This opinion will be unpublished and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,
Elliot Kamalani Doren,
Filed January 14, 2003
Ramsey County District Court
File No. K4012084
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, Jennifer M. Spalding, Certified Student Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Harten, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.
On stipulated facts, the district court found appellant Elliot Doren guilty of third-degree controlled substance crime. Minn. Stat. § 152.023, subd. 2(1) (2000). On appeal, Doren challenges the district court’s denial of his motion to suppress evidence seized from his person during a pat-search following a stop for a minor traffic violation. Because the officer articulated additional, suspicious or threatening circumstances so as to justify his decision to frisk or pat-search appellant for weapons and because the officer did not exceed the proper scope of such a search, we affirm.
On review of a pretrial suppression order, this court may independently examine the facts and determine as a matter of law whether the district court erred in its decision. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). Where the facts are not in dispute, this court’s review is de novo. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).
Appellant first argues that the officer lacked reasonable suspicion to conduct a pat-down or frisk search for weapons after he stopped appellant for exceeding the speed limit and making a right-hand turn without signaling. An officer may conduct a reasonable “pat-down” or “frisk” search of a lawfully stopped suspect if the officer has an articulable factual basis to believe that the suspect may be armed and dangerous. Wold v. State, 430 N.W.2d 171, 175 (Minn. 1988) (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968)). Such a search is improper, however, during a routine stop for a minor traffic violation, absent “additional suspicious or threatening circumstances.” State v. Varnado, 582 N.W.2d 886, 890 (Minn. 1998).
Appellant insists that because he complied with all of the officer’s requests by identifying himself and remaining in the vehicle, the officer lacked additional facts to justify a pat search. Appellant further insists that the fact that he and his front-seat passenger appeared nervous to the officer and that the stop occurred in a high-crime area fail to justify the pat search for weapons. See, e.g., Harris, 590 N.W.2d at 100-01 (officers lacked reasonable articulable suspicion to search bus passenger merely because passenger appeared nervous, a behavior that “could be consistent with the activities of any multitude of innocent persons”); Varnado, 582 N.W.2d at 890 (defendant’s presence in high-crime area was insufficient to justify frisk for weapons).
At several points during his testimony at the omnibus hearing, however, the officer stated that he was concerned for his safety, because the stop occurred in a high-crime area and because the behaviors exhibited by appellant and his front seat passenger. The officer did not merely describe appellant as “nervous,” but explained that appellant’s eyes were “bulging out of his head,” his hands were “spasming,” and his head was twitching to the right and left. The officer explained that based on his experience, he believed that appellant was using drugs and he was concerned for his safety. The officer testified that he called for backup almost immediately and did not want to proceed further until backup arrived. When his backup arrived five minutes later, the officer expressed his concern to that officer and told him to be careful. Even then, the officer did not ask appellant to step out of the car until additional information was gathered, including the backup officer’s indication that the front-seat passenger admitted that she had been using drugs. The officer’s decision to pat search appellant was reasonable, considering the totality of the circumstances, which included appellant’s suspicious behavior and evasive driving conduct, the officer’s articulation and detailing of those circumstances, and his explanation as to why, based on his experience, he was concerned for his and the backup officer’s safety.
Appellant next argues that even if it was proper to frisk him for weapons, the scope of the officer’s pat search exceeded what is permitted during an investigatory stop. Under what has become known as the “plain feel” doctrine,
[i]f a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.
Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S. Ct. 2130, 2137 (1993) (footnote omitted). In Dickerson, however, the Supreme Court held that the officer went beyond the scope of Terry and the “plain feel” doctrine because he determined that the lump in the suspect’s pocket was contraband only after “squeezing, sliding and otherwise manipulating the contents of the * * * pocket – a pocket which the officer already knew contained no weapon.” Id. at 378, 113 S. Ct. at 2138 (quotation omitted).
Appellant argues that because the officer moved or manipulated the objects in his pocket, and did not merely pat down his outer clothing, then the identity of the objects was not “immediately apparent” and the search exceeded the permissible scope of the “plain feel” doctrine. Appellant insists that because the officer described the zip-lock mechanism on the plastic bags and the crinkling noise he heard, then he did more than simply run his hands over the outside of appellant’s clothing. Rather, appellant insists, the officer focused on the object and examined it with his fingers to ascertain its identity.
However, the officer also testified that based on his previous experience as a police officer who had conducted numerous arrests, he immediately knew that the objects, which included several plastic bags and a small, hard prominence among the bags, contained crack cocaine or methamphetamine. The officer further testified that as he ran his hands over appellant’s pocket, the pocket moved by itself because of the tight-fitting nature of appellant’s pants and that he did not manipulate the pocket or the object. Given the officer’s description of the pat search and his explanation as to why he immediately knew the identity of the objects, we conclude that his search did not exceed the permissible scope of the plain feel doctrine. See Harris, 590 N.W.2d at 104 (“If, during the course of [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.”).
Given our decision to uphold the scope of this search, we decline to address whether the officer also had probable cause to arrest appellant for driving under the influence of narcotics, which the district court mentioned as an additional basis for its ruling.
We affirm the district court’s denial of appellant’s motion to suppress.