This opinion will be unpublished and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
C0-97-2095

State of Minnesota,
Respondent,

vs.

Renaldo Manuel DeGarcia
Appellant.

Filed September 1, 1998
Reversed
Randall, Judge
Dissenting, Schumacher, Judge

Ramsey County District Court
File No. K2-96-1838

John M. Stuart, State Public Defender, Bryan J. Leary, Special Assistant State Public Defender, Plunkett, Schwartz, Peterson, P.A., East Bridge at Riverplace, 10 Second Street Northeast, Suite 114, Minneapolis, Minnesota 55413 (for appellant)

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

Susan E. Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant Ramsey County Attorney, Karen A. MacLaughlin, Certified Student Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

Appellant, who was a passenger in a vehicle stopped by police, challenges the district court's decision that a police officer's Terry "stop and frisk" did not violate appellant's Fourth Amendment rights. Appellant further argues that the evidence seized pursuant to this search should be suppressed. We agree and reverse.

FACTS

On June 5, 1996, police officers stopped the vehicle that appellant was riding in, claiming that it had a "loud car stereo" and that it appeared to have "illegally wide tires." Officer Stanway approached the driver's side of the vehicle, while Officer Dunnom, approached the passenger's side where appellant DeGarcia was sitting. Officer Stanway asked the driver for his license and proof of insurance. The driver stated he did not have his license with him, and Officer Stanway asked him to exit the vehicle, pat searched him, placed him in the squad car, and returned to the stopped vehicle. After the driver exited the car, Officer Dunnom noticed a large metal mallet protruding from under the driver's seat. It was later determined that this mallet was designed to remove customized wheel rims. (1) Once he saw the mallet, Officer Dunnom ordered DeGarcia out of the vehicle and pat searched him. During the pat search, Officer Dunnom felt a hard object in DeGarcia's crotch area, reached inside DeGarcia's nylon wind pants, and removed a baseball-sized object wrapped in a plastic bag. Laboratory tests determined the bag contained 55.62 grams of methamphetamine.

DeGarcia was charged with first-degree possession of a controlled substance with intent to sell. The district court denied DeGarcia's motion to suppress the evidence seized during the pat search. The district court then found DeGarcia guilty of the charged offense pursuant to stipulated facts and sentenced him to four years, six months.

D E C I S I O N

When there is no factual dispute and the district court's decision is a question of law, the appellate court reviewing a pretrial suppression order may review the facts independently and make a legal determination as to whether the evidence should be suppressed. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

A police officer may make an investigative stop and frisk of an individual if the officer can "'point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.'" State v. Gilchrist, 299 N.W.2d 913, 916 (Minn. 1980) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)). The Terry analysis is a two-part test. First, to validate a stop, an officer must "have a reasonable, articulable suspicion that a suspect might be engaged in criminal activity." State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff'd, 508 U.S. 366, 113 S. Ct. 2130 (1993). Second, and it is our issue here, to have the authority to conduct a pat search, an officer must have something more than a legal stop. The officer must reasonably believe that a suspect might be armed and dangerous and it must not be a pretextual search for evidence. Id.

A Terry pat search must be a limited search for weapons and must not be a search for evidence. Gilchrist, 299 N.W.2d at 917. An officer does not need to be completely certain that an individual is carrying a weapon. Id. at 916. The test is "'whether a reasonably prudent [officer] in the circumstances would be warranted in the belief that his safety or that of others was in danger.'" Id. (quoting Terry, 392 U.S. at 27, 88 S. Ct. at 1883). A pat search for weapons cannot be justified solely by "[a]n assumption that weapons might always be present when a law enforcement officer confronts a citizen." State v. Eggersgluess, 483 N.W.2d 94, 97 (Minn. App. 1992).

Here, DeGarcia makes no argument that the initial stop of the car was invalid. He agrees that because the officers made a legal investigatory stop of the vehicle, the officers could order the occupants out of the vehicle. See State v. Ferrise, 269 N.W.2d 888, 891 (Minn. 1978) (holding once an investigatory stop is made, officers may open automobile doors and order occupants out of vehicle). DeGarcia concedes this issue, but properly points out that even with a legal stop, there still must be some suspicion of criminal activity to justify a personal search, or some reasonable belief that the stopped person might be armed and dangerous before he, as a passenger, could be subjected to a Terry search. See State v. Varnado, C7-97-960, 1998 WL 460150, at *6 (Minn. Aug. 6, 1998) (stating "conducting a pat-down search is significantly more intrusive than merely asking a person to step out of a car").

At the time of the pat search, the car DeGarcia was riding in was the subject of a legal traffic stop, and, thus, there was a "seizure." See Terry, 392 U.S. at 16, 88 S. Ct. at 1877 (holding whenever officer restrains an individual's freedom to walk away, the individual has been "seized"). Now, to go further, the state was required to establish that Dunnom had a reasonable belief that DeGarcia was armed and dangerous. See id. at 30, 88 S. Ct. at 1884-85 (stating officer must have reasonable belief suspect is armed and dangerous before conducting pat search). We conclude that the state did not meet that burden in this case.

The state concedes that the partial view of a mallet-like car tool under the driver's side seat was the only basis Officer Dunnom articulated for his belief that DeGarcia might be armed. Officer Dunnom testified unequivocally that there was nothing inherent about DeGarcia that caused him to fear DeGarcia: no furtive gestures, no quick movements, no attempt to kick that part of the handle of the mallet showing under the seat. The district court found that DeGarcia made no move toward the mallet, he did not appear nervous, and he was cooperative in getting out of the car.

Dunnom testified that when he saw the mallet-shaped car tool, a device for removing customized wheel rims, sticking out from underneath the driver's seat, he automatically went ahead and conducted the pat search on appellant because, as he testified, "[g]enerally when I see one weapon, I always check for any further weapons." As set out in the facts, it is not in dispute that the officer, after viewing the mallet, gave it back to the driver. Also, as stated above, this mallet lying on the car floor of the driver's side was the only reason Officer Dunnom could testify to for his decision to go ahead and pat down appellant.

We note that there is a laundry list of items that will be seen in vehicles on any given day that "could be used" as a weapon: sporting equipment (e.g., baseball bats, golf clubs, tennis rackets, sharpened skates, and hockey sticks); automotive, carpenter, or plumbing tools (e.g., screw drivers, hammers, pipe wrenches, lengths of lead pipe, and tire irons); or domestic tools (e.g., scissors, letter openers, and pen knives). We simply are unwilling to hold that where an officer sees anything within a vehicle that "might" be used as a weapon, automatically and without more, a pat down Terry search of all passengers is presumably legal on these facts.

On these facts, the district court erred in denying DeGarcia's motion to suppress the evidence obtained pursuant to Officer Dunnom's search of DeGarcia. (2)

Reversed.

SCHUMACHER, Judge (dissenting)

I respectfully dissent. The record supports the district court's decision to deny DeGarcia's motion to suppress evidence based on the fact that Officer Dunnom had reason to believe DeGarcia was armed and dangerous.

An officer may lawfully conduct a pat frisk for weapons if the officer is "able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968).

The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.

State v. Gilchrist, 299 N.W.2d 913, 916 (Minn. 1980) (quoting Terry, 392 U.S. at 27, 88 S. Ct. at 1883)). The objective standard for determining the officer's reasonableness in a stop is based on the facts available to the officer at the time of the seizure. Wold v. State, 430 N.W.2d 171, 175 (Minn. 1988).

At the omnibus hearing, Dunnom articulated sufficient facts to warrant a belief that DeGarcia was armed and presented a threat to his safety. Most notably, Dunnom observed in plain view a large lead mallet with a handle and jagged edges protruding from under the driver's seat. DeGarcia's proximity to the weapon raised Dunnom's concerns for his safety. In order to protect himself and Officer Stanway, Dunnom pat searched DeGarcia for any other weapons. Dunnom testified that it is his usual practice to pat search for weapons once he has already located a weapon under the suspect's control.

Furthermore, the pat search that Dunnom conducted did not exceed what is permissible under Terry. Minnesota law interprets Terry as limiting pat searches to the outer areas of an individual'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). Since weapons are not always easily discernable, an officer is justified in removing an object of a substantial size, the precise nature of which is not immediately apparent through the outer clothing. State v. Bitterman, 304 Minn. 481, 486, 232 N.W.2d 91, 94 (1975) (officer constitutionally justified in removing hard object from suspect's clothing when removed pursuant to pat search for weapons on basis of personal safety).

In this case, Dunnom seized the object because he thought it might be a weapon. According to Dunnom's testimony, he felt a hard, heavy, sizeable object in the crotch area of DeGarcia's pants. Dunnom wasn't sure what it was, "whether it was brass knuckles or a gun or anything," so he reached in and grabbed it. Dunnom was justified in removing the hard, sizeable object from DeGarcia's pants based on his concern that the object was a weapon, especially in light of the fact that moments before the pat search Dunnom discovered the previously-described weapon under DeGarcia's control. Accordingly, I would affirm the district court. The Terry "stop and frisk" did not violate DeGarcia's Fourth Amendment rights.

(1) We note that the record is unclear as to the exact point at which Officer Dunnom secured the mallet. The state conceded at oral argument that after examining the mallet, the officers determined it was a legitimate tool and returned it to the driver.

(2) DeGarcia also asserts that Officer Dunnom exceeded the scope of a Terry search by reaching into DeGarcia's pants and removing the object he felt during the pat down. We need not address this issue as we reverse on the grounds that the pat search violated DeGarcia's Fourth Amendment rights. The search was not supported by a reasonable belief that DeGarcia was armed and dangerous.