This opinion will be unpublished and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

A04-2099

 

State of Minnesota,

Respondent,

 

vs.

 

Josh William Stockard,

Appellant.

 

Filed January 3, 2006

Affirmed

Hudson, Judge

 

Mille Lacs County District Court

File No. K8-02-1566

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Margaret Chutich, Kimberly Parker, Assistant Attorneys General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101; and

 

Janice L. Kolb, Mille Lacs County Attorney, Courthouse Square, 525 Second Street Southeast, Milaca, Minnesota 56353 (for respondents)

 

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

 

            Considered and decided by Lansing, Presiding Judge; Hudson, Judge; and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            On appeal from his conviction of fifth-degree controlled substance offense, appellant argues that the officers who stopped appellant’s car for an equipment violation and arrested appellant’s passenger on an outstanding warrant: (1) lacked authority to search appellant’s car incident to his passenger’s arrest; (2) unreasonably detained appellant to effectuate the search incident to arrest; (3) lacked articulable suspicion to conduct a pat-down search; and (4) lacked probable cause to expand the scope of the pat down to conduct a search of appellant’s pockets.  We affirm.

FACTS

            On December 23, 2002, at about 11:30 p.m., Minnesota State Trooper Troy Dumke stopped a vehicle traveling northbound on Highway 169 because one of the vehicle’s headlights was out.  Appellant Josh Stockard was driving.  Jessica Johnson was the only other occupant.  Johnson was sitting in the front passenger seat.  Trooper Dumke requested appellant’s identification and insurance information.  Appellant could not produce proof of insurance.  Johnson could not produce any identification but gave Trooper Dumke her name.  Trooper Dumke returned to his squad car and ran a computer check on the vehicle’s registration and appellant’s and Johnson’s information.  Dispatch reported that appellant was the registered owner of the vehicle and that Johnson had two outstanding warrants for her arrest.  Trooper Dumke requested an additional officer to assist with a possible arrest. 

            Trooper Dumke took Johnson into custody and secured her in the back of his squad car.  Mille Lacs County Sheriff’s Deputy William Hawley arrived shortly thereafter.  Appellant remained seated in his car with the engine running. 

Trooper Dumke searched the passenger area of the vehicle, recovering drug paraphernalia with an “ash-type residue” from Johnson’s purse.  Deputy Hawley noted that appellant appeared “rather nervous” and continued to squeeze his right hand, an indicator of nervousness, throughout the search.  Trooper Dumke placed the paraphernalia on the roof of appellant’s car, where Deputy Hawley could see it.  

Upon observing the drug paraphernalia, Deputy Hawley asked appellant to exit his car while Trooper Dumke continued with his search of the passenger compartment.  Deputy Hawley was concerned that appellant might attempt to drive off, as appellant appeared “very nervous” and “very anxious.”  Deputy Hawley noted that appellant was not moving his left arm but, rather, kept his arm pressed hard against his body.  Appellant’s conduct alarmed Deputy Hawley because it was an abnormally rigid, unnatural movement.  Fearing that appellant was concealing a weapon, Deputy Hawley began a pat search of appellant’s outer clothing outside of the driver’s side door.  Appellant continued to react nervously.  Deputy Hawley stopped the pat search and moved appellant to the back of his vehicle to preempt any attempts by appellant to reenter the vehicle and flee. 

            While at the rear of the vehicle, Deputy Hawley remained troubled by appellant’s abnormal arm position and asked appellant to empty his pockets.  Appellant asked why he had to empty his pockets, but he did not object to the request.  Appellant emptied his right pocket with his right hand in a typical fashion.  Appellant then used his right arm to empty his left pocket without raising his left arm.  Deputy Hawley then asked appellant to raise his arms.  Appellant slowly raised his left arm, but attempted to reach underneath his left arm with his right arm.  Believing that appellant was reaching for a weapon, Deputy Hawley called for Trooper Dumke.   

            Appellant fled from the officers.  The officers caught and subdued appellant after a brief struggle in a ditch.  The officers arrested appellant for obstruction of legal process.  During appellant’s attempt to flee, Trooper Dumke saw appellant throw a black camera bag that contained a controlled substance later determined to be methamphetamine.  During a search of appellant incident to arrest, Trooper Dumke recovered a small clear plastic baggie that also contained methamphetamine.

            The state charged appellant with, among lesser offenses, one count of fifth-degree controlled substance crime in violation of Minn. Stat. § 152.025, subds. 2(1), 3(a) (2002).  At a contested omnibus hearing in February 2003, appellant argued that the search of his vehicle and seizure of his person violated his Fourth Amendment rights and that the contraband found on his person should be suppressed.  In a May 2003 order, the district court denied appellant’s motion to suppress.  Appellant subsequently waived his right to a jury trial and, pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), agreed to submit the count of controlled substance crime to the district court on stipulated facts.  The district court found appellant guilty of fifth-degree controlled substance crime and stayed imposition of sentence, placing appellant on probation.  This appeal follows.

D E C I S I O N

I

Appellant challenges the district court’s order denying his motion to suppress evidence seized from his person, arguing that the officers violated his right to be free from unreasonable searches and seizures under the protection afforded by article I, section 10 of the Minnesota Constitution because the officers exceeded the permissible scope and duration of the routine traffic stop.  When reviewing a district court’s pretrial suppression order, this court may independently review the facts and determine, as a matter of law, whether the district court erred by not suppressing evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).[1] 

            The Fourth Amendment to the United States Constitution and article I of the Minnesota Constitution proscribe unreasonable searches and seizures by the government of “persons, houses, papers and effects.”  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  Subject to only a few exceptions, searches conducted outside the judicial process are per se unreasonable.  Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967).  Police are allowed to stop and temporarily detain or seize an individual to investigate if they have a reasonable, articulable suspicion of criminal activity.  Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968).  But article I, section 10 of the Minnesota Constitution imposes a reasonableness limitation on both the duration and scope of a Terry detention.  State v. Weigand, 645 N.W.2d 125, 136 (Minn. 2002).

Appellant does not dispute the constitutionality of his initial seizure for a routine traffic violation, but he argues that the officers exceeded the scope of their constitutional authority when they continued to detain appellant in order to effectuate a search of his vehicle incident to Johnson’s arrest. 

In State v. Askerooth, 681 N.W.2d 353, 363 (Minn. 2004), the supreme court held that article I, section 10 of the Minnesota Constitution mandates the imposition of Terry reasonableness principles during a seizure for a routine traffic stop, even if the officer has probable cause to believe that the driver committed a traffic offense.  Accordingly, once this court determines that the stop was justified at its inception, the next question is whether the officer’s actions during the stop were “reasonably related to and justified by the circumstances that gave rise to the stop.”  Id. at 364.  An intrusion that is not closely related to the initial justification for the seizure is invalid unless it is supported by independent probable cause or is otherwise reasonable.  Id. 

New York v. Belton provides that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.”  453 U.S. 454, 460, 101 S. Ct. 2860, 2864 (1981); see also State v. White, 489 N.W.2d 792, 794 (Minn. 1992).  The Belton rule is a “bright line” rule permitting a search incident to arrest “without the police having to make a particularized showing of need to conduct the search in order to find weapons or evidence.”  White, 489 N.W.2d at 795–96. 

            Appellant argues that the Belton bright-line rule should not apply because the purposes underlying the exception for searches incident to arrest are not served when, as here, the arrestee is a passenger arrested on an outstanding warrant.  Appellant suggests that the Minnesota Constitution requires some minimal justification—such as reasonable suspicion that the car contains a weapon or evidence—before officers can detain a driver to conduct a search incident to the arrest of a third party.  We disagree. 

The supreme court has consistently applied Belton as a bright-line rule without variation.  See White, 489 N.W.2d at 795–96; State v. Robb, 605 N.W.2d 96, 100 (Minn. 2000).  The authority to search incident to arrest “does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found.”  United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 477 (1973); see also State v. Rodewald, 376 N.W.2d 416, 419–20 (Minn. 1985); Robb, 605 N.W.2d at 100–01 (noting, in dictum, that officers may search a driver’s vehicle incident to the driver’s arrest on an outstanding warrant).  Furthermore, appellant’s suggested reasonable-suspicion-of-weapons-or-contraband test counteracts the purpose behind the Belton bright-line rule: officers cannot make a correct determination beforehand as to whether the intrusion is constitutional unless the rules are clearly defined.  Belton, 453 U.S. at 458, 101 S. Ct. at 2863.  It is not the province of this court to narrow the interpretation of the Minnesota Constitution where the supreme court has not done so, and we decline to do so here. 

Appellant also argues that the continued detention was unreasonable because Askerooth requires that the basis for justifying an intrusion during a minor traffic stop must be individualized to the driver toward whom the intrusion is directed.  See Askerooth, 681 N.W.2d at 365.  A reasonable intrusion is one that a person of reasonable caution would perceive as appropriate, based on balancing the government’s need to seize against an individual’s right to be free from arbitrary interference.  Id. at 364–65. 

Appellant’s argument fails because the balancing of interests favors the government’s interest in detaining appellant.  “[M]ost drivers expect during a traffic stop to be detained briefly, asked a few questions, and then be allowed to leave after an officer either issues a citation or concludes that issuance of a citation is not warranted.”  Id. at 366.  Unless the officer uncovers weapons or contraband, a search of a driver’s vehicle incident to arrest is short in duration and serves an important governmental interest: preserving officer safety as well as evidence.  While Minnesota case law does require that the reason for the intrusion be individualized, appellant is improperly applying that requirement to this context.  Appellant was not detained for officers to conduct a pretextual, generalized search for evidence of appellant’s criminal activity but, rather, for officers to search the area within the immediate control of an arrestee.  Appellant’s continued detention was, therefore, constitutionally sound.

II

Appellant next argues that Deputy Hawley acted improperly by frisking appellant without a reasonable fear for officer safety.  Once an officer stops a vehicle, the officer may, for his safety, order the vehicle’s occupants to exit the vehicle.  State v. Gilchrist, 299 N.W.2d 913, 916 (Minn. 1980).  When a police officer has a reasonable, articulable suspicion that a seized person is armed and dangerous, the officer may conduct a pat-down search of the person’s outer clothing to determine whether that person is armed.  Harris, 590 N.W.2d at 104. 

“[W]hen confronted by an armed, uniformed officer in a squad car with flashing lights, it is not unusual for a person to appear nervous.”  In re Welfare of M.D.B., 601 N.W.2d 214, 216 (Minn. App. 1999), review denied (Minn. Jan. 18, 2000).  Accordingly, nervousness alone does not justify a search for weapons.  See Harris, 590 N.W.2d at 100–01 (noting that the appearance of nervousness could be consistent with innocent activities).  But Minnesota courts have repeatedly concluded that an officer possessed a reasonable fear for officer safety when the person both appeared unusually nervous and either attempted to conceal an object or made furtive movements.  See id.at 104 (finding a reasonable fear for officer safety when defendant appeared extremely nervous, tried to hide his left arm, and could not explain the bulge in his sleeve); State v. Cavegn, 294 N.W.2d 717, 721–22 (Minn. 1980) (finding a reasonable fear for officer safety arising from a combination of factors including the late hour, the defendant’s nervousness, and the fact that the defendant was clutching something close to his body).

The district court concluded that Deputy Hawley’s concern for his own safety was reasonable under the circumstances.  The record supports that determination.  The record reflects that Deputy Hawley knew that Trooper Dumke had found drug paraphernalia and residue in appellant’s vehicle.  Deputy Hawley testified that appellant clutched his left arm to his body and acted very nervous.  Given appellant’s proximity to drug activity and possible attempt to conceal an object under his arm, a reasonably prudent person could conclude that appellant posed a threat to officer safety.  Deputy Hawley acted within his constitutional authority.

III

            Appellant next argues that the methamphetamine recovered from his camera bag and person should have been suppressed under the exclusionary rule because Deputy Hawley exceeded the permissible scope of the pat frisk by ordering appellant to empty his pockets.  “[E]vidence discovered by exploiting previous illegal conduct is inadmissible.”  State v. Olson, 634 N.W.2d 224, 229 (Minn. App. 2001) (citing Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417 (1963)), review denied (Minn. Dec. 11, 2001).  Such evidence is “fruit of the poisonous tree,” and for it to be admissible, the state must prove that the officers obtained the evidence “‘by means sufficiently distinguishable to be purged of the primary taint.’”  Id. (quoting Wong Sun, 371 U.S. at 488, 83 S. Ct. at 417 (other quotation omitted)). 

            “If the protective search goes beyond what is necessary to determine whether the suspect is armed, it is not a valid Terry frisk and the fruits will be suppressed.”  State v. Richmond, 602 N.W.2d 647, 652 (Minn. App. 1999), review denied (Minn. Jan. 18, 2000).  The district court did not make a finding as to whether appellant consented to the search.  For purposes of this analysis, we will assume the search was ordered and nonconsensual.  It is undisputed that such an order constituted an impermissible search outside of the scope of the Terry frisk and unsupported by probable cause.

This court examines several factors to determine whether evidence is fruit of the poisonous tree.  Knapp v. Comm’r of Pub. Safety, 610 N.W.2d 625, 628 (Minn. 2000).  These factors include: (1) the purpose and flagrancy of the officer’s misconduct, (2) the presence of intervening circumstances, (3) whether it is likely the evidence would have been obtained in the absence of the illegality, and (4) the temporal proximity of the illegality and the evidence alleged to be the fruit of the illegality.  Id.  No single factor is dispositive.  State v. Weekes, 268 N.W.2d 705, 709 (Minn. 1978).  Rather, the court balances all of the factors.  Id. 

The purpose and flagrancy of the misconduct

Deputy Hawley’s conduct was not particularly flagrant.  According to his testimony, he asked appellant to empty his pockets to observe whether appellant would raise his left arm, not to uncover additional evidence of criminal activity.  The purpose of the exclusionary rule is to deter police misconduct by eliminating the temptation for officers to proceed with unconstitutional methods.  State v. Hardy, 577 N.W.2d 212, 217 (Minn. 1998).  Because Deputy Hawley’s conduct, although beyond the scope of a Terry frisk, was not flagrant, this factor weighs against suppression. 

The presence of intervening circumstances

“An attempt to dispose of incriminating evidence . . . is a predictable and common response to an illegal search.”  State v. Balduc, 514 N.W.2d 607, 611 (Minn. App. 1994).  Accordingly, evidence abandoned as a result of an illegal search constitutes fruit of that search.  Hardy, 577 N.W.2d at 217; see also State v. Dineen, 296 N.W.2d 421, 422 (Minn. 1980) (concluding that contraband abandoned in the defendant’s car was properly suppressed when the officer lacked probable cause to search the defendant).  Physically resisting arrest and flight from a police officer, however, generally constitute intervening circumstances that are sufficient to purge the initial illegality of the primary taint, even if prompted by an illegal search.  See State v. Ingram, 570 N.W.2d 173, 178 (Minn. App. 1997) (noting that a defendant may not resort to self-help measures to resolve disputes concerning unreasonable searches and concluding that the taint of an illegal pat search was purged when the defendant brushed the officer out of the way and fled), review denied (Minn. Dec. 22, 1997).  But fleeing, without physical resistance, is not sufficient to purge the taint of illegal police conduct.  State v. Bergerson, 659 N.W.2d 791, 798 (Minn. App. 2003). 

The record reflects that appellant fled from Deputy Hawley without physically resisting arrest.  Appellant abandoned the camera bag while fleeing.  Then, appellant physically struggled with the arresting officers in a ditch.  Following this resistance, officers recovered the additional methamphetamine from appellant’s person in a search incident to appellant’s arrest for obstructing the legal process.  Accordingly, the evidence recovered from the camera bag remains tainted because appellant merely fled without physical resistance when he abandoned the camera bag.  See Bergerson, 659 N.W.2d at 798 (concluding that this factor weighed in favor of suppression when the defendant fled and abandoned evidence without physical resistance to arrest).  The evidence recovered from appellant’s person is untainted, however, because appellant’s struggle in resisting arrest purged the taint of the illegal search. 

            Likelihood of obtaining evidence in absence of illegality

The doctrine of inevitable discovery permits admission of evidence obtained as a result of illegal police conduct if “the police would have obtained the evidence if no misconduct had taken place.”  Harris, 590 N.W.2d at 105 (quotation omitted). 

            Deputy Hawley, an experienced drug interdiction officer, knew that drug paraphernalia and residue had been found in appellant’s car.  Deputy Hawley saw appellant acting unusually nervous and attempting to conceal something with his left arm.  Assuming that Deputy Hawley had conducted a pat search, there is little doubt that he would have discovered the camera bag.  Although the record does not contain a thorough description of the camera bag, it is doubtful that Deputy Hawley could have determined that the camera bag contained a controlled substance without improperly manipulating the object.  But, given the circumstances, Deputy Hawley would have had probable cause to believe that the bag contained a controlled substance and could have searched the bag.  See id. (upholding admission of evidence recovered as a result of an illegal search of Harris’s jacket sleeve under doctrine of inevitable discovery because the officer had a reasonable basis to conduct a pat down and probable cause to search a baggie the officer would have discovered as a result of the pat down search).  This factor weighs in favor of admission of the evidence.

            Proximity

            “A close temporal proximity favors exclusion.”  Olson, 634 N.W.2d at 229.  Here, the officers discovered the methamphetamine shortly after conducting the illegal search of appellant’s pockets.  Therefore, this factor weighs in favor of suppression.

            Notwithstanding the weight of the factors which favor suppression, a balance of the factors weighs in favor of admission of the evidence.  Because Deputy Hawley was not using unconstitutional search tactics to uncover additional evidence of criminal activity and because the methamphetamine in the camera bag would have inevitably been discovered, the evidence obtained from the camera bag is sufficiently distinguishable to be purged of the primary taint of the illegal search.  Because the  officers obtained the methamphetamine recovered from appellant’s person after appellant’s resistance and flight, it was not fruit of the poisonous tree.  Accordingly, the district court did not err in denying appellant’s motion to suppress. 

            Affirmed.