Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
Jessie Michael-Joseph Devich,
Filed May 5, 1998
Alan L. Mitchell, St. Louis County Attorney, David M. Johnson, Assistant County Attorney, 100 North 5th Avenue West, Room 501, Duluth, MN 55802-1298 (for appellant)
Kevin C. Cornwell, Stauber & Lien, 1011 East Central Entrance, Duluth, MN 55811 (for respondent)
Considered and decided by Peterson, Presiding Judge, Crippen, Judge, and Mansur, Judge.
*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, § 10.
In this pretrial appeal, the State of Minnesota contends that the district court erred by suppressing critical evidence in the case against respondent Jessie Michael-Joseph Devich. The state asserts that the car Devich was driving was properly searched, pursuant to a valid traffic stop, because police had a reasonable suspicion that the car contained weapons. Because we find that the suppressed evidence was seized in the absence of a reasonable suspicion, we affirm the district court's suppression order.
Respondent was pulled over by police around 10:00 p.m. because the vehicle he was driving had expired registration tabs on its rear license plate. While he was pulling the car to the side of the road, respondent did not make any furtive or suspicious movements, such as ducking or reaching beneath the seats. When he walked over to the car's driver-side door, the officer observed that respondent had a tattoo of the number 74 on his arm, which he knew was a symbol for the Gangster Disciples gang. The officer then asked respondent if he had proof that the car had valid insurance and was told that it belonged to respondent's friend. The officer was familiar with respondent's friend and knew him to be a member of the Gangster Disciples gang.
The officer then asked respondent if he had any weapons in the car and respondent replied no. The officer testified that he did not feel respondent made an appropriate response to the question because he kept his head down and did not make eye contact with the officer while answering. The officer then ordered respondent to step out of the car so that he could frisk him for weapons. Respondent did not make any oral threats to the officer while stepping out of the car. After finding no weapons during the frisk, the officer again asked respondent if there were any weapons in the car. Respondent answered that he did not think so. The officer then became more concerned for his safety because respondent's second negative answer to the question was worded differently from his first.
Based on the variance in respondent's answers to the question of whether the car contained a weapon, his apparent gang membership as indicated by his "74" tattoo, and the fact that the officer knew the owner of the car--respondent's friend--was a gang member, the officer conducted a search of the driver's seat area of the car. During the search, a pistol was found under the driver's seat. Respondent was arrested and charged with possession of a pistol without a license, Minn. Stat. § 624.714 (1996).
Respondent moved to suppress the gun seized from the car. After a hearing on the motion, the district court ruled that the officer did not have reasonable suspicion to search respondent's car and granted respondent's suppression motion.
The critical impact requirement is not disputed by the parties, so the only question we must decide is whether the trial court clearly and unequivocally erred. Unreasonable searches and seizures of persons and their property are prohibited. U.S. Const. amend. IV; Minn. Const. art. I, § 10. Police may initiate a limited investigatory search if they have reasonable articulable suspicion that a crime has been committed and that weapons are involved. Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883 (1968); Wold v. State, 430 N.W.2d 171, 175 (Minn. 1988). A Terry frisk is a limited search for weapons, not a general search for evidence. 392 U.S. at 29, 88 S. Ct. at 1884.
The parties do not dispute the reasonableness of the initial traffic stop here because it was based on the officer's observation that the car respondent was driving had expired license tabs. After making a valid traffic stop, an officer may order the driver out of the car. Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct. 330, 333 (1977); Maryland v. Wilson, 117 S. Ct. 882, 886 (1997); State v. Gilchrist, 299 N.W.2d 913, 916 (Minn. 1980). The reasonable suspicion necessary to conduct a traffic stop does not by itself allow an officer to search a driver's car. Police may conduct a limited search of a car for weapons if they reasonably suspect it contains weapons. Michigan v. Long, 463 U.S. 1032, 1049, 103 S. Ct. 3469, 3481 (1983); Gilchrist, 299 N.W.2d at 917.
A comparison of the facts of the instant case with those in the cases cited by appellant makes it clear that the officer here did not have a reasonable suspicion that the car contained weapons. The officer believed that respondent was a gang member, based on his tattoo, and knew that the person respondent said was the car's owner was a gang member. The officer's reasonable suspicion that respondent was carrying weapons, if any, was dispelled when a Terry frisk revealed no weapons on respondent's person.
After finding no weapons while frisking respondent, the officer again asked whether the car contained any weapons. Respondent stated that he did not think so. The officer then felt "uneasy" because respondent had slightly varied his second answer from his first negative answer about whether the car contained weapons. At this point, respondent had not threatened the officer, made any furtive movements during or before the encounter, or tried to flee the scene. The officer did not have any information that respondent was known to carry weapons, that he was armed and dangerous, or that he was under investigation for a homicide, as in the car search approved in Gilchrist, or any other crime involving a weapon.
Based on the above facts known to the officer at the time he searched the car, he did not have reasonable suspicion to suspect that the car respondent was driving contained weapons. His "uneasy" feeling upon hearing the second negative answer to his question about the car was a hunch that does not constitute reasonable articulable suspicion. Terry, 392 U.S. at 29, 88 S. Ct. at 1883. Because the search of the car here was not based on a reasonable suspicion, it was not proper under Terry or Long and was conducted in violation of respondent's Fourth Amendment rights.
The district court's findings were well supported and it did not err as a matter of law in finding that the car appellant was driving was illegally searched. Pursuant to Minn. R. Crim. P. 28.04, subd. 2(6), respondent is awarded $1,450 in attorney fees and $265.20 in expenses.
 We are not asked to decide, and therefore do not reach, the question of whether the officer had a reasonable suspicion to justify his frisk of respondent.