This opinion will be unpublished and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
C3-97-2382

State of Minnesota,
Respondent,

vs.

Mark Anthony Garza,
Appellant.

Filed September 1, 1998
Reversed
Randall, Judge

Carlton County District Court
File No. K7-96-438

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

Marvin E. Ketola, Carlton County Attorney, 202 Courthouse, P.O. Box 300, Carlton, MN 55718 (for respondent)

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, Minnesota 55414 (for appellant)

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 present during a police search of a residence, challenges the district court's decision that a police officer's Terry "stop and frisk" was permissible and asserts that the district court erred in denying his pretrial motion to suppress evidence seized pursuant to this search and to suppress all his statements related to the seized evidence. We reverse.

FACTS

On April 24, 1996, officers from the Cloquet and Duluth Police Departments and deputies from the Carlton County Sheriff's Department executed a search warrant at a residence in Cloquet, Minnesota. The warrant application stated that residents and visitors "often use controlled substances" and that "their behavior may be difficult to predict." Appellant Mark Anthony Garza's name did not appear on the warrant and the warrant did not authorize a search of all persons present in the residence at the time the warrant was executed.

A Consolidated Emergency Response Team (CERT) was instructed to enter and secure the residence and its occupants while a "search" team followed and conducted a full search. CERT entered the residence and immediately handcuffed the occupants, including Garza, and placed them all face down on the floor. Officer Ferrell, a member of the search team, then entered the house and performed a pat search of Garza. While patting down the pockets of Garza's shirt, Officer Ferrell removed an oblong container of nasal spray and a cylindrical object about three inches long and about as wide as a pen that contained a white powdery substance. Officer Ferrell testified that he removed the items in order to determine whether they were weapons or drugs. Officer Ferrell asked Garza what the substance was, and he indicated that it was cocaine. After discovering the cocaine, Officer Ferrell conducted a more thorough search and removed everything from Garza's pockets, including three cardboard squares containing cocaine. Garza was arrested and transported him to the Cloquet Police Department.

Garza was charged with a fourth-degree controlled substance crime. The district court denied Garza's motion to suppress the evidence seized during the pat search and to suppress all of his statements related to the seized evidence. The parties agreed to submit the case to the district court on stipulated facts. The district court found Garza guilty of a fourth-degree controlled substance crime, sentenced him to a stayed one-year and one-day sentence, and placed him on probation for three years.

D E C I S I O N

Where the material facts are not in dispute, an appellate court reviews de novo a district court's decision on a motion to suppress. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). Here the material facts are not in dispute. Accordingly, we will view the facts independently and make a legal determination as to whether the evidence should have been suppressed.

Garza argues that Officer Ferrell's search violated his rights under the Fourth Amendment because he was not named in the warrant and the warrant did not include a directive to search "all persons" present. In support of his Fourth Amendment claim, Garza argues that the pat down by the officer was not a valid frisk for weapons under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968). (1)

It is settled that police do not violate the Fourth Amendment when they detain individuals present while executing a search warrant. State v. Blacksten, 507 N.W.2d 842, 847 (Minn. 1993) (citing Michigan v. Summers, 452 U.S. 692, 101 S. Ct. 2587 (1981)). Absent authority to search under a warrant, however, the only justification for searching a person present on premises during the execution of search warrant is a protective frisk for weapons under the Terry doctrine. State v. Burton, 556 N.W.2d 600, 601 (Minn. App. 1996), review denied (Minn. Feb. 26, 1997).

Officers in Ybarra v. Illinois obtained a search warrant to search a tavern and the bartender for evidence of controlled substances. Ybarra v. Illinois, 444 U.S. 85, 88, 100 S. Ct. 338, 340-41. Ybarra was present at the tavern when officers executed the search warrant, he was frisked for weapons, and a cigarette pack was discovered. Id. at 88-89, 100 S. Ct. at 341. An officer removed the cigarette pack from Ybarra's back pocket and found six tinfoil packets containing heroin. Id. at 89, 100 S. Ct. at 341. The Court stated:

[A] person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be.

Id. at 91, 100 S. Ct. at 342 (citation omitted). The Court held that the initial pat search of Ybarra was not a reasonable frisk for weapons under the Terry doctrine because the frisk was not supported by a reasonable belief that he was armed and presently dangerous. Id. at 92-93, 100 S. Ct. at 343.

Garza argues that, as was the case in Ybarra, the officers executing the warrant did not recognize Garza as a known drug offender and had no reason to believe he was involved in criminal activity and he made no threatening gestures. Garza asserts that Officer Ferrell also had no reason to suspect Garza was involved in illegal drug activity or that he would have evidence of illegal drug activity in his possession. Therefore, Garza argues, Officer Ferrell lacked reasonable suspicion to believe Garza was involved in criminal activity and was armed and presently dangerous. We agree.

The search warrant in this case was not an "all-persons" warrant. If it had been, the result might well be different. The mere recitation in the search warrant application that residents and visitors "often use controlled substances" and "their behavior may be difficult to predict "are pure conclusory and speculative statements. Those phrases did not identify this individual appellant nor do the phrases identify any specific facts pointing to appellant.

Pure conclusory statements are not enough to turn a warrant in which the defendant is not named, and which is not an all persons warrant, into a warrant that allows a presumptive search of everyone present. If it was, then boilerplate phrases like "often used controlled substances" and "have behavior difficult to predict" would become throw-away phrases automatically typed into every warrant. This language would turn a search warrant that does not authorize a search of all persons present into a de facto warrant that does.

Garza's reliance on Ybarra is persuasive under the facts of the present case. Ybarra was present at a public tavern when the officers executed a search warrant for the premises. Although Garza was not a casual patron of a public establishment, he was in an apartment building where visitors to the scene could come and go. The apartment's reputation as a place of past drug dealing was modest. From the record there can be no presumption that everybody there, simply by being there, had some predisposition to illegal activity. Absent authority to search under the warrant, the only justification for searching Garza, who was present on the premises during the execution of the search warrant, would have been a protective frisk for weapons under the Terry doctrine.

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." Terry, 392 U.S. at 21, 88 S. Ct. at 1880. The Terry analysis is a two-part test. First, an officer must have a reasonable, articulable suspicion that a suspect might be involved 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, an officer must reasonably believe that a suspect might be armed and dangerous and must have an articulable factual basis for this belief. Id.

The record is devoid of any specific facts pointing to Garza as possibly armed and dangerous. Notably, prior to the pat search, Garza was handcuffed and face down on the floor. Most importantly, the record is full of facts that the pat down search of Garza had nothing to do with Garza individually, but was part of a predetermined law enforcement plan to go into the apartment and search everybody present, regardless of who that might be or what evidence or the lack of evidence they might have against them. The testifying officers candidly stated that because of pre-search planning and instruction, the officers burst into the room and immediately seized everyone there, put them on the floor, and searched them, whether they were named in the warrant or not. Further, the police had been specifically instructed beforehand to look for cylindrical objects just like the one found on Garza because cylindrical containers often contain drugs.

There was no claim by the Officer Ferrell that Garza looked suspicious, made furtive movements, or turned and walked away. The officers simply had predetermined that they were going to search everyone present. The district court's pretrial order states that "Officer Farrell testified to specific and articulable facts which * * * reasonably warranted a search of Defendant for drugs and weapons." We note that a search for drugs is not a Terry search. A Terry search is a warrantless pat down for weapons, permitted only if there is a reasonable belief that the individual is armed and dangerous. The district court erred in stating that a Terry search can be for drugs. From Officer Ferrell's own testimony and the findings of the district court, the officer does not even claim articulable suspicion from visual observation of Garza that he was armed and dangerous. The entire sequence of events from the time the police first burst through the door to the search of appellant had been decided beforehand. No attempt was made by the state to establish articulable suspicion as to Garza being armed and dangerous.

On these facts, the district court erred in denying Garza's motion to suppress the evidence obtained pursuant to Officer Ferrell's search of Garza.

Reversed.

(1) We need not address Garza's argument that Officer Ferrell exceeded the scope of a Terry search because we reverse on the grounds that the pat search was not supported by a reasonable belief that Garza was armed and dangerous.