may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In The Matter of the Welfare of: P. J. K., Child.
Filed October 13, 1998
St. Louis County District Court
File No. J397651480
Fred T. Friedman, Chief Public Defender, Daniel K. Lew, Assistant Public Defender, Sixth Judicial District, 1400 Alworth Building, 306 W. Superior Street, Duluth, MN 55802 (for appellant)
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Alan L. Mitchell, St. Louis County Attorney, Charles P. Schumacher, Assistant County Attorney, 403 Government Services Center, 320 West Second Street, Duluth, MN 55802 (for respondent)
Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Willis, Judge.
Appellant P.J.K., a juvenile convicted as a petty offender for possession of a small amount of marijuana, challenges the district court's denial of his motion to suppress evidence seized after a patdown of his person. We affirm.
On September 11, 1997, school liaison police officer Jeanine Pauly and assistant principal Laurie Knapp observed that appellant P.J.K. was dressed inappropriately and motioned appellant to join them in Knapp's office. Appellant entered Knapp's office, where Pauly and Knapp requested that appellant amend his attire. As a result of escalating suspicions that developed while appellant was in Knapp's office, Pauly conducted a patdown of appellant's person, which resulted in the arrest of appellant and seizure of marijuana. Appellant argues the evidence was unlawfully seized and should have been suppressed.
Where there are no factual disputes and the district court's decision is a question of law, the appellate court may conduct a de novo review of the district court's decision on a motion to suppress. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). Here there are no facts in dispute. Therefore, we review the facts independently and make our own legal determination as to whether the evidence should be suppressed. Id.
Appellant contends the search violated his Fourth Amendment rights because: (1) a search was not justified under the standard set forth in Terry v. State of Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968); and (2) Pauly's patdown of appellant exceeded the lawful bounds of a Terry search when she seized the marijuana, having already determined it was not a weapon.
Initially, we note that this search and seizure was performed in a school setting where it is arguable that because of safety concerns, weapon searches should be subject to less constitutional restraints than those that apply in a typical Terry search. See New Jersey v. T.L.O., 469 U.S. 325, 338, 105 S. Ct. 733, 743 (1985) (holding that a search conducted by "school officials" will be justified if there are reasonable grounds to believe it will produce evidence of a violation of the law or school rule). However, because the search and seizure here was conducted by law enforcement, rather than school personnel, and because we conclude the more strict Terry standards were met, we apply Terry analysis.
Our independent review of the record indicates that Pauly had a particularized, objective basis to suspect appellant of criminal activity and a reasonable basis from which to conclude that appellant might be carrying a weapon.
When appellant stepped into Knapp's office, both Pauly and Knapp testified that they detected a strong odor of marijuana coming from appellant. Pauly asked appellant if he had been at the area where students are known to smoke tobacco and marijuana and appellant said no. She then asked appellant to empty his pockets. Appellant voluntarily began to empty his pockets, producing a cigarette lighter and a large "wad" of U.S. currency. Pauly testified that these items bolstered her suspicions regarding possible criminal activity on the part of appellant. We conclude Pauly had sufficient evidence at this point to have "a reasonable, articulable suspicion" that appellant might be engaged in criminal activity, and that, when taken together with rational inferences from the evidence, Pauly's suspicions reasonably warranted that she continue her investigation.
After appellant produced the lighter and cash, he began to pull his pockets inside out, but, according to Pauly, appeared to be avoiding pulling his pockets completely inside out, as if he were hiding something. At this juncture, Pauly stated she was concerned appellant might be hiding a weapon and decided to conduct a patdown. Whether an officer's suspicion justifies a patdown is determined by the facts. Wold, 430 N.W.2d at 174. The test is "`whether a reasonably prudent [officer] in the circumstances would be warranted in the belief that [her] 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).
Pauly further stated that when appellant began to shake as she approached him, she had further concerns for her safety. Pauly then conducted a patdown on the outside of appellant's clothing.
Given all the circumstances, we conclude Pauly had a reasonable, articulable suspicion that appellant might be armed when she conducted the patdown of appellant. Thus, our independent review of the facts supports the district court's conclusion that Pauly had reasonable concerns for her safety justifying her grounds to conduct a patdown of appellant's person.
The United States Supreme Court in Dickerson stated:
If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.
508 U.S. at 375-76, 113 S. Ct. at 2137. Thus, under Dickerson, an officer may remove an object felt during a patdown in two situations: (1) where the officer is unsure of the identity of an object and believes it could be a weapon; and (2) where the "plain feel" of an object makes its incriminating character "immediately apparent." Id. at 374-75; 113 S. Ct. at 2136-37.
We conclude the second situation applies here. During the course of the patdown, Pauly testified that when her hand touched the outside of appellant's left front pocket she heard a rustling like a "sandwich baggie-type noise" and felt an object in the bag. Pauly stated she believed the plastic bag contained marijuana, particularly because of the strong odor of marijuana coming from appellant. Therefore, without viewing or removing the object Pauly proceeded to handcuff appellant, informing him that he was under arrest. Only after arresting appellant did Pauly seize the object in appellant's pocket, confirming that it was a plastic bag containing a green leafy substance that tested positive as marijuana. We conclude based on Pauly's actions and subsequent testimony that the incriminating nature of the marijuana was immediately apparent to her and thus, under Dickerson she lawfully seized the contraband.
Based on the evidence in the record, we conclude Pauly's seizure of the marijuana was the lawful result of a permissible Terry search and therefore the district court properly denied appellant's motion to suppress the evidence.