This opinion will be unpublished and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
In the Matter of the Welfare of N.K.S., Child.
Filed March 22, 2005
Hennepin County District Court
File Nos. J8-04-57650; J2-04-57661
Ramsey County District Court
File Nos. J4-04-551556; J1-04-552311
John M. Stuart, State Public Defender, Sara L. Martin, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant N.K.S.)
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2131; and
Amy J. Klobuchar, Hennepin County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487-0501; and
Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent State of Minnesota)
Considered and decided by Shumaker, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.
Appellant N.K.S. challenges the district court’s adjudication of delinquency, arguing that the district court improperly denied his pretrial motion to suppress seized evidence. Because we conclude that the district court did not commit error in denying the motion, we affirm.
On April 10, 2004, Saint Paul police officers Thomas Tanghe and Rob Vetsch were on patrol when they observed a car being driven without a front license plate. The officers stopped and approached the vehicle. As Tanghe neared the passenger window, he observed appellant, whom he recognized from an August 2003 arrest for possession of a pistol. At that time, Tanghe also noticed that the vehicle smelled of marijuana. Vetsch removed the vehicle’s driver from the car because the driver did not have a license. Tanghe removed appellant from the car because of the marijuana smell and because the officers decided to tow the vehicle. Tanghe, concerned for his safety because of appellant’s prior arrest, frisked appellant. Tanghe felt a small, hard, and round object in appellant’s coin pocket. Tanghe testified that he did not squeeze or manipulate the object. From his experiences of seizing crack cocaine from coin pockets approximately 50 times, Tanghe believed that the object was crack cocaine in a small baggie. Tanghe seized the object, confirmed it was crack cocaine, and arrested appellant for drug possession.
At the Rasmussen hearing, the district court denied appellant’s motion to suppress the crack cocaine. Appellant waived his right to a jury trial and submitted the case to the district court pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), and the district court found him guilty. Disposition was transferred to Hennepin County, appellant’s place of residence, and the district court adjudicated appellant delinquent. This appeal follows.
We 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, the issue of 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). Finally, we give deference to the district court’s credibility determinations regarding witnesses. Minn. R. Civ. P. 52.01.
Initially, appellant concedes that the officers had the authority to stop the vehicle and conduct a pat-down protective search for weapons pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968). But appellant contends that the district court erred in denying his motion to suppress evidence because Tanghe could not have immediately realized that the lump in appellant’s pocket was crack cocaine. Therefore, according to appellant, because the lump was obviously not a weapon, the seizure was unlawful. The state argues that Tanghe’s seizure—which was immediately recognizable by the officer as crack cocaine by his “plain feel” of appellant’s pocket—was performed as part of valid protective search for weapons.
The seminal case regarding the “plain-feel” exception to the Fourth Amendment’s warrant requirement is Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130 (1993). In Dickerson, a police officer conducted a pat-down search on a defendant and felt a small lump in defendant’s front pants pocket. Id. at 369, 113 S. Ct. at 2133. After the officer examined and manipulated the lump with his fingers, he concluded that the lump was crack cocaine wrapped in cellophane. Id.
In Dickerson,the United States Supreme Court adopted the “plain-feel” exception: “If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons[.]” Id. at 375, 377, 113 S. Ct. at 2137-2138. But the Court held that the “plain-feel” exception did not apply because “the officer determined that the lump was contraband only after squeezing, sliding and otherwise manipulating the contents of the defendant’s pocket—a pocket which the officer already knew contained no weapon.” Id. at 378, 113 S. Ct. at 2138 (quotation omitted).
Minnesota has adopted the “plain-feel” exception as a matter of state constitutional law. State v. Burton, 556 N.W.2d 600, 603 (Minn. App. 1996), review denied (Minn. Feb. 26, 1997). In Burton, a police officer stopped the defendant to search for weapons. Id. at 601. As the officer was searching the defendant’s right ankle, the officer grabbed a “golf-ball sized lump” from defendant’s sock, which was later determined to be crack cocaine. Id. We found the facts of Burton to be distinguishable from Dickerson because the officer testified that he immediately knew that the lump was crack cocaine without manipulating the object. Id. at 602.
Here, Tanghe, a nine-year licensed peace officer, testified that he immediately believed the small, hard, and round object in appellant’s coin pocket was crack cocaine rolled in a baggie. Tanghe testified that he acquired that belief based on his extensive experience seizing crack cocaine. Tanghe was very specific in describing how crack is sold on the street—a small piece of crack is put into the corner of a plastic baggy, the corner is torn off, and a knot is tied—and described that he felt crack’s packaging “hundreds of times” as an officer. Tanghe also noted that he did not manipulate the object. The district court was apparently persuaded by Tanghe’s testimony, and its credibility determinations will not be disturbed. See Minn. R. Civ. P. 52.01 (“[D]ue regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”).
Appellant cites an unpublished case from this court to make the argument that Tanghe impermissibly manipulated the crack cocaine. See State v. Thames, No. CX-98-879, 1999 WL 31146 at *4 (Minn. App. Jan. 26, 1999) (holding that “insignificant size” of contraband warrants suppression), review denied (Minn. Apr. 20, 1999). But the police officer in Thames testified that, after first feeling a few pea-sized lumps in the defendant’s pocket, he continued to feel the items and felt the plastic baggie around them. Id. We concluded that the “plain-feel” exception was inapplicable because the officer “determined the nature of the objects after removing them,” and because the officer admitted that he may have removed other objects from the defendant’s pocket before finding the crack cocaine. Id.
No such facts are present in this case. Upon conducting a lawful protective frisk, Tanghe felt a lump that was immediately recognizable to him as crack cocaine. Based on the “plain-feel” exception to the Fourth Amendment, the district court did not commit error by denying appellant’s motion to suppress the crack cocaine. We therefore do not reach the state’s argument that the officers had probable cause to search appellant because the officers smelled marijuana emanating from the vehicle. The district court’s adjudication of appellant as delinquent is affirmed.