A06-973

State of Minnesota,

Respondent,

vs.

James F. Thole,

Appellant.

Filed May 29, 2007

Affirmed

Worke, Judge

Carver County District Court

File No. CR-05-83

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

Michael A. Fahey, Carver County Attorney, Mark A. Metz, Assistant County Attorney, Government Center, Justice Center, 604 East Fourth Street, Chaska, MN 55318 (for respondent)

Aakash Chandarana, Briggs & Morgan, P.A., Assistant State Public Defender, 2200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant)

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

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

WORKE, Judge

On appeal from a conviction of fifth-degree controlled-substance offense, appellant argues that (1) the officer who stopped his vehicle for a headlight malfunction did not have probable cause to conduct a search incident to arrest; (2) the officer lacked probable cause to seize him when an initial pat search failed to reveal any weapons or contraband; and (3) evidence discovered during a second pat search should have been suppressed because the search was not a valid Terry search. We affirm.

D E C I S I O N

Appellant argues that the district court erred in denying his motion to suppress the evidence because the second pat-down search of his person and the search of the vehicle were unconstitutional. “When reviewing pretrial orders on motions to suppress evidence, we 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). But 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).

Here, while on patrol, an officer observed a vehicle with a headlight out. The officer conducted a traffic stop and identified the driver as appellant James F. Thole. After detecting the odors of marijuana and burnt methamphetamine coming from inside the vehicle, the officer asked appellant and his passenger to exit the vehicle, and informed them that he was going to conduct pat-down searches for officer safety. The pat search of appellant yielded no evidence. The pat search of the passenger, who was jumpy and nervous, yielded a glass methamphetamine pipe wrapped in bubble wrap, a small baggie of methamphetamine, and a box cutter. The officer took the passenger into custody. The officer then took appellant into custody and conducted a more thorough search of his person. The second search of appellant yielded a pen tube containing a white residue, which the officer suspected had been used to snort methamphetamine or other drugs. A search of appellant’s vehicle yielded a cigarette pack containing one-tenth of an ounce of marijuana.

The United States and Minnesota Constitutions prohibit unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. In Terry v. Ohio, the Supreme Court held that investigatory stops are reasonable and not in violation of the prohibition against unreasonable search and seizure when the officer has a reasonable, articulable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968). A police officer may make an investigative seizure, commonly referred to as an investigative stop, or a Terry stop, of an individual if the officer is “able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. Because searches conducted without a warrant are per se unreasonable, we must determine whether the second search is one of several “narrow exemptions.” State v. Robb, 605 N.W.2d 96, 100 (Minn. 2000). One such exemption is that an officer may search “a person’s body and the area within his or her immediate control” if the search is “incident to a lawful arrest.” Id. (citing Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 2040 (1969)). This allows officers to remove any weapons and “prevents the arrestee from tampering with or destroying evidence or contraband.” Id. After the officer detected the odors of marijuana and burnt methamphetamine coming from inside the vehicle, the officer asked appellant and his passenger to exit the vehicle, and informed them that he was going to conduct pat-down searches for officer safety. The initial pat search of appellant did not violate appellant’s constitutional rights.

After contraband was found on the passenger, appellant was subjected to a second search. Appellant argues the constitutionality of the second search when the first pat- down search failed to reveal any evidence of contraband or criminal activity. A search incident to arrest may precede the arrest if “(1) the arrest and the search are substantially contemporaneous, and (2) probable cause to arrest existed before the search.” State v. Cornell, 491 N.W.2d 668, 670 (Minn. App. 1992) (quotation omitted). Probable cause is assessed by considering the totality of the circumstances. State v. Perkins, 582 N.W.2d 876, 878 (Minn. 1998). Probable cause exists if the police “reasonably could have believed that a crime has been committed by the person to be arrested.” State v. Riley, 568 N.W.2d 518, 523 (Minn. 1997) (quotation omitted). But an officer’s reasonable suspicion must be objectively appropriate in light of the facts available when the search or seizure occurs. Askerooth, 681 N.W.2d at 364. Generally, an officer’s subjective intentions and beliefs are irrelevant when analyzing the validity of a search. See, e.g., State v. Everett, 472 N.W.2d 864, 867 (Minn. 1991) (noting that “if there is an objective legal basis for an arrest or search, the arrest or search is lawful even if the officer making the arrest or conducting the search based his or her action on the wrong ground or had an improper motive.”).

Probable cause to arrest appellant existed prior to the second search. The officer, who was trained and experienced in detecting controlled substances by sight and odor, detected the smells of marijuana and burnt methamphetamine coming from inside the vehicle. The officer also testified that he was unable to determine whether the smells were emitting from just one or both of the individuals in the vehicle. The officer also had personal knowledge of appellant’s past narcotics violations. See State v. Munoz, 385 N.W.2d 373, 376 (Minn. App. 1986) (holding an officer’s personal knowledge of a defendant’s previous felony convictions is relevant to determining probable cause to arrest). Further, the pat-down search of the passenger yielded a glass methamphetamine pipe, a small baggie of methamphetamine, and a box cutter. Based on the totality of the circumstances, probable cause to believe appellant had committed a criminal activity unrelated to the traffic stop existed, which justified the second search of appellant and the vehicle. See State v. Martinson, 581 N.W.2d 846, 852 (Minn. 1998) (noting that factors in their totality created reasonable suspicion even though no single factor was independently suspicious). Because a reasonable, articulable suspicion of criminal activity existed, the second search of appellant and the vehicle search were valid searches incident to a lawful arrest.

Affirmed.