This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF
State of Minnesota,
Schnaut Deante Currie,
Filed November 13, 2007
Hennepin County District Court
File No. 06001006
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134;
Michael O. Freeman, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, 300 S. 6th Street, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Melissa V. Sheridan, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Klaphake, Presiding Judge; Shumaker,
Judge; and Huspeni, Judge.*
Appellant Schnaut Deante Currie appeals from his conviction for unlawful possession of a firearm, Minn. Stat. § 624.713, subds. 1(b), 2(b) (2004), arguing that the district court erred by refusing to suppress evidence discovered during a warrantless search of his automobile. Because police had a reasonable and articulable suspicion of criminal activity that permitted expansion of the search beyond the initial stop, we affirm.
Warrantless searches are considered to be per se unreasonable under both U. S. Const. amend. IV and Minn. Const. art. I, § 10, subject to a few exceptions. This court reviews de novo the district court’s pretrial order regarding suppression of evidence to determine whether the district court erred as a matter of law in making its decision. State v. Askerooth, 681 N.W.2d 353, 359 (Minn. 2004).
Police may make a limited investigative stop if they have a reasonable and articulable suspicion that a person is engaged in criminal activity, and the reasonable suspicion is based on more than a whim or a hunch. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000). The United States Supreme Court has determined that an individual committing even a minor criminal offense in the presence of an officer may be arrested and searched. See Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S. Ct. 1536, 1557 (2001). The Minnesota Supreme Court, however, has construed the Minnesota Constitution as offering greater protection than the United States Constitution for such searches. State v. Burbach, 706 N.W.2d 484, 488 (Minn. 2005). Thus, “the 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). Each expansion of a stop beyond the original purpose must be justified by a reasonable, articulable suspicion of additional criminal activity. Burbach, 706 N.W.2d at 488. The reviewing court determines whether the police had a reasonable justification to make or expand a stop based on the totality of the circumstances. Id. at 488-89.
Generally, police may not conduct a full search of a driver or vehicle during a routine stop for a minor traffic offense. See, e.g., Fort, 660 N.W.2d at 419; State v. Varnado, 582 N.W.2d 886, 890 (Minn. 1998). But
[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). In allowing this expansion of the scope of a stop, this court relied on Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469 (1983), where the United States Supreme Court held that police may search an automobile upon the reasonable and articulable belief that the suspect is dangerous and could gain immediate control of a weapon. Id. at 1049, 103 S. Ct. at 3481. The Supreme Court concluded that even if a suspect has been removed from the vehicle, a search may be based on the reasonable belief that the suspect poses a danger if permitted to reenter the vehicle. Id. at 1050-52, 103 S. Ct. at 3481-82.
Police initially stopped appellant for traffic violations, which generally limits the grounds for search and seizure of the suspect. See, e.g., Askerooth, 681 N.W.2d at 365 (“[W]e conclude that the lack of a driver’s license, by itself, is not a reasonable basis for confining a driver in a squad car’s locked back seat when the driver is stopped for a minor traffic offense”); Varnado, 582 N.W.2d at 891 (same). On the other hand, the initial traffic violation was minor in both Askerooth (failure to stop at a stop sign) and Varnado (cracked windshield). Here, police observed an escalating series of traffic violations, including equipment violations, failing to signal a turn, driving at 50 miles per hour in a 30-mile-per-hour-zone, failing to stop at two stop signs, and accelerating over speed bumps. This conduct is more serious than a minor driving violation. Cf. State v. George, 557 N.W.2d 575, 579 (Minn. 1997) (noting that “very few drivers can traverse any appreciable distance without violating some traffic regulation”). Thus, the number of violations raised a heightened degree of suspicion in the officers observing the conduct.
Three officers testified that they directed a spotlight on appellant’s vehicle as they pulled it over, and they observed him make movements that suggested he was either concealing something or removing something from a hiding place. This conduct supports their decision to remove appellant and his passengers from the car, frisk them, and place them in squad cars or handcuff them. This conduct also supports their reasonable suspicion that the vehicle could contain weapons or contraband, permitting them to search the car in the interest of officer safety.
The closer question is whether it was reasonable for police, in the person of Officer Smith, to conduct what was essentially a second search. By the time Smith arrived, the officers who had been on the scene earlier had searched the car. Smith, who recognized one passenger as a known gang member, glanced at the open door and noted what appeared to be an alteration of the armrest/door handle area, which aroused his suspicion enough to gently move the armrest, causing a gun to fall out.
While this is a close case, each incremental step escalating the stop is supported by additional facts based on police observation. We conclude that these observations supported the further intrusions and that the district court did not err by refusing to suppress the evidence discovered by police.
Pro se Issues
Appellant raises a number of issues in a pro se brief filed with the court. Appellant appears to raise a sufficiency of the evidence argument, stating that the photographs presented to the court were inaccurate, raising some factual discrepancies, and arguing that the gun had no fingerprints. Once a defendant has proceeded to trial on stipulated facts in order to challenge a suppression issue, he may not challenge the sufficiency of the evidence. State v. Busse, 644 N.W.2d 79, 88-89 (Minn. 2002).
Appellant also insists that the squad car that originally stopped him should have been equipped with video, basing his claim on Minn. Stat. § 626.9517 (2006), which permits the commissioner of public safety to make grants to put video equipment in squad cars for a racial profiling study. Police testified that the squad car did not contain video equipment; there is no legal requirement that squad cars be equipped with video equipment.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.