Susan E. Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, Ramsey County Government Center West, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for Respondent)

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Lansing, Presiding Judge, Short, Judge, and Klaphake, Judge.

This appeal is from a conviction for third degree controlled substance offense. See Minn. Stat. §§ 152.01, subd. 15(a) (1996) (definition of "sell"), 152.023, subd. 1(1) (1996). After the district court denied Lavell Hardy's motion to suppress the drugs discovered on him, Hardy waived a jury trial and stipulated to the state's facts under State v. Lothenbach, 296 N.W.2d 854, 857 (Minn. 1980). Because we conclude there was no search requiring probable cause, we affirm.

Hardy's companion replied to the officers' questions, but Hardy made no verbal response. One of the officers testified that it was his usual practice when patrolling this area to strike up a conversation with people to get them to respond and open their mouths because he knew from experience that crack cocaine was often concealed in the mouth.

It is generally not a seizure for a police officer to walk up and talk to a citizen on the street, unless circumstances are present indicating to a reasonable person that they are not free to leave. United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980). When the officer's suspicions were aroused by Hardy's failure to respond verbally, he told Hardy to open his mouth. This constituted a seizure because it was at least clear to a reasonable person that he would not be free to leave. But the seizure was reasonably supported by the officer's earlier suspicions combined with Hardy's closed-mouth response and also the officer's observation that Hardy was clenching his neck muscles. See generally State v. Johnson, 444 N.W.2d 824, 825-26 (Minn. 1989) (investigative stop must be supported by articulable suspicion). Although the state argues there was probable cause supporting a search of Hardy's mouth, we conclude that no search occurred.

The Fourth Amendment protects only against governmental invasion of a privacy interest that society recognizes as reasonable. See Katz v. United States, 389 U.S. 347, 360, 88 S. Ct. 507, 516 (1967) (Harlan, J. concurring). Because a police officer may, under Mendenhall, walk up to and talk with a person on the street, any impediment the person has that prevents speech is readily observable to a police officer, as it would be to any other person. A person has no legitimate expectation of privacy in the fact that his mouth is so crammed with some substance that he is not even able to talk.

The officer sought only to get Hardy to open his mouth sufficiently to speak. Although the officer may have suspected that Hardy's mouth contained drugs, there is no evidence that he meant for Hardy to open his mouth for a closeup visual inspection or that he stepped closer as he told Hardy to open his mouth. The officer's action was no more intrusive than an ordinary passerby's engaging Hardy in conversation and telling him to speak clearly. Although Hardy began to flee in response and soon spat out the drugs, this disclosure of evidence did not occur as the result of a police search, and probable cause was not required. Accordingly, the trial court properly denied Hardy's motion to suppress that evidence.

Affirmed.