This opinion will be unpublished and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

A04-272

 

State of Minnesota,

Respondent,

 

vs.

 

Barbara J. Bieniek,

Appellant.

 

Filed September 21, 2004

Affirmed

Hudson, Judge

 

Ramsey County District Court

File No. K7-03-2228

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and

 

Susan Gaertner, Ramsey County Attorney, Jennifer M. Spalding, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, Minnesota 55102-1657 (for respondent)

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Minneapolis, Minnesota 55414 (for appellant)

 

Considered and decided by Klaphake, Presiding Judge; Kalitowski, Judge; and Hudson, Judge.


U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

Appellant Barbara Bieniek challenges her conviction of controlled-substance crime in the fifth degree, claiming that the district court erred by not suppressing the evidence of illegally obtained heroin.  Appellant contends that, after being legally stopped for a traffic violation, Sergeant Paul Paulos did not have a reasonable basis to expand the traffic stop by handcuffing appellant and placing her in the back of his squad car.  Because we conclude that Paulos did have a reasonable basis to expand the traffic stop and place appellant in the squad car, we affirm. 

FACTS

On June 22, 2003, Sergeant Paul Paulos was on patrol near the Dorothy Day Center when he saw a well-dressed woman, appellant Barbara Bieniek, approaching Cleveland Circle, an area that he stated is known for narcotics dealing.  He observed appellant meet with Pedro Chatterlays, a known narcotics dealer.  The two spoke, walked around the corner, and got into a car.  Paulos followed the vehicle because he thought Chatterlays would likely be in possession of a weapon or drugs.  After following the vehicle, he observed the driver fail to come to a complete stop at the corner of St. Joseph and Seventh Street.  About two blocks later, Paulos pulled the car over.  As he was making the stop, Paulos called for back up to “roll by.”  He approached the car and asked appellant, the driver, to step out of the car.  Chatterlays remained in the back seat, and there was a passenger in the front seat.  Paulos felt it was necessary to separate the vehicle’s occupants because Chatterlays was known to often be in possession of weapons and because Paulos was working alone. 

            Once appellant stepped out of the car, Paulos told her that she had violated a traffic law and was with a known drug dealer.  Paulos asked appellant if she had any narcotics or if Chatterlays had asked her to hold anything for him.  Appellant stated that she did not have any narcotics.  But Paulos testified that as he spoke to appellant, especially when he began questioning her about whether she had any drugs or whether Chatterlays gave her any drugs, he noticed she was shaking and that she kept trying to get into her pockets.  Paulos stated that he became concerned for his safety because he was aware of past violence committed by Chatterlays.  Further, Paulos testified that, while he did not observe appellant to have any threatening objects, he was concerned that she might be in possession of a weapon because she wanted to get into her pockets and was making jerky movements.  Paulos stated that, because of this concern, he handcuffed appellant and put her in the back seat of his squad car.  Paulos did not conduct a pat-down search of appellant before putting her in the back seat of his vehicle, but he stated that he was planning to search appellant when his back-up arrived.  Paulos’s back-up drove by as Paulos was heading back to the car to speak with the other passengers.  Paulos spoke with the other passengers in the vehicle.  Paulos never discovered weapons or drugs on the other passengers, but Chatterlays had a twenty-dollar bill rolled up in his hand and was in possession of more than $200 in cash.  

            After about ten to fifteen minutes, Paulos observed appellant in the squad car making a motion he described as “going into the small of her back.”  Paulos stated that appellant was leaning forward and he could see her trying to conceal something into the small of her back and could see a piece of a baggie. 

Paulos and the back-up officer removed appellant from the squad car and asked her what she was putting in her back.  She wrestled with them and screamed.  Paulos recovered a small bindle of powder from appellant’s back.  Appellant identified the powder as heroin. 

            Appellant was charged with controlled-substance crime in the fifth degree.  Appellant moved to suppress the evidence of the heroin, and a suppression hearing was held on August 21, 2003.  On September 15, 2003, the district court denied the motion to suppress and appellant was found guilty after a bench trial on stipulated facts.  On appeal, appellant challenges the district court’s ruling refusing to suppress the evidence, claiming that Paulos exceeded the legally permissible scope and duration of the traffic stop.

D E C I S I O N

When reviewing pretrial orders on motions to suppress evidence, an appellate court may independently review the facts and determine as a matter of law whether the district court erred in not suppressing the evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  “The correct approach in a case where the facts are not significantly in dispute is to simply analyze the testimony of the officers and determine if . . . the officers were justified under the cases in doing what they did.”  State v. Storvick, 428 N.W.2d 55, 58 n.1 (Minn. 1988). 

The Fourth Amendment to the United States Constitution and Article I, Section 10, of the Minnesota Constitution govern investigative stops.  State v. Askerooth, 681 N.W.2d 353, 360-63 (Minn. 2004); State v. George, 557 N.W.2d 575, 578 (Minn. 1997).  An investigatory traffic stop is lawful if the police officer has a reasonable, articulable suspicion that the person stopped is engaged in 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 officer must have objective support for his suspicion.  State v. Johnson, 444 N.W.2d 824, 825–26 (Minn. 1989).  If an officer observes a violation of a traffic law, however insignificant, the officer generally has an objective basis for stopping the vehicle.  George, 557 N.W.2d at 578.  If an officer makes a lawful stop, any evidence that comes to his attention, even if the evidence is of a crime different from the crime for which the initial stop was made, is admissible at trial.  State v. Vivier, 453 N.W.2d 713, 717 (Minn. App. 1990).

            Both parties agree that Paulos had the authority to stop appellant.  But appellant argues that after removing appellant from the vehicle, Paulos did not have the authority to expand the stop by handcuffing appellant and placing her in the back of his vehicle.  Appellant first argues that Paulos’s actions converted the stop into an unlawful arrest without probable cause.  Further, appellant contends that, even if the stop was not converted into an arrest, handcuffing appellant and placing her in the back of his squad car was beyond the scope and necessary duration of the investigatory stop.

Appellant was not unlawfully arrested without probable cause.  In State v. Varnado, 582 N.W.2d 886, 891 n.4 (Minn. 1998), the Minnesota Supreme Court concluded that an officer does not need probable cause before requesting that a person wait in the squad car; rather, the officer only needs a reasonable basis.  See also State v. Herem, 384 N.W.2d 880, 883 (Minn. 1986) (“[S]imply requiring defendant to sit in a police car for a short time . . . did not take the situation beyond the realm of the ordinary traffic stop.”).  The Minnesota Supreme Court has held that:

the confinement in a squad car of a driver stopped for a minor traffic violation . . . may be justified if it is reasonably related to the initial lawful basis for the stop, reasonably related to the investigation of an offense lawfully discovered or suspected during the stop, or a threat to officer safety. 

 

Askerooth, 681 N.W.2d at 369–70. 

Therefore, placing appellant in the squad car for ten to fifteen minutes did not convert the valid investigatory stop into an arrest, and Paulos only needed a reasonable basis to temporarily place appellant in the squad car. 

Paulos possessed a sufficient reasonable basis to expand the scope of the investigatory stop and place appellant in the squad car.  A determination of reasonable suspicion requires consideration of the totality of the circumstances.  State v. Martinson, 581 N.W.2d 846, 852 (Minn. 1998).  When arriving at a reasonable suspicion of criminal activity, the officer may make inferences and deductions that might elude an untrained person.  Appelgate v. Comm’r of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987).  But it is necessary that the officer demonstrate objective facts to justify that suspicion and may not base it upon a mere hunch.  State v. Cripps, 533 N.W.2d 388, 391–92 (Minn. 1995).  Indeed “[w]hile an officer’s perception of a defendant’s nervousness may contribute to an officer’s reasonable suspicion, this indicator is not sufficient by itself and must be coupled with other particularized and objective facts.”  State v. Tomaino, 627 N.W.2d 338, 341 (Minn. App. 2001).  Further, “merely speaking with and being in close proximity with others suspected of criminal activity, without more, may be insufficient . . . to reach the threshold of reasonable articulable suspicion required [to constitute suspicion of illegal activity]”.  State v. Ingram, 570 N.W.2d 173, 177 (Minn. App. 1997), review denied (Minn. Dec. 22, 1997). 

The supreme court has held that when an officer is working with a partner, the fact that the traffic stop occurred late at night and the driver lacked identification did not create a reasonable basis to expand the investigatory stop and place the suspect in the officer’s squad car.  Askerooth, 681 N.W.2d at 369.  But some examples of what may constitute articulable suspicion include: (1) instances where a motorist assumes a hostile and threatening attitude when stopped; or (2) when the police, by cursory observation, have valid reason to believe the motorist is engaged in the commission of a more serious crime.  State v. Curtis, 290 Minn. 429, 437, 190 N.W.2d 631, 636 (1971).

            Appellant contends that Paulos based his expansion of the stop on two factors: (1) his knowledge that Chatterlays was a suspected drug dealer; and (2) his observation that appellant was nervous.  Appellant claims that these are not valid factors to support the expansion of the investigatory stop.  Moreover, because Paulos did not see any drugs, weapons, or evidence of hand-to-hand transactions, the officer’s actions were based solely on his hunch that, because appellant was walking with Chatterlays, she was engaged in a drug transaction. 

At the hearing, Paulos stated that because of appellant’s “furtive movements and being that she is a female, I couldn’t see any objects that were threatening at the time; but with the history and knowledge of [Chatterlays] to preserve evidence and for officer safety, I had to handcuff her at that time until she could be searched properly.”  Paulos went on to state that he felt he had to restrain appellant because appellant’s fast, jerking movements made him uncomfortable, explaining that he did not know if Chatterlays had passed her something or whether she had a weapon he could not see. 

            Based on this testimony, it is clear that Paulos based his decision to place appellant in the squad car on objective facts and was justified in putting appellant in the squad car for both officer-safety reasons and because he had a valid reason to believe that appellant was engaged in a more serious crime.  An officer is allowed to make an inference that would elude the untrained eye and base his reasonable suspicion on the totality of the circumstances.  Based on the chain of events in this case, it was reasonable for Paulos to believe that a drug transaction had occurred.  Further, based on his training and experience as an officer, it was reasonable for him to believe that someone in the car may be armed.  While appellant argues that Paulos cannot solely rely on the nervousness of appellant or her close proximity with others suspected of criminal activity, these two factors, combined with the fact that Paulos was working alone and appellant’s odd behavior upon exiting the vehicle, created a reasonable basis to expand the investigatory stop.  Accordingly, the district court did not err in refusing to suppress the evidence.

Affirmed.