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,
Affirmed; motion granted
Ramsey County District Court
File No. K8981895
Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for appellant)
Robert G. Malone, 386 North Wabasha Street, Suite 1000, St. Paul, MN 55102 (for respondent)
Considered and decided by Schumacher, Presiding Judge, Lansing, Judge, and Willis, Judge.
The state appeals a pretrial order suppressing evidence discovered during a stop and frisk. We affirm.
On May 16, 1998, at about 7:45 p.m., St. Paul Police Officer Steven Jabs was on duty working on the Weed and Seed Program. Weed and Seed has been described as a street level narcotics program whereby police officers working in a high crime neighborhoods identify those persons who may be involved in criminal activity. Jabs was in uniform and in a marked squad car.
Jabs met with Officers Jeff Levens and Michael Bratsch in a neighborhood on Sherburne Avenue. Jabs learned from the officers that Ausby Stowers was sitting on a wall in front of 639 Sherburne. This was an area that had generated numerous calls to police in the past and was known to be an area where street level dealers would make drug transactions. Stowers was known to the officers to have been previously involved in the sale of drugs. Jabs decided to go talk to Stowers because he "hadn't seen him for some time."
Jabs parked his squad car in front of 639 Sherburne and called out to Stowers who was still sitting on the wall. "What's up Ausby? How you been? I haven't seen you in a long time." Stowers immediately jumped off the wall and ran.
Stowers was eventually apprehended and handcuffed by Levens. Levens testified at the omnibus hearing that during the chase, Stowers made a motion toward his pocket. While on the ground, Levens rolled Stowers onto his side and in so doing, felt an object he believed to be crack cocaine. Levens eventually removed four packets of suspect crack cocaine and two rolls of money totaling $1,860. He maintains he was conducting a frisk for weapons.
Stowers was later charged with first-degree violation of controlled substance law. Following an omnibus hearing, the trial court ruled that the officers did not have a reasonable basis to conduct a frisk of Stower's outer clothing for weapons. We affirm.
When reviewing a pretrial order suppressing evidence where the facts are not in dispute and the trial court's decision is a question of law, the reviewing court may independently review the facts and determine as a matter of law whether the evidence need be suppressed. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992); see also Ornelas v. United States, 517 U.S. 690, 697, 116 S. Ct. 1657, 1662 (1996) (determinations of reasonable suspicion and probable cause for warrantless searches are reviewed de novo by appellate courts).
The purpose of a Terry stop is to allow an officer to briefly stop a suspicious individual
where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot.
Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884 (1968). Also, an officer may stop and pat down a suspect for weapons if the officer has a "reasonable, articulable suspicion" that the person might be 1) engaged in criminal activity, and 2) armed and dangerous. State v. Burton, 556 N.W.2d 600, 601 (Minn. App. 1996), review denied (Minn. Feb. 26, 1997).
In this case, the fact that Stowers ran from the police immediately created a reasonable suspicion that he was engaged in criminal activity. See State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992) (evasive conduct can give rise to reasonable suspicion), aff'd, 508 U.S. 366, 113 S. Ct. 2130 (1993). The stop of Stowers was proper.
The state argues the police could order Stowers to the ground and handcuff him because they had reason to suspect Stowers was carrying a weapon and Terry allows an officer to do a weapons frisk for the officer's safety. 392 U.S. at 23-24, 88 S. Ct. at 1881. The factors supporting a reasonable suspicion that Stowers was armed include the fact that he was a known drug dealer, he ran, and he made a furtive movement toward his clothing. Furtive movements towards a suspect's pocket may constitute suspicious activity. State v. Alesso, 328 N.W.2d 685, 688-89 (Minn. 1982).
Although we are concerned with officer safety, we conclude these factors are not sufficient in this case to justify a weapons frisk. The officers had not observed any illegal conduct, they were not chasing Stowers in the dark, and they did not know him to be armed in the past. The facts in this case do not support the conclusion that the officers had a reasonable suspicion that Stowers was armed.
The officers went beyond a Terry stop. We conclude, therefore, Stowers was arrested. In State v. Carver, 577 N.W.2d 245 (Minn. App. 1998), an officer stopped Carver for speeding, ordered him out of his vehicle and onto the ground where he handcuffed him, and brought him to the patrol car. Id. at 247. This court found that Carver was under arrest "at the time he was placed in handcuffs." Id. at 248 (citation omitted). Carver is similar to the present case because a Terry stop was made, but instead of doing an investigative stop the officers forced the suspect to the ground and handcuffed him. The state conceded the officers did not have probable cause to make an arrest. The evidence removed from Stowers without a valid Terry stop-and-frisk or a legal arrest must be suppressed.
Stowers moves for attorney fees incurred in defense of the appeal. See Minn. R. Crim. P. 28.04, subd. 2(6). We award attorney fees in the amount of $1,630.
Affirmed and motion granted.