This opinion will be unpublished and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

A03-146

 

State of Minnesota,
Respondent,

vs.

Erik Edward Malmquist,
Appellant.

 

Filed March 2, 2004

Affirmed

Wright, Judge

Dissenting, Lansing, Judge

 

Meeker County District Court

File No. K1-02-346

 

Mary R. Vasaly, Special Assistant State Public Defender, 3300 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN  55402 (for appellant)

 

Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Michael J. Thompson, Meeker County Attorney, Meeker County Courthouse, 325 North Sibley Avenue, Litchfield, MN  55355 (for respondent)

 

Considered and decided by Wright, Presiding Judge; Lansing, Judge; and Minge, Judge.

 

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

Appellant challenges the district court’s denial of his motion to suppress evidence, arguing that the police officer (1) lacked reasonable, articuable suspicion to justify an investigatory stop, (2) performed a custodial interrogation without providing a Miranda warning, and (3) arrested appellant without probable cause and without a warrant.  We affirm.

FACTS

 

On April 28, 2002, a Handistop convenience store employee called the Litchfield Police Department and stated that her manager saw a suspicious car in the parking lot. She reported that her manager saw two men in a white Intrepid who looked like they were “cutting something illegal.” Officer Dennis Hanson was dispatched to the convenience store around 12:30 p.m.  The police dispatcher informed Hanson that the employee had reported a suspicious vehicle and that the two occupants were “cutting something.”

             Hanson drove to the Handistop and observed a white Dodge Intrepid parked near the west side of the building.  It appeared that the two occupants were putting something in the back seat.  Hanson pulled up next to the vehicle without blocking its path.  As Hanson left his vehicle, the driver of the Intrepid started the engine and began backing up.  Hanson drew his gun and ordered the driver to shut off the car and show his hands.  Appellant Erik Malmquist and his passenger complied with the officer’s request and left their vehicle.

            Hanson holstered his gun and explained that he had received a report that two men were “cutting something” in the car.  He then asked Malmquist and his passenger if they had any weapons.  After Malmquist and his passenger denied having any weapons, Hanson performed a pat search and recovered a knife from the passenger.  Malmquist then admitted that he also had a knife, but Hanson was unable to find it during the pat search.  In response to questioning, Malmquist also denied having drugs in the car.  Hanson advised the men that he had access to a canine unit and that the men could “speed the process up” by telling him the location of the contraband.  Malmquist admitted that there was a “pipe” in the car’s center console.  He retrieved the pipe and gave it to Hanson.  

            Hanson searched the vehicle and found a box containing straws, a glass pipe, and a white powdery residue.  Hanson handcuffed both men and advised them that they were being detained but that they were not under arrest.  After placing Malmquist and his passenger in separate squad cars, Hanson requested the assistance of a canine unit.  The canine unit arrived and recovered a small rock believed to be methamphetamine and some powder in the compartment on the driver’s-side door. 

            The passenger was released.  Malmquist was arrested and charged with fifth-degree controlled substance crime, in violation of Minn. Stat. § 152.025, subd. 2(1) (2000); third-degree driving while impaired by a controlled substance, in violation of Minn. Stat. §§ 169A.20, subd. 1(2), .27 (2000); and possession of drug paraphernalia, in violation of Minn. Stat. § 152.092 (2000).  Malmquist filed a motion to suppress the evidence seized from the car, which the district court denied.  After a bench trial on stipulated facts, Malmquist was found guilty on the three counts.   This appeal followed.

D E C I S I O N

 

I.

Malmquist contends that the evidence must be suppressed because the report of someone “cutting something suspicious” was insufficient to establish reasonable, articulable suspicion, warranting an investigative stop for suspected ongoing criminal conduct.  Because the facts of this case are undisputed, we determine as a matter of law whether the officer had reasonable, articulable suspicion based on the informant’s tip.   See State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).   

The Fourth Amendment of the United States Constitution and Article I, Section 10, of the Minnesota Constitution protect against unreasonable searches and seizures.  To conduct an investigatory stop, an officer must have a reasonable, articulable suspicion of criminal activity.  State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999) (citing Terry v. Ohio, 392 U.S. 1, 20-22, 88 S. Ct. 1868, 1879-80 (1968)).  “The police must only show that the stop was not the product of mere whim, caprice or idle curiosity, but was based upon ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’” State v. Pike, 551 N.W.2d 919, 921-22 (Minn. 1996) (quoting Terry, 392 U.S. at 21, 88 S. Ct. at 1880). 

Reasonable suspicion need not be based on an officer’s personal observation but may be founded on information provided by a third person.  State v. Vereb, 643 N.W.2d 342, 346 (Minn. App. 2002).  If the investigative stop is not based on the officer’s observations, the informant’s tip “must provide at least some specific and articulable facts to support the bare allegation of criminal activity.” State v. Newgard, 392 N.W.2d 27, 29 (Minn. App. 1986).  When the investigative stop is based on an informant’s tip, we consider two factors that are not separately dispositive to determine whether the tip possesses sufficient indicia of reliability: (1) the information identifying the informant and (2) the facts supporting the informant’s assertion that a person is engaged in criminal activity.  Jobe v. Comm’r of Pub. Safety, 609 N.W.2d 919, 921 (Minn. App. 2000).  “[A] trained police officer is entitled to draw inferences on the basis of all of the circumstances[,] . . . inferences and deductions that might well elude an untrained person.” State v. Johnson, 444 N.W.2d 824, 826 (Minn. 1989) (citing United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 695 (1981)).  We evaluate whether the officer’s suspicion of criminal activity was reasonable at the time of the stop based on the totality of the circumstances.  Jobe, 609 N.W.2d at 921. 

Malmquist argues that the stop was unlawful because the informant’s tip did not provide sufficient information to form a reasonable suspicion of criminal activity.  We disagree.  The factual basis for the stop came exclusively from private citizen informants who are presumed reliable. See Rose v. Comm’r Pub. Safety, 637 N.W.2d 326, 328 (Minn. App. 2001), review denied (Minn. Mar. 19, 2002).   The convenience store employee, who was identifiable based on the information she provided, reported to the dispatcher that her manager saw a suspicious car in the parking lot and that it looked like the vehicle’s occupants were “cutting something illegal.”  Thus, the officer knew the basis for the informant’s knowledge.  The dispatcher relayed to Hanson that the informant reported that the occupants were “cutting something suspicious.”  Hanson testified that, based on his training and experience, he knew that “cutting something” refers to illegal drug activity.  We are persuaded that the informant’s use of the term “cutting” in this context connotes drug activity, and the officer’s inferences and deductions established a particularized and objective basis for suspecting the car’s occupants of criminal activity.  Accordingly, the district court properly determined that the investigatory stop was not unconstitutional. 

II.

 

Malmquist next argues that Hanson conducted a custodial interrogation without first giving a Miranda warning, in violation of the United States and Minnesota constitutions.  Specifically, Malmquist contends that, although he admitted having a pipe for drug use in the vehicle, his incriminating statement should be suppressed because he was in custody when the officer questioned him.  When considering whether Miranda warnings are required prior to police questioning, we review the district court’s factual findings under the clearly erroneous standard and review de novo the district court’s determination regarding whether the suspect was in police custody.  In re Welfare of G.S.P., 610 N.W.2d 651, 657 (Minn. App. 2000).

A Miranda warning is required if an individual is interrogated by police while in custody.  Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1996).  When applying the custodial interrogation standard to determine whether Miranda rights are required prior to police questioning, we first consider whether the suspect was in custody.  G.S.P., 610 N.W.2d at 657.  We then turn to the nature of the interrogation to determine whether the questioning was reasonably likely to elicit an incriminating response.  Id.  It is undisputed that Malmquist was subjected to police interrogation when Hanson asked him for the location of any contraband.  Thus, our analysis focuses on whether Malmquist was in custody at the time of Hanson’s questioning.  In doing so, we examine the totality of the circumstances, including the behavior of the officer and the suspect throughout the interrogation.  See State v. Wiernasz, 584 N.W.2d 1, 4-5 (Minn. 1998); State v. Miller, 573 N.W.2d 661, 670-71 (Minn. 1998).

Although no bright-line rule exists, the “[p]roper constitutional analysis of custodial interrogation should focus primarily on the perspective of the suspect, rather than the subjective intent of the police.”  G.S.P., 610 N.W.2d at 657; see also State v. Champion, 533 N.W.2d 40, 43 (Minn. 1995).  “The test is not whether a reasonable person would believe he or she was not free to leave.”  Champion, 533 N.W.2d at 43.  Rather, “the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a ‘degree associated with formal arrest.’”  Berkemer v. McCarthy, 468 U.S. 420, 440, 104 S. Ct. 3138, 3150 (1984); Champion, 533 N.W.2d at 43.  Although a person temporarily detained pursuant to a Terry stop is generally not in custody, a detained suspect will be entitled to the protections set forth in Miranda if the suspect “thereafter is subjected to treatment that renders him ‘in custody’ for practical purposes.”  Berkemer, 468 U.S. at 440, 104 S. Ct. at 3150; see also Champion, 533 N.W.2d at 43 (affirming trial court’s determination that noncustodial interrogation became custodial after defendant admitted he committed the offense under investigation). 

In State v. Rosse, the Minnesota Supreme Court held that the suspect was in “custody” when she was questioned by police following a drug bust.  478 N.W.2d 482, 486 (Minn. 1991).  There, two unmarked police cars moved in quickly, one in front of and the other behind the suspect’s car, so that she could not move.  Id. at 483.  There were a total of seven officers at the scene.  Id. at 486.  Two officers approached the suspect with their guns drawn, ordered her out of the car, and pat searched her.  Id. at 483.  After the initial confrontation, the officers holstered their firearms and searched her vehicle for narcotics.  Id.  Narcotics were not found, but an officer placed the suspect in the front passenger seat of his squad car and questioned her.  Id.  Although the suspect was not handcuffed, she saw her two companions in handcuffs, and she was separated from them. Id. at 486.  During the police questioning, the suspect admitted that she had driven her passenger to deliver narcotics.  Id. at 483.  The Rosse court concluded that, although “[n]one of these circumstances taken separately creates custody,” the facts and circumstances were such that a reasonable person would believe that she was in custody and was being restrained to a degree associated with a formal arrest.  Id. at 486.  Consequently, a Miranda warning was necessary prior to the police questioning.

The facts and circumstances here are distinguishable from those in Rosse.  The record establishes that Hanson pulled up next to Malmquist’s vehicle.  Unlike the two police squad cars in Rosse, Hanson’s squad car was not blocking Malmquist’s vehicle.  With his gun drawn, the officer instructed Malmquist and the passenger to step out of the vehicle.  When Hanson saw that the suspects had nothing in their hands, he holstered his firearm and explained to the suspects his reason for drawing his weapon—he was dispatched to investigate two men who were “cutting something” in the car.  Hanson then patted down both men and questioned Malmquist to determine whether there were drugs in the vehicle.  After Malmquist denied the presence of drugs, Hanson told Malmquist that he had access to a canine unit and that Malmquist could speed up the process if he described the location of the contraband.  At that point, Malmquist admitted having a pipe in the vehicle. 

“[T]hat an officer consciously seeks to elicit incriminating statements . . . does not automatically entitle the defendant to a Miranda warning.”  State v. Voight, 486 N.W.2d 793, 795 (Minn. App. 1992), review denied (Minn. Aug. 4, 1992).  When Hanson questioned Malmquist about the presence of drugs in the vehicle, a reasonable person in Malmquist’s position would not believe that he or she was in custody or restrained in a manner associated with a formal arrest.  Unlike the facts in Rosse, Hanson was the only officer on the scene.  Neither Malmquist nor the passenger was handcuffed or placed in the squad car prior to Hanson’s questioning.  Although Hanson initially drew his firearm, after hearing the officer’s explanation for doing so, a reasonable person would believe that the officer drew his weapon out of concern for his personal safety.  See United States v. Prior, 941 F.2d 427, 430 (6th Cir. 1991) (officer’s use of gun did not convert investigatory stop into an arrest where “display of his gun was reasonably necessary for his own personal safety” during lone officer’s encounter with two men suspected of narcotics violation); see also Harris v. Commonwealth, 500 S.E.2d 257, 263 (Va. Ct. App. 1998) (drawing weapons does not necessarily elevate a lawful stop into a custodial arrest for Miranda purposes).  Hanson returned the gun to its holster prior to inquiring about the location of the drugs.  It was midday in a convenience store parking lot, and it appears that Malmquist was detained for a relatively short period before revealing the location of the contraband.  Not one of these facts, when considered singularly or in conjunction with the others, transforms this police encounter from an investigatory detention into a custodial interrogation.  Based on this record, we conclude that Hanson’s detention began as a brief investigatory stop and remained so when Hanson questioned Malmquist.  The district court’s denial of Malmquist’s motion to suppress, therefore, was proper.

III.

 

Malmquist alternatively argues that, while not immediately placed under arrest, he was detained long enough to constitute a de facto arrest.  He contends that his conviction must be reversed because he was arrested without a warrant and without probable cause.  Malmquist did not raise this issue before the district court.  At the omnibus hearing, Malmquist stated that the issues were “the legitimacy of the initial stop of the motor vehicle, the legitimacy of the search of the motor vehicle, [and] the admissibility of the statements made by the defendant.”  Generally, we do not “decide issues which are not first addressed by the [district] court and are raised for the first time on appeal even if the issues involve constitutional questions regarding criminal procedure.”  State v. Roby, 463 N.W.2d 506, 507 (Minn. 1990).  Accordingly, we decline to address this issue raised for the first time on appeal. 

Affirmed. 

 

 

 

LANSING,Judge (dissenting)

I respectfully dissent.  The type and degree of force used by the police officer throughout this confrontation was not justified by the conclusory report of an unidentified Handistop employee that her manager saw two men in a white Intrepid “looking like they are cutting something illegal.”

The officer’s forceful conduct in stopping the vehicle with a drawn gun, ordering the driver to shut off the car and show his hands, pat searching the driver and the passenger, and continuing to detain the occupants after failure to observe any illegality, telling the occupants that he had access to a canine unit and that they should “speed the process up” by providing the location of the contraband, constitutes the type of restraint equivalent to a formal arrest that required probable cause in State v. Carver, 577 N.W.2d 245 (Minn. App. 1998) and a custodial Miranda warning in State v. Rosse, 478 N.W.2d 482 (Minn. 1991).  Further, the officer’s comment to the driver and passenger after the vehicle search that they were “not free to go” and placing them in handcuffs is consistent with an arrest.

To determine whether a police officer’s conduct is an investigative stop or an unlawful arrest, courts must consider the aggressiveness of the police methods and the intrusiveness of the stop against the justification for the conduct.  State v. Balenger, 667 N.W.2d 133, 139 (Minn. App. 2003), review denied (Minn. Oct. 21, 2003).  The officer knew only that a Handistop employee had reported a “suspicious” vehicle and that the two occupants were “cutting something.”  The officer’s aggressive and intrusive behavior was not justified by the facts available to him or communicated to the dispatcher.  The statements and evidence obtained as a result of the unlawful police conduct should have been suppressed.