This opinion will be unpublished and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

A03-905

 

State of Minnesota,
Respondent,

vs.

Vinicio Antonio Morales-Ayala,
Appellant.

 

Filed August 3, 2004

Affirmed

Wright, Judge

 

Carver County District Court

File No. K3-02-2506

 

 

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Mike Fahey, Carver County Attorney, Peter A.C. Ivy, Assistant County Attorney, 604 East Fourth Street, Chaska, MN  55318 (for respondent)

 

            Considered and decided by Kalitowski, Presiding Judge; Wright, Judge; and Forsberg, 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 found after a pat search.  We affirm.

 FACTS

 

Chaska Police Officer Jamie Personius was on routine patrol at 2:00 a.m. on December 23, 2002.  As the officer approached a stop sign, he noticed a van crossing the intersection.  The driver and sole occupant was appellant Vinicio Morales.  From at least two prior contacts, Personius recognized Morales and knew that Morales had only an instructional driver’s permit, which required him to be accompanied by a licensed driver.[1]  The officer conducted a routine traffic stop.  He asked for Morales’s permit and identification, which Morales provided.  Officer Benoit arrived on the scene shortly after the stop in response to Personius’s request for backup. 

            While speaking to Morales in the van from a distance of approximately two feet, Personius detected a slight odor from an alcoholic beverage.  When questioned, Morales denied drinking any alcohol.  Because Morales could not lawfully drive the van alone, Personius asked Morales to step out of the van.  Personius intended to comply with the police department’s policy requiring the van to be towed in the absence of an alternate licensed driver.  Because the outside temperature was approximately 20 degrees, Personius directed Morales to sit in the squad car to stay warm during the process.  But before Morales entered the car, Personius conducted a pat search to determine whether Morales possessed any weapons.  The officer was concerned for his safety because he knew that Morales was a member of the Latin Kings gang and noticed a Latin Kings tattoo on Morales’s hand.

            During the pat search, Morales vigorously shook his left leg and stated words to the effect of, “Don’t you want to check here and check my shoe.”  Personius did not discover any weapons.  He then placed Morales in the back seat of the squad car and administered a preliminary breath test to detect the presence of alcohol.  Morales produced an insufficient test sample, but a manual comparison of the breath sample showed an alcohol concentration of .03 percent.  Morales was arrested for driving while impaired and transported to the police station for further testing under the implied-consent law.

            Personius later learned that a foil ball containing suspected drugs had been found behind the rear passenger-side tire of the van.  The substance was tested and identified as 24 grams of methamphetamine.

Morales was charged with possession and sale of a controlled substance, in violation of Minn. Stat. §§ 152.022, subd. 2(1), .021, subd. 1(1) (2002), and several driving-related offenses.

            Morales challenged the constitutionality of the stop and pat search.  He moved to suppress the methamphetamine seized by the officers.  The district court concluded that Personius had probable cause to stop Morales for violation of a restricted driver’s license, but he did not have probable cause to arrest Morales for driving while impaired.  The district court also concluded that Personius properly detained Morales in the squad car and that reasonable grounds existed to perform the pat search based on the risk to the officer’s safety.  Concluding that the drugs found outside the van were not the product of a search of Morales or the van, the district court denied the suppression motion. 

Morales waived his right to a jury trial and submitted the case to the district court on stipulated facts pursuant to the procedure set forth in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  Morales stipulated that he was in possession of six grams or more of methamphetamine.  The district court found Morales guilty of possession of a controlled substance.  This appeal followed.

D E C I S I O N

 

A district court’s determination of whether to suppress evidence, including issues regarding the constitutionality of a limited investigatory stop and warrantless search, is reviewed de novo.  State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999).  When, as here, the facts are not in dispute, we consider whether, in light of the facts, suppression of the evidence is warranted as a matter of law.  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

Morales argues that the pat search violated the Fourth Amendment to the United States Constitution and Article I, Section 10 of the Minnesota Constitution.  In State v. Askerooth, the Minnesota Supreme Court recently reviewed the scope of constitutional protection against unreasonable searches and seizures during minor traffic violations.  681 N.W.2d 353, 361 (Minn. 2004).  It first recognized that the Minnesota Constitution provides greater protection than the United States Constitution.  Id.  It then held that, although recent Fourth Amendment cases cast doubt on whether it is necessary to evaluate the reasonableness of seizures and searches during traffic stops, such analysis is required under the Minnesota Constitution.  Id. at 362-63 (distinguishing Atwater v. City of Lago Vista, 532 U.S. 318, 121 S. Ct. 1536 (2001)).  In this context, the Askerooth court reaffirmed the use of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), to evaluate the reasonableness of searches and seizures.  Id. at 363.  Thus, our inquiry is limited to an analysis of Minnesota’s constitutional protections.

 We consider the totality of the circumstances to determine whether the protective weapons search was reasonable.  State v. Gilchrist, 299 N.W.2d 913, 916 (Minn. 1980).  “‘Police officers may not ordinarily make searches upon apprehending motorists for simple traffic violations or upon the slightest hint of illegality.’”  State v. Varnado, 582 N.W.2d 886, 889 (Minn. 1998) (quoting State v. Harris, 265 Minn. 260, 268, 121 N.W.2d 327, 333 (1963)).  A minor traffic violator’s inability to produce a driver’s license in and of itself is not a reasonable basis to require the driver to sit in the back of a squad car.  Id. at 891.  A pat-down search during a routine traffic stop for a minor traffic violation is improper absent some additional suspicious or threatening circumstances.  Id. at 890.  A limited protective weapons frisk of a lawfully stopped person may be conducted if an officer “reasonably believes that the suspect might be armed and dangerous and capable of immediately causing permanent harm.”  Id. at 889. 

            In Varnado, the Minnesota Supreme Court reiterated its earlier rejection in State v. Curtis, 290 Minn. 429, 190 N.W.2d 631 (1971), of a blanket rule permitting a pat-down search before a person enters a squad car.  Id. at 890.  Citing Curtis, the Varnado court stated that the police may search a lawfully stopped person before placing him in a squad car if there is (1) a reasonable basis for requesting that the person wait in the squad car and (2) a reasonable basis for frisking that person.  Id. at 891 n.4.  Addressing officer safety, the Varnado court recognized that “officer safety is a paramount interest and that when an officer has a valid reasonable basis for placing a lawfully stopped citizen in a squad car, a frisk will often be appropriate without additional individual articulable suspicion.”  Id. at 891.  Noting that a pat-down search “in the absence of any threatening circumstances is a dramatic departure from the long-standing holding of Terry[,]” we defined a “reasonable basis” for a pat-down search before placing a person in a squad car as “either a reasonable suspicion that the person is armed and dangerous or the existence of other circumstances that pose a threat to the officer.”  In re Welfare of M.D.B., 601 N.W.2d 214, 217 (Minn. App. 1999), review denied (Minn. Jan. 18, 2000). 

            The state contends that the officer had a reasonable basis for placing Morales in the back of the squad car because the officer was initially alone on the scene, it would take time to confirm Morales’s driver’s license status, Morales could not drive the vehicle with a restricted license, arrangements had to be made to tow the vehicle and secure a ride for Morales, and it was cold outside.  We agree.  “To be reasonable, the basis must satisfy an objective test: would the facts available to the officer at the moment of the seizure . . . warrant a [person] of reasonable caution in the belief that the action taken was appropriate.”  Askerooth, 681 N.W.2d at 364 (quotations omitted).

Of greater concern is whether there was a reasonable basis for the pat-down search incident to confining Morales in the back seat of the squad car.  This inquiry requires us to determine whether the facts presented either “a reasonable suspicion that the person is armed and dangerous” or “the existence of other circumstances that pose a threat to the officer.”  M.D.B., 601 N.W.2d at 217 (defining reasonable basis for pat search prior to placing minor traffic offender in a squad car).

            Applying these principles to our facts, the only circumstance that would lead an officer to reasonably suspect that Morales posed a threat was Personius’s knowledge of Morales’s gang affiliation, which was confirmed by the tattoo on Morales’s hand.[2]  Personius testified that the suspect’s affiliation with the Latin Kings caused the officer to be concerned for his safety.  In light of the totality of the circumstances, we conclude that the district court correctly determined that the officer “had reasonable grounds based upon officer safety to require a pat down search of [Morales].”  In reaching this conclusion, we note that other jurisdictions have ruled, as we do here, that gang affiliation is a relevant factor in determining whether there is a reasonable basis for concluding that a suspect poses a threat to officer safety.  See State v. Miglavs, 90 P.3d 607, 613-14 (Or. 2004); In re Welfare of S.V., 761 N.E.2d 248, 255-56 (Ill. App. Ct. 2001); State v. Vasquez, 842 S.W.2d 841, 843-44 (Tex. Ct. App. 1992).

            The district court concluded that the methamphetamine was not the fruit of the pat search.  Contrary to its position before the district court, the state now agrees.  This conclusion, however, is not supported by the record.  There is no evidence of any time other than during his unusual behavior in the course of the pat search when Morales could have discarded the methamphetamine in the location where it was found.  But because we conclude that the methamphetamine was abandoned during the course of a lawful search, suppression of the evidence is not warranted.  Cf. Askerooth, 681 N.W.2d at 366-67; In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1993).

Affirmed.

 

 

 

 



*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1]  Minn. Stat. § 171.05, subd. 1 (2002)

[2]  The Askerooth court rejected claims that the combined factors of the time of day (12:40 a.m.), the suspect’s lack of identification, and the absence of another officer on the scene are sufficient to establish an objectively reasonable threat to officer safety. 681 N.W.2d at 367.