A04-1057

State of Minnesota,

Respondent,

vs.

Lyons Lonnie Bynum,

Appellant.

Filed June 7, 2005

Affirmed

Willis, Judge

Stearns County District Court

File No. K8-03-2148

Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Janelle Kendall, Stearns County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN 56303-4701 (for respondent)

John M. Stuart, State Public Defender, Lydia Villalva Lijo, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Stoneburner, Presiding Judge; Lansing, Judge; and Willis, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

This is an appeal from a conviction of third-degree controlled-substance crime. Appellant argues that the district court erred by admitting evidence seized in a search conducted during a traffic stop. Because we find no error, we affirm.

FACTS

On March 14, 2003, officers from the Sherburne County Sheriff’s Department and the St. Cloud Police Department set up a controlled buy of crack cocaine. The police gave a confidential informant (CI) $200 in marked bills and wired her with a radio transmitting device so that police could monitor and record the drug purchase. The CI phoned appellant Lyons Lonnie Bynum and arranged for a purchase of cocaine. While under police surveillance, Bynum sold the CI three rocks of crack cocaine for $150.

After the sale, an observing officer followed Bynum to a recreation center, where Bynum remained for about an hour. While Bynum was in the facility, the officer confirmed that Bynum’s driving status had been revoked and requested assistance from a uniformed officer in a marked squad car. Shortly after Bynum left the recreation center, the officers stopped him for driving after revocation. During the traffic stop, they searched Bynum. They found $504 in his wallet, issued a driving-after-revocation citation, and transported him to the police station where he was booked and released. At the police station, an officer verified that two of the $100 bills found in Bynum’s wallet were bills that the police gave to the CI to use in the controlled buy. Bynum was not charged with and the police did not mention the controlled-substance offense at that time.

On May 13, 2003, Bynum was arrested for the March 14, 2003 drug offense. He was charged with a third-degree controlled-substance crime, in violation of Minn. Stat. § 152.023, subd. 1(1), 3(a) (2002). At an omnibus hearing, Bynum moved to suppress the buy-money evidence seized during the March 14, 2003 search. The district court denied the motion. A jury found Bynum guilty of the controlled-substance offense, and the district court sentenced him to the presumptive sentence of 45 months. Bynum’s appeal from his conviction follows.

D E C I S I O N

The facts here are undisputed, and we review them independently and determine as a matter of law whether the district court erred by admitting or suppressing the challenged evidence. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). “A determination of ‘probable cause as it relates to warrantless searches’ is similarly subject to de novo review.” State v. Bauman, 586 N.W.2d 416, 419 (Minn. App. 1998) (quoting In re Welfare of G.M., 560 N.W.2d 687, 690 (Minn. 1997)), review denied (Minn. Jan. 27, 1999).

The Fourth Amendment to the United States Constitution and Article I, Section 10 of the Minnesota Constitution both guarantee the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV; Minn. Const. art. I, § 10. Bynum argues that the police violated this right when they stopped him for driving after revocation, arrested him, and searched his wallet. He argues that the fruit of this illegal search, the buy money, is inadmissible and that the district court erred by denying his motion to suppress. See Wong Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407, 416 (1963) (explaining that “evidence seized during an unlawful search [can]not constitute proof against the victim of the search”); In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1983).

Bynum first argues that the search was an illegal expansion of the driving-after-revocation stop. Both the United States and the Minnesota Constitution require that the scope and duration of a stop be limited to its original purpose. Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325 (1983); State v. Wiegand, 645 N.W.2d 125, 136 (Minn. 2002). Police may lawfully stop a vehicle if they have a “particularized and objective basis for suspecting the person stopped of criminal activity.” Wiegand, 645 N.W.2d at 135. Bynum does not contest the police justification for the stop, but he argues that the search was not related to or justified by the circumstances that rendered the initiation of the stop permissible.

The Minnesota Supreme Court has ruled that Article I, Section 10 of the Minnesota Constitution requires the “application of Terry principles to traffic stops.” State v. Askerooth, 681 N.W.2d 353, 364 (Minn. 2004). Under Terry v. Ohio, a stop must be justified at its inception, and police actions during the stop must be “reasonably related to and justified by the circumstances that gave rise to the stop.” Id. (citing Terry v. Ohio, 392 U.S. 1, 19–20, 88 S. Ct. 1868, 1879 (1968)). Any intrusion “not closely related to the initial justification for the search or seizure is invalid . . . unless there is independent probable cause or reasonableness to justify that particular intrusion.” Id.

Here, the police stopped Bynum and issued a citation for driving after revocation. The stop and the citation are not disputed. Because driving after revocation is a misdemeanor offense, the search of Bynum’s wallet and subsequent custodial arrest would ordinarily be invalid. State v. Varnado, 582 N.W.2d 886, 889 (Minn. 1998) (“[P]olice officers may not ordinarily make searches upon apprehending motorists for simple traffic violations or upon the slightest hint of illegality.” (quoting State v. Harris, 265 Minn. 260, 268, 121 N.W.2d 327, 333 (1963))). But when the police stopped Bynum, they had recently observed him conduct a sale of a controlled substance. They had reason to believe that Bynum possessed evidence of the transaction: the buy money. The validity of the search, therefore, is predicated on whether that knowledge gave the police probable cause to arrest Bynum for a controlled-substance offense and search him.

We find that the search conducted during the traffic stop was justified because it was a search incident to arrest. “A search incident to arrest is valid by itself and does not require any additional justification.” Id. at 892 (citing United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 477 (1973)). But a search incident to arrest can more accurately be called a “search incident to probable cause to arrest” because a person need not be previously or subsequently arrested for the offense giving rise to the search. Bauman, 586 N.W.2d at 421. “The focus is not on the arrest, but on whether probable cause to arrest exists before a search.” Id.

Probable cause to arrest exists when “the objective facts are such that under the circumstances, a person of ordinary care and prudence would entertain an honest and strong suspicion that a crime has been committed.” Welfare of G.M., 560 N.W.2d at 695. It is undisputed that the police observed a person in Bynum’s car pick up the CI. The police monitored a controlled-substance transaction over the radio transmitter worn by the CI. After the transaction, the CI returned to the police with three rocks of crack cocaine and $50 change from the transaction, and she corroborated the events heard by the police over the transmitter. The police followed the car in which the drug transaction took place and eventually identified Bynum as the driver and sole occupant. Although Bynum evaded police observation for an hour by entering a recreational facility, he was not aware that he was under police surveillance. And the police had no reason to believe that he was no longer in possession of the buy money. We find that the objective facts support the conclusion that a “person of ordinary care and prudence would entertain an honest and strong suspicion” that Bynum had committed a controlled-substance crime and, therefore, that the police had probable cause to arrest Bynum. We conclude that the district court did not err by admitting the evidence found during the search because it was a lawful search “incident to probable cause to arrest.” See Bauman, 586 N.W.2d at 421.

Bynum also argues that “probable cause, by itself, is not sufficient to justify a search.” But the authority that he cites does not address searches incident to arrests. Because we find that the search conducted here was a lawful search incident to probable cause to arrest, Bynum’s argument is without merit.

Bynum’s other arguments, that the evidence of the buy money is unfairly prejudicial and that our decision here will allow police to detain, question, and search suspects repeatedly until they decide to make an arrest, are also without merit. The probative value of the buy money far outweighs any unfairly prejudicial effect of its admission. And our conclusion that the search was a lawful search incident to probable cause to arrest does not validate police conduct that goes beyond the limits of the United States or Minnesota Constitutions.

Affirmed.