STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1065

State of Minnesota,
Respondent,

vs.

Benjamin J. Hill,
Appellant.

Filed July 18, 2006

Affirmed

Wright, Judge

Ramsey County District Court

File No. K8-04-76

John M. Stuart, State Public Defender, Theodora Gaïtas, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

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

Susan Gaertner, Ramsey County Attorney, Patrick J. Swift, Assistant County Attorney, Ramsey County Government Center, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)

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

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

WRIGHT, Judge

Appellant challenges his conviction of fifth-degree controlled substance possession, arguing that the police lacked reasonable, articulable suspicion to conduct an investigatory stop and a reasonable basis to conduct a patdown search. We affirm.

FACTS

After executing a search warrant at a Maplewood residence on the evening of November 2, 2003, Maplewood Police Officer Daniel Larson obtained assistance from Officer Michael Dugas to investigate a stolen vehicle in the driveway of a nearby residence on the same block. The two officers drove separately to the residence where the stolen vehicle was located and parked in the driveway. The officers were aware that, in the past, search warrants had been executed and multiple arrests had been made at this residence for narcotics offenses and other criminal offenses. There the officers observed a group of more than five people standing on the property between the stolen vehicle and the house.

Based on their knowledge of prior criminal arrests at the residence, the officers got out of their cars and asked the individuals to walk toward the officers with their hands visible. For safety reasons, the officers planned to ask for consent to search the individuals for weapons.[1] Officer Dugas asked appellant Benjamin Hill if Hill had any weapons in his possession. Hill said, “No.” Officer Dugas then asked for permission to check. Hill responded by turning around and raising his hands. Officer Dugas testified that he construed this conduct as consent to search. As Hill turned and raised his hands, Officer Dugas smelled “a strong odor of unspent marijuana.”

Officer Dugas patted down Hill and felt a hard object in Hill’s pocket that felt like a pocketknife. When Hill could not identify the object, Officer Dugas asked if he could reach in to retrieve it. Hill consented. Officer Dugas removed from Hill’s pocket a plastic bag containing marijuana and a cigarette lighter.

Hill was charged with fifth-degree possession of a controlled substance, a violation of Minn. Stat. § 152.025, subd. 2(1) (2002). Hill moved to suppress the marijuana seized during the encounter with the police. The district court denied the motion, concluding that Officer Dugas had a reasonable and objective basis for conducting an investigatory stop and frisk of Hill. Hill waived his right to a jury trial and agreed to submit the case pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), expressly preserving the suppression issue for appeal. The district court found Hill guilty, imposed a stayed sentence of 15 months’ imprisonment, and ordered Hill to serve 45 days in the workhouse. This appeal followed.

D E C I S I O N

Hill contends that the district court erred by failing to suppress the marijuana seized during the investigatory stop. When we review a pretrial order on a motion to suppress evidence, we review the facts and determine whether the district court erred in suppressing the evidence as a matter of law. State v. Fort, 660 N.W.2d 415, 417-18 (Minn. 2003).

The Fourth Amendment to the United States Constitution and Article I, Section 10, of the Minnesota Constitution protect against unreasonable searches and seizures. To conduct a stop for limited investigatory purposes, an officer must have reasonable, articulable suspicion of criminal activity. State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999) (citing Terry v. Ohio, 392 U.S. 1, 20-22, 88 S. Ct. 1868, 1880 (1968)). “The police must only show that the stop was not the product of mere whim, caprice or idle curiosity, but was based upon ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’” State v. Pike, 551 N.W.2d 919, 921-22 (Minn. 1996) (quoting Terry, 392 U.S. at 21, 88 S. Ct. at 1880).

Hill argues that Officer Dugas’s stop was an unconstitutional seizure. When considering the lawfulness of an investigatory stop under Terry, we conduct a two-part analysis. State v. Askerooth, 681 N.W.2d 353, 364 (Minn. 2004). First, we inquire as to whether the stop was justified at its inception. Id. If so, we then consider whether the officer’s actions during the stop were justified by and related to the circumstances giving rise to the stop. Id. Focusing first on the stop, we note that a police officer may conduct an investigatory stop if the officer has a particularized and objective basis for suspecting criminal activity. State v. Smallwood, 594 N.W.2d 144, 155 (Minn. 1999). This standard requires the officer’s suspicion to be based on specific, articulable facts. State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995).

Here, the presence of the stolen vehicle at the residence was sufficient to establish a particularized and objective basis to suspect criminal activity. Hill’s proximity to the stolen vehicle justified a limited intrusion to investigate evidence of at least two criminal offenses—evidence of criminal theft and possession of stolen property.

Hill maintains that the stolen vehicle was not evidence of “recent” criminal activity, and, therefore, the investigatory stop was not reasonable. The record does not establish whether the vehicle theft was recent. But because possession of stolen property is a continuing offense, an inability to determine when the theft occurred does not prevent us from concluding that the officer had a reasonable basis to conduct the investigatory stop. See State v. Lawrence, 312 N.W.2d 251, 253 (Minn. 1981) (stating that “concealing or possessing stolen goods is a continuing offense for the purpose of the statute of limitations”); see also Minn. Stat. § 609.53, subd. 1 (2004) (permitting sentencing in accordance with theft statute of any person who possesses stolen property). Accordingly, an investigatory stop of the persons in the vicinity of the stolen vehicle was justified at its inception.

We next examine “whether the actions of the police during the stop were reasonably related to and justified by the circumstances that gave rise to the stop in the first place.” Askerooth, 681 N.W.2d at 364 (citing Terry, 392 U.S. at 19-20, 88 S. Ct. at 1874). Specifically, we consider whether the patdown-search request was a permissible expansion of the scope of the stop.

A police officer does not have a right to conduct a patdown search whenever there are grounds for an investigatory stop. Whether a protective search incident to an investigatory stop is proper presents a question that is distinct from the permissibility of the investigatory stop. An officer may conduct a patdown search incident to a lawful investigatory stop when the officer reasonably believes the suspect might be armed and dangerous. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992) (citing Terry, 392 U.S. at 30, 88 S. Ct. at 1884). An officer may evaluate the circumstances warranting a patdown search in light of the officer’s experience. Terry, 392 U.S. at 27, 88 S. Ct. at 1883. If the officer reasonably believes that the suspect may be armed and dangerous, a “carefully limited search of the outer clothing . . . in an attempt to discover weapons which might be used to assault” the officer is permitted. Dickerson, 481 N.W.2d at 843.

Here, Officers Dugas and Larson were outnumbered by the people at the residence who were standing at a “known drug house” in the vicinity of the stolen vehicle. It was after dark, and they were on the premises where multiple searches and arrests for narcotics offenses and other offenses had occurred. Officer Dugas believed the circumstances of the stop called for a patdown search of the persons present to ensure the safety of the officers. Given the totality of the circumstances, including the seriousness of the offense under investigation, we conclude that Officer Dugas reasonably could have suspected that someone standing near the stolen vehicle possessed a dangerous weapon. See 4 Wayne R. LaFave, Search and Seizure § 9.6(a), at 625-26 (4th ed. 2004) (noting that an officer’s concern for his safety may derive from his experience with persons involved in serious or violent offenses such as robbery and burglary).

Citing State v. Fort, 660 N.W.2d 415 (Minn. 2003), Hill argues that Officer Dugas impermissibly expanded the scope of the stop. In Fort, a police officer expanded the scope of an initial traffic stop to include investigative questioning, a request for consent, and a patdown search. 660 N.W.2d at 416-17. But the police officer in Fort did not testify that he suspected the defendant of any offense other than a traffic violation. Id. at 419. The Minnesota Supreme Court concluded that the expansion of the scope of the stop was unconstitutional because the officer’s inquiries into narcotics or weapons had no connection to the purpose of the stop. Id. Here, however, because of the nature of the offense under investigation and the location and circumstances in which the officers encountered Hill, a patdown search for officer safety was not an unreasonable expansion of the scope of the stop.

Because the police officers had reasonable, articulable suspicion to conduct an investigatory stop, and because Officer Dugas reasonably believed that Hill might be armed and dangerous, we conclude that the stop and patdown search were constitutional. Accordingly, the district court properly denied the motion to suppress the evidence seized during that stop.

Affirmed.

[1] Although searches of other individuals were conducted, the search of appellant Benjamin Hill is the only one at issue here.