This opinion will be unpublished and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,
Chad Michael Becker,
Nicollet County District Court
File No. T8-02-1692
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
James Brandt, St. Peter City Attorney, Ryan B. Magnus, Assistant City Attorney, 219 West Nassau, P.O. Box 57, St. Peter, MN 56082-0057 (for respondent)
Allen P. Eskens, Paul Grabitske, Eskens, Gibson, & Behm Law Firm, Chtd., 115 East Hickory Street, Suite 200, P.O. Box 1056, Mankato, MN 56002-1056 (for appellant)
Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Wright, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from his conviction for underage drinking, appellant argues that the police lacked a reasonable, articulable suspicion that he was engaged in illegal activity and, thus, his seizure by the police violated his constitutional rights. We agree there was no particularized suspicion that appellant had violated the law before he was seized. We reverse.
On April 6, 2002, at approximately 10:22 p.m., the St. Peter Police Department received a report of possible illegal drug use in front of 51 Summit Park and that the individuals involved came from a party down the street. Officer Ruffing testified that the party was at 47 Summit Park and that noise was audible from the property line, thus, making the noise a violation of a city ordinance. Ruffing observed several empty balloons lying in the area of 47 Summit Park. He claimed that made him suspect that people nearby were using nitrous oxide. The record discloses absolutely nothing about nitrous oxide except “empty balloons.”
Ruffing knocked on the door at 47 Summit Park and Irene Garsez, a resident, answered. When the door opened, Ruffing smelled the odor of alcohol and burnt marijuana coming from inside the residence. Ruffing observed an individual (not appellant), whom he knew was under 21 years of age. Ruffing and Garsez spoke briefly and Ruffing testified that he could smell “alcohol or the odor of alcohol about her.” Garsez stated she had not had anything to drink. It appears she was correct. When tested, she had an alcohol content of zero. While Ruffing was speaking with Garsez, Officer Hagan spoke with the other resident of the trailer, Ray Loya. Loya told Hagan that all the occupants of the trailer were under the age of 21.
Officer Nelson, who arrived with Ruffing, had gone to the rear of the trailer to prevent people from attempting to flee through the back window after Ruffing knocked on the door. When Nelson reported to Ruffing that an individual (not appellant) had broken out the back window and was trying to climb through, Ruffing entered the trailer to notify Garsez and Loya, the residents, that someone was breaking through their back window. Nelson shined his flashlight into the trailer and saw alcohol containers, which he reported to Ruffing. Nelson then entered the trailer through the window to “try and get everybody towards [Ruffing].” Ruffing ordered all the people inside the trailer to give him identification and line up.
Appellant, one of the occupants of the residence, complied with Ruffing’s order. Ruffing testified that he gathered the IDs before ordering the occupants into a line. He also testified that it was only after gathering the identification and ordering people into a line that he had any direct contact with appellant. After appellant was lined up outside, Ruffing matched his face with his ID card, which stated appellant was under 21 years of age. Ruffing then noticed the smell of alcohol on appellant’s breath and required him to submit to a preliminary breath test (PBT). The PBT (reading) showed that appellant had consumed alcohol.
Appellant was tried on a Lothenbach stipulation. The district court found him guilty of Underage Consumption, Minn. Stat. § 340A.503, subd. 1 (2002); his sentence was stayed pending appeal.
The district court concluded that the search and seizure of appellant’s person was justified because (1) Ruffing detected an odor of alcohol on appellant; (2) alcohol was in plain sight in the residence; and (3) appellant appeared to be under age 21. According to the court, these three facts provided individualized suspicion that appellant had illegally consumed alcohol and thus probable cause to search for alcohol. In relevant part, the district court stated in its memorandum accompanying the order:
However, once the officers were inside the residence, it is clear they decided to seize the occupants and detaining them further to require the preliminary breath test. This was a seizure and search of Defendant’s person.
Officer Ruffing detected an odor of alcohol on Defendant and alcohol was in plain sight in the residence. Defendant also appeared to be under age 21. Those facts provided individualized suspicion that Defendant had illegally consumed alcohol.
The district court denied appellant’s motion to suppress the evidence resulting from his seizure.
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 argues that he was seized in violation of his Fourth Amendment right against unreasonable searches and seizures because the police had no articulable suspicion that he was involved in criminal activity. We agree. Appellant was seized when the police took his identification and told him to line up with the others. Respondent candidly agrees that for purposes of this appeal, appellant was seized and detained. Appellant argues that the record is devoid of any testimony showing any officer had any individualized suspicion of him before he was seized. Based on the record, appellant is correct. None of the officers testified that they even noticed appellant, let alone noticed him doing anything illegal or suspicious, before seizing him. It was only after the seizure that an officer, from appellant’s odor of alcohol, formed an articulable suspicion that appellant might have been engaged in criminal activity (underage drinking).
Respondent argues that officers had a reasonable suspicion before the detention and seizure that appellant was engaged in criminal activity under the “totality of the circumstances.” Respondent believes the relevant circumstances were: (1) the smell of burnt marijuana from inside the residence; (2) the officers’ observation of open alcohol containers and testimony that the individuals at the party appeared high-school age; (3) the officer’s personal knowledge that some of the partygoers were under 21 years of age; (4) the ongoing violation of a city ordinance prohibiting unlawful assembly; and (5) respondent's allegation that the situation was “clearly becoming out of control” and officers therefore had a right to detain people. Finally, respondent argues that under the “collective knowledge” doctrine, the officers could form a reasonable suspicion of appellant because one of the residents told Hagan that all of those present were under 21 years of age.
None of these factors, individually or combined, creates any individualized suspicion that appellant was engaging in criminal activity. Even though it is illegal for persons of any age to use marijuana, it is not illegal to be present where marijuana is being used. It is not illegal to be present where minors are consuming alcohol. There is no claim that any odor of marijuana was ever detected on appellant. There was no claim that any odor of alcohol was detected on appellant before he was seized and detained. The only thing the officers knew about appellant before he was seized and detained was that he was in the residence. The officers simply included appellant with everyone else when they ordered all those present to line up and hand over their identification cards.
Respondent’s contention that the search was reasonable because of the smell of burnt marijuana is not persuasive. The officers had no individualized suspicion that appellant was consuming marijuana (we note, collaterally, that if they had, they could have arrested and detained appellant regardless of his age).
The lining up and the demanding to see identification had nothing to do with reasonable suspicion of any criminal activity. The ordering of the lineup and the showing of identification was to produce evidence of criminal activity, i.e., finding out that this individual or that one was 21. In the normal course of an arrest for illegal drug activity or violation of a local ordinance, you do not have to “stand up” the defendant(s) and demand they pull out identification on the spot. The production of identification and the verification of addresses can come as part of the mechanics of the booking procedure after a valid arrest.
Appellant’s age is irrelevant to whether he was smoking marijuana. His age is irrelevant to whether the party was “too loud” and, thus, violating a city ordinance. Assuming this ordinance is valid, officers could have told the partygoers to stay put and then cited them for violation of the ordinance. There is no “age” requirement in the ordinance.
Respondent’s final claimed justification for the seizure was to take control of a situation that was “clearly getting out of control.” This argument is not credible; if a situation is getting out of control, one does not maintain or re-establish control by asking bystanders who are not unruly to give you their identification cards.
This case is similar to State v. Cripps, 533 N.W.2d 388 (Minn. 1995) and we find the court’s reasoning there persuasive. In Cripps, an underage woman was approached at random in a bar and asked to produce ID. Id. at 390. She then gave the officer her sister’s driver’s license, claiming it was her own. Id. She was convicted on a Lothenbach stipulation and appealed claiming a violation of her Fourth Amendment rights. Id. The court noted that the record showed no specific, articulable facts relating to Ms. Cripps and concluded that because the officer “failed to articulate a sufficient basis to demonstrate that she possessed an individualized suspicion that Cripps was engaging in criminal activity * * * we cannot conclude that the seizure was justified.” Id. at 392.
As in Cripps, the police in this case lacked any individualized suspicion that appellant was involved in criminal activity. While the burnt marijuana smell was evidence of criminal activity, the record fails to show even a shred of evidence linking appellant to that drug activity. The fact that one of the residents said all the people were under 21 years of age and that alcohol was being consumed in the residence does not provide an individualized suspicion that appellant, or any other particular occupant of the residence, was consuming alcohol. To hold otherwise is to eviscerate the requirement that suspicion be individualized. Minnesota has yet to adopt “guilt” by association.
The record shows that all individualized suspicion of appellant arose only after he was seized and detained. Thus, the evidence arising from this seizure must be suppressed and appellant’s motion to do so should have been granted.
 The ordinance, Sec. 10.25 states in relevant part:
Subd. 1. Unlawful Assembly. It is unlawful for three or more persons to assemble * * * with lawful purpose but in such a way as to disturb the peace * * *.
Subd. 2. It is prima facie evidence that the noise is excessive and the assembly unlawful if the noise which is the result of such assembly, is plainly audible (1) at the property line of the premises * * * provided, however, that such noise or unlawful assembly is generated between the hours of 10:00 P.M. and 8:00 A.M.
Appellant points out this ordinance is susceptible to a constitutional attack as “void for vagueness;” however appellant concedes this issue was not argued at the district court, so we need not touch it.