This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
Timothy Michael Buchanan,
Reversed and remanded
Polk County District Court
File No. K5991684
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Wayne H. Swanson, Polk County Attorney, Crookston Professional Center, Suite 101, 223 East Seventh Street, Crookston, MN 56716 (for respondent)
Karl E. Robinson, Thomas H. Boyd, Winthrop & Weinstine, P.A., 3200 Minnesota World Trade Center, 30 East Seventh Street, St. Paul, MN 55101 (for appellant)
Considered and decided by Peterson, Presiding Judge, Shumaker, Judge, and Foley, Judge.*
U N P U B L I S H E D O P I N I O N
In this appeal from a conviction of a fifth-degree controlled substance offense, appellant Timothy Michael Buchanan argues that the trial court erred when it failed to suppress evidence obtained during a pat-down search. Buchanan also argues that the court erred when it ordered him to reimburse the costs of his public defender without holding a hearing to determine his ability to pay. We reverse Buchanan’s conviction, and remand to the district court to determine Buchanan’s ability to pay the costs of his defense.
At approximately 7:27 p.m. on December 3, 1999, Deputy Sheriff Dave Emanuel stopped a car because it had no taillights. Emanuel asked the driver to identify himself and produce his driver’s license. The driver identified himself as Michael Bowman and said that he did not have a driver’s license.
Emanuel testified that he asked Bowman to step out of the car because Bowman was wearing a Star of David, which “kind of raised [his] officer’s safety up a little bit because of the gang activity [they’ve] had in Crookston.” Emanuel also saw that there were two passengers in the car, and he testified that
I didn’t feel comfortable with talking with Bowman in the car and then having the other two guys in the car. I wanted Bowman back behind his car so that I could converse with Bowman and still keep an eye on the car.
After Bowman got out of the car, Emanuel ran a driver’s license check and discovered that Bowman had a valid driver’s license. Emanuel asked Bowman to identify the passengers in the car, and Bowman identified them as Derrick Rocha and Tim Buchanan. Emanuel asked whether there was anything illegal in the car, and Bowman said that there was not. Emanuel then asked Bowman for consent to search the car, and Bowman consented.
Emanuel ordered Rocha and Buchanan to get out of the car. Emanuel conducted a weapons pat down on Rocha and found nothing. Emanuel then performed a weapons pat down on Buchanan. Emanuel could not recall whether he asked Rocha or Buchanan whether they had weapons on them before he conducted the searches or whether he asked their permission to search.
Buchanan was wearing a long leather jacket that hung almost to his knees. In one of the jacket pockets, Emanuel felt a large, soft bulge. Emanuel testified that he “moved his fingers” over the bulge “to see if it gave in the pocket and it did.” He testified that he did not manipulate the bulge, but instead asked Buchanan what it was. Buchanan reached into the pocket, removed a small bag of marijuana, and handed it to Emanuel. Rocha then fled from the scene. Emanuel did not pursue Rocha, and instead remained with the car and Buchanan. Emanuel patted the same pocket again and felt the same large bulge. He again asked Buchanan what it was. Buchanan then reached into his pocket and removed a larger bag of marijuana.
Emanuel arrested Buchanan. He then searched Bowman’s vehicle and found nothing. Buchanan was charged with one count of Controlled Substance Crime in the Fifth Degree in violation of Minn. Stat. § 152.025, subd. 2(1) and 3(a). He applied for and was granted the services of a public defender.
Buchanan moved to suppress evidence and derivative evidence seized in violation of his constitutional rights, arguing that Emanuel’s warrantless search did not fall within any of the exceptions to the warrant requirement. The district court found that “Emanuel had sufficient articulable suspicion to believe [Buchanan] could have been armed to justify the pat down search to protect his safety,” and denied the motion. The court’s decision was based on the fact that
the deputy was alone for the stop, the possible gang connection of the driver, previous uncooperative dealings with Rocha, and the fact that a weapon could have easily been concealed in the defendant’s jacket.
The court found Buchanan guilty. At sentencing, the court, among other things, ordered Buchanan to pay $250.00 as reimbursement for his court-appointed public defender. No hearing was held and no findings were made regarding Buchanan’s ability to pay the reimbursement.
When reviewing the legality of a seizure or search, an appellate court will not reverse the trial court’s findings unless clearly erroneous or contrary to law. This court will review de novo a trial court’s determination of reasonable suspicion as it relates to Terry stops and probable cause as it relates to warrantless searches.
Matter of Welfare of G.M., 560 N.W.2d 687, 690 (Minn. 1997)(citations omitted).
The Fourth Amendment prohibits an officer from searching an individual without a warrant, “subject only to a few specifically established and well-delineated exceptions.”
State v. Varnado, 582 N.W.2d 886, 889 (Minn. 1998) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507 (1967)).
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.
Id. (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968)). “‘[P]olice officers may not ordinarily make searches upon apprehending motorists for simple traffic violations or upon the slightest hint of illegality.’” Id. (quoting State v. Harris, 265 Minn. 260, 268, 121 N.W.2d 327, 333 (1963). “[D]uring 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.
Because “the right of officers to ‘frisk’ is not the automatic sequel of a valid stop,” law enforcement officials must submit a constitutionally valid reason for doing so. State v. Eggersgluess, 483 N.W.2d 94, 97 (Minn. App. 1992) (quoting State v. Payne, 406 N.W.2d 511, 513 (Minn. 1987)). An officer may conduct a pat-down search of a lawfully stopped person if the officer can point to “an articulable factual basis for belief that the person stopped may be armed and dangerous.” Wold v. State, 430 N.W.2d 171, 175 (Minn. 1988) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968). Courts employ an objective standard to evaluate whether the facts available to the officer at the time of the search would warrant the belief by a person of reasonable caution that the action taken was appropriate. Id. (citing Terry, 392 U.S. at 21-22, 88 S. Ct. at 1880).
The state argues that Emanuel had a reasonable basis for believing Buchanan might be armed and dangerous because (1) Bowman, the driver, displayed a Star of David, which raised a concern about gang affiliation, (2) Rocha, the other passenger in the car, was known for being uncooperative with the police, (3) Emanuel was alone when he effected the stop, and (4) Buchanan was wearing a long jacket that could easily conceal a weapon.
Conduct of third parties cannot provide probable cause to search a person unless the person’s actions afford independent suspicion that he too was engaged in the prohibited conduct.
Eggersgluess, 483 N.W.2d at 97.
Even if we assume that Bowman’s possible gang affiliation and Rocha’s prior dealings with police gave Emanuel a basis for searching Bowman and Rocha, there is no evidence that Buchanan engaged in any prohibited conduct. Buchanan’s conduct was limited to riding in the same car as Bowman and Rocha.
In Eggersgluess, this court specifically rejected the “automatic companion rule,” which permits a pat-down search of companions of an arrestee who are within the immediate vicinity and capable of accomplishing an assault on an officer. Id. at 98. This court stated, “[t]he mere fact that [an individual] accompanied others who were suspected of criminal activity is insufficient to justify a weapons search of the [individual].” Id.
Citing United States v. Feliciano, 45 F.3d 1070 (7th Cir. 1995), the state argues that gang membership was enough to justify a weapons frisk. But in Feliciano, the defendantwas a known gang member who also had a prior robbery conviction. Id. at 1074. Buchanan is not a known gang member, and there is no evidence that he has any prior convictions. Even Bowman was no more than a suspected gang member, and there was no evidence that he had any prior convictions.
The state argues that the fact that Emanuel was alone was an additional reason that justified the protective frisk. Although it is evident that the fact that Emanuel was alone made it more dangerous for him to search the car without first determining that its occupants were not armed, the state cites no authority for its argument that this increased danger justified a search. The increased danger was not an indication that Buchanan was armed, and, consequently, it did not justify the pat search absent a basis to reasonably believe that Buchanan was armed.
Finally, the state concedes that although the long coat provided a good place to hide a weapon, it was not, by itself, a basis for a protective search. Because the evidence available to Emanuel when he searched Buchanan did not establish a specific, articulable ground for believing that Buchanan was armed and dangerous, Emanuel did not have a basis for conducting the warrantless search.
Buchanan argues that Emanuel exceeded the scope of a pat-down search for weapons when he manipulated the object in his pocket. Because we have concluded that there was not a valid basis for any pat-down search, we need not determine whether Emanuel exceeded the scope of a permissible search.
Buchanan argues that the trial court erred by ordering him to reimburse the public defender’s office $250 without first determining whether he has the ability to pay the reimbursement. Buchanan also argues that the trial court erred by making the obligation to pay the reimbursement a condition of his probation and sentence.
Minn. Stat. § 611.35, subd. 1 (1998) provides:
Any person who is represented by a public defender or appointive counsel shall, if financially able to pay, reimburse the governmental unit chargeable with the compensation of such public defender or appointive counsel for the actual cost for the governmental unit in providing the services of the public defender or appointive counsel. The court in hearing such matter shall ascertain the amount of such costs to be charged to the defendant and shall direct reimbursement over a period of not to exceed six months, unless the court for good cause shown shall extend the period of reimbursement. If a term of probation is imposed as part of a sentence, reimbursement of costs as required by this chapter must not be made a condition of probation. Reimbursement of costs as required by this chapter is a civil obligation and must not be made a condition of a criminal sentence.
This court has held that “[a] hearing is required to determine whether a defendant has the ability to pay for his defense and to determine the amount of those costs.” State v. Hayes, 428 N.W.2d 871, 875 (Minn. App. 1988), aff’d, 431 N.W.2d 533 (Minn. 1988); see also State v. Wolf, 413 N.W.2d 620, 623 (Minn. App. 1987) (“The proper method for obtaining reimbursement for public defense services is for the trial court to afford a hearing on the financial ability to pay”). Failure to hold a hearing is error, and requires a remand. Hayes, 428 N.W.2d at 875; Wolf, 413 N.W.2d at 623.
The state argues that Buchanan waived his arguments regarding reimbursing the public defender’s office because he did not raise the issue in the trial court. However, in Hayes, this court stated:
Respondent claims that appellant is precluded from raising this issue on appeal because there was no motion at the trial level. The imposition of defense costs was appealed as part of the sentence and may be considered on appeal.
428 N.W.2d at 875. Because Buchanan appealed the reimbursement order as part of the sentence, the issue was not waived, and the reimbursement order is remanded for a hearing on Buchanan’s ability to pay.
The state also argues that Buchanan did not make any convincing showing that the reimbursement order is a condition of probation. But the trial court minutes include a list of conditions of probation, and the $250 public defender reimbursement is included in the list. If, upon remand, the court orders reimbursement, it can make it clear in its order that the reimbursement is not a condition of probation.
Following oral argument, Buchanan filed a motion asking this court to take judicial notice of the religious meaning of the Star of David. Because the religious meaning of the Star of David has no bearing on our decision, the motion is denied.
Reversed and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.