This opinion will be unpublished and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
In the Matter of the Welfare of:
S.D.N., DOB: 8/24/1988.
Filed May 13, 2003
Reversed and remanded
Ramsey County District Court
File No. J902553864
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Kathryn A. Santelmann, Assistant County Attorney, 50 W. Kellogg Blvd., Suite 315, St. Paul, MN 55102-1657 (for appellant)
John M. Stuart, State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414; and
Mark D. Nyvold, 1030 Minnesota Building, 46 E. Fourth Street, St. Paul, MN 55102 (for respondent)
Considered and decided by Toussaint, Chief Judge, Lansing, Judge, and Huspeni, Judge.
Appellant State of Minnesota challenges the district court’s pretrial order suppressing a pistol as the fruit of an illegal pat-down search. The state argues that the search was lawful because (1) the police officer properly detained S.D.N. for violating curfew, and (2) pat-down searches are specifically authorized by statute to protect an officer when taking a child into custody. Because the police had a valid reason for placing S.D.N. into the squad car, the pat-down search was legal. Therefore, we reverse and remand for further proceedings.
On August 3, 2002, St. Paul police officers Benner and Norris were assigned to a “curfew sweep.” At 11:30 p.m., they observed what they believed to be a group of juveniles at a bus stop shelter at the corner of Rice Street and University Avenue. The individuals were eating hamburgers and throwing the bags and trash onto the street. As the officers approached, they recognized one of the individuals as Willie Merriman, an adult known to be a member of the gang the Rolling 60s Crips. They also observed that all the individuals were wearing the gang’s colors.
The officers approached the individuals and informed them that they were doing a “curfew sweep.” Because they had had multiple contacts with Merriman in the past, and because most of those contacts had been violent, the officers focused their attention on Merriman. Officer Norris conducted a pat-down search of Merriman. While Officer Norris talked to Merriman and checked his warrant status, Officer Benner asked the juveniles to clean up the mess on the street. Officer Benner asked S.D.N. his age, and Benner understood S.D.N. to be 15 years old.
Neither of the officers inquired about whether Merriman, the only adult present, was supervising S.D.N. Instead, Officer Benner informed S.D.N. that he would be taken into custody for curfew violation. Before putting S.D.N. in the back of the squad car, Officer Norris frisked him and discovered a loaded .38 caliber Smith & Wesson pistol strapped to his calf.
Officer Benner testified during the Rasmussen hearing that he was concerned for his safety during his contact with Merriman but that he did not feel threatened by S.D.N. while Merriman was being questioned. He explained, however, that whenever he places people in the back seat of his squad car, he pats them down for his own protection.
S.D.N. was charged with one count of possession of a pistol by a minor in violation of Minn. Stat. § 624.713, subds. 1(a), 2 (2002). At the Rasmussen hearing, he challenged the validity of the pat-down search and sought suppression of the pistol. In suppressing the pistol, the district court stated:
There is no right to search incident to a petty misdemeanor or for a misdemeanor for which custodial arrest is not authorized. A curfew violation, while an ordinance, is more akin to a status offense and to a petty misdemeanor than it is a crime. * * *
* * * *
* * * A curfew violation is a petty offense. No right of a search incident to detention exists unless the juvenile exhibits conduct traditionally recognized as a basis for a pat down or protective search of the outer clothing, including when the subject is known “. . . to be habitually armed or to have a record of assaultive behavior, or . . . he assumes a hostile or threatening attitude . . or the police . . . by cursory examination have valid reason to believe the [subject] . . . is engaged in the commission of a more serious crime.” State v. Curtis, 190 N.W.2d [636, 637] (Minn. 1971).
The district court determined that none of the Curtis exceptions applied and, in denying the state’s motion for rehearing and reconsideration, stated that
[t]he reasons which you postulate were not unknown to me when I made the order. I understand the concerns and urge you to resolve the matter on appeal.
This appeal follows.
An appellant court may independently review the facts to determine whether the district court erred in suppressing, or declining to suppress, the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). If the state appeals pretrial suppression orders in felony cases, it
must “clearly and unequivocally” show both that the trial court’s order will have a “critical impact” on the state’s ability to prosecute the defendant successfully and that the order constituted error.
State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (quoting State v. Zanter, 535 N.W.2d 624, 630 (Minn. 1995)). “[T]he critical impact of the suppression must be first determined before deciding whether the suppression order was made in error.” Id.
Because the only charge against S.D.N. was possession of a pistol by a minor, and because the only evidence linking him to this charge is the pistol, there is no doubt that suppression of the pistol would have a critical impact on the prosecution’s case. See State v. Kim, 398 N.W.2d 544, 551 (Minn. 1987) (stating that critical impact has been shown in cases where lack of suppressed evidence significantly weakens or completely destroys the state’s case). Thus, the only issue for this court to resolve is whether the district court erred in suppressing the weapon.
The district court concluded that the pat-down search was illegal because S.D.N. was not under arrest and because he was not exhibiting conduct that would indicate that he might be a threat to the officers. The state argues, however, that because the police were taking S.D.N. into custody for a curfew violation, they were authorized under the juvenile code to conduct a pat-down search. The state’s argument is persuasive.
Under the delinquency provisions of the juvenile code, a peace officer may take a child into immediate custody
when a child is found in surroundings or conditions which endanger the child’s health or welfare or which such peace officer reasonably believes will endanger the child’s health or welfare.
Minn. Stat. § 260C.175, subd. 1(b)(2) (2002). This statute further provides that
[a] peace officer who takes a child of any age or gender into custody under the provision of this section is authorized to perform a protective pat-down search of the child in order to protect the officer’s safety.
Id., subd. 3(a) (2002). Finally, the statute provides that “[e]vidence discovered in the course of a lawful search under this section is admissible.” Id., subd. 3(c) (2002).
Although the St. Paul curfew ordinance has no specific stated purpose, we can reasonably assume that its intent is to give police officers the authority to remove juveniles from environments where they may be in danger of becoming victims of crime or may themselves participate in illegal conduct. See St. Paul, Minn., Legislative Code § 229 (2002). Therefore, under the juvenile code, the police clearly had the authority to take S.D.N. into custody for a curfew violation and to conduct a pat-down search prior to transporting him from the scene. See id., subds. 1(b)(2), 3(a).
S.D.N. argues, however, that although Minn. Stat. § 260C.175 authorizes the police to conduct pat-down searches of children taken into custody, that language does not necessarily make the pat-down search constitutional. It is well-established law that “[t]he Fourth Amendment prohibits an officer from searching an individual without a warrant, ‘subject only to a few specifically established and well-delineated exceptions.’” State v. Varnado, 582 N.W.2d 886, 889 (Minn. 1998) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967)). For example, an officer may conduct a pat-down search of a defendant subject to a lawful arrest or if the officer “reasonably believes that the suspect might be armed and dangerous and capable of immediately causing permanent harm.” Id. at 889, 892 (citations omitted).
While we recognize that there may be occasions where conduct authorized by a statute may actually be unconstitutional, this is not such an occasion. Here, the officers observed a group of individuals, who looked like juveniles and were wearing gang colors, standing at a bus shelter after curfew hours and throwing garbage onto the street. These observations gave the police officers a reasonable articulable suspicion to believe that there was a curfew violation.
Once the officers learned that S.D.N. was a juvenile in violation of the St. Paul curfew ordinance, they were authorized to take him into custody. See Minn. Stat. § 260C.175, subd. 1(b)(2); St. Paul, Minn., Legislative Code § 229.01(a) (2002). To suggest that the officers lacked the authority to take S.D.N. into custody would lead to a determination that they must leave the child in possible danger and permit the curfew violation to continue. Such a determination would be absurd. It is reasonable to remove the child from the scene, and the officers must ensure transportation to do so.
S.D.N. would like this court to conclude, as did the district court, that an officer cannot conduct a pat-down search of an individual who is taken into custody unless there has been an arrest or unless there is reasonable articulable suspicion that the person may be armed. This we cannot do. It would be foolhardy to conclude that officers must transport people in their squad cars, where they will be confined for a period of time, without first conducting a pat-down search. We especially refuse to make such a decision here, where S.D.N. was wearing gang colors and was associating with a known and violent gang member. In this case, whether the officers felt threatened by S.D.N. when they were questioning Merriman is irrelevant in determining whether the pat-down search was legal. The moment the officers were required to transport S.D.N. in the squad car, the pat-down search was necessary for the officers’ protection.
The district court relied heavily on State v. Curtis, 290 Minn. 429, 190 N.W.2d 631 (1971), but we do not believe that Curtis supports the result reached by the court. Curtis rejects routine pat-down searches following stops for minor traffic violations, but it does not hold that a police officer’s right to conduct a pat-down search is limited only to situations where the officer is effecting a lawful arrest or has reason to believe that the person may be armed. See 290 Minn. at 435-36, 437, 190 N.W.2d at 635, 636. The Minnesota Supreme Court has held that so long as the officers have a valid reason for placing the suspect into the squad car, and “it is not merely an excuse for an otherwise improper search,” the officers can search the suspect for their own protection. Varnado, 582 N.W.2d at 891 (quoting Curtis, 290 Minn. at 437, 190 N.W.2d at 636).
Here, the police had a valid reason for placing S.D.N. into the squad car. He was not placed there as a pretext for the search, but was instead being placed in the squad car as a result of his violation of the curfew ordinance. It would have been improvident for the officers to leave S.N.D. where he was when he came to their attention. Transportation was necessary. And so was a pat-down search prior to being placed in the squad car for transportation. See id. The fact that S.D.N. was in the presence of a known and violent gang member and was wearing gang colors further supports the necessity and legality of the pat-down search.
Finally, S.D.N. argues that although the officers asked his age, they never determined whether his curfew violation could be explained by one of the exceptions in the curfew ordinance and, therefore, they had no reason to take him into custody or to conduct a pat-down search. See St. Paul, Minn., Legislative Code § 229.04 (2002) (stating that there is no curfew violation if the juvenile is with a “parent, guardian or other adult person having care and custody of the minor”). Because the district court suppressed the pistol on the grounds that the pat-down search was illegal, it never addressed whether the officers had a duty to inquire whether any of the ordinance exceptions applied in this case. Because we are reversing the district court’s decision and are concluding that the pat-down search was legal, we must address this issue.
The state argues that it was the responsibility of S.D.N. to inform the officers if an adult, in this case, Merriman, was supervising him. We decline, however, to impose on children the burden of raising exceptions to the curfew ordinance. Inquiry regarding exceptions is a duty reasonably placed upon peace officers. We conclude that the officers’ failure to inquire whether an adult was supervising S.D.N. does not invalidate the pat search. The officers observed that all the individuals were wearing the gang colors of the Rolling 60s Crips, they were loitering in a bus stop shelter after curfew hours, and that one of the individuals was a known Crips member who had had prior violent contact with police. It was reasonable for the officers to assume that an adult was not supervising S.D.N. Under these circumstances, the officers’ failure to make further inquiries about an adult supervisor was reasonable, and that failure does not invalidate their action in taking S.D.N. into custody and conducting a part-down search prior to placing him in the squad car for transportation from the scene.
Reversed and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 At the Rasmussen hearing, Officer Benner did not remember the exact age that was given by S.D.N., but there is no dispute that S.D.N. was a minor. In fact, he was actually 14 years old.