may not be cited except as provided by
Minn. Stat.§ 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Ronald Burgess aka Jerome NMN Jenkins,
Filed February 18, 1997
Toussaint, Chief Judge
Hennepin County District Court
File No. 90074571
Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Kathleen Ghreichi, Special Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)
John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, Richard Peter Stevens, Certified Student Attorney, 2829 University Avenue SE #600, Minneapolis, MN 55414 (for Appellant)
Considered and decided by Harten, Presiding Judge, Toussaint, Chief Judge, and Crippen, Judge.
Appellant Ronald Burgess challenges the district court's determination that contraband found on his person was legally obtained by a search incident to a lawful arrest. Because the district court did not err in concluding (1) the police officers had a reasonable and articulable suspicion to justify an investigatory stop of Burgess, (2) the pat-search of Burgess' person for weapons was justified, and (3) there was probable cause to arrest Burgess, thereby allowing a search of his person, we affirm.
The United States Supreme Court's decisions require only that the officer have a "particular and objective basis for suspecting the particular person stopped of criminal activity." The suspicion that the officer must be able to articulate must be more than an unarticulated "hunch;" the officer must be able to point to something that objectively supports his suspicion. In addition, a trained police officer is entitled to draw inferences on the basis of "all of the circumstances * * * inferences and deductions that might well elude an untrained person." * * * [The Court] has also repeatedly noted that innocent activity might justify the suspicion of criminal activity.
State v. Johnson, 444 N.W.2d 824, 825-26 (Minn. 1989) (citations omitted).
Here, the district court determined the police had specific and articulable facts to justify an investigatory stop of Burgess. First, Burgess was entering a duplex the police had reason to believe, based on their observations and experience, was an active crack house. Second, Burgess exited from a vehicle police believed they had previously observed arriving at and leaving the duplex within a short period of time, conduct which is consistent with drug-related activity. Finally, Burgess, upon seeing Officer Edwards, looked frightened, began to back away, and appeared to be readying to flee.
Burgess argues the above cited circumstances do not justify the investigatory stop by the police. We disagree.
In Dickerson, a suspect's departure from an apartment building with a history of drug activity, combined with his evasive conduct after seeing a police officer, was found by this court to justify an investigatory stop of the suspect. State v. Dickerson, 469 N.W.2d 462, 465 (Minn. App. 1991), aff'd, 481 N.W.2d 840 (Minn. 1992), aff'd, 508 U.S. 366, 113 S. Ct. 2130 (1993). A suspect's behavior upon encountering a police officer, combined with other circumstances, "may well justify a stopping for investigation." Johnson, 444 N.W.2d at 826 (citation omitted).
Officer Edwards was able to articulate the circumstances which, based on her training and experience, caused her to suspect Burgess was involved in some criminal activity. Accordingly, the district court did not err in determining the police were justified in stopping Burgess.
The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.
Terry, 392 U.S. at 27, 88 S. Ct. at 1883.
While the police may not search for weapons every person they validly stop, "there are some cases in which the right to conduct such a frisk follows directly from the right to stop the person." Payne, 406 N.W.2d at 513. For example, "the right to frisk must be immediate and automatic if the reason for the stop is, as here, an articulable suspicion of a crime of violence." Id. (citation omitted). Examples of crimes where a suspect is likely to be armed, thereby making the right to frisk automatic, include "robbery, burglary, rape, assault with weapons, homicide, and dealing in large quantities of narcotics." Id. (citation omitted). Minnesota courts have recognized when police officers are dealing with individuals suspected of a drug-related offense, weapons are often involved. See,
e.g., State v. Bitterman, 304 Minn. 481, 485, 232 N.W.2d 91, 94 (1975); Dickerson, 469 N.W.2d at 465.
Here, Burgess was suspected of a drug-related offense. The officers testified Burgess was searched because, based on their knowledge and experience, people involved in drug-related activities are often armed. In addition, the officers were aware of the numerous weapons complaints from neighbors of the duplex. Accordingly, the district court did not err in determining the police were justified in searching Burgess for weapons.
whether the objective facts are such that under the circumstances "a person of ordinary care and prudence (would) entertain an honest and strong suspicion" that a crime has been committed.
State v. Johnson, 314 N.W.2d 229, 230 (Minn. 1982) (citation omitted). A police officer "may rely upon his training and experience to draw inferences and make deductions which establish probable cause." State v. Smith, 464 N.W.2d 730, 734 (Minn. App. 1991), aff'd, 476 N.W.2d 511 (Minn. 1991).
Here, the following facts established probable cause to arrest Burgess: (1) Burgess was stopped entering a residence the police had reason to believe was an active crack house, (2) Burgess arrived at the suspected crack house in a vehicle that the police believed had previously been observed arriving at and leaving the duplex within a short period of time, conduct that is consistent with drug-related activity, (3) Burgess' reaction upon seeing Officer Edwards, (4) the bulge in Burgess' pocket felt like crack cocaine to Officer Staudt, (5) the plastic baggie seen protruding from the pocket with the bulge in it, and (6) Burgess' statement that he did not know what was in his pocket because they were not his pants.
The bulge in Burgess' pocket, which felt like crack cocaine to Officer Staudt was an important factor in the establishment of probable cause. Staudt felt the bulge while conducting a protective search for weapons. Staudt, however, did not manipulate or seize the bulge in Burgess' pocket; she used it, in addition to other factors, to establish probable cause to arrest Burgess.
In his treatise, Professor LaFave states:
Assuming the object discovered in the pat-down does not feel like a weapon, this only means that a further search may not be justified under Terry analysis. There remains the possibility that the feel of the object, together with other suspicious circumstances, will amount to probable cause that the object is contraband or some other items subject to seizure, in which case there may be a further search based upon probable cause.
3 Wayne LaFave, Search and Seizure § 9.4 (c) (1978 & Supp. 1986) (citing State v. Ludke, 306 N.W.2d 111 (Minn. 1981)).
Because Burgess was lawfully stopped by the police for investigatory purposes, the pat-search for weapons was justified. The circumstances, based on the officers' training and experience, established probable cause to arrest Burgess. The police were authorized to search Burgess incident to an arrest. Any contraband found on Burgess during the search was lawfully obtained. Accordingly, we conclude the district court did not err in denying Burgess's motion to suppress.