This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1889

 

State of Minnesota,

Respondent,

 

vs.

 

Shelly Ann Larsen,

Appellant.

 

Filed November 8, 2005

Reversed and remanded

Hudson, Judge

 

Ramsey County District Court

File No. K6-04-741

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101; and

 

Susan Gaertner, Ramsey County Attorney, Colleen Timmer, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, Minnesota 55102 (for respondent)

 

John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)

 

            Considered and decided by Worke, Presiding Judge; Hudson, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

Appellant Shelly Ann Larsen challenges her conviction of fifth-degree controlled substance crime, arguing that the district court erred by refusing to suppress evidence obtained as a result of an illegal search and seizure.  Because police lacked articulable suspicion that appellant was engaged in criminal activity and was armed and dangerous so as to justify a Terry pat search, and because the police officer did not indicate that the presence of contraband was immediately apparent in order to invoke the “plain feel” exception, we reverse.  The issue of whether appellant consented to the search is remanded to the district court.

FACTS

 

            On February 25, 2004, the St. Paul police obtained and executed a nighttime search warrant to search appellant’s home and the person of Duane Lee Larsen, appellant’s husband.  The warrant application detailed property that the affiants believed to be present in the home, including a large amount of methamphetamine, other controlled substances, guns, and other weapons.  No persons other than Duane Lee Larsen were described. 

During the search, some of the officers involved were in uniform, while others were in “raid gear” that identified them as St. Paul police officers.  Officers had their weapons drawn and began the search by securing the premises, ordering all parties down to the floor, and handcuffing the adults.  At the time the search occurred, appellant was in a back bedroom, near the kitchen.  At an officer’s direction, appellant lay down on the floor. Officer Paul Ford then handcuffed appellant with her hands behind her back, and, once the house was secured, he helped her to her feet and moved her to the kitchen.   

Officer Ford testified that appellant appeared “very thin” and that she wanted the handcuffs removed because “she had to itch.”  Officer Ford did not remove the handcuffs.  Appellant identified herself to Officer Ford as Shelly Larsen.  Officer Ford testified that he found this to be significant “because the suspect named in the search warrant was Duane Larsen.”  

The police and appellant dispute what occurred during the ensuing pat-down search. 

Officer Ford testified that, after appellant identified herself, he conducted a “pat down” search of her for weapons.  Officer Ford testified that after this search he did not believe any of the items on appellant to be weapons, but he noted some “soft items, bag items maybe,” in her pockets.  Officer Ford asked appellant if she had anything illegal on her.  Her answer was equivocal, saying “No” and then “Maybe.”  Officer Ford then asked her if she had any guns or drugs on her.  Officer Ford testified that “she said she didn’t have any guns and that I could check her.”  Officer Ford testified that he took appellant’s words to mean that he could search inside her pockets, and so he did.  Officer Ford testified on cross-examination that even if appellant had told him not to search her, he would have searched her anyway.  Officer Ford first searched appellant’s “little . . . right-hand side jeans coin pocket.”  He testified that he felt a “plastic baggie with something in it.”  He also testified that it was his experience that people who use and deal drugs “keep methamphetamine in plastic baggies” and “often keep [drugs] in the coin pocket.”  Officer Ford testified that he “assumed it was methamphetamine.”  Officer Ford pulled the baggie from appellant’s pocket and identified the contents as methamphetamine.  He then continued to search appellant’s other pockets and found three more baggies containing methamphetamine.  

            Appellant testified that after the officer helped her up, he asked her if she had any sharp objects on her.  She responded, “Yes,” specifying that she had a small utility knife in her right-hand pocket.  Officer Ford then reached into her pocket and took out the knife.  Officer Ford then moved her across the kitchen, where he conducted a search that included the contents of her pockets.  Appellant testified that in response to Officer Ford’s question about having any guns or drugs on her she stated, “No, not that I know of.  Not that I can recall.” 

In its findings of fact, the district court mentions only one search: the pat-down search for weapons.  The district court found that upon feeling the plastic baggies during the weapons search, Officer Ford, based on his law enforcement experience, believed the bags to contain methamphetamine.  The district court further noted that there was no evidence that Officer Ford manipulated the plastic baggies in any manner.    

As a result of the search, appellant was arrested and charged with one felony count of fifth-degree possession of methamphetamine in violation of Minn. Stat. § 152.025, subd. 2(1) (2004).  At an omnibus hearing, appellant moved to suppress the evidence seized during the search.  The district court denied the motion to suppress, and appellant submitted her case to the district court pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).

The district court found appellant guilty.  This appeal follows.  

D E C I S I O N

When reviewing pretrial orders on motions to suppress evidence, appellate courts may independently review the facts and determine, as a matter of law, whether the district court erred in determining whether to suppress the evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  Questions of reasonable suspicion are reviewed de novo.  State v. Syhavong, 661 N.W.2d 278, 281 (Minn. App. 2003).  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). 

I

Appellant argues that the district court erred by finding that the officer had reasonable articulable suspicion that appellant—who was not a subject of the warrant but was merely present on the premises being searched—was engaged in criminal activity, and was armed and dangerous, so as to justify a Terry pat search.

The United States and Minnesota constitutions guarantee that all persons have a right to be free from unreasonable searches and seizures.  U.S. Const. amend. IV; Minn. Const. art. 1, § 10.  An important exception to the Fourth Amendment protection against unreasonable searches is found in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968).  In Terry, the United States Supreme Court held that under certain circumstances it was reasonable for a police officer to conduct a pat search (also called a frisk search) of a person’s outer clothing for weapons without requiring that officer to have probable cause.  Id. at 20, 88 S. Ct. at 1879.  For the search to be valid, the officer “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts,” warrants the pat-frisk.  Id.at 21, 88 S. Ct. at 1880.  Significant in Terry is the concern for officer safety and on-the-spot decision-making under less-than-ideal conditions.  See id. at 24, 88 S. Ct. at 1881. 

An officer must be able to articulate that he or she had a “particularized and objective basis” for suspecting a seized person of criminal activity.  Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985) (quoting United States v. Cortez, 449 U.S. 411, 417–18, 101 S. Ct. 690, 694–95 (1981)).  An officer may make this assessment based upon all of the surrounding circumstances and may draw inferences and deductions that might elude an untrained person.  Id.  The officer, however, must be able to point to objective facts and may not base his or her conclusion on a mere “hunch.”  State v. Johnson, 444 N.W.2d 824, 825–26 (Minn. 1989). 

Appellant claims that Officer Ford did not suspect that she was a drug dealer, and the officer suspected her of using methamphetamine only because she was married to the man who was the object of the warrant.  As appellant rightly claims, the probable cause used to support the search warrant cannot be imputed to legitimize searching everyone on the premises.  See Ybarra v. Illinois, 444 U.S. 85, 91, 100 S. Ct. 338, 342 (1979) (stating that “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.”).  Merely being in close proximity to persons suspected of criminal activity is not sufficient to reach the threshold of reasonable articulable suspicion to conduct a pat search under Terry.  See State v. Ingram, 570 N.W.2d 173, 177 (Minn. App. 1997), review denied (Minn. Dec. 22, 1997). 

Furthermore, Officer Ford admitted on cross examination that there was nothing specific about appellant to indicate that she was a threat.[1] See State v. Varnado, 582 N.W.2d 886, 890 (Minn. 1998) (holding that where a citizen cooperated, did not make furtive or evasive movement, and officers did not suspect criminal behavior by that person, officers did not have reasonable belief that the person was armed and dangerous).  Appellant was not named in the search warrant.  Appellant’s mere presence on the premises being searched and having the same last name as the person named in the warrant does not provide a reasonable and articulable suspicion that she was armed or dangerous, especially given the fact that appellant was immediately handcuffed when the officers entered the home.  On this record, the district court’s finding that Officer Ford had reasonable, articulable suspicion to justify a Terry search of appellant for weapons was clearly erroneous.

II

 

            Next, appellant argues that, even if a Terry search were permissible, the district court erred in finding that the police officer had reason under the plain-feel doctrine to remove baggies containing contraband drugs from appellant’s pockets.   

A Terry pat search is a limited search for weapons, not a search for evidence of a crime.  State v. Gilchrist, 299 N.W.2d 913, 917 (Minn. 1980).  But when the officer conducting the Terry search feels an item that is immediately apparent to be contraband, the officer may seize it.  Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S. Ct. 2130, 2137 (1993).  In Dickerson, the United States Supreme Court adopted the plain-feel exception, stated as follows: “If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons.”  Id. at 377, 113 S. Ct. at 2138 (emphasis added).  Minnesota adopted the “plain feel” exception as a matter of state constitutional law in State v. Burton, 556 N.W.2d 600, 603 (Minn. App. 1996), review denied (Minn. Feb. 26, 1997). 

On this record, the state did not meet its burden to prove the incriminating nature of the plastic bags or that their contents were “immediately apparent” to Officer Ford.  Officer Ford testified that following the Terry frisk, “I know she had some items in her pockets.  At that point I didn’t believe them to be weapons.  I mean, soft items, bag items maybe, at that point.”  The record suggests that what Officer Ford felt raised his suspicions, because after the search he asked appellant whether she had anything illegal in her pockets.  But Officer Ford testified that it was only after sticking his fingers inside appellant’s coin pocket that he felt a “plastic baggie with something in it.”  From Officer Ford’s testimony, it is clear that it was not immediately apparent that appellant’s pockets contained contraband until after he searched the coin pocket with his fingers. 

The district court found that Officer Ford testified that “based on his experience as a law enforcement officer assigned to Narcotics, upon feeling these plastic bags, he believed them to contain methamphetamine.”  That was not a proper characterization of Officer Ford’s testimony.  The district court then concluded that the discovery of the drugs fell within the plain-feel exception.  Because the record indicates that the contraband was not immediately apparent to Officer Ford, the district court erred in concluding that the plain-feel exception applied.

III

 

Appellant initially raised the issue of lack of consent to the search with the district court, but the district court found it unnecessary to address this issue because it determined that the search was valid on other grounds. 

The testimony in the record regarding the issue of appellant’s consent to the search is limited and conflicting.  Because the district court is better suited to determine the credibility of the witnesses’ testimony, we remand to the district court to determine whether appellant voluntarily consented to the search. 

Reversed and remanded.