This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Charles Richard Howerter, Jr.,
Filed February 8, 2005
Martin County District Court
File No. K1-02-824
Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Terry W. Viesselman, Martin County Attorney, 123 Downtown Plaza, Fairmont, MN 56031-1726 (for respondent)
John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Randall, Judge; and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from a conviction of first-degree controlled substance offense, appellant argues that police, who investigated appellant’s car because it was parked in an area plagued by recent break-ins, exceeded the lawful scope of the stop by ordering appellant out of the vehicle and searching it. Appellant also contends that the search of the trunk exceeded the scope of any search incident to arrest and that the state failed to prove that the inventory exception applied. We affirm on all issues.
Shortly before midnight on October 24, 2002, Officer Michael Hunter overheard dispatch report a call regarding a suspicious vehicle parked in a private parking lot behind a business in the city of Fairmont. Knowing that two businesses in that area were burglarized in the past, Officer Hunter drove to the location of the vehicle. As he approached the car, Officer Hunter turned off his squad car’s headlights, and pulled up directly behind it. When he activated his squad car’s spotlight, Officer Hunter observed the lone individual sitting in the driver’s seat immediately begin to make movements side-to-side and downward. The downward movements concerned Officer Hunter because the occupant (later identified as appellant Charles Howerter, Jr.) appeared to be hiding something or trying to find something.
Officer Hunter approached the parked car on the driver’s side, while Sergeant Ring, who arrived in a separate squad car, approached the passenger side. When asked what he was doing in the parking lot, appellant replied that he was waiting for a friend. Because there was nobody in the area, Officer Hunter asked appellant where his friend was. Appellant responded that his friend was at a nearby apartment complex. When asked, appellant could not recall his friend’s name. Officer Hunter then asked appellant why he was waiting in the parking lot when the apartment complex had its own parking lot. Appellant replied that his “friend” had told him to wait in the lot.
As Officer Hunter questioned appellant, he noticed that appellant kept glancing around the interior of the car, particularly toward the passenger’s-side floor and in between the front seat area. From his vantage point, Officer Hunter observed pornographic magazines on the floor by the passenger seat and a towel on the seat next to the driver with some items underneath the towel. Officer Hunter also observed that appellant seemed “very nervous, [and] took a little bit longer time to answer [his] questions.” Based on his observations, and appellant’s responses to the questions, Officer Hunter deduced that appellant was not being truthful with his answers. Hunter then asked appellant for his driver’s license and information regarding ownership of the vehicle. Appellant stated that the car was his, but then changed the story and said he was actually in the process of buying the car. Appellant then claimed that his friend was the one who drove the vehicle to the area and that appellant just slid over to the driver’s side while he was waiting for his friend to come back. Because of the numerous items on the passenger seat, Officer Hunter reasoned it was unlikely that appellant slid over to the driver’s side. Throughout the conversation, appellant continued to glance around at the vehicle’s interior, furthering Hunter’s suspicion that appellant was not being honest with his answers.
After questioning appellant, Officer Hunter stepped back and discussed the situation with Sgt. Ring. Sgt. Ring told Officer Hunter that he, too, observed appellant making a “very large amount of movement around the vehicle” when they first arrived at the scene, and that he noticed the pornographic magazines and towel in appellant’s vehicle. Sgt. Ring told Officer Hunter that one of the items underneath the towel was an open jar of petroleum jelly. A check of appellant’s identification through dispatch revealed that appellant was flagged in the state computer as a confirmed gang member with a history of violence, and that his driver’s license had been canceled as inimical to public safety. The dispatcher further informed the officers that appellant was on felony probation in Martin County.
As the officers were conversing, they observed appellant leaning forward and backward and making reaching movements. These continued movements, along with appellant’s story and the items in the vehicle, raised Officer Hunter’s concern that appellant may have been committing lewd acts, or even planning to commit some sort of criminal sexual conduct involving one of the vulnerable adults in the area. Officer Hunter was also concerned that appellant may be hiding a weapon in the vehicle, so the officers decided to ask appellant to step out of the car to pat him down for weapons for their personal safety. As appellant complied, he turned again to look at the front seat area of the car. A brief pat-down search of appellant revealed no weapons.
Although no weapons were found on appellant, the officers expressed concern that appellant might have weapons in the vehicle. Appellant stated that there were no weapons in the vehicle, so Officer Hunter asked for consent to search the car. Officer Hunter observed that appellant was sweating profusely even though the temperature was 34 degrees and the officer felt cold in his shirt and jacket. In response to the officers’ request to search the car, appellant replied that he could not give permission for the search because the car did not belong to him. But after being reminded that appellant had stated earlier that he was in the process of buying the car and that he was currently in possession of the car, appellant stepped back, put both of his hands up and said, “I don’t care.”
Officer Hunter asked appellant to step back to the vehicle’s trunk with him and another officer, while Officer Gray, a fourth officer who had arrived at the scene, conducted the search. At this point, appellant was not free to leave because of the investigative detention. As Officer Gray searched the area between the front seats, he discovered two small bags containing a white powdery substance consistent with methamphetamine. Appellant then became excited, so Officer Hunter quickly handcuffed him and took appellant into custody for suspected controlled substance crime.
As appellant was escorted to one of the squad cars, he attempted to flee. The officers were able to trip appellant to the ground, and then conducted a thorough search of appellant. The search revealed a crushed saltshaker in appellant’s shirt pocket and the car keys in his left boot. Appellant was taken to jail and the vehicle was impounded.
Once the vehicle was towed to the impound shed, an inventory and search of the car was conducted in accordance with “standard procedure.” In the trunk of the vehicle, officers discovered a bottle of professional drain cleaner, starting fluid, a large fire extinguisher that appeared to be empty but had a bluish-green colored tip, a plastic garbage bag containing a plastic container, coffee filters, and a large amount of white powdery substance that appeared to be finished methamphetamine product. Officer Hunter concluded that the items were consistent with manufacturing methamphetamine, so he stopped the inventory process. The vehicle was then sealed so that trained detectives could conduct a more thorough investigation.
While he was in custody, appellant indicated that he wanted to speak with the officers. Appellant explained that it was the first time he had been along to cook methamphetamine, that he knew the person who was the cook, and that he was willing to try to help them apprehend that person. Officer Hunter thought appellant was being “pretty honest” with the information he was providing, and the officers decided to apply for a search warrant for the vehicle. The next day, Detective Kotewa searched the car with a search warrant. The powdery material in the trunk was a byproduct of manufactured methamphetamine, and contained trace amounts of methamphetamine. The substance discovered between the two seats also tested positive for methamphetamine. Appellant was subsequently charged with first-degree controlled substance crime, third-degree controlled substance crime, driving after cancellation, and obstructing legal process.
On December 26, 2002, appellant moved to suppress the evidence found by police as a result of the search of appellant’s vehicle. Appellant argued that the evidence was found as a result of an illegal search and seizure. The district court denied appellant’s motion, and shortly thereafter, appellant waived his right to a jury trial and agreed to proceed via State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), on the first-degree controlled substance charge. In exchange, the state agreed to a 36-month downward departure if the district court found appellant guilty. The district court heard the case, found appellant guilty, and committed appellant to the Commissioner of Corrections for 110 months in conformity with the parties’ agreement on sentencing. This appeal followed.
D E C I S I O N
When reviewing pretrial orders on motions to suppress evidence, appellate courts 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 legality of a limited investigative stop and questions of reasonable suspicion are reviewed de novo. State v. Syhavong, 661 N.W.2d 278, 281 (Minn. App. 2003).
Officers may generally conduct investigative stops so long as they have a particularized basis for suspecting criminal activity. State v. Smallwood, 594 N.W.2d 144, 155 (Minn. 1999). “[T]he scope and duration of a traffic stop investigation must be limited to the justification for the stop.” State v. Fort, 660 N.W.2d 415, 418 (Minn. 2003). The Minnesota Supreme Court has interpreted the Fourth Amendment to the Bill of Rights and the Minnesota Constitution to hold that any expansion of the scope or duration of an investigative stop is proper only where the officers have a reasonable articulable suspicion of other criminal activity. State v. Wiegand, 645 N.W.2d 125, 135 (Minn. 2002).
Here, appellant argues that the officers expanded the scope of the investigation without reasonable, articulable suspicion of additional criminal activity beyond the initial purpose of the investigation. We disagree. The original purpose of the officers’ investigation was to ascertain what appellant was doing in the area. When the officers arrived at the scene and shined the spotlight on appellant, they observed appellant immediately begin to make movements side-to-side and downward. The officers then questioned appellant as to his presence in the area and the inherent deception in appellant’s response to the questioning, such as appellant’s claim that he could not remember his friend’s name, furthered the officers’ suspicion that some type of illegal activity was afoot. The officers noted that while he was being questioned, appellant kept glancing around the vehicle, as if he was concerned that the officers might spot something that appellant had hidden. The officers had information from police dispatch that (1) appellant was flagged in the state computer as a confirmed gang member with a history of violence, (2) appellant’s driver’s license had been canceled as inimical to public safety, and (3) appellant was on felony probation in Martin County. Finally, while speaking with the dispatcher, the officers observed appellant making numerous movements inside his vehicle, again raising the officers’ concern that appellant was trying to hide something. Accordingly, although the issue is close, we conclude that the officers had a reasonable basis to believe appellant might be armed and dangerous and that other criminal activity was afoot. See State v. Wold, 430 N.W.2d 171, 174 (Minn. 1988) (stating that an officer may conduct a limited protective weapons frisk of a lawfully stopped person if the officer reasonably believes that the suspect might be armed and dangerous and capable of immediately causing permanent harm); see also State v. Alesso, 328 N.W.2d 685, 688 (Minn. 1982) (analyzing suspect’s furtive movement as factor supporting pat-down search for weapons).
Appellant contends that even if the pat-down search was proper, the officers improperly expanded the scope of the investigation by searching appellant’s car. Appellant asserts that even though he consented to the search of his vehicle, his consent is insufficient to overcome the requirement that in order to expand the scope of their original investigation, officers must have reasonable, articulable suspicion of additional criminal activity beyond the initial purpose of the investigation. See Fort, 660 N.W.2d at 418 (concluding that that the suspect’s consent, taken alone, is insufficient to permit expansion of a routine traffic stop; the police officer must have a reasonable, articulable suspicion of further criminal activity in order to request consent to expand the stop).
Fort does not prohibit consensual searches; rather, it clarifies and emphasizes the need to justify the expansion of the scope of the stop with something that is more than a hunch or a whim. State v. Volkman, 675 N.W.2d 337, 341 (Minn. App. 2004). Investigative stops, and the expansion of the scope of the stop, are permitted where a police officer can point to a particularized basis for suspecting criminal activity. Id. With all the information the officers had, this was not a routine traffic stop, and, in fact, was not even a stop. When police approach a stopped vehicle, it is not a “stop,” and another analysis has to follow before an arrest and search can be justified. State v. McKenzie, 392 N.W.2d 345, 346-47 (Minn. App. 1986). On these facts, the proper steps were in place, and were taken. The stop and search were valid.
As stated above, appellant’s conduct provided the officers with a particularized basis for suspecting criminal activity. The officers were justified in asking for consent to search appellant’s vehicle, and appellant voluntarily consented. See id. Moreover, a protective search of the passenger compartment of the vehicle, limited to those areas in which a weapon may be placed or hidden, is permissible if the officer possesses a reasonable belief, based on specific and articulable facts, that the suspect is dangerous and may gain immediate control of a weapon. Michigan v. Long, 463 U.S. 1032, 1049, 103 S. Ct. 3469, 3481 (1983); see also State v. Gilchrist, 299 N.W.2d 913, 916 (Minn. 1980) (holding that the search of the area under the front passenger seat of a validly stopped vehicle was justified for officer safety). We conclude that the district court did not err by denying appellant’s motion to suppress.
Appellant argues that even if the search of the vehicle was proper, the evidence of the methamphetamine lab found in the trunk is inadmissible because the search of the trunk exceeded the scope of any search incident to arrest, and the state failed to prove that the inventory exception applied. But an appellate court will generally not consider arguments that are made for the first time on appeal. State v. Grunig, 660 N.W.2d 134, 136 (Minn. 2003). One purpose of this rule is to encourage the development of a factual basis for claims at the district court level. See id. at 137 (discussing Garza v. State, 632 N.W.2d 633, 637 (Minn. 2001)). The waiver rule is not absolute, however, and an appellate court may address an issue in the interests of justice if addressing the issue will not work an unfair surprise on a party. State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989).
Here, the state asserts,
and the record shows, that appellant failed to raise this
argument below. At the end of the
testimony at the omnibus hearing, counsel did not make any closing arguments to
the district court, and both the prosecution and the defense agreed to submit
written briefs. In the memorandum of
law in support of his motion to suppress, appellant argued (1) the officers did
not have a reasonable, articulable suspicion to extend the scope of the stop,
and by doing so, they violated appellant’s right to be free from unreasonable
search and seizure, and, thus, any evidence obtained as a result must be
suppressed; (2) any alleged consent was obtained in violation of appellant’s
constitutional right to be free from unreasonable search and seizure and any
evidence obtained as a result must be suppressed; and (3) the destruction of
the evidence found in the trunk violated appellant’s right to due process as
established by Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194
(1963). In his motion to reconsider,
appellant’s entire argument involved a claim that the state intentionally
destroyed potentially exculpatory evidence that was found in the vehicle’s
trunk. Nowhere did appellant argue that
the search of the trunk exceeded the scope of any search incident to arrest,
and that the state failed to prove that the inventory exception applied. Therefore, appellant has waived the
argument. See Grunig, 660
N.W.2d at 136. Having
said that, it appears the methamphetamine was properly admitted on the basis
that the search of the trunk was a valid inventory search. Inventory searches are reviewed “under a
standard of objective reasonableness without regard to the underlying intent or
motivation of the officers involved.” State
v. Holmes, 569 N.W.2d 181, 187 (Minn. 1997) (quotation omitted). Objective facts must demonstrate, at the
very least, that the officer had a dual purpose of
performing an administrative inventory search, as well as an investigative purpose. State v. Ture, 632 N.W.2d 621, 629 (Minn. 2001); Holmes, 569 N.W.2d at 188. An administrative purpose may be shown by evidence that the department had an inventory policy and that officers followed that policy. Ture, 632 N.W.2d at 628. It is not necessary to introduce a written copy of the policy, as long as there is testimony to establish that standard inventory procedures existed and were followed. Id.
Here, Officer Hunter believed that appellant had driven the vehicle to the location where he was found. Appellant did not have a valid driver’s license, could not show proof of ownership, and could not provide proof of insurance. Appellant stated that he was waiting for a friend, but appellant could not remember the friend’s name, nor did the friend ever arrive at the scene. Officer Hunter testified it was standard procedure for a car to be towed in such a situation because the driver could not legally drive it. Officer Hunter also testified it was standard procedure for the Fairmont Police Department to do an inventory search whenever a vehicle was towed to the impound facility. The facts demonstrate that the officers had the dual purpose of performing a legitimate administrative inventory search, as well as the investigative purpose. The inventory search was proper. See Ture, 632 N.W.2d at 629.