This opinion will be unpublished and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,
Roxanne Marie Zigan,
Filed April 5, 2005
Dakota County District Court
File No. K7-04-132
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for appellant)
David L. McCormick, 337 Oak Grove Street, Minneapolis, MN 55404 (for respondent)
Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Stoneburner, Judge.
U N P U B L I S H E D O P I N I O N
The state challenges a pretrial order suppressing evidence and dismissing the first-degree controlled-substance charge against respondent. Because we conclude that the search of respondent’s vehicle was unreasonable, we affirm.
On January 7, 2004, a Minnesota State Patrol lieutenant was patrolling on Highway 52 in Dakota County. He observed a car behind him, driven by respondent Roxanne Zigan, approaching quickly; the car slowed down suddenly, staying a few car lengths behind the officer’s vehicle. At the time, the officer was traveling 59 miles per hour in a 55 mile-per-hour zone. He testified that the vehicle and its sole occupant, Zigan, were illuminated by the headlights of vehicles behind her and that he observed Zigan reach to the passenger side of the vehicle so far that she was almost out of the officer’s sight. The officer testified that he suspected that Zigan was trying to hide something, and he decided to pull her vehicle over. He moved his vehicle into the right lane to let Zigan’s vehicle pass, but she slowed down and changed lanes, staying one car behind the officer. The officer then stopped on the shoulder, let Zigan’s vehicle pass, and determined that she was traveling 60 miles per hour in a 55 mile-per-hour zone. He also noticed an object suspended from the vehicle’s rear-view mirror. He then pulled behind Zigan’s vehicle, activated his emergency lights, and stopped her vehicle.
The officer approached the passenger side of Zigan’s vehicle and asked for her driver’s license and registration. He testified that while she was looking in her purse for her license, he saw a small, zippered black case between the center console and the passenger seat. The officer asked what was in the case, and Zigan responded that the case contained her sunglasses. He then asked her if he could look in the case. The officer testified that he did not note in his police report any particular reason for asking to see the case, but he testified at the omnibus hearing that he was concerned for his safety and that he thought the case might contain contraband.
The officer testified that Zigan told him that she did not mind if he looked at the case, and she appeared to reach for it. But the officer saw that Zigan was pushing the case further between the seat and the console. He testified that Zigan asked him whether he really needed to see her sunglasses and that he responded, “If you don’t mind, I’d like to see.” Zigan testified that when she asked whether the officer really needed to see her sunglasses, he merely answered, “Yes.” Zigan produced the case, opened it, and held it in front of her, displaying plastic baggies containing a white substance.
The officer told Zigan to hand him the case, get out of her vehicle, and walk with him to his squad car. When he asked Zigan what was in the baggies, she replied, “Meth.” He handcuffed her and searched her for weapons. He also searched Zigan’s vehicle.
A search of Zigan’s vehicle produced $9,820 in cash; 37 grams of suspected methamphetamine, including the packaging weight; a glass drug pipe; a palm scale; and an address book containing first names with dollar amounts entered next to the names. The substance seized was later confirmed to be methamphetamine. Zigan was arrested and was subsequently charged with a first-degree controlled-substance crime and with probation violations.
After a contested omnibus hearing, the district court granted Zigan’s motion to suppress the seized evidence and dismissed all of the charges against Zigan. This appeal by the state follows.
When reviewing a pretrial order suppressing evidence, appellate courts review the facts independently and “determine whether the district court erred in suppressing the evidence as a matter of law.” State v. Fort, 660 N.W.2d 415, 417-18 (Minn. 2003). The state may appeal pretrial orders suppressing evidence provided that it shows “that the trial court’s order will have a critical impact on the state’s ability to prosecute the defendant successfully and that the order constituted error.” State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (quotation omitted). The critical impact of the suppression must be determined before deciding whether the suppression order was made in error. Id. Here, the suppression of the evidence had a critical impact on the state’s ability to prosecute Zigan because the district court dismissed the charges for lack of admissible evidence.
The state argues that the district court erred by concluding that the officer who stopped Zigan did not have a reasonable and articulable suspicion of criminal activity that justified a request for consent to search the black case in Zigan’s vehicle. “Investigative stops are permitted if there is a particularized basis for suspecting criminal activity.” Fort, 660 N.W.2d at 418. “Articulable, objective facts that, by their nature, quality, repetition, or pattern become so unusual and suspicious that they support at least one inference of the possibility of criminal activity, are what will be necessary to justify an investigatory stop of a motor vehicle.” State v. Schrupp, 625 N.W.2d 844, 847-48 (Minn. App. 2001), review denied (Minn. July 24, 2001).
“[T]he scope and duration of a traffic stop investigation must be limited to the justification for the stop.” Fort, 660 N.W.2d at 418. The Minnesota Supreme Court has determined that under Article 1, Section 10 of the Minnesota Constitution, a reasonable, articulable suspicion of criminal activity apart from the activity justifying the initial stop is required to justify expanding the scope or duration of a traffic stop. State v. Wiegand, 645 N.W.2d 125, 136 (Minn. 2002).
Asking for consent to search expands the scope of a traffic stop. Fort, 660 N.W.2d at 419. Zigan and the state agree that the search of the black case was an expansion of the scope of the investigative stop. Evidence may be suppressed when the investigative questioning, a consent inquiry, or a subsequent search goes beyond the scope of the traffic stop and are unsupported by a reasonable, articulable suspicion of criminal activity. Id.
Zigan and the state also agree that the initial stop of Zigan was justified because she was speeding and had an object hanging from her rear-view mirror, in violation of Minn. Stat. §§ 169.14, subd. 2(a), .71, subd. (1) (2002). The state argues that the officer also could have stopped Zigan because of her evasive driving and the fact that she leaned toward the passenger side of her vehicle, claiming that those acts gave the officer a reasonable suspicion that Zigan was engaged in criminal activity and was either hiding something or retrieving something from the passenger side of the vehicle.
Evasive driving conduct may provide an officer with a reasonable, articulable suspicion of criminal activity justifying an investigative stop of the driver. State v. Johnson, 444 N.W.2d 824, 827 (Minn. 1989). But a driver’s hesitancy to pass a police car does not rise to the level of evasive conduct. Id. at 826; Schrupp, 625 N.W.2d at 848.
Here, the officer saw Zigan’s vehicle approach quickly and slow down suddenly. At the time, the officer was traveling 59 miles per hour in a 55 mile-per-hour zone. The officer saw Zigan’s vehicle move to the right lane after he moved to the right lane. Zigan did not pass the officer until he had pulled onto the shoulder. The record shows no driving conduct by Zigan that reflects more than a hesitancy to pass the officer’s car.
The officer testified that he also became suspicious of Zigan when he observed her lean so far over toward the passenger side of her vehicle that she almost disappeared from his view while she was driving. Although he did not make any such notation in his police report, he testified at the omnibus hearing that he suspected that Zigan may have been hiding a weapon or drugs. “[I]nnocent activity might justify the suspicion of criminal activity.” Johnson, 444 N.W.2d at 826. But there are many reasons why a driver might lean toward the passenger side of her vehicle while driving, and we agree with the district court that this act was not the basis for a reasonable suspicion of criminal activity.
Zigan did not act suspiciously after being stopped until the officer asked to look into the black case. “[E]ach incremental intrusion during a stop must be strictly tied to and justified by the circumstances which rendered the initiation of the stop permissible.” State v. Askerooth, 681 N.W.2d 353, 364 (Minn. 2004) (quotations omitted). Here, the first intrusion after the stop occurred when the officer asked to look in Zigan’s case.
We find that the record supports the district court’s conclusion that the officer had an articulable and reasonable basis to stop Zigan for the traffic offenses only. We also find that the record supports the district court’s conclusion that the officer did not have a reasonable, articulable suspicion of criminal activity that justified his request to search the black case in Zigan’s vehicle. Because this intrusion was an unjustified expansion of the scope of the traffic stop, Zigan’s conduct in the process of producing the case is irrelevant and does not retroactively justify the intrusion. Because the officer did not have a reason to ask to look inside the black case either as part of the original justification for the investigatory stop or as an expansion of the investigation of the traffic violations, the district court did not err by concluding that Zigan’s alleged consent to the search was ineffective. See Fort, 660 N.W.2d at 417-19 (noting that the consent inquiry and search went beyond the scope of the traffic stop even though the officer asked the appellant, “Would you mind if I searched you for drugs or weapons?” and the appellant answered, “No, sir”).
The state argues that Zigan’s behavior justified a brief protective search of her vehicle and that such a check inevitably would have resulted in the discovery of the evidence seized.
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.
State v. Waddell, 655 N.W.2d 803, 810 (Minn. 2003) (noting that the officers had an objectively reasonable basis to perform a protective search of a vehicle for weapons when the officers knew that (1) the stopped car matched the description of the car used in an armed robbery, (2) the occupants of the car matched the description of the suspects, and (3) the suspects had shot and killed a store clerk). In determining whether an officer’s belief is reasonable, “the issue is whether a reasonably prudent [person] in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883 (1968). Furtive actions, coupled with other suspicious behavior and the specific knowledge of the officer, may give rise to a reasonable, articulable suspicion of criminal activity. State v. Gallagher, 275 N.W.2d 803, 807 (Minn. 1979).
Here, the officer testified at the omnibus hearing that he suspected that Zigan could be dangerous and may have been hiding a weapon because he saw her lean toward the passenger side of her vehicle while she was driving. The state argues that Zigan’s “furtive movement” gave the officer the authority to do a cursory check of the interior of the vehicle, where Zigan could have reached a weapon.
The state asserts that Zigan’s movement toward the passenger side of her vehicle was similar to the defendant’s conduct in State v. Richmond, in which this court found that a pat-down search for weapons was justified after a traffic stop when the officers saw Richmond reaching toward the passenger compartment after the officers activated their vehicle’s emergency lights. 602 N.W.2d 647, 651 (Minn. App. 1999), review denied (Minn. Jan. 18, 2000). The officers in that case also noticed that Richmond was nervous and fidgety after he was stopped; that he was unable or unwilling to answer their questions; that he reached all over his body, jacket, and coat pockets when asked to provide his driver’s license; that Richmond looked at the officers as though he were trying to decide whether to run; and that the officers were concerned for their safety. Id. Here, Zigan reached toward the passenger side of her vehicle well before the officer pulled behind her and activated his emergency lights, and her conduct after the stop was not similar to defendant’s conduct in Richmond. Because the officer did not articulate any specific facts that supported a reasonable belief that Zigan was dangerous and had immediate access to a weapon, we conclude that a protective search of the automobile was not justified.
The district court did not err by suppressing the seized evidence and dismissing all charges against Zigan.