation. An examination of other cases on this issue illustrates this point.
In one case, the defendant was stopped for driving a car with a cracked windshield. Varnado, 582 N.W.2d at 888. She was “alone, cooperative, and did not engage in behavior evoking suspicion that she may be armed or engaged in a criminal activity.” Id. After officers discovered that she did not have her driver’s license with her, she was asked to sit in the back of the squad car. Before she got into the squad, the officer conducted a pat search and discovered crack cocaine in her pocket. The supreme court suppressed the evidence, holding that because the “record is absent of facts supporting a belief that a custodial arrest was necessary to prevent Varnado from hurting someone or to ensure that she would respond to a citation, * * * the frisk was not a proper search incident to arrest.” Id. at 893.
In In re Welfare of M.D.B., 601 N.W.2d 214, 216 (Minn. App. 1999), this court held that there was no basis to arrest a bicyclist who had committed a traffic offense, merely because he “seemed nervous and was looking from side to side, possibly looking for an escape route.” The bicyclist did not attempt to flee police, and the officer was able to get out of his squad car and walk up to the cyclist, who had stopped as ordered. This court noted that nervousness is not unusual when confronted by an armed police officer and that an arrest based on the mere “possibility of flight” would authorize a detention after any traffic stop. Id. at 217.
Respondent’s behavior is wholly different from that of the defendants in Varnado and M.D.B. Here, the officers observed respondent violate at least two traffic laws, repeatedly ordered him to stop, pursued him for approximately two blocks, and had to force him to stop by grabbing his shirt and surrounding him on their bicycles. Respondent was not cooperative until he was forcibly stopped and handcuffed. Thus, the facts known to the officers at the time of the arrest reasonably supported their decision to effect a custodial arrest due to the “substantial likelihood that the accused would fail to respond to a citation.” Minn. R. Crim. P. 6.01, subd. 1(1)(a).
We therefore reverse the district court’s suppression order and remand for further proceedings.
Reversed and remanded.