STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1151

State of Minnesota,
Respondent,

vs.

Enrico Antonio Flemino,
Appellant.

Filed June 7, 2005

Affirmed

Stoneburner, Judge

Ramsey County District Court

File No. KX033390

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

Susan E. Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, Ramsey County Government Center West, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

John M. Stuart, Minnesota Public Defender, Michael F. Cromett, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

Considered and decided by Stoneburner, Presiding Judge; Hudson, Judge; and Dietzen, Judge.

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

STONEBURNER, Judge

Appellant Enrico Antonio Flemino challenges his conviction of a controlled-substance offense, arguing that the district court erred by denying his motion to suppress evidence obtained from a pat search incident to a traffic stop. We affirm.

FACTS

Ramsey County sheriff’s deputy Mark Suchy, in an unmarked squad car, noticed a van from which, on a previous occasion, a person had attempted to sell a grenade. Suchy followed the van and observed the driver get out and go into a residence. Suchy alerted a squad car occupied by deputies Joel Leonard and Jeff Henriksen. Suchy told the deputies that the van had been involved in the grenade-selling incident and that he would like to stop it if there was a reason to do so.

Suchy then saw appellant leave the residence and drive away in the van. Suchy recognized appellant and knew his driver’s license was revoked and that he was scheduled to appear in Hennepin County court for a trial on a charge of felon in possession of a weapon. After confirming that appellant’s license was still revoked, Suchy related what he knew about appellant to Leonard and Henriksen and followed the van. Leonard and Henriksen also followed the van for a while but all of the deputies lost sight of the van briefly when appellant turned off of I-35E.

The van was relocated in a business parking lot. Leonard and Henriksen blocked appellant’s exit with their squad car and approached the van. They saw appellant moving as if he was trying to hide or retrieve something. Henriksen yelled at appellant to put his hands on the wheel, but appellant continued to move about the van. Appellant briefly put his hands on the wheel, then took them off of the wheel and continued moving around the van. The deputies loudly instructed appellant to get out of the van. Appellant hesitated so the deputies opened the driver’s door, assisted appellant out of the van by pulling his shoulder and immediately handcuffed him. Leonard tried to escort appellant to the squad car, but appellant stood with his legs together and hopped, as if trying to keep his legs together. Leonard believed appellant was hiding something between his legs and ordered appellant to spread his legs. Appellant did not comply, and Leonard wrestled him to the ground where he continued to resist. Leonard heard Henriksen say, “That’s what you were hiding” and looked up to see Henriksen holding a large plastic bag filled with a white substance. No weapons were found on appellant, but a large amount of cash was found. Suchy arrived at the scene, and appellant was placed in a squad car and taken to the hospital because he complained of a sore wrist.

Appellant testified that he was going to get the van washed and had a large amount of cash because he had just won $6,000 at a casino; he noticed Suchy and recognized him as law enforcement despite the unmarked car because he saw Suchy’s badge on his coat; appellant drove onto I-35E and saw a marked squad enter the freeway behind him; and he knew they were going to stop him because he saw the squad make a U-turn to follow him. Appellant testified that he left the freeway so they could pull him over and denied trying to evade the deputies. He said he pulled into a restaurant parking lot where he thought there would be people who could see if the deputies tried to hurt him. Appellant testified that he had been roughed up by police in the past. Appellant said the deputies approached the van with their guns drawn and ordered him to put his hands up, not on the steering wheel. One deputy grabbed him and “snatched” him out of the van without asking him to get out. According to appellant, we was slammed up against the side of the van, pat searched, and cuffed while one officer had a gun at his back. Appellant testified that the officers took $5,700 from him but only reported that $2,700 was recovered. Appellant testified that he was ordered to take his shoes off and was accused of resisting when he was not. Appellant testified that he only resisted after a deputy ran his finger along his buttocks to check for drugs and did not find anything. He said the deputy slammed him to the ground, ripped off his shoes, swore at him, and used such force that appellant blacked out momentarily. Appellant denied that the deputies found drugs on him and testified that they probably planted the drugs on him. Appellant testified that he was told at the hospital that he had a hairline fracture of his shoulder. Medical records submitted to the court indicated that appellant had several contusions on his face, hand, and shoulder and a possible slight shoulder separation.

The district court found the deputies more credible than appellant and denied appellant’s motion to suppress evidence seized from appellant. The district court concluded that the stop was valid, the officers could arrest appellant for driving after revocation, search him incident to the arrest, and perform an inventory search of the van before having it towed. A jury convicted appellant of a controlled-substance crime, he was sentenced, and this appeal followed.

D E C I S I O N

“When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). This court accepts the district court’s findings of fact unless they are clearly erroneous. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).

Appellant concedes that the officers had a valid basis to stop him for driving after revocation, but argues that because the traffic stop was clearly a pretext to stop the van, the stop should be ruled invalid. Appellant also asserts that the district court erred in holding that appellant could be arrested for driving after revocation.

I. Search incident to arrest

Police officers are authorized to conduct a warrantless search of a lawfully arrested individual and areas within his reach to secure evidence of crime or discover weapons that may be used to harm the officer. United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 477 (1973). But a search incident to arrest is valid only if the crime committed is one for which a custodial arrest is authorized. State v. Varnado, 582 N.W.2d 886, 892 (Minn. 1998). We therefore examine whether, under the circumstances of this case, custodial arrest of appellant for the misdemeanor crime of driving after revocation was reasonable.

Minn. R. Crim P. 6.01, subd. 1(1) (a), provides:

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.

Appellant argues that because the deputies had no reason to suspect he would cause bodily harm or that he would fail to respond to a citation, his custodial arrest was invalid and any search incident to the arrest was unlawful. We disagree. The district court found the deputies’ testimony credible, and the credibility of witnesses and the weight to be given their testimony are determinations to be made by the factfinder. See State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992). The deputies knew that the van had been the site of an attempted sale of a grenade, that appellant was awaiting trial on a weapons charge and had taken what they considered evasive action to avoid the stop, that appellant moved around the van after the stop as if retrieving or concealing something, and that appellant failed to follow directions at the time of the stop. Under these circumstances the deputies had reason to fear that appellant could be armed and potentially dangerous, justifying his immediate seizure. Common sense and human experience require courts to balance the aggressiveness of police tactics and intrusiveness of a stop against the reasons for the use of such methods. State v. Balenger, 667 N.W.2d 133, 139 (Minn. App. 2003), review denied (Minn. Oct. 21, 2003).

Additionally, when appellant resisted arrest and appeared to be concealing something, the officers had another basis for arrest and search incident to arrest. State v. Olson, 634 N.W.2d 224, 229-30 (Minn. App. 2001) (reiterating that resisting arrest supplies probable cause for arrest, and, even if prompted by illegal police conduct, is an intervening circumstance sufficient to purge the illegality of its primary taint), review denied (Minn. Dec. 11, 2001). Appellant’s arguments based on State v. Askerooth, 681 N.W.2d 353 (Minn. 2004), are entirely without merit because Askerooth was cooperative and did not do anything to arouse the officer’s suspicions or lead him to believe that Askerooth was dangerous. Id. at 358.

II. License violation as pretext for stop

The United States Supreme Court and the Minnesota Supreme Court have held that a stop supported by objective probable cause to believe a violation of law has been committed is legally valid regardless of improper subjective motivations of an individual police officer and without regard to the severity of the traffic violation. See, e.g., Whren v. United States, 517 U.S. 806, 814-19116 S. Ct. 1769, 1774-77 (1996) (holding that a stop for which an objective basis exists is valid under the Fourth Amendment, and the officer’s subjective intentions and whether the officer’s actions “deviated materially from the usual police practices” are irrelevant); State v. Everett, 472 N.W.2d 864, 867 (Minn. 1991) (stating in dictum that “if there is an objective legal basis for an arrest or search, the arrest or search is lawful even if the officer making the arrest or conducting the search based his or her action on the wrong ground or had an improper motive.”). In this case, appellant concedes that the stop was based on probable cause, and Suchy’s candid admission that he wanted to stop the van for other reasons does not invalidate the stop.

III. Appellant’s pro se arguments

a. Evidentiary rulings

In his pro se brief, appellant argues that the district court “erred by allowing false reports and hearsay from law enforcement officers” and by violating “chain of custody rules by allowing evidence that wasn’t photographed at the scene . . . to be introduced at trial. . . ” Appellant merely argues that there were inconsistencies between the police reports and the testimony of the deputies at trial. But the police reports were not introduced into evidence, and counsel for appellant cross-examined the officers about the inconsistencies. Appellant does not explain his chain-of-custody claim. “Trial court decisions on the admission of evidence are reviewed under an abuse of discretion standard that is deferential to the trial court. Absent a clear abuse of discretion, the trial court’s evidentiary ruling will stand.” State v. Williams, 586 N.W.2d 123, 126 (Minn. 1998). From our extensive review of the record, we find no abuse of discretion in the district court’s evidentiary rulings. And appellant presents no authority for his apparent assertion that evidence had to be photographed at the scene in order to be admissible at trial.

b. Ineffective assistance of counsel

To prove ineffective assistance of counsel, appellant is required to show that his attorney’s representation “fell below an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsel’s errors.” Boitnott v. State, 631 N.W.2d 362, 370 (Minn. 2001). There is a strong presumption that counsel’s performance was reasonable. Id. An attorney’s failure to make meaningless objections does not give rise to a claim of ineffective assistance of counsel, and no inadequacy can be attributed to counsel for failing to make a motion that would have been denied had it been made. State v. Rainer, 502 N.W.2d 784, 789 (Minn. 1993). Appellant claims he received ineffective assistance of counsel because counsel did not pursue appellant’s assertion that the officers’ reports were false and their testimony was perjury and hearsay. Because we find no merit in appellant’s position on these issues, there is no merit in his assertion of ineffective assistance of counsel.

Affirmed.

STATE OF MINNESOTA

A04-1151