Minn. Stat § 480A.08, subd. 3 (1996)
STATE OF MINNESOTA
IN COURT OF APPEALS
Jessie Clifton Smith,
File No. 96079113
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)
Michael O. Freeman, Hennepin County Attorney, Beverly J. Benson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Bradford W. Colbert, Assistant State Public Defender, Stacey Roelofs, Special Assistant Public Defender, 875 Summit Avenue, Room 371, St. Paul, MN 55105 (for appellant)
Considered and decided by Crippen, Presiding Judge, Lansing, Judge, and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
In an appeal from conviction for fifth degree possession of a controlled substance, Jessie Smith asserts that the evidence supporting the conviction is the product of an unconstitutional search and should have been suppressed. We affirm the district court's ruling admitting the evidence. The state established: (1) an adequate basis for stopping the vehicle, (2) probable cause for the search, and (3) exigent circumstances.
Minneapolis Police Officer Kelvin Pulphus responded to a radio dispatch from Police Sergeant Greenwaldt requesting assistance in stopping a vehicle. Minutes earlier, Pulphus had received a dispatch on shots fired in the vicinity of 27th Street and Stevens Avenue. The first dispatch indicated that the "shots fired" incident involved a blue, four-door Ford Taurus with two black male occupants. In the second dispatch, nine minutes later, Greenwaldt radioed that he had spotted a vehicle matching the description on 24th Street and 12th Avenue (less than one mile from 27th and Stevens) and was stopping the vehicle.
Pulphus arrived at 24th and 12th before Greenwaldt, who was working without a partner, had gotten out of his squad car. With guns drawn, both officers approached the stopped vehicle and ordered the occupants, two black males, to put their hands up. The driver immediately raised his hands. Pulphus watched the passenger, later identified as Jessie Smith, place something in his mouth before he raised his hands. Pulphus pulled Smith out of the car, handcuffed him, and asked him what he had in his mouth. When Smith mumbled in response, Pulphus ordered him to spit out whatever was in his mouth. When he did not spit it out, Pulphus placed his forearm around Smith's neck in a choke-hold and Smith spit out a plastic bag containing a white powdery substance later identified as cocaine. He was arrested for possession of a controlled substance. The police then searched the vehicle for guns and, when they found none, released the driver.
At the omnibus hearing Smith argued the stop and subsequent search of his person were invalid and that the use of a choke-hold to prevent destruction of evidence was unreasonable. The district court found that the radio dispatch was sufficient to support the stop and that Pulphus did not use excessive force on Smith. Smith waived his right to a jury trial and submitted the case to the court on stipulated facts. The district court adjudicated Smith guilty of fifth degree possession of a controlled substance, and Smith appeals.
Smith argues the state failed to establish the validity of the stop because Sergeant Greenwaldt, the officer who made the initial decision to stop the vehicle, did not testify. But officer Pulphus testified that he received a "shots fired" dispatch and the description of an involved or possibly involved vehicle. A few minutes later, Pulphus heard a dispatch from Greenwaldt indicating that he was about to pull over a vehicle matching that description. Pulphus arrived at Greenwaldt's location within minutes and assisted in the stop. Pulphus's testimony was adequate to establish that the vehicle was stopped because it matched the description of the "shots fired" report. The corresponding descriptions of the vehicles and occupants and the vehicle's location in relation to the reported time and place of the incident established that the stop was proper.
Smith contends that even if the stop was valid, the search of his mouth was not. Searches conducted without a warrant are per se unreasonable under the Fourth Amendment, subject to a few exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514 (1967). When a law enforcement officer asks an individual to open his mouth for the purpose of viewing what may be hidden inside, it constitutes a search. State v. Hardy, ___ N.W.2d ___, 1998 WL 162148, at *4 (Minn. Apr. 9, 1998). Applying the rule stated in Hardy, the search of Smith's mouth was constitutionally valid only if Pulphus had probable cause to search and the search comes within an exception to the warrant requirement.
In analyzing whether there was probable cause, we start from the premise that a number of circumstances in combination may create a strong suspicion, each of which, if operating alone, would justify no more than a mild suspicion. State v. Harris, 265 Minn. 260, 268, 121 N.W.2d 327, 333 (1963) (quoting People v. One 1955 Ford Victoria, 193 Cal.App.2d 213, 215 (1961)). Furtive gestures in some limited circumstances have provided probable cause. State v. Munoz, 385 N.W.2d 373, 376 (Minn. App. 1986) (citing State v. Gallagher, 275 N.W.2d 803 (Minn. 1979)).
The evidence is undisputed that Pulphus saw Smith put something in his mouth after Smith was told to put his hands up. In response to Pulphus's question of what was in his mouth, Smith mumbled. Pulphus reasonably interpreted Smith's placing something in his mouth as an attempt to hide something and his mumbling as confirmation that he had hidden something. "Trained law-enforcement officers are permitted to make `inferences and deductions that might well elude an untrained person.'" State v. Kvam, 336 N.W.2d 525, 528 (Minn 1983) (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 695 (1981)). Under the circumstances of this case, Pulphus had probable cause to "search Smith's mouth" by telling him to spit out what was in it.
When there is a real threat of imminent destruction of evidence, exigent circumstances justify a warrantless search. State v. Lohnes, 344 N.W.2d 605, 610 (Minn. 1984) (citing Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826 (1966)). The test for determining whether exigent circumstances exist is whether, under the totality of the circumstances existing at the time, there was a need for immediate police action to prevent the destruction of evidence. Id. at 611.
The police, responding to a "shots fired" report, were on the street with a suspect they believed had an unsafe or suspicious object in his mouth. Getting a warrant before the contents of Smith's mouth became irretrievable would have been a difficult, if not impossible, task. The search of Smith's mouth was a reasonable application of the exigent circumstances exception to the warrant requirement.
Smith's final argument is that even if the search was justified, choking him to prevent the destruction of evidence was an improper use of force, making the search constitutionally unreasonable. The right to make an arrest or investigatory stop "necessarily carries with it the right to use some degree of physical coercion or threat." Gasparre v. City of St. Paul, 501 N.W.2d 683, 686 (Minn. App. 1993) (quoting Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1872 (1989)). A choke-hold to prevent the destruction of evidence has been found to be reasonable in some circumstances. See Espinoza v. United States, 278 F.2d 802-04 (5th Cir. 1960) (police investigating drug offense were justified in grabbing person's throat and choking him while prying mouth open to retrieve small package placed in mouth). The police action in forcing Smith to spit out the baggie did not invalidate the search.