may not be cited except as provided by
Minn. Stat. §480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed January 26, 1999
Hennepin County District Court
File No. 98006754
Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Steven P. Russett, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Shumaker, Presiding Judge, Kalitowski, Judge, and Anderson, Judge.
Appellant challenges the district court's denial of appellant's motion to suppress crack cocaine evidence as fruit of an illegal search. Because we disagree with the district court that the crack cocaine was seized pursuant to either a search incident to arrest or a valid plain-feel search, we reverse.
During a Rasmussen hearing for appellant Dale Thames, a police officer testified that he observed appellant commit minor traffic violations. As appellant was pulling over to park, the officer activated his emergency lights. Appellant got out of his vehicle and walked at a fast pace toward a house across the street. The officer asked appellant to come back to the squad car. Appellant looked at the officer and kept on walking. Several times the officer requested that appellant stop. When the officer got close enough, he grabbed appellant's arm, applied an escort hold, and walked him back to the squad car. Appellant tried to pull his arm away from the officer and kept asking the officer what he was doing and what this was all about. The officer pat searched appellant for weapons because he was going to be placing him in the backseat of the car to question him about the traffic violations. During the search the officer discovered crack cocaine in appellant's pocket and placed appellant under arrest. The district court found the search to be incident to the arrest and that it was a valid plain-feel search.
Appellant submitted his case on stipulated facts to the district court. The district court found appellant guilty as charged and sentenced him. Appellant appeals the conviction, challenging the district court's suppression order.
Appellant argues that his "arrest" was unlawful and therefore the subsequent search cannot be justified as a "search incident to arrest." Appellant cites State v. Carver, 577 N.W.2d 245, 249-50 (Minn. App. 1998), contending that "an officer may not make a custodial arrest based only on a petty misdemeanor." Although an officer should not make an arrest on a minor traffic violation, if appellant's conduct of walking away from the police gave the officer probable cause that a more serious crime was being committed, then the officer could have arrested appellant. See State v. Liggons, 348 N.W.2d 785, 787 (Minn. App. 1984) (officer has probable cause to arrest if facts are such that person of ordinary care and prudence would have honest and strong suspicion that suspect has committed crime), review denied (Minn. July 26, 1984). Probable cause is "`something more than mere suspicion and something less than evidence which would sustain a conviction.'" Id. at 788 (quoting State v. Fish, 280 Minn. 163, 169, 159 N.W.2d 786, 790 (1968)). If an officer does have probable cause to make an arrest then:
"An arresting officer may search the arrestee and the area within the immediate control of the arrestee in order to prevent the destruction of evidence or to remove any weapons that the arrestee might use to resist arrest or effect escape."
State v. Hardy, 577 N.W.2d 212, 216 (Minn. 1998) (quoting State v. Wynne, 552 N.W.2d 218, 221 (Minn. 1996)).
The search of appellant, resulting in the discovery of the crack cocaine, occurred before appellant was placed under arrest. A search incident to arrest "may precede arrest as long as the results of the search are not necessary to establish probable cause for the arrest." Id. at 216 (citing Wynne, 552 N.W.2d at 221). "However, the crime for which there is probable cause to arrest must be a crime for which a custodial arrest is authorized." State v. Varnado, 582 N.W.2d 886, 892 (Minn. 1998) (citing United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 477 (1973)). Therefore, the issue is whether the officer had probable cause and authority to make a custodial arrest based on appellant's evasive conduct.
Although the court concluded that the officer had reason to arrest appellant, the officer never stated that it was his intent to arrest appellant or that he thought he had probable cause to arrest appellant prior to doing the pat-down search. Rather, the police officer explained that he did the pat search:
Because I was going to be placing him in the back of the squad, and his actions caused me to believe that he may have some type of weapon on him.
It was not until after the pat-down search, which led to the discovery of the crack cocaine, that the officer placed appellant under arrest. The district court found, however, that the officer had probable cause to arrest appellant because he was evasive when he walked away and tried to get into the house. "While an arrest for a crime other than the one that provided the basis for the frisk will not alone invalidate the search, it is one factor [this court] will consider when assessing the validity of a search incident to arrest." Id. at 893 (citation omitted).
Appellant's evasive conduct did not consist of the use or threat of force or violence. Therefore, the crime for which the district court apparently concluded there were grounds for arrest would at most be a misdemeanor. See Minn. Stat. § 609.50 (2). A custodial arrest for a misdemeanor is permitted only under certain circumstances. Minn. R. Crim. P. 6.01, subd. 1(1)(a).
Law enforcement officers acting without a warrant, who have decided to proceed with prosecution, shall issue citations to persons subject to lawful arrest for misdemeanors, unless it reasonably appears to the officer that arrest or detention is necessary to prevent bodily harm to the accused or another or further criminal conduct, or that there is a substantial likelihood that the accused will fail to respond to a citation. The citation may be issued in lieu of an arrest, or if an arrest has been made, in lieu of continued detention. If the defendant is detained, the officer shall report to the court the reasons for the detention. Ordinarily, for misdemeanors not punishable by incarceration, a citation shall be issued.
Id. (emphasis added); see Varnado, 582 N.W.2d at 892-93 (although suspect committed misdemeanor, court described situation "more akin to an arrest incident to a search" because no evidence that arrest was necessary to prevent suspect form hurting someone or to ensure response to citation, therefore frisk was invalid under Fourth Amendment); cf. State v. Bauman, 586 N.W.2d 416, 420 (Minn. App. 1998) (upholding search incident to custodial arrest based on existence of probable cause on gross misdemeanor). Because there is no evidence in the record to support a belief that a custodial arrest was necessary to prevent appellant from hurting someone or to ensure that he would respond to a citation, this was not a valid search incident to arrest.
An officer may conduct a limited protective weapons frisk of a lawfully stopped person if the officer reasonably believes that the suspect might be armed and dangerous and capable of immediately causing permanent harm.
Varnado, 582 N.W.2d at 889 (citing Terry v. Ohio, 392 U.S. 1, 24, 27, 30, 88 S. Ct. 1868, 1881, 1883, 1884 (1968)). The officer testified that part of his reason for conducting the weapons search was that he was going to put appellant in the back seat of the squad car. The supreme court, however, has explicitly rejected a "blanket rule allowing officers to require lawfully stopped citizens to sit in the back of squad cars and to frisk such citizens before they enter a squad car." Id. at 890. Some examples of what may constitute articulable suspicion justifying a pat-down search include: (1) instances where a motorist assumes a hostile and threatening attitude when stopped; or (2) when the police, by cursory observation, have valid reason to believe the motorist is engaged in the commission of a more serious crime. Id. at 891 (citing State v. Curtis, 290 Minn. 429, 437, 190 N.W.2d 631, 636 (1971)). Evasive conduct also gives rise to reasonable suspicion. Dickerson, 481 N.W.2d at 843 (police were justified in frisking defendant because of his suspicious behavior, history of drug activity in immediate vicinity, and officer's personal experience in seizing guns from building defendant left).
Whether or not the officer had articulable suspicion justifying a pat search for weapons, however, is immaterial to our decision because we agree with appellant that the discovery of the crack cocaine went beyond the scope of search allowed and was not a "plain-feel" discovery.
The district court determined that the officer properly seized the crack cocaine based on the officer's "plain feel" of the contraband. In State v. Burton, 556 N.W.2d 600, 603 (Minn. App. 1996), review denied (Minn. Feb. 26, 1997), this court held that the plain-feel exception to the seizure of contraband applies to Article I, section 10 of the Minnesota Constitution. In Burton, the court accepted the police officer's testimony that he did not manipulate the object and that he immediately knew it was crack cocaine and then held that the seizure of crack cocaine did not violate the defendant's Fourth Amendment rights. Id. at 602; see also Minnesota v. Dickerson, 508 U.S. at 377, 113 S. Ct. at 2138 (recognizing that "seizure of an item whose identity is already known occasions no further invasion of privacy"). In this case, the police officer also testified that he felt what he immediately determined to be crack cocaine. The officer testified that he immediately felt a plastic bag containing two items that felt like rocks. The officer wrote in his report that:
From prior experience I know crack cocaine has the same feel as small rocks. I removed this plastic baggie, which I then determined these two rocks to be suspected crack cocaine.
The officer believed the rocks to be about the size of a pea. When the officer was asked what he did after he felt the items, he stated:
I continued to feel the items a little bit and felt the plastic baggie around them. I wanted to feel how many of them there were and what they were packaged in, and then I proceeded to remove them from his pocket.
The officer testified that, after determining the items to be crack cocaine, he placed appellant under arrest and then proceeded to do a search incident to arrest to find any other narcotics or weapons that he may have missed in the original search. While under cross-examination, the officer admitted that he may have first pulled other objects out of appellant's pocket, in an attempt to get to the cocaine. After the arrest for possession of crack cocaine, marijuana was then taken out of appellant's pocket.
Appellant correctly argues that if a weapon or an item immediately identifiable as contraband is not found during a limited "pat search," the search must cease and the officer may not continue "`squeezing, sliding and otherwise manipulating the contents of the defendant's pocket.'" Dickerson, 508 U.S. at 378, 113 S. Ct. at 2138 (reversing defendant's conviction while noting that officer's "immediate" perception was especially remarkable because crack cocaine lump was no bigger than a marble) (quoting Dickerson, 481 N.W.2d at 844). Appellant also argues that the claim that a police officer could discern the true nature of the objects without manipulation defies common sense. Appellant further notes persuasively that the officer's testimony and documents do not support his claim that the nature of the objects was immediately apparent: first, by his own report which states that he determined the nature of the objects after removing them, and second, the officer's admission that he may have removed the cocaine after emptying appellant's pocket of its other contents.
The insignificant size of the contraband here and the holdings in Dickerson and Varnado lead to the conclusion that the district court erred in finding that this was a valid "plain-feel" seizure of crack cocaine.
SHUMAKER, Judge (concurring specially)
I agree with the majority that the trial court erred in ruling that the officer made a valid "plain feel" seizure of appellant's crack cocaine. Therefore, I concur in the result. I write separately, however, because I am not satisfied with the majority's arrest analysis and I find that it supports conclusions about peace officers' "arrest" authority that are not warranted under statutory and case law.
It is critical to note that this case does not involve merely minor traffic violations. Such violations brought the officer's attention to appellant in the first place, but it was appellant's obvious effort to evade the officer, his refusal to stop after the officer repeatedly asked him to do so, and his attempt to pull away from the officer's grasp that constitute the significant "arrest" facts in this case. On these facts, I believe the appropriate analysis to be as follows.
A peace officer observed appellant commit various minor traffic offenses, ostensibly petty misdemeanors, and a misdemeanor:
It is a misdemeanor for any person to willfully fail or refuse to comply with any lawful order or direction of any peace officer invested by law with authority to direct, control, or regulate traffic.
Minn. Stat. § 169.02, subd. 2 (1998).
A peace officer who observes the commission of a public offense may arrest the offender without a warrant. Minn. Stat § 629.34, subd. 1(c)(1) (1998). If the offense is a misdemeanor, the officer's authority is limited to the issuance of a citation, unless circumstances justifying a custodial arrest exist. Minn. R. Crim. P. 6.01, subd. 1(1)(a). Implicit in the officer's arrest and citation authority is the authority to detain the offender long enough to either effectuate the arrest or issue the citation.
One method of detention is the placement of the offender in the back of a police squad car. Our courts have not approved this method of detention for trivial traffic violations or as a pretext to conduct a search. State v. Varnado, 582 N.W.2d 886, 890 (Minn. 1998) (citing State v. Curtis, 290 Minn. 429, 437, 190 N.W.2d 631, 636 (1971)). Where, however, the officer has a valid, reasonable basis for doing so, he may detain the offender by placing him in the squad car. Varnado, 582 N.W.2d at 891. Here, the officer had a valid basis for detaining appellant in this manner. Appellant had clearly shown his disinclination to remain in the officer's presence. Appellant refused to obey the officer's repeated verbal requests. Placement in the squad car was a reasonable procedure and was necessitated by appellant's uncooperative conduct.
Before placing appellant in the squad car, the officer conducted a pat-down of appellant's outer clothing. Varnado reiterated the rule that "during a routine stop for a minor traffic violation, a pat-down search is improper unless some additional suspicious or threatening circumstances are present." Id. at 890. Evasive conduct may constitute additional suspicious circumstances. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992) aff'd, 508 U.S. 366, 113 S. Ct. 2130. Furthermore, if the officer has a valid basis for placing an offender in a squad car, "officer safety is a paramount interest and * * * a frisk will often be appropriate without additional individual articulable suspicion." Varnado, 582 N.W.2d at 891.
Thus, the officer was entitled to detain appellant and to frisk him before placing him in the squad car. But when the frisk failed to disclose a weapon or an item immediately recognizable as contraband, the officer was required to cease the pat-down. The majority correctly concludes that the search was illegal.