This opinion will be unpublished and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 APPEALS
State of Minnesota,
Monica Mae Peterson,
Filed November 27, 2007
Hennepin County District Court
File No. 05049390
Lori Swanson, Attorney General, 1800 Bremer
Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Michael O. Freeman, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Hudson, Presiding Judge; Willis, Judge; and Minge, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges her convictions of felony possession of a controlled substance and two counts of gross-misdemeanor child endangerment. She argues that the evidence of the controlled substance should be excluded as the result of an improper search and that the evidence was insufficient to convict her of child endangerment. Appellant also asserts that the district court erred by not making written findings of fact. Finally, appellant claims that because the counts all were based on the same behavioral incident, the district court erred in sentencing her on multiple counts. Because we conclude that discovery of the controlled substances was the result of an illegal search, evidence of the controlled substances should have been excluded. As a result of that exclusion, there is insufficient evidence to support any of the convictions, and we reverse. We do not reach the findings and sentencing issues.
The Minneapolis Police Department received a tip that the subject of an outstanding felony warrant was staying at a Minneapolis residence. An officer determined that the man was Anthony Payette, that there was an arrest warrant pending against him for a financial-fraud crime, and that the residence where he was staying was under police scrutiny because of various recurrent problems. Early one morning, several officers went to the house to arrest Payette. They found him sleeping on a futon in the basement with appellant Monica Mae Peterson. Another man was on a nearby cot. Appellant’s children, aged one, five, and nine, were sleeping on a bean bag chair, on blankets and sleeping bag material in an area of the basement separated from the three adults by a plywood wall and a blanket hanging from the ceiling.
Payette promptly admitted his identity and the officers arrested and handcuffed him without incident. Although the officers had successfully executed their arrest warrant for Payette, they did not depart with him. They asked appellant for identification. Appellant initially claimed not to have any ID with her. After some further prodding, she told an officer that her ID was in her purse, which was next to the bed, and the officer removed it. The officers told appellant that she had to leave the house, and she responded that she would need some time to get her three children ready to come with her. One of the officers told her to get out of bed, and she nodded, but did not promptly get up. The officers instructed appellant to get up several more times, but they were continually interrupted by Payette, who was demanding to be immediately booked.
Ultimately, appellant got out of bed, picked up a small puppy, and began to walk past the officers to leave the basement area. Rather than allowing appellant to leave, a female officer stopped her and started to conduct a pat frisk. The officer testified that she “wanted to pat search her before we let her walk around the basement . . . [i]n case she had a weapon on her or anything. And there was something not right, that she wouldn’t get out of the bed right away.” As the officer patted appellant’s pocket, she felt hard objects, and appellant twisted away. The officer testified that she knew that the objects were not a gun or knife, but that, although she was not sure, she thought the objects might be drugs. Because she thought appellant might be “hiding something,” the officer continued the search. To facilitate the search, the officer grabbed appellant’s arm and pressed her against the wall to handcuff her. Then the officer removed the contents of appellant’s pockets, which included methamphetamine.
Appellant was charged with felony possession of a controlled substance and two counts of gross-misdemeanor child endangerment. A pretrial motion to suppress the results of the search and dismiss the charges was denied. The case was then submitted to the district court on the facts set forth in the complaint and record of the omnibus hearing. The district court found appellant guilty of all three counts and sentenced her. This appeal follows.
D E C I S I O N
The first issue is whether the district court erred by denying the motion to suppress evidence of methamphetamine as the fruit of an illegal search and seizure. Where the facts are not in dispute, the review of a pretrial order regarding the suppression of evidence is conducted de novo. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999); State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).
The Fourth Amendment, as applied to the states by the Fourteenth Amendment, guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. art. IV. Subject to exceptions, a warrantless search violates the Fourth Amendment. Thompson v. Louisiana, 469 U.S. 17, 19-20, 105 S. Ct. 409, 410-11 (1984).
One exception to the warrant requirement was recognized in Terry v. Ohio, 392 U.S. 1, 24, 27, 30, 88 S. Ct. 1868, 1881, 1883, 1884-85 (1968). Under this exception,
[a]n 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.
State v. Varnado, 582 N.W.2d 886, 889 (Minn. 1998) (citing Terry, 392 U.S at 24, 27, 30, 88 S. Ct. at 1868, 1883-84). A Terry search is strictly limited to one that may discover weapons. As the United States Supreme Court has stated, “[i]f the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed.” Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S. Ct. 2130, 2136 (1993). Should a lawful Terry frisk reveal the possession of an item whose incriminating character is “immediately apparent,” the seizure of that item is proper under the Fourth Amendment. Id. at 375, 113 S. Ct. at 2137. In cases when the police officer testifies that he or she immediately identified an item as contraband without any further manipulation, the seizure of the item does not violate the defendant’s Fourth Amendment rights. State v. Burton, 556 N.W.2d 600, 602 (Minn. App. 1996), review denied (Minn. Feb. 26, 1997).
We first address whether the proposed weapons search was permissibly expanded to include a search for contraband. Unless the officer could plainly recognize that the hard objects in appellant’s pocket were contraband, further manipulation or seizure of them was impermissible under Dickerson and Burton. The officer testified that she was immediately certain that the objects she felt in the appellant’s pocket were not a weapon. The officer further testified that she was not sure but thought the objects might be drugs and continued the search because she suspected that the appellant was “hiding something.” This is too tenuous. There is no end of innocent, hard objects that may be in people’s pockets. Appellant was a bystander at Payette’s arrest. Because the search went further than what was required to assure that the appellant was not armed and because the officer could not immediately identify the contraband as such through “plain feel,” the evidence of methamphetamine is the fruit of an illegal search and should have been suppressed under Dickerson.
Because the remaining evidence is not sufficient to sustain a conviction of possession of methamphetamine under Minn. Stat. § 152.022, subd. 2(1) (2004), we reverse that conviction. Furthermore, because evidence of drugs found during the search must be excluded, and because child endangerment under Minn. Stat. § 609.378, subd. 1(b)(2) (2004), requires that drugs (or their immediate precursors) be in proximity to children, we also reverse appellant’s conviction on that endangerment count.
The discovery of the methamphetamine went beyond the scope of search allowed and was not a “plain-feel” discovery, therefore, we do not reach the question of whether the officer had a reasonable, articulable suspicion justifying a pat search for weapons.
We next turn to the sufficiency of the remaining evidence to support the conviction of the other count of child endangerment under Minn. Stat. § 609.378 subd. 1(b)(1) (2004). On a sufficiency-of-the-evidence claim, the district court need only inquire whether a fact-finder could reasonably conclude that the defendant was guilty of the offense charged. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). The determination must be made under the assumption that the fact-finder believed the state’s witnesses and disbelieved any contrary evidence, and be made in the light most favorable to conviction. Id. Despite the foregoing, the fact-finder must have acted with due regard for the presumption of innocence and the necessity of overcoming that presumption by proof beyond a reasonable doubt. State v. Combs, 195 N.W.2d 176, 178 (Minn. 1972) (quoting State v. Norgaard, 136 N.W.2d 628, 631-32 (Minn. 1965)).
In order to sustain the second child-endangerment conviction, a fact-finder would have to have been able to reasonably conclude that the remaining evidence was sufficient to sustain a finding that the appellant recklessly or intentionally placed her children in a “situation likely to substantially harm [her children’s] physical, mental, or emotional health or cause the[ir] death.” Minn. Stat. § 609.378 subd. 1(b)(1); Bias, 419 N.W.2d at 484. “Likely” means more likely than not. State v. Tice, 686 N.W.2d 351, 355 (Minn. App. 2004), review denied (Nov. 16, 2004).
Excluding the presence of
methamphetamine, the evidence of child endangerment consists of the
following: (1) the appellant spent the
night with two men in a room separated by only a plywood and fabric partition
from the area where her children slept; (2) one of the men was the subject of
an arrest warrant for a financial-fraud crime;
(3) there was a glass pipe, butane torch, and cotton balls on a coffee table in the area in which the appellant slept; (4) the children were free to wander between the two areas and could presumably hear anything that may have happened in the adjoining area;
(5) the children were sleeping on a bean bag chair and bedding on the floor rather than beds; and (6) the area was messy. Relying on the presence of methamphetamine, the district court found appellant guilty.
As much as we might disapprove of appellant’s sleeping arrangements or of the presence of what was apparently drug paraphernalia, there is no evidence that the children were actually exposed to any drug or sexual activity. There is no showing that Payette’s presence was in itself a danger to the children. Placing one’s children in this setting and having them sleep in makeshift quarters in a messy basement may be child neglect. However, even in the light most favorable to conviction, after excluding evidence of drugs, the record is not adequate to support a finding that the children were in a situation likely to cause substantial harm to their physical, mental, or emotional health. Accordingly, we reverse the remaining endangerment conviction.
 Although not addressed by the parties, we note that “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Ybarra v. Illinois, 444 U.S. 85, 91, 100 S. Ct. 338, 342 (1979). See also State v. Eggersgluess, 483 N.W.2d 94 (Minn. App. 1992). According to the Eggersgluess court, the “[c]onduct of third parties cannot provide probable cause to search a person unless the person’s actions afford independent suspicion that he too was engaged in the prohibited conduct.” Id. at 97. Here, there is no claim that the search of Peterson was justified by her being in bed with Payette or by her proximity to a glass pipe and other items on the table. Because the claims are not raised on appeal and the district court did not rely on such proximity considerations, the issues are not considered. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). However, we note that, like the defendant in Eggersgleuss, there is nothing on record, besides Peterson’s proximity to this item, that implicates her involvement in illegal use of the pipe.
 The glass pipe was never tested for drug residue.