This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Beverly Ann Varnado,


Filed December 2, 1997

Reversed and remanded

Willis, Judge

Olmsted County District Court

File No. K6963201

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Appellant)

Raymond F. Schmitz, Olmsted County Attorney, David S. Voigt, Assistant County Attorney, 151 SE 4th Street, Rochester, MN 55904 (for Appellant)

Kevin A. Lund, 7 Fourth Street SE, Rochester, MN 55904 (for Respondent)

Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Willis, Judge.



The state challenges the district court's order suppressing evidence, arguing that the search leading to the evidence was a valid pat-down search for weapons. We reverse and remand.


On November 1, 1996, at approximately 9:25 p.m., Officers Mark Nunemacher and Scott Oesterlin were on routine patrol when they observed a car with a severely shattered windshield, which they recognized as belonging to a suspected drug dealer, Joyce McDonald. The officers followed the car into the parking lot of an apartment complex known as a location for drug trafficking. After the car had been parked in Joyce McDonald's usual parking space, the officers activated the squad car's overhead lights. Both officers got out of the car and approached the vehicle. Officer Nunemacher asked the driver (respondent Varnado) if she was Joyce McDonald. Varnado replied that she was Beverly McDonald, Joyce's sister. Varnado was unknown to the officers. When asked for identification, Varnado replied that she did not have any with her.

Officer Nunemacher asked Varnado to step out of the car and sit in the back of the squad car while he checked her driving status on the computer. Before placing her in the squad car, Officer Nunemacher conducted a pat-down search of the defendant's bulky coat for weapons. During the search for weapons, the officer moved Varnado's coat and observed a large bulge in her jeans pocket. The officer patted-down the pocket without manipulating its contents and felt textured objects that he recognized to be crack cocaine, as well as a smooth object. He asked Varnado if the drugs were hers, and she responded they were not. The officer then reached into her pocket and retrieved about $2,000 in cash and several plastic bags containing crack cocaine.

Varnado was charged with two counts of controlled substance crime. On January 28, 1997, Varnado's motion to suppress the evidence was granted. The district court held that the evidence was obtained in violation of Varnado's constitutional rights and dismissed both counts against her. Specifically, the district court found that the pat-down search of Varnado was not justified by the facts. The court found that the officers' safety did not require them to conduct a pat-down search of Varnado or to place her in the back of the squad car. The district court also found that moving Varnado's jacket was a second, more intrusive search, inconsistent with a permissible pat-down search for weapons.


A district court's factual determinations are given great, but not unlimited, deference. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff'd, 508 U.S. 366, 113 S. Ct. 2130 (1993). The district court's findings will not be reversed unless they are clearly erroneous or contrary to law. Id. On review of a pretrial order suppressing evidence, if no facts are in dispute and the district court's decision is a question of law, this court may independently review facts to determine, as a matter of law, if the evidence should be suppressed. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

We first must determine whether the traffic stop was objectively reasonable under the Fourth Amendment. A traffic stop "must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695 (1981). Generally, an officer has an objective basis to stop a vehicle if he observes a violation of a traffic law. State v. George, 557 N.W.2d 575, 578 (Minn. 1997). The officers were justified in stopping the vehicle when they observed that it had a severely shattered windshield in violation of Minn. Stat. § 169.71, subd. 1 (1996).

To ensure his or her safety, an officer who has stopped a vehicle for a traffic violation may order the occupants out of the vehicle. State v. Payne, 403 N.W.2d 273, 275 (Minn. App. 1987), rev'd on other grounds, 406 N.W.2d 511 (Minn. 1987). Additionally, an officer may place a driver without identification who is stopped for a traffic violation in a squad car while the officer attempts to identify the driver. See State v. Cornell, 491 N.W.2d 668, 669 (Minn. App. 1992) (driver without identification stopped for speeding placed in squad car while officers determined if he had valid driver's license).

In this case, the officers stopped a car in a high-crime area at night. Varnado, the driver, was unknown to the officers, did not have identification, and was wearing a bulky coat. Under these circumstances, it was reasonable for the officers to place Varnado in the squad car while they attempted to identify her and check the status of her driver's license, and it was reasonable to conduct a pat-down search for weapons before placing her in the squad car. See Cornell, 491 N.W.2d at 670 (finding limited pat-down search for weapons permissible before placing person in squad car).

A permissible pat-down search for weapons is "a carefully limited search of the outer clothing" of the suspect. Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1885 (1968). The district court found that even if the pat-down search of Varnado's coat were permissible, the pat-down search of her jeans was a second, illegal search. We conclude that Varnado was subjected to a single, permissible pat-down search. Limiting the search to outer clothing balances a defendant's privacy interest with an officer's interest in remaining safe from easily accessible weapons. Under the circumstances here, Varnado's jeans were part of her outer clothing for the purpose of a pat-down search. A weapon in a pants pocket, though covered by the flap of a coat, is still dangerously accessible. Police officers should not be required to take unnecessary risks in the performance of their duties. Id. at 23, 88 S. Ct. at 1881. To conclude under circumstances such as those here that an outer pants pocket is not subject to a pat-down search for weapons would create unnecessary risks for officers.

Finally, we must determine if the crack cocaine was properly seized. The United States Supreme Court has held that contraband may be seized during a search for weapons if an officer recognizes the item under a "plain feel" theory:

If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.

Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S. Ct. 2130, 2137 (1993). Officer Nunemacher immediately recognized the crack cocaine while conducting a valid pat-down search for weapons. Under Dickerson, the contraband evidence was properly seized.

We conclude that the evidence should not have been suppressed in this case because it was discovered during a valid pat-down search for weapons.

Reversed and remanded.



Judge Bruce D. Willis