This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Earl Vincent Grasty,
Filed November 22, 2005
Ramsey County District Court
File No. K6-04-660
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Susan Gaertner, Ramsey County Attorney, Colleen Timmer, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant
Considered and decided by Willis, Presiding Judge; Minge, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
Following a Lothenbach proceeding, appellant Earl Vincent Grasty was convicted of being an ineligible person in possession of a firearm. On appeal, appellant argues that the district court erred by denying his motion to suppress evidence of the handgun because it was discovered as a result of an impermissible pat search. Because the officers had a reasonable articulable suspicion to search appellant, we affirm.
February 22, 2004, St. Paul Police Officers, Anthony Spencer and Genaro
Valentin, were working patrol in the west side neighborhood of
As the information came up on the officers’ computer, the vehicle exited the parking lot. While following the vehicle, the officers determined that the female driver matched the physical description of the registered owner and observed at least two additional occupants in the vehicle. The officers activated their emergency lights and stopped the vehicle on the suspicion that the driver of the vehicle was the registered owner, who was driving with a revoked license. Officer Spencer approached the driver’s side of the vehicle and identified the driver as the registered owner. Officer Valentin approached the passenger’s side of the vehicle because the passenger, appellant, was not wearing a seatbelt.
Officer Valentin tapped on the window to indicate to appellant to roll down the window, but appellant stared straight ahead causing Officer Valentin to tap on the widow again. After appellant rolled down the window, Officer Valentin asked for his name to which appellant mumbled something unintelligible. Officer Valentin asked appellant his name a second time and, again, appellant mumbled. Because of appellant’s evasive behavior, Officer Valentin, based on his experience, believed that appellant was hiding something.
Officer Valentin asked appellant to step out of the vehicle and in doing so, appellant made furtive movements toward the front pocket of the sweatshirt he was wearing. Depsite Officer Valentin’s instruction to keep his hands where the officer could see them, appellant lowered his hands toward his pocket twice. Once appellant was outside the vehicle, Officer Valentin asked appellant his name again and appellant mumbled something unintelligible. When Officer Valentin instructed appellant to walk to the front of the squad car, appellant moved his hands toward his pocket again. At that point, Officer Valentin told appellant that for officer safety reasons he was going to do a pat search on appellant to make sure he did not have any weapons. Prior to the pat search, Officer Valentin asked appellant if he had any weapons on him, but appellant did not answer. Officer Valentin conducted a pat search on appellant and felt a heavy object in the shape of a handgun in appellant’s pocket. Officer Valentin reached inside the pocket of appellant’s sweatshirt and retrieved a loaded .22 caliber handgun.
On February 24, 2004, appellant was charged with possession of a firearm by an ineligible person, in violation of Minn. Stat. § 609.165, subd. 1b(a) (2002). Appellant moved to suppress the handgun. The district court denied appellant’s motion, and on June 8, 2004, the parties submitted the matter to the court on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The district court found appellant guilty as charged and sentenced him to 60 months in prison. This appeal follows.
D E C I S I O N
“When reviewing pretrial orders on
motions to suppress evidence, [this court] may independently review the facts
and determine, as a matter of law, whether the district court erred in
suppressing—or not suppressing—the evidence.”
State v. Harris, 590 N.W.2d 90, 98 (
Officers may generally conduct
investigative stops as long as they have a particularized basis for suspecting
criminal activity. State v.
Smallwood, 594 N.W.2d 144, 155 (
Appellant does not dispute that the
basis for the stop was proper because the registered owner of the car did not
have a valid driver’s license. Appellant
argues, however, that his failure to identify himself did not provide an
articulable basis to be asked to exit the vehicle. Police officers need a particularized and
objective basis for the minimal intrusion occasioned by asking a driver to
identify himself or herself. Cobb v. Comm’r of Pub. Safety, 410
N.W.2d 902, 903 (
Once an officer stops a vehicle, the
officer may, for his safety, require occupants of the automobile to get
v. Gilchrist, 299 N.W.2d 913, 916 (
Once outside the vehicle, Officer
Valentin conducted a pat search on appellant because appellant continued to
make furtive hand movements after Officer Valentin instructed him to keep his
hands on his head. When an officer has a
reasonable, articulable suspicion that a seized person is armed and dangerous, “the
officer may conduct a protective pat-down search of the person’s outer clothing
in order to ascertain whether the person is armed.” Harris, 590 N.W.2d at 104. A
protective pat search “must be strictly limited to that which is necessary for
the discovery of weapons which might be used to harm the officer or others
We conclude that Officer Valentin had a reasonable articulable suspicion that appellant could be involved in criminal activity that justified the expanded scope of the initial stop, including asking appellant to exit the vehicle and conducting a pat search. The district court did not err in denying appellant’s motion to suppress.