This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-96-701

State of Minnesota,

Respondent,

vs.

Anthony Wayne Profit,

Appellant.

Filed January 14, 1997

Affirmed

Short, Judge

Hennepin County District Court

File No. 95068698

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Hubert H. Humphrey, III, Attorney General, 102 State Capitol, St. Paul, MN 55155 (for respondent)

Michael O. Freeman, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Davies, Presiding Judge, Randall, Judge, and Short, Judge.

U N P U B L I S H E D O P I N I O N

SHORT, Judge

Anthony Wayne Profit appeals his conviction for third-degree burglary and receiving stolen goods, claiming his Fourth Amendment rights were violated because: (1) the search of his person and seizure of gold chains from a paper bag found strapped inside his waistband were not supported by probable cause; and (2) a probable cause determination did not occur within 48 hours of his initial arrest. We affirm.

D E C I S I O N

On appeal from a pretrial suppression decision where the facts are not disputed, we independently determine whether the evidence requires suppression as a matter of law. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

I.

Both the federal and state constitutions guarantee an individual the right to be secure against unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art I, § 10. Warrantless searches generally are prohibited. Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967). However, a police officer may stop and frisk a person when the officer has a reasonable, articulable suspicion the suspect is engaged in criminal conduct and reasonably believes the suspect may be armed and dangerous. Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884-85 (1968). Application of this standard requires consideration of the totality of the circumstances from the perspective of a trained police officer. United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981); State v. Lamar, 382 N.W.2d 226, 229 (Minn. App. 1986), review denied (Minn. Mar. 27, 1986).

Profit argues the arresting officer illegally conducted a weapons search of his person after the car in which Profit was a passenger was pulled over by the officer and ticketed for an equipment violation. A passenger's mere presence in a vehicle stopped for a traffic violation does not give rise to a finding of probable cause to search. State v. Bigelow, 447 N.W.2d 899, 901 (Minn. App. 1989), rev'd on other grounds, 451 N.W.2d 311 (Minn. 1990); see also State v. Clark, 312 Minn. 44, 49, 250 N.W.2d 199, 202 (1977) (holding a person cannot be arrested and searched solely because he is found in suspicious circumstances). However, if evidence giving rise to probable cause can be directly or constructively attributed to a passenger, a search of that passenger is legal. Bigelow, 447 N.W.2d at 902. Thus, a routine traffic stop may produce an objective basis for a pat search when other circumstances providing a reasonable suspicion of criminal activity or danger are present. See, e.g., State v. Alesso, 328 N.W.2d 685, 688 (Minn. 1982) (analyzing suspect's furtive movement as factor supporting pat-down search for weapons); Lamar, 382 N.W.2d at 230 (determining suspect's quick movement supporting finding of requisite suspicion for pat-down search); see also State v. Eggersgluess, 483 N.W.2d 94, 97 (Minn. App. 1992) (listing circumstances that would support probable cause, including bulge in clothing, threat to officer, or sudden or furtive movement toward place where weapon could be concealed).

The record shows: (1) when the police lights were activated, the arresting officer witnessed Profit hunched forward, as if to "hide something underneath the seat or in the floorboard area"; (2) the officer cited Profit for a seat belt violation and requested identification; (3) Profit was unable to produce any identification; and (4) as a procedural matter, and because Profit's movements led the officer to suspect Profit might be carrying a weapon, the officer asked Profit to exit the vehicle and then conducted a weapons search of Profit's person. Although the officer did not have a legal basis for citing Profit with a seat belt violation, Profit's "furtive movement" provides an objective foundation for the officer's belief that Profit posed a potential danger and might be carrying a weapon. See Minn. Stat. § 169.686, subd. 1 (1996) (dictating a police officer may not issue a citation for a seat belt violation when vehicle is stopped solely on basis of equipment violation). Under these circumstances, the officer was justified in conducting the pat-down search. See Wold v. State, 430 N.W.2d 171, 174 (Minn. 1988) (holding officer's decision to conduct pat-down search must rest on objective foundation); State v. Gobely, 366 N.W.2d 600, 602 (Minn. 1985) (determining officers may pat-search suspects when they reasonably believe suspects pose danger), cert. denied, 474 U.S. 922 (1985).

Profit also argues that notwithstanding a valid search, the officer did not properly open the paper bag he discovered inside Profit's waistband, because it was apparent the bag did not contain a weapon. See State v. Dickerson, 481 N.W.2d 840, 844 (Minn. 1992) (requiring officer to discontinue frisk when officer is certain no weapons are present), aff'd, 508 U.S. 366, 113 S. Ct. 2130 (1993); Alesso, 328 N.W.2d at 689 (recognizing, on weapons frisk, officer is not permitted to open object that clearly is not weapon and does not contain weapon). However, the record demonstrates: (1) during the initial frisk, the arresting officer felt a hard, round object in a paper bag located in Profit's waistband; (2) the officer asked Profit what the bag contained, and Profit replied it held a chain that needed repair; and (3) the officer believed the bag contained a bicycle chain or other heavy chain that could be used as a weapon. From the totality of the circumstances, a trained officer could not clearly determine whether the bag contained a weapon. Thus, the officer was justified in continuing his search. See, e.g., State v. Bitterman, 304 Minn. 481, 486, 232 N.W.2d 91, 94 (1975) (recognizing officer was justified in removing a "small, hard object" from defendant's coat pocket when "the precise shape or nature * * * [was] not discernible through outer clothing" and object could conceivably be used as weapon); State v. Gannaway, 291 Minn. 391, 393, 191 N.W.2d 555, 557 (1971) (holding removal of smoking pipe from defendant's outer coat pocket was legal, as officer could reasonably believe object was weapon).

II.

Profit argues he cannot be prosecuted because a probable cause determination was not made within 48 hours of his initial arrest. We disagree. A 48-hour restraint of a defendant without a probable cause determination by a neutral magistrate is considered presumptively unreasonable under the Fourth Amendment. See County of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S. Ct. 1661, 1670 (1991) (requiring judicial determination of probable cause within 48 hours as predicate for continued pretrial restraint). However, the holding in McLaughlin does not preclude the state from releasing a suspect and later charging him by complaint. See generally id. (applying rule only where defendant remains in custody for more than 48 hours). Here, the record shows: (1) Profit was arrested on August 8, 1995 without a warrant and subsequently released on August 10, 1995; and (2) four days later, on August 14, 1995, the prosecution filed a summons and complaint against Profit. Given these facts, Profit was properly released within the guidelines established by McLaughlin. There is no constitutional bar to prosecution.

Affirmed.