A04-2045

State of Minnesota,

Respondent,

vs.

Earl Vincent Grasty,

Appellant.

Filed November 22, 2005

Affirmed

Worke, Judge

Ramsey County District Court

File No. K6-04-660

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

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

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2221 Univesrity Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Willis, Presiding Judge; Minge, Judge; and Worke, Judge.

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

WORKE, Judge

Following a Lothenbach proceeding, appellant Earl Vincent Grasty was convicted of being an ineligible person in possession of a firearm. On appeal, appellant argues that the district court erred by denying his motion to suppress evidence of the handgun because it was discovered as a result of an impermissible pat search. Because the officers had a reasonable articulable suspicion to search appellant, we affirm.

FACTS

On February 22, 2004, St. Paul Police Officers, Anthony Spencer and Genaro Valentin, were working patrol in the west side neighborhood of St. Paul. The officers stopped at a gas station and while Officer Spencer was inside, Officer Valentin began running routine inquiries on the license plates of vehicles in the gas station parking lot. One vehicle drew Officer Valentin’s attention because an occupant in the front passenger seat was slouched all the way down in the seat. The registration check on this vehicle came back with the registered owner’s driver’s license being revoked.

As the information came up on the officers’ computer, the vehicle exited the parking lot. While following the vehicle, the officers determined that the female driver matched the physical description of the registered owner and observed at least two additional occupants in the vehicle. The officers activated their emergency lights and stopped the vehicle on the suspicion that the driver of the vehicle was the registered owner, who was driving with a revoked license. Officer Spencer approached the driver’s side of the vehicle and identified the driver as the registered owner. Officer Valentin approached the passenger’s side of the vehicle because the passenger, appellant, was not wearing a seatbelt.

Officer Valentin tapped on the window to indicate to appellant to roll down the window, but appellant stared straight ahead causing Officer Valentin to tap on the widow again. After appellant rolled down the window, Officer Valentin asked for his name to which appellant mumbled something unintelligible. Officer Valentin asked appellant his name a second time and, again, appellant mumbled. Because of appellant’s evasive behavior, Officer Valentin, based on his experience, believed that appellant was hiding something.[1]

Officer Valentin asked appellant to step out of the vehicle and in doing so, appellant made furtive movements toward the front pocket of the sweatshirt he was wearing. Depsite Officer Valentin’s instruction to keep his hands where the officer could see them, appellant lowered his hands toward his pocket twice. Once appellant was outside the vehicle, Officer Valentin asked appellant his name again and appellant mumbled something unintelligible. When Officer Valentin instructed appellant to walk to the front of the squad car, appellant moved his hands toward his pocket again. At that point, Officer Valentin told appellant that for officer safety reasons he was going to do a pat search on appellant to make sure he did not have any weapons. Prior to the pat search, Officer Valentin asked appellant if he had any weapons on him, but appellant did not answer. Officer Valentin conducted a pat search on appellant and felt a heavy object in the shape of a handgun in appellant’s pocket. Officer Valentin reached inside the pocket of appellant’s sweatshirt and retrieved a loaded .22 caliber handgun.

On February 24, 2004, appellant was charged with possession of a firearm by an ineligible person, in violation of Minn. Stat. § 609.165, subd. 1b(a) (2002).[2] Appellant moved to suppress the handgun. The district court denied appellant’s motion, and on June 8, 2004, the parties submitted the matter to the court on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The district court found appellant guilty as charged and sentenced him to 60 months in prison. This appeal follows.

D E C I S I O N

“When reviewing pretrial orders on motions to suppress evidence, [this court] 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). The legality of a limited investigative stop and questions of reasonable suspicion are reviewed de novo. State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999).

Officers may generally conduct investigative stops as long as they have a particularized basis for suspecting criminal activity. State v. Smallwood, 594 N.W.2d 144, 155 (Minn. 1999). “[T]he scope and duration of a traffic stop investigation must be limited to the justification for the stop.” State v. Fort, 660 N.W.2d 415, 418 (Minn. 2003). The Minnesota Supreme Court has determined that under Article 1, Section 10 of the Minnesota Constitution, a reasonable articulable suspicion of criminal activity apart from the activity justifying the initial stop is required to justify expanding the scope or duration of a traffic stop. State v. Wiegand, 645 N.W.2d 125, 136 (Minn. 2002).

Appellant does not dispute that the basis for the stop was proper because the registered owner of the car did not have a valid driver’s license. Appellant argues, however, that his failure to identify himself did not provide an articulable basis to be asked to exit the vehicle. Police officers need a particularized and objective basis for the minimal intrusion occasioned by asking a driver to identify himself or herself. Cobb v. Comm’r of Pub. Safety, 410 N.W.2d 902, 903 (Minn. App. 1987). This requirement can be extended to a vehicle passenger. Here, Officer Valentin had a particularized and objective basis for asking appellant his name because appellant was not wearing a seatbelt, a traffic violation under Minn. Stat. § 169.686, subd. 1(a)(2) (2002).

Once an officer stops a vehicle, the officer may, for his safety, require occupants of the automobile to get out. State v. Gilchrist, 299 N.W.2d 913, 916 (Minn. 1980). Here, appellant was asked to exit the vehicle after he refused to identify himself and avoided eye contact with the officer. Based on his experience, Officer Valentin believed that appellant was hiding something. Appellant argues that his refusal to identify himself was not an objective circumstance making it reasonable for Officer Valentin to ask him to exit the vehicle. In determining whether an officer’s belief is reasonable, “the issue is whether a reasonably prudent [person] in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883 (1968). Officer Valentin acted reasonably under the circumstances because of appellant’s evasive behavior and the fact that from Officer Valentin’s experience, individuals who are unwilling to provide identifying information are probably hiding something.

Once outside the vehicle, Officer Valentin conducted a pat search on appellant because appellant continued to make furtive hand movements after Officer Valentin instructed him to keep his hands on his head. When an officer has a reasonable, articulable suspicion that a seized person is armed and dangerous, “the officer may conduct a protective pat-down search of the person’s outer clothing in order to ascertain whether the person is armed.” Harris, 590 N.W.2d at 104. A protective pat search “must be strictly limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.” Minn. v. Dickerson, 508 U.S. 366, 373, 113 S. Ct. 2130, 2136 (1993) (quotation omitted). Furtive movements can provide reasonable suspicion to justify a protective weapons pat search. See State v. Richmond, 602 N.W.2d 647, 651 (Minn. App. 1999), review denied (Minn. Jan 18, 2000). Based on appellant’s repeated furtive hand movements toward his pocket, Officer Valentin had an objective reasonable suspicion that appellant was possibly armed and dangerous.

We conclude that Officer Valentin had a reasonable articulable suspicion that appellant could be involved in criminal activity that justified the expanded scope of the initial stop, including asking appellant to exit the vehicle and conducting a pat search. The district court did not err in denying appellant’s motion to suppress.

Affirmed.

[1] When appellant finally identified himself, after his arrest, the officers learned that there was an active felony warrant for appellant’s arrest issued by the Minnesota Department of Corrections.

[2] Appellant has a 2001 first-degree aggravated-robbery conviction involving a firearm.