This opinion will be unpublished and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

A05-1508

 

State of Minnesota,

Respondent,

 

vs.

 

Derrick John Larson,

Appellant.

 

Filed August 15, 2006

Affirmed

Shumaker, Judge

 

Nobles County District Court

File No. K0-04-694

 

 

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Keiko Sugisaka, Assistant Attorneys General, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101-2134; and

 

Gordon Moore, Nobles County Attorney, 1530 Airport Road, Suite 400, Worthington, MN 56187 (for respondent)

 

Barry V. Voss, Barry V. Voss, P.A., 527 Marquette Avenue South, Suite 1050, Minneapolis, MN 55402 (for appellant)

 

 

 

            Considered and decided by Ross, Presiding Judge; Shumaker, Judge; and Wright, Judge.

 

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

Appellant challenges the district court’s denial of his motion to suppress evidence of contraband drugs and a stolen firearm obtained through searches of his person and his backpack after the motor vehicle in which he was riding was stopped by the police.  Because the district court properly applied the law to the facts in denying the motion, we affirm.

FACTS

A jury found appellant Derrick John Larson guilty of possessing methamphetamine while in possession of a firearm and receiving stolen property.  Larson challenges the legality of the stop of the car in which he was riding before his arrest, the frisk and search of his person, and the search of his backpack.

Law-enforcement officers stopped the car in which Larson was riding as a passenger on November 10, 2004.  The collective knowledge of those and other officers before the stop was that Joseph Deneui, a gang member who lived with Larson, had stolen a .357 silver Taurus revolver loaded with .38-caliber bullets from a residence in Marshall and brought it to his home.  Deneui told another that Larson was having a problem with some people and that he and Larson wanted the gun to take care of it.

Officers conducted a surveillance outside Deneui’s home in Worthington.  They saw a person who generally fit Deneui’s description leave the house, get into a car, and drive down the street to a detached garage behind the house.  The officers then saw Larson, whom they knew from prior contacts, and another individual come out of the house and get into the car.  Larson was carrying a green backpack and he seemed nervous and acted suspiciously, looking around and over his shoulder, before getting into the back seat of the car.

Believing that Larson probably had the stolen gun and that there might be a drive-by shooting because they knew Larson had a gang affiliation, the officers stopped the car.

After they stopped the car, the officers learned that Deneui was not present.  One officer ordered Larson to get out and to put his hands on the car.  Larson did not readily comply but rather kept trying to put his hands down by his pants and tried to turn around to face the officer.  The officer then patted the outside of Larson’s clothing and felt what he believed to be a glass pipe and several handgun bullets.  The officer concluded that the stolen gun was either in Larson’s possession or in the car.  He searched Larson’s pockets and found .38-caliber bullets and a glass pipe.  After this search, he received a telephone call from another officer stating that Larson had the stolen gun.  Another officer arrested Larson and, after initial denials, Larson admitted that the gun was in the backpack.  The other officer removed the backpack from the car and searched it and found the stolen gun.  A later search of the backpack revealed 9.2 grams of methamphetamine.

Larson moved to suppress all evidence obtained as a result of the stop but the district court denied the motion.

D E C I S I O N

Larson contends that the district court erred in denying his motion to suppress the gun, the bullets, the glass pipe, and the methamphetamine.  We review orders on motions to suppress by independently considering the facts to determine whether the court erred as a matter of law.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  We review de novo the district court’s determination that there was a reasonable, articulable suspicion of unlawful activity to justify a limited investigative stop.  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).  In doing so, we review the district court’s findings for clear error and give due weight to inferences the court has drawn from the facts.  State v. Lee, 585 N.W.2d 378, 383 (Minn. 1998).  We also defer to the district court’s assessment of witness credibility.  State v. Miller, 659 N.W.2d 275, 279 (Minn. App. 2003), review denied (Minn. July 15, 2003).

The Stop

Generally, a search or a seizure without a warrant is per se unreasonable.  State v. Burbach, 706 N.W.2d 484, 488 (Minn. 2005).  This rule, however, is subject to some “specifically established and well delineated exceptions.”  Id. (quotation omitted).  One such exception obtains when law-enforcement officers reasonably believe that a crime has been or is about to be committed.  The officers may conduct a limited stop of a person to investigate further.  Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884-85 (1968).  “To conduct a limited stop for investigatory purposes, a so-called Terry stop, the police must have reasonable articulable suspicion of criminal activity.”  State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999).  “To establish reasonable articulable suspicion, the police need only show that the stop was not the product of mere whim, caprice, or idle curiosity.”  Id. (quotation omitted).  Reasonable articulable suspicion must exist at the moment of the stop or seizure, but it may be based on an informant’s tip, if the tip has indicia of reliability, or it may be based on information provided through law-enforcement communications and the collective knowledge of the law-enforcement agency.  State v. Conaway, 319 N.W.2d 35, 40 (Minn. 1982); State v. Bergerson, 659 N.W.2d 791, 795 (Minn. App. 2003); Jobe v. Comm’r of Pub. Safety, 609 N.W.2d 919, 921 (Minn. App. 2000). 

Larson acknowledges that “the police had information the [stolen] gun was in Deneui’s residence,” but he contends that “they were not able to identify any facts establishing a reasonable suspicion that the occupants of the motor vehicle possessed the firearm.”  Therefore, he contends, the stop was unlawful.

Before they stopped the car in which Larson was riding, the law-enforcement officers knew that the purpose of the gun theft allegedly was so that Larson could take care of a problem he was having with some people.  They knew that Larson lived at Deneui’s residence, and they watched Larson come out of that residence carrying a backpack and looking nervously and suspiciously around the area before he got into the car that was eventually stopped.  Although the officers were mistaken, they believed from a description they were given that Deneui was the driver of that car.  Thus, from the objective facts, and reasonable inferences to be drawn, before they stopped the car, the officers reasonably believed that a gun thief brought the loaded gun to his residence; linked up there with the person for whom he stole the gun; the gun was to be used to take care of a problem with some people; and the thief and the prospective gun user left the residence together in a car.  The plausibility that the gun was in the car and was being transported for its eventual use was enhanced by the officers’ belief that the driver was a gang member and the recipient of the gun was a gang affiliate.  The district court found, and we agree, that the law-enforcement officers had a reasonable articulable suspicion that the car they stopped contained a stolen handgun loaded with stolen bullets.

Frisk and Search of Larson

Larson agrees that a police officer who lawfully stops a person “may conduct a limited pat-frisk for weapons if he reasonably suspects, based on articulable facts, that the person is armed and dangerous.”  But, he claims, the “police did not identify any fact that [Larson] was armed and dangerous.  Simply put, the officer conducted a pat-frisk for the purpose of discovering contraband, which is impermissible.”

When a police officer stops a motor vehicle he may, for his own safety, order the occupants to step out of the vehicle.  State v. Gilchrist, 299 N.W.2d 913, 916 (Minn. 1980).  Thus, the officer properly ordered Larson to get out of the car.

And when an officer suspects that a vehicle’s occupant is armed and possibly dangerous, and is able to articulate facts that support that suspicion, the officer is permitted to pat down the person’s outer clothing to determine whether he has a weapon.  Harris, 590 N.W.2d at 104.

At the moment of the stop, the officers knew Larson was in the car and they believed that he had a loaded stolen gun that he intended to use.  Additionally, before the frisk, Larson refused to comply with the order to place his hands on the car and instead kept moving them down toward his pants and tried to face the officer.  The prior information, coupled with Larson’s lack of compliance with the officer’s request, gave the officer reason to suspect that Larson had a weapon and was dangerous.  See id. (unusual nervousness and attempt to conceal object or furtive movements gave rise to reasonable fear in officer for his safety); State v. Cavegn, 294 N.W.2d 717, 721-22 (Minn. 1980) (reasonable fear for officer safety arose from combination of lateness of hour, defendant’s nervousness, and defendant’s clutching of an object close to his body).  The frisk here was proper and justified.

Following the pat-down, the officer actually searched Larson’s pockets.  The district court found that this search was incident to a lawful arrest and thus was excepted from the warrant requirement.  The court then analyzed the existence of probable cause for an arrest.

Although there is an exception to the warrant requirement for a search incident to a lawful arrest, no arrest had yet occurred when the officer searched Larson’s pockets.  The district court ruled that, as long as there was probable cause for an arrest, the search could properly precede the formal arrest.  State v. White, 489 N.W.2d 792, 794 (Minn. 1992).  This was a correct ruling.  State v. Bauman, 416 N.W.2d 416, 420 (Minn. App. 1998, review denied (Minn. Jan. 27, 1999).  But the search was justified for another reason as well.  If, during a frisk for weapons, an officer feels an object whose shape, size, contours, and mass make it immediately apparent that it is contraband, a warrantless seizure is justified.  Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S. Ct. 2130, 2137 (1993).  The officer immediately recognized handgun bullets in Larson’s pockets and was aware that the stolen gun contained bullets.  Considering all of the circumstances and all of the information and knowledge the officer had at this point, he reasonably believed that the bullets were those stolen with the handgun.  Thus, the search was proper after the frisk revealed contraband.

Search of Backpack

The search of Larson’s pockets yielded a glass pipe and .38-caliber bullets.  One of the officers then placed Larson under arrest and retrieved and searched the backpack from the car in which Larson had been riding.  Larson correctly cites New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860 (1981), for the exception to the warrant rule that when an occupant of a motor vehicle has been lawfully arrested, the police may search the vehicle’s passenger compartment as an incident to that arrest.  Moreover, that search may include containers inside the vehicle.  White, 489 N.W.2d at 794.  Larson’s challenge is to the predicate for these warrant exception, namely, the lawfulness of the arrest.  He maintains that the officers did not have probable cause to arrest him when they searched his backpack. The district court found otherwise, and we agree.

Probable cause is assessed by considering the totality of the circumstances.  Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317 (1983); State v. Walker, 584 N.W.2d 763 (Minn. 1998).  The test to be applied is “whether the objective facts are such that under the circumstances a person of ordinary care and prudence would entertain an honest and strong suspicion that a crime has been committed.”  State v. Johnson, 314 N.W.2d 229, 230 (Minn. 1982) (quotation omitted).

Immediately before Larson’s arrest, the officers had information that a gun loaded with .38-caliber bullets had been stolen on Larson’s behalf so that Larson could use it to remedy a problem he was having with some people.  The gun had been taken to the thief’s residence, which also was Larson’s residence, and Larson was observed coming out of that residence with a green backpack.  At the scene of the stop, Larson initially refused to comply with an officer’s directive about the placement of his hands.  A search yielded the same caliber bullets as were in the stolen gun, and one of the officers received a phone call indicating that Larson had the gun.  This information was given to the arresting officer.  Larson fails to show in what respect these facts did not provide probable cause for his arrest.  The district court did not err in concluding that the search of the backpack was proper.

            Affirmed.