This opinion will be unpublished and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,
Daniel John Reynolds,
Filed April 6, 2004
Dakota County District Court
File No. K1-01-3349
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)
Lawrence E. Nichols, 1971 Seneca Road, Suite A, Eagan, MN 55122 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Shumaker, Judge, and Crippen, Judge.
On appeal from his first-degree controlled substance conviction, Daniel John Reynolds challenges the denial of his motion to suppress evidence of narcotics obtained during a patdown search. Appellant argues that (1) he was stopped without reasonable and articulable suspicion of criminal activity after arriving at a residence where police were executing a search warrant; (2) even if he was lawfully stopped, the subsequent patdown was unlawful because the investigating officers lacked reasonable and articulable suspicion that he was armed and dangerous; and (3) the officers exceeded the scope of the patdown by removing a small metal box from his pocket, later found to contain narcotics. Because the district court’s factual findings are supported by the record and establish a lawful basis for the stop, the patdown, and the removal of the metal box, we affirm.
After officers found a box containing methamphetamine on appellant’s person, the state charged him with knowingly possessing drugs in violation of Minn. Stat. §§ 152.021, subd. 2(1); .025, subd. 2(1) (2002). Following the denial of his motion to suppress evidence of the drugs, appellant waived his right to a jury trial and submitted his case to the court on stipulated facts, pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).
The district court found that in November 2001, Dakota County officers executed a search warrant authorizing them to search a home and its occupants for controlled substances. While this search occurred, appellant approached the house and knocked on the back door. After explaining that a search pursuant to a warrant was in progress, a detective stepped back and allowed appellant to enter. None of the officers in the house displayed weapons or told appellant that he was required to enter the house.
The district court found that officers advised appellant that he was not under arrest and asked twice if he had any weapons and asked for identification. The court found that “during the retrieval of his license [appellant’s] hands were shaking and he was looking around the kitchen furtively.” The court also found that appellant “put his hands in his pockets despite repeated requests by the officers not to [do so].”
Because appellant persisted in putting his hands in his pockets, the police asked him a third time whether he had any weapons. Appellant hesitated but then admitted that he had a pocketknife and began to retrieve it. At that point, appellant was detained as the officers conducted a patdown search. The officers felt a hard metal object in appellant’s jacket pocket, and because they were not sure what the object was, they asked appellant to remove it; appellant did not comply. The officers then retrieved the object, which turned out to be a green metal box with a magnet on the side, the type of box the officers had seen used for the transport of narcotics.
The district court found that appellant told the officers the box contained lug nuts and denied them permission to search it. But when the officers shook the box, it made no noise. The officers noticed that appellant became very nervous while they shook the box. They then continued the patdown and removed the pocketknife from appellant’s pants pocket. A narcotics dog at the house alerted the officers to the scent of narcotics, and a subsequent search of the box conducted pursuant to a search warrant revealed 57.69 grams of methamphetamine and two methelenedioxymethamphetamine pills.
When reviewing pretrial orders on motions to suppress evidence, an appellate court may review the facts independently to 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). But the district court’s factual findings will not be reversed unless clearly erroneous or contrary to law. State v. Gilbert, 262 N.W.2d 334, 340 (Minn. 1977).
A person may be lawfully detained for investigative purposes when law enforcement officials have a reasonable and articulable suspicion that the person stopped is involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880 (1968). Law enforcement officials may briefly detain occupants of a private residence while a warrant-authorized search of the residence is in progress, provided they have an articulable basis for suspecting criminal activity. Michigan v. Summers, 452 U.S. 692, 699, 101 S. Ct. 2587, 2592-93 (1981). Under proper circumstances, nonoccupants may also be detained if they enter a residence during a search. State v. Gobely, 366 N.W.2d 600, 602-03 (Minn. 1985) (finding that detention was justified because the officers discovered stolen property in the residence, were investigating thefts that included perpetrators other than the occupants, and had been able to infer that the visitor knew at least one of the occupants).
In this case, legitimate law enforcement interests, as well as the facts known to the officers when they stopped appellant, taken together with rational inferences to be drawn from those facts, justified any stop that occurred before appellant was detained for frisking. Initially, the officers had a legitimate interest in addressing appellant to ascertain whether he lived in the premises and was, therefore, subject to the terms of the warrant. See Baker v. Monroe Township, 50 F.3d 1186, 1192 (3d Cir. 1995) (stating that “police may stop people coming to or going from the house if police need to ascertain whether they live there”).
Significantly, appellant was voluntarily present on private premises that were subject to an authorized search for drugs and was, therefore, potentially dangerous. “The possible danger presented by an individual approaching and entering a structure housing a drug operation is obvious.” United States v. Patterson, 885 F.2d 483, 485 (8th Cir. 1989). The Supreme Court hasrecognizedthat even where the evidence suggests no special danger to police, “the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence.” Summers, 452 U.S. at 702, 101 S. Ct. at 2594. The court concluded that “[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.” Id. at 702-03, 101 S. Ct. at 2594.
Also, before appellant’s arrival, the police had discovered drugs and drug paraphernalia typically used for distribution purposes. See Gobely, 366 N.W.2d at 602 (considering fact that police had discovered stolen property in apartment being searched in concluding stop was justified). The police therefore reasonably believed that appellant was on the premises for an illegal purpose involving narcotics.
Finally, appellant stated that he was at the house to see a person named in the search warrant. This raised a reasonable suspicion that appellant was associated with illegal narcotics activity on the premises and was likely to be armed. See, e.g., United States v. Bell, 762 F.2d 495, 500 (6th Cir. 1985) (“[W]hile the fact of companionship d[oes] not itself justify [a] frisk …, it is not irrelevant to the mix that should be considered in determining whether the agent’s actions were justified”); Patterson, 885 F.2d at 485 (concluding that frisk of defendant who arrived at drug vending site during search-warrant execution driving resident’s van was proper). Precedents distinguish between these facts and those involving the proximity of a person with a suspect who is in a public place. Ybarra v. Illinois, 444 U.S. 85, 91, 100 S. Ct. 338, 342 (1979)(holding that frisk of patron at a tavern during execution of warrant authorizing search of premises and bartender for controlled substances was unjustified); cf. People v. Thurman, 257 Cal. Rptr. 517, 520-21 (Cal. Ct. App. 1989).
Appellant argues that the stop was unjustified because he was neither a suspect in the investigation nor an anticipated subject of the search and there was no evidence linking him to any criminal act. But law enforcement officials may conduct an investigative stop without probable cause when the facts known to them at the time of the stop create a reasonable and articulable suspicion that the person stopped is involved in criminal activity. Terry, 392 U.S. at 21, 88 S. Ct. at 1880. Evidence directly linking a person to criminal activity is not required. See id.
Appellant also argues that the facts of his case are indistinguishable from the facts in United States v. Rembert, 838 F. Supp. 1336, 1339 (D. Minn. 1993), where the court invalidated a frisk incident to the execution of a search warrant, reasoning that the record contained no evidence to connect the visitor to the apartment being searched or the person residing in the apartment. But police in Rembert frisked an occupant immediately upon his arrival, after he asked for an occupant. Id. (“[a]n officer cannot rely on circumstances that he deems suspicious to conduct a pat-search when he could either verify or dispel those suspicions without risk.”). In contrast, the officers in this case asked appellant for identification, inquired about his purposes, and had occasion to notice that appellant appeared to be nervous and insisted on keeping his hands in his pockets, despite repeated requests that he not do so.
Finally, appellant argues that the stop was unjustified under United States v. Clay, 640 F.2d 157, 159 (8th Cir. 1981), which also found no cause for a search. But in that case, the visitor was compelled to enter the house being searched and was then immediately searched. Clay, 640 F.2d at 158. The court reasoned that further inquiry could have been made without risk and should have occurred. Id. at 161. In this case, after drugs were found on the premises, inquiry was made to dispel the officers’ suspicions, and appellant exhibited nervousness and furtive movements during the inquiry.
The circumstances we have reviewed justified the police choice to stop and detain appellant.
Officers executing a search warrant at a private residence may frisk a person who arrives at the premises while the search is in progress, provided they have specific and articulable facts that, together with rational inferences drawn from those facts, create a reasonable belief that the person might be armed or otherwise presently dangerous to the officers. See, e.g., Patterson, 885 F.2d at 485. Officers “need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27, 88 S. Ct. at 1883. In other words, the focus is on the reasonableness of perceptions that a subject is potentially dangerous. United States v. Flett, 806 F.2d 823, 828 (8th Cir. 1986).
From the moment of his entry, appellant appeared to be nervous. His hands were shaky and he made furtive movements with his hands and eyes. Furtive movements are one of several specific and articulable facts courts consider in determining the reasonableness of a frisk. See, e.g., United States v. Moorefield, 111 F.3d 10, 14 (3d Cir. 1997) (considering furtive hand movements, in addition to attempt to exit vehicle when stopped and refusal to obey orders, in concluding that reasonable suspicion justified frisk).
Also, appellant persisted in putting his hands in his pockets, despite numerous requests that he refrain from doing so. A suspect’s hesitancy to follow an officer’s orders can reasonably lead law enforcement officials to believe that a suspect might be armed and dangerous. See Reyes v. United States, 758 A.2d 35, 38-39 (D.C. 2000) (holding that when defendant refused repeated requests to remove his hand from his pocket, officer-safety concerns justified grabbing the defendant, pulling him over to a police cruiser, and forcing him to remove his hand from his pocket).
Most important, after twice denying that he had any weapons, appellant reluctantly admitted that he had a pocketknife and attempted to retrieve it. It would not have been safe for the officers to allow appellant to remove the pocketknife himself, particularly after he lied twice about having the knife and refused repeated requests that he remove his hands from his pockets.
Appellant’s nervous demeanor and furtive movements, his failure to follow orders, and his admission that he had a pocketknife fully justified a limited search for weapons.
Finally, appellant argues that the police exceeded the scope of the frisk by removing the small metal box from his pocket. But under Minnesota law, when a frisk is appropriate and officers feel a hard object of substantial size, the precise shape or nature of which could be a weapon and cannot be discerned through outer clothing, the removal of the object is justified. State v. Bitterman, 304 Minn. 481, 486, 232 N.W.2d 91, 94 (1975) (holding that removal of two-inch by one-inch prescription bottle was justified where officer testified that he did not know what the object was before he took it out). Because weapons are not always easily discernable through outer clothing, requiring officers to ascertain positively that an object is a weapon before removing it would make a mockery of the right to frisk. See State v. Gannaway, 291 Minn. 391, 393, 191 N.W.2d 555, 556 (1971) (stating that an officer, upon sensing a hard object that might be a weapon, “clearly had the right to reach in and remove it”).
Here, officers removed a box that was approximately four inches by two inches, after appellant refused to remove it himself. The officers did not know that the box was not a weapon; to the contrary, officers testified that the box, although small, could have contained a gun or a knife. Because the officers could not determine through appellant’s outer clothing whether the box contained a small weapon and he refused to remove the box himself, the officers were justified in removing it.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The state initially argues that the district court correctly concluded that appellant was not seized when he voluntarily entered the premises. Because we conclude that there was a lawful basis for the stop, we decline to address the question of whether appellant was seized.