This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






In the Matter of the Welfare of:




Filed ­­­January 14, 2003


Harten, Judge


Hennepin County District Court

File No. J2-02-50446


Leonardo Castro, Fourth District Chief Public Defender, Melissa A. Haley, Assistant Public Defender, 317 South Second Avenue, Suite 200, Minneapolis, MN 55401 (for appellant)


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


Amy J. Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)


            Considered and decided by Harten, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N




            Appellant challenges his delinquency adjudication on charges of controlled substance crime in the fifth degree and possession of a small amount of marijuana, arguing that the district court erred in denying his motion to suppress evidence.  Because we conclude that the evidence was obtained by a valid search incident to a lawful arrest, we affirm.


On 5 January 2002, two police officers were patrolling a high-crime area of Minneapolis in their squad car when they observed appellant F.D.M., then age 15, standing on the sidewalk.  One officer testified that appellant was “walking back and forth for approximately 45 minutes,” that he did not get on a bus or enter a place of business, and that he was talking to known drug dealers.  After the officers observed what they believed to be a “hand-to-hand” narcotics transaction between appellant and a known drug user, they pulled their squad car to the curb about four or five feet away from appellant.

While the officers remained seated in the squad car, one of them asked appellant, “What were you doing over on the corner?”  Appellant replied, “Nothing.”  As appellant opened his mouth to speak, the officer saw “two suspected rocks of crack cocaine * * * individually packaged in cellophane.”  The officer got out of the car, told appellant that he was under arrest for narcotics, and told him to spit out the drugs.  When appellant instead attempted to swallow the drugs, the officer applied a chokehold to prevent him from doing so.  Appellant began to flail his arms and did not respond to repeated requests to spit out the drugs.  The other officer exited the car and told appellant, “If you don’t quit resisting, I’m going to mace you.”  Appellant continued to resist, and the officer sprayed him with mace.  Appellant spit out the drugs, but continued to resist and attempted to pick up the drugs.  One of the officers secured the crack cocaine, and the other applied a “lateral vascular neck restraint” until appellant became submissive and was handcuffed.  The officers performed a search incident to arrest and discovered a small amount of marijuana on appellant.

Appellant was charged with controlled substance crime in the fifth degree in violation of Minn. Stat. § 152.025, subd. 2(1) (2000) and possession of a small amount of marijuana in violation of Minn. Stat. § 152.027, subd. 4(a) (2000).  He filed a pre-trial motion to suppress the evidence.  The district court denied the motion, found that appellant committed both offenses, and adjudicated him delinquent.  Appellant challenges his adjudication, arguing that the district court erred in denying his motion to suppress because the evidence was the fruit of an illegal search and seizure. 


            This court independently reviews the facts to determine, as a matter of law, whether a district court erred in failing to suppress evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

The United States and Minnesota Constitutions prohibit unreasonable searches and seizures.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  A seizure occurs when a police officer “by means of physical force or show of authority, has in some way restrained the liberty of a citizen.”  In re Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn. 1993) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16 (1968)).  A seizure generally does not occur when a police officer merely approaches a person in a public place and asks questions.  Id. at 782.  A seizure has been held to occur when, considering all of the circumstances, “a reasonable person would have believed that he or she was neither free to disregard the police questions nor free to terminate the encounter.”  State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995).  Factors indicating a seizure include

the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.  In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.


E.D.J., 502 N.W.2d at 781 (quoting United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S. Ct. 1870, 1877 (1980)).

            Appellant asserts that he was seized when the officers parked their car near him and asked him what he was doing.  He relies on E.D.J., holding that a juvenile was seized when the police ordered him to stop as he was walking in an area of heavy drug trafficking.  Id. at 780.  The instant case is distinguishable from E.D.J., however, because here the officers did not order appellant to do anything before they arrested him; they merely parked near him in a public place and asked him a question.  Moreover, there was no evidence that the officers displayed weapons, touched appellant, or used language or a tone of voice indicating that compliance might be compelled.  See id. at 781.  We conclude that appellant was not seized when the officers parked near him and, from their car, asked him what he had been doing.[1]

            “Police officers may arrest a felony suspect without an arrest warrant in any public place * * * provided they have probable cause.”  State v. Walker, 584 N.W.2d 763, 766 (Minn. 1998) (citation omitted).  Probable cause to arrest exists when the police could reasonably believe that a person has committed a crime.  State v. Riley, 568 N.W.2d 518, 523 (Minn. 1997).  After a valid arrest, the police may conduct a warrantless “full search of the person of the arrestee” as a search incident to the arrest.  Walker, 584 N.W.2d at 766.  Specifically, an arresting officer may search an arrestee in order to prevent destruction of evidence.  State v. Wynne, 552 N.W.2d 218, 221 (Minn. 1996).

            The police officer told appellant that he was under arrest immediately after he saw two suspected rocks of crack cocaine in appellant’s mouth.  This was a lawful arrest supported by probable cause.  The officer did not search appellant until after the arrest, when he ordered appellant to spit out the drugs to prevent the destruction of the evidence.  We conclude that this warrantless search was valid as a search incident to a lawful arrest.

Appellant relies on State v. Hardy, 577 N.W.2d 212 (Minn. 1998), which held that requesting a defendant to open his mouth went beyond mere investigation and constituted a search protected by the Fourth Amendment.  Id. at 216.  But Hardy is distinguishable.  In Hardy, two police officers approached the defendant and asked him what he was doing.  Id. at 214.  The defendant did not respond verbally and appeared to attempt to swallow something.  Id. at 215.  Suspecting that the defendant was concealing drugs, but without having seen the drugs or having arrested the defendant, the officers asked him to open his mouth.  Id.  Unlike the officers in Hardy, the officers here saw drugs in appellant’s mouth and arrested him before ordering him to spit out the drugs.

            Appellant contends that the search was overly intrusive.  He cites State v. Oevering, 268 N.W.2d 68 (Minn. 1978), to argue that “probable cause to arrest does not end the inquiry into whether the search incident to arrest justifies intrusion.”  Oevering is inapplicable, however, because there the relevant issue was the validity of a seizure of blood from a nonconsenting defendant before that defendant was formally under arrest.  Id. at 72.  Here, the officer arrested appellant and then, after the arrest, ordered him to spit out the drugs.  Moreover, the court in Oevering recognized that blood testing was not overly intrusive.  Id. at 73.  Requesting appellant to spit out the drugs he was concealing was less intrusive than drawing blood.

            Finally, appellant argues that the police conduct was so outrageous that it violated due process.  Police officers are allowed to use reasonable force in effecting a lawful arrest.  Minn. Stat. § 609.06, subd. 1(1)(a) (2000).  The officers testified that appellant violently resisted arrest, that he was warned to stop resisting but refused, and that they used standard police tactics to prevent the destruction of evidence and take appellant into custody.

            We conclude that the district court did not err in denying appellant’s motion to suppress evidence.


[1] Even if it were a seizure when the officers parked near appellant and questioned him, they had reasonable articulable suspicion to seize him.  See Cripps, 533 N.W.2d at 391 (police may temporarily seize a person to investigate for criminal wrongdoing if they reasonably suspect person of criminal activity based on specific, articulable facts).  The officers testified that appellant lingered in a high-crime area, that he conversed with known drug dealers, and that he made a suspected hand-to-hand transaction with a known drug user.