This opinion will be unpublished and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,
Watae Lujuan Mickey,
Filed November 16, 2004
Hennepin County District Court
File No. 03020478
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Jay Heffern, Minneapolis City Attorney, Paula Jean Kruchowski, Assistant City Attorney, 300 Metropolitan Centre, 333 South 7th Street, Minneapolis, MN 55402 (for respondent)
John M. Stuart, State Public Defender, Marie L. Wolf, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Huspeni, Judge.
Appellant challenges his conviction of carrying a pistol without a permit, arguing that the district court erred by not suppressing the pistol as the fruit of an illegal pat-frisk. Because the brief investigatory stop and frisk of appellant were reasonable under the Fourth Amendment, we affirm.
At 9:30 p.m. on March 23, 2003, Minneapolis Police Officer Darren Waletzki responded to a 911 call from 3145 Chicago Avenue South, in which the caller reported a “prowler” in the alley behind the house. The caller gave a description of the “prowler.” Waletzki and his partner drove to the area and encountered appellant Watae Lujuan Mickey, who matched the description given by the caller, and who was walking in the alley about five houses south of 3145 Chicago Avenue.
Waletzki called Mickey over to the squad car; Mickey, after hesitating and asking why the demand was being made, eventually approached the car. Waletzki pat-frisked him, later testifying that he did so because he was going to put Mickey in the back of the squad car and transport him to the caller’s residence to see if the caller could identify Mickey as the prowler. Waletzki also testified that he wanted to pat-frisk Mickey for safety reasons because the neighborhood was very violent, and many guns had been recovered from there in the past.
During the pat-frisk, Waletzki felt the handle of a gun in Mickey’s waistband. When Waletzki touched the gun, Mickey reached for his waistband, forcing Waletzki to put a wristlock on Mickey. Waletzki eventually handcuffed Mickey, placed him in the squad car, and drove him to the caller’s residence, where Mickey was positively identified as the prowler.
The district court upheld the pat-frisk and the fruits of the search because Mickey matched the description of the prowler, and a reasonable officer would have been justified in believing that the prowler was dangerous. After waiver of a jury trial and submission of the case to the court on stipulated facts, Mickey was found guilty of carrying a pistol without a permit, a gross misdemeanor in violation of Minn. Stat. § 624.714, subd. 1(a) (2002). This appeal followed.
We may independently review pretrial orders on motions to suppress evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). When, as here, the facts are undisputed, whether the district court erred in not suppressing the evidence is a matter of law and is reviewed de novo. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).
In Terry v. Ohio, the United States Supreme Court held that an officer, under an objective reasonable-person standard, “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts,” warrants the pat-frisk. 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968). Significant in Terry is the concern for officer safety. See id. at 27, 88 S. Ct. at 1883 (allowing an officer to frisk for weapons “where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.”).
The Minnesota Supreme Court has echoed this concern when officers use their squad cars to detain suspects, stating “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.” State v. Varnado, 582 N.W.2d 886, 891 (Minn. 1998). The supreme court cautioned, however, that a routine traffic stop does not give rise to reasonable suspicion to pat-frisk “unless some additional suspicious or threatening circumstances are present.” Id. at 890. Mere presence in a high-crime area, for example, does not by itself provide a reasonable basis to justify a Terry stop-and-frisk. Id.
In Varnado, the supreme court held a frisk to be invalid because “the inability of a minor traffic violator 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. The court was concerned that a pat-frisk done under the guise of officer safety was actually a pretextual warrantless search for narcotics. Id. at 892; see also State v. Curtis, 290 Minn. 429, 437, 190 N.W.2d 631, 636 (1971) (holding that an officer may pat-frisk a person “before placing him in a squad car if there is a valid reason for requiring him to enter the vehicle and it is not merely an excuse for an otherwise improper search”). Instead, an officer must point to additional threatening circumstances, such as (1) knowing the suspect is usually armed or has a past record of assaultive behavior; (2) if the suspect becomes belligerent or threatening after the stop; or (3) if the officer validly believes the suspect “is engaged in the commission of a more serious crime.” Curtis, 290 Minn. at 437, 190 N.W.2d at 636; see also In re Welfare of M.D.B., 601 N.W.2d 214, 217 (Minn. App. 1999) (“To allow a weapons search in the absence of any threatening circumstances is a dramatic departure from the long-standing holding in Terry.”), review denied (Minn. Jan. 18, 2000).
While Varnado, Curtis, and M.D.B. hold that an officer cannot conduct a pat-frisk and place a suspect in a squad car for any reason, the cases provide that if legitimate reasons exist, such actions are permissible. See Varnado, 582 N.W.2d at 891 (requiring “additional individual articulable suspicion”); Curtis, 290 Minn. at 437, 190 N.W.2d at 636 (listing examples of additional threatening circumstances); M.D.B., 601 N.W.2d at 215 (requiring additional circumstances showing a threat to the officer). As enunciated in Terry, a legitimate reason is police officer safety. Terry, 392 U.S. at 27, 88 S. Ct. at 1883 (allowing a pat-frisk if “a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger”).
Evaluations of the legality of Terry stop-and-frisks require a balancing test between the “degree of the intrusion on an individual’s Fourth Amendment rights against the governmental interest in crime prevention and legitimate concerns about the safety of law-enforcement officers.” State v. Balenger, 667 N.W.2d 133, 139 (Minn. App. 2003), review denied (Minn. Oct. 21, 2003). This balancing test permits an officer to detain a person merely to maintain the status quo until more information may be gathered. “A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” State v. Cavegn, 294 N.W.2d 717, 721 (Minn. 1980) (quoting Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 1923 (1972)).
In this case, Mickey concedes that Waletzki had the right to stop him for a brief detention and ask him a few basic questions, such as where he was going. But Mickey argues that Waletzki went beyond the bounds of allowable detention by confining him in the squad car. Mickey emphasizes that he complied with Waletzki’s request to come over to the car, that there is no evidence that Waletzki knew Mickey to be habitually armed or dangerous, and that Waletzki had not seen Mickey do anything connecting him with a potential crime. Therefore, Mickey argues, the Varnado standard was not met because there was no additional basis for Mickey to be pat-frisked and detained in the squad car. Varnado, 582 N.W.2d at 890. We disagree with appellant’s argument, as did the trial court.
This detention was a classic Terry stop and no more. Pursuant to the Varnado framework, additional threatening circumstances were present. Waletzki was dispatched at nighttime to a neighborhood known to be violent; many guns had previously been recovered there. Waletzki identified Mickey as the prowler described in the 911 call. Mickey hesitated when he was asked to approach the squad car. Waletzki sought to maintain the status quo by detaining Mickey and transporting him to the caller’s residence to determine if Mickey was actually the prowler. This legitimate investigatory purpose, combined with the dangerousness of the neighborhood, justifies Waletzki’s pat-frisk. Cf. id. (providing that mere presence in a high-crime area does not, by itself, provide sufficient justification for a pat frisk). There is no evidence that Waletzki had a pretextual reason to frisk Mickey, such as searching for narcotics. Instead, Waletzki intended to investigate the prowling allegation further because, in his experience, he concluded that a prowler is usually seeking to commit a burglary or a robbery.
Mickey contends that prowling is not a crime and thus claims that placing him in the squad car to investigate the 911 prowling call is not a legitimate justification. But Terry does not require a crime to have been committed to justify an investigative stop. The defendants in Terry were not engaged in committing a crime but were suspected of “casing” a jewelry store for a later “stick-up.” Terry, 392 U.S. at 6, 88 S. Ct. at 1872. The investigating detective approached the defendants and inquired of their identities, then frisked them for his safety. Id. at 6-7, 88 S. Ct. at 1872. Similarly, Waletzki did not see Mickey commit a crime, but suspected that Mickey, who matched the prowler description, might commit a future crime. Waletzki thus decided to pat-frisk Mickey for safety reasons, just as the detective in Terry did. The similarities between this case and Terry are compelling enough to warrant identical results.
Additionally, Mickey cites the recent case of State v. Askerooth, 681 N.W.2d 353 (Minn. 2004), in support of his arguments. In Askerooth, the supreme court invalidated the detention of a suspect in a squad car and suppressed the narcotics he hid there, primarily because the detention was conducted only in the name of “officer convenience.” Id. at 365-70 (explaining that the officer confined the driver to the squad car so the officer could talk to the driver directly without walking between the two vehicles). The state’s justifications for the confinement in Askerooth were that the traffic stop occurred at nighttime, the driver did not have identification, and the officer was working without a partner. Id. at 369. These circumstances were found by the court to be insufficient to justify the detention. Id.
This case is distinguishable from Askerooth. Askerooth recognizes that a squad car detention 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.” Id. at 370 (emphasis added). In this case, Waletzki, at the time he stopped Mickey, was investigating a suspected criminal offense – one that had already occurred or reasonably could occur in the future. This legitimate purpose, combined with Mickey’s presence in a high-crime neighborhood, provided Waletzki with the “additional individual articulable suspicion” required by Varnado. 582 N.W.2d at 891.
Finally, Mickey argues that he was subjected to a de facto arrest without probable cause when he was frisked and ordered into the squad car. We disagree. Placing suspects in squad cars does not constitute a de facto arrest. State v. Moffat, 450 N.W.2d 116, 119-20 (Minn. 1990). The supreme court has stated that “simply requiring [a] defendant to sit in a police car for a short time . . . did not take the situation beyond the realm of the ordinary traffic stop.” State v. Herem, 384 N.W.2d 880, 883 (Minn. 1986).
We affirm the district court’s determination that Waletzki had a reasonable basis for pat-frisking Mickey and was justified in seizing the fruits of that encounter.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.