Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
File No. K7962810
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, Ramsey County Government Center-West, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)
Lawrence W. Pry, Assistant State Public Defender, LEC 304, 875 Summit Avenue, St. Paul, MN 55105 (for appellant)
Considered and decided by Peterson, Presiding Judge, Kalitowski, Judge, and Short, Judge.
Appellant Daniel Woodbeck was convicted of fifth-degree controlled substance offense in violation of Minn. Stat. § 152.025, subd. 2(1) (1996). Woodbeck challenges the search that led to the discovery of the evidence against him. We affirm.
In the pat down search for weapons, the officer felt a "[h]ard object or semi-hard object, * * * four or five inches long, a few inches wide" that he thought was a cigarette pack. The officer testified that he removed the object because he had found razors and needles in such packs before and because he needed to feel what was behind it.
The officer further testified that: (1) he knew of Woodbeck before the stop; (2) he was aware of incidents in which Woodbeck was involved with weapons and was present at the scene of a shooting; and (3) his concern about security was heightened because Woodbeck was present.
Once the officer had the cigarette pack in his hands, he saw a baggie sticking out of it. He removed the baggie and saw what he thought looked like drugs. He asked Woodbeck about the baggie, and Woodbeck responded that it was not his. Woodbeck then started to flee, but the officer was able to stop him and handcuff him. The baggie was found to contain methamphetamine.
In reviewing a district court's pretrial suppression ruling on undisputed facts, this court determines independently as a matter of law whether the evidence must be suppressed. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). Woodbeck argues the police officer lacked articulable suspicion justifying the pat down search and that this search and the subsequent seizure of the evidence exceeded the permissible scope of a Terry protective search. We disagree.
A pat down search is not justified in all circumstances in which an officer has made an investigative stop. As the Terry court concluded, an officer may make a "reasonable search for weapons" for his own protection "where he has reason to believe that he is dealing with an armed and dangerous individual." Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883 (1968). Here, the police officer testified that he was in an area known for drug dealing and he knew Woodbeck had been associated with the possession and use of weapons in the past. Moreover, the officer was alone, and he was dealing with three individuals, one of whom had outstanding warrants. We conclude the officer had sufficient reason to suspect Woodbeck might be armed and dangerous. Cf. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992) (concluding that the history of drug activity in the immediate area, the officer's past seizures of guns from building defendant left, and the defendant's suspicious behavior warranted pat down search), aff'd, 508 U.S. 366, 113 S. Ct. 2130 (1993).
Police may seize any evidence discovered "`while conducting a legitimate Terry search.'" In re Welfare of G.M., 560 N.W.2d 687, 692 (Minn. 1997) (quoting Michigan v. Long, 463 U.S. 1032, 1050, 103 S. Ct. 3469, 3481 (1983)). A legitimate Terry pat down search is limited
to a careful exploration of the outer areas of a person's clothing unless the officer feels an object thought to be a weapon and then reaches into the suspect's clothing to recover that object.
State v. Crook, 485 N.W.2d 726, 729 (Minn. App. 1992), review denied (Minn. Aug. 4, 1992).
Further, the supreme court in Bitterman stated that police may remove "a hard object of substantial size, the precise shape or nature of which is not discernible through outer clothing." State v. Bitterman, 304 Minn. 481, 486, 232 N.W.2d 91, 94 (1975) (citing State v. Gannaway, 291 Minn. 391, 393, 191 N.W.2d 555, 557 (1971)). The police officer in Bitterman seized a 2-inch by 1-inch prescription bottle immediately upon feeling it. Id. at 483, 232 N.W.2d at 93. Similarly, the officer here seized an even larger object that he described as "hard" or "semi-hard." We conclude that under the totality of the circumstances as described above, the officer could reasonably have thought the object might be a weapon or might serve to conceal the presence of a weapon.
Under the "plain view" doctrine, the officer had probable cause to open the pack after seeing the baggie protruding from it. Given the officer's legitimate deductions from his training and experience, the incriminating nature of the baggie was immediately apparent. See State v. Lembke, 509 N.W.2d 182, 184 (Minn. App. 1993) (plastic bag sticking out of driver's jacket pocket was in "plain view" and its incriminating nature immediately apparent, given officer's training, intuition, and experience).
We conclude the district court properly denied Woodbeck's motion to suppress the evidence. Because the seizure of the cigarette pack and its contents did not exceed the proper scope of a Terry pat search, we need not address the state's claim of a search incident to arrest.