A06-1026

State of Minnesota,

Respondent,

vs.

Tor Bernard White,

Appellant.

Filed July 31, 2007

Affirmed

Parker, Judge[*]

Ramsey County District Court

File No. K4-05-001753

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

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

John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, Melvin R. Welch (Certified Student Attorney), 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

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

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

PARKER, Judge

On appeal from conviction for fifth-degree controlled-substance offense, appellant argues that he was illegally seized and searched, and that the district court erred in concluding that appellant was not seized until police pat-searched him. Because we conclude that the seizure and search of appellant did not violate his constitutional rights, we affirm.

D E C I S I O N

“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).

Appellant Tor Bernard White argues that he was illegally seized and searched without a reasonable, articulable suspicion of criminal activity. In the absence of a factual dispute, this court determines whether an officer’s actions constitute a seizure and if the officer articulated an adequate basis for the seizure. Id. The United States and Minnesota Constitutions protect against unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10.

Under the Minnesota Constitution, a person has been seized if in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was neither free to disregard the police questions nor free to terminate the encounter. . . . [S]ome of the circumstances that might indicate a seizure has taken place include: the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.

Harris, 590 N.W.2d at 98 (quotations and citations omitted). “[W]hen a person is seized, courts must suppress evidence gathered as a result of that seizure only when the seizure was unreasonable.” Id. at 99. A brief investigatory seizure of a person “is not unreasonable if an officer has a particular and objective basis for suspecting the particular person [seized] of criminal activity.” Id. (quotation omitted). “The officer may justify his decision to seize a person based on the totality of the circumstances and may draw inferences and deductions that might elude an untrained person. However, a mere hunch, absent other objectively reasonable articulable facts, will not justify a seizure.” Id. (quotation and citation omitted).

Here, at approximately midnight, officers on routine patrol observed a vehicle with the lights on and engine running in front of a duplex that had been the subject of recent citizen complaints regarding significant foot traffic in and out of the upper unit. The citizens were concerned for the safety of an elderly woman who lived in the lower unit. One of the officers knew that appellant and a woman lived in the upper unit and that they both had prior narcotics arrests. The officers pulled up to and shined a spotlight into the vehicle. The front seats were occupied by two women, and the officers immediately recognized appellant, seated in the right-rear seat. As the officers exited their vehicle, appellant moved his left hand into the sleeve of his coat. The officers became concerned for their safety. Appellant was told to keep his hands where they could be seen, and, when appellant failed to comply, he was ordered to exit the vehicle. An officer testified that he believed that appellant’s furtive movements were an attempt to conceal a weapon. As appellant exited the vehicle, the officer grabbed appellant’s arm and an object, later confirmed to contain crack cocaine, fell to the ground. At that point, no reasonable person would believe himself free to leave or end the encounter. However, based on appellant’s furtive movements and the officers’ concern for their safety, the officer’s action of grabbing appellant’s arm did not constitute an illegal seizure.

Appellant next argues that the officers did not possess a particular and objective basis for suspecting him of criminal activity. The Minnesota Supreme Court has held that while “merely being in a high-crime area will not justify a stop[,] . . . [a] defendant’s evasive conduct after eye contact with police, combined with his departure from a building with a history of drug activity, justified police in reasonably suspecting criminal activity.” State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992) (citation omitted), aff’d, 508 U.S. 366, 113 S. Ct. 2130 (1993). Also, police are permitted to stop and frisk an individual when: “(1) they have a reasonable, articulable suspicion that the suspect might be engaged in criminal activity; and (2) they reasonably believe the suspect might be armed and dangerous.” State v. Richmond, 602 N.W.2d 647, 651 (Minn. App. 1999), review denied (Minn. Jan. 18, 2000). “If both of these factors are present, police may conduct a limited search of the outer clothing of a suspect in an attempt to discover weapons that might be used to assault officers.” Id.

Additionally, in State v. Alesso, an officer “noticed that [the] defendant was either trying to conceal or remove an object . . . from his right pocket.” 328 N.W.2d 685, 688 (Minn. 1982). The officer “testified and the [district] court found that he believed this might be a weapon.” Id. The supreme court concluded that “the officer, having lawfully approached [the] defendant, was justified in grabbing the object if he reasonably suspected that it might be a weapon and that [the] defendant might be dangerous.” Id. Here, an officer recently received citizen complaints about the amount of traffic in and out of the upper unit of a duplex. The officer knew that appellant and a woman lived in the unit and that both had prior narcotics arrests. Under the totality of the circumstances, a reasonable, articulable suspicion existed that the individuals in the vehicle were engaged in criminal activity, and based on appellant’s furtive movements, it was reasonable to believe that appellant might be armed. We conclude that the officers articulated an adequate basis for the seizure and that the district court did not err in denying appellant’s suppression motion.

Affirmed.

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.