This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C5-98-417

State of Minnesota,
Appellant,

vs.

Kenneth Vincent Roll,
Respondent.

Filed July 28, 1998
Affirmed
Klaphake, Judge

Isanti County District Court
File No. K1-97-1001

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101;

John J. Muhar, Isanti County Attorney, G. Paul Beaumaster, Assistant Isanti County Attorney, 555-18th Ave. S.W., Cambridge, MN 55008 (for appellant)

Timothy T. Ryan, 10625 Railroad Ave., Ste. 201, P.O. Box 405, Chisago City, MN 55013 (for respondent)

Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and Holtan, 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.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

The state appeals from an order dismissing a criminal complaint against respondent Kenneth Vincent Roll. Respondent was the passenger in a vehicle initially stopped for a traffic violation, and after the driver was searched and arrested for possession of a controlled substance, respondent was searched and found to be in possession of methamphetamine and drug paraphernalia in violation of Minn. Stat. §§ 152.025, subd. 2(1), 152.092 (1996). Because we agree that the search of respondent was unreasonable, we affirm.

D E C I S I O N

The state contends that the district court erred in dismissing the complaint against respondent because the police had probable cause to search him. See U.S. Const. amend. IV (citizens protected from unreasonable searches and seizures); Minn. Const. art. I, § 10 (same). In Fourth Amendment search and seizure analysis, the individual's right to be free from unreasonable searches and seizures is weighed against the police officer's safety concerns. See Wold v. State, 430 N.W.2d 171, 174-75 (Minn. 1988). Without a warrant or probable cause to arrest, an officer may stop and frisk an individual if the officer has a "'reasonable suspicion' * * * based upon the officer's experience that criminal activity may be taking place and that the individual with whom the officer is confronted may be armed and capable of immediately causing permanent harm." Id. at 174.

When a car is lawfully stopped and the driver is arrested for a narcotics violation, however, a passenger's "mere presence" in the vehicle does not provide probable cause to arrest and then search the passenger. See State v. Albino, 384 N.W.2d 525, 527 (Minn. App. 1986); State v. Brazil, 269 N.W.2d 15, 19 (Minn. 1978) ("a person cannot be arrested and searched merely because he is found in suspicious circumstances") (citations omitted). Under the standards set forth in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), a passenger may be searched for weapons only if the officer is justified in believing the passenger is armed and dangerous. Brazil, 269 N.W.2d at 20; State v. Eggersgluess, 483 N.W.2d 94, 97 (Minn. App. 1992) (pretrial finding that officer lacked "probable cause" to search vehicle passenger for contraband or weapons upheld under "mere presence" rule; routine traffic stops do not usually support Terry weapons search).

The factual record in this case does not demonstrate that the arresting officer had an objective, reasonable suspicion that respondent was armed and dangerous. The officer's stated reason for the search, which he feared for his own safety from respondent, is not borne out by the facts. While the officer may initially have had a reasonable suspicion that respondent was armed because of furtive movements he made in the car, that suspicion did not continue until respondent was actually searched. Before respondent's search, the officer had taken the driver's identification and checked it, questioned the driver at the back of his squad, questioned respondent at the car window, searched and arrested the driver, and ordered respondent out of the car. The district court also found that the officer had his back turned towards the car while he placed the driver in custody. Had the officer reasonably feared for his own safety, he would have conducted the Terry weapons search prior to this point in the stop. See State v. Crook, 485 N.W.2d 726, 729 (Minn. App. 1992) (whether police officer search reasonable depends on facts of each case). For these reasons, the district court properly concluded that the search of respondent was unreasonable.

Affirmed.