This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-97-1169

State of Minnesota,

Respondent,

vs.

Patrick Alphonse Valentine,

Appellant.

Filed March 17, 1998

Affirmed

Amundson, Judge

Ramsey County District Court

File No. K4-96-2019

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, Susan Gaertner, Ramsey County Attorney, Heidi M. Westby, Assistant Ramsey County Attorney, 315 Ramsey County Government Center West, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Susan J. Andrew, Assistant State Public Defender, 2829 University Avenue Southeast, #600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Schumacher, Judge.

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

AMUNDSON, Judge

Appellant challenges his two possession of controlled substances convictions, arguing that (1) his March seizure was not supported by probable cause and (2) the warrantless May search of his automobile was not justified. We affirm.

FACTS

On the evening of March 28, 1996, Police Officers David Titus and his partner Jeffrey Parsons were patrolling the high-crime area around the intersection of Grotto and University Avenue in Saint Paul. At 9:40 p.m., Titus and Parsons noticed a person later identified as appellant Patrick Alphonse Valentine sitting alone in an automobile in front of the Badger Bar, located at the intersection. About a half-hour later, after responding to an unrelated call, Titus and Parsons were driving in the back lot of the Badger Bar. Titus saw two people run around the bar. A witness said to the officers, "There he goes." The officers drove around the bar, where Titus observed Valentine walking quickly; he assumed that the witness was referring to Valentine. When Valentine saw the officers, he abruptly changed directions, in what the officers believed to be an evasive move. Titus exited his squad car, and Valentine began to run. He ran around the corner of the bar, onto Grotto. Titus chased Valentine, yelling for him to stop. Valentine continued running through the intersection, while Parsons drove the squad car into an alley to come up on the other side of Valentine. Valentine ran back toward Titus, who continued to tell Valentine to stop. Titus drew his handgun and ordered Valentine to the ground. As Valentine lowered himself, Titus saw him putting something into the snow with his hands. Fearing that Valentine had a weapon, Titus put his foot on Valentine's back and kept him at gunpoint until Parsons took control of Valentine's arm, which was in the snow. The officers searched the area (in the snow, near a chain link fence) where Valentine had placed something and found a plastic bag containing 30-40 small white rocks, which appeared to be rock cocaine. This incident resulted in the charge of second-degree controlled substance crime, pursuant to Minn. Stat. § 152.022, subd. 2 (1) (1994) (possession of six grams or more of cocaine.)

On May 16, 1996, in response to tips from two Confidential Reliable Informants (CRIs), Office Patrick Lyttle went to investigate a suspected drug dealer. The information was that a black man named Patrick was selling narcotics out of his car (with a specified license plate number) in the Badger Bar parking lot. Lyttle and one of the CRIs went to the Badger Bar, where the CRI identified "Patrick" in his car (with the same license number) in the parking lot. About a half-hour later, Lyttle observed Valentine involved in what appeared to be two separate narcotics transactions. A half- hour later, while Lyttle watched, the CRI made a "controlled buy" (defined as when an informant, under the direction and observation of the police, using previously marked and photocopied cash, approaches a suspect for narcotics) from Valentine. Lyttle and other officers arrested Valentine after the buy was completed. A narcotic-detecting canine searched Valentine's car; a large quantity of what appeared to be crack cocaine was recovered from the car's air vent. Police also seized $2,184. This incident led to a charge of first-degree controlled substance crime, pursuant to Minn. Stat. § 152.021, subd. 2 (1) (1994) (possession of 25 grams or more of cocaine).

Following a waiver of a jury trial and submission of the case on stipulated facts, the district court found Valentine guilty of both charges. This appeal followed.

D E C I S I O N

Determinations of constitutional issues are legal issues. Legal questions are reviewed de novo by this court. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984). The lower court's factual determinations regarding fourth amendment issues, however, are given great deference. See State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), affirmed, 508 U.S. 366, 113 S. Ct. 2130 (1993) (great deference given to trial court's credibility assessment in review of propriety of stop and frisk); State v. Jannetta, 355 N.W.2d 189, 194 (Minn. App. 1984), review denied (Minn. Jan. 14, 1985) (great deference paid to lower court's determination of probable cause for a search warrant).

I. March Seizure

Valentine argues that police did not have probable cause to seize him, and therefore the seizure violated his constitutional rights.

It is useful to clearly examine the facts of the March seizure in light of constitutional law. First, police officers, patrolling a high crime area, heard a witness yelling, "There he goes." They observed Valentine running, and decided to approach him. The supreme court has held that in general, "the mere act of approaching a person who is standing on a public street or sitting in a car that is parked and asking questions is not a `seizure'" within the meaning of the Fourth Amendment. Matter of Welfare of E.D.J., 502 N.W.2d 779, 782 (Minn. 1993).

After already appearing to avoid the officers, Valentine actually fled the police when Titus exited the squad car. The supreme court has held that evasive reactions such as repeated glances at an officer, changing directions in an attempt to avoid the police, and fleeing at the sight of an officer may be taken into account by the police to justify an investigative stop. State v. Johnson, 444 N.W.2d 824, 826 (Minn. 1989). It must be noted that there is a distinction between an arrest and a stop. A stop, or seizure, in terms of the Fourth Amendment, occurs only when, in view of all the circumstances, a reasonable person would have believed that he or she was not free to leave. E.D.J., 502 N.W.2d at 781-83. A stop, or seizure, requires reasonable, articulable suspicion of a violation of law. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968). An arrest requires probable cause that the person seized committed a crime. Henry v. United States, 361 U.S. 98, 80 S. Ct. 168 (1959). Thus, based on the record evidence, the district court correctly determined that the police officers had reasonable and articulable suspicion to justify a stop.

Titus pointed his handgun at Valentine because he believed that Valentine may have been armed because he saw Valentine hiding something in the snow. Further, Valentine's behavior showed possible aggressive behavior toward police officers. "If an officer making a reasonable investigatory stop has cause to believe that the individual is armed, he is justified in proceeding cautiously with weapons ready." State v. O'Neill, 299 Minn. 60, 68, 216 N.W.2d 822, 828 (1974).

Finally, when the officers found the narcotics (in public, near a fence in the snow, where there is no expectation of privacy), they had probable cause to arrest Valentine.

II. May Automobile Search

Valentine argues the search of his car without a search warrant violated his constitutional rights. He argues that there were no exigent circumstances that would constitute an exception to the warrant requirement for searches.

However, exigent circumstances are not the only exception to the warrant requirement. Under the automobile exception to the warrant requirement, only probable cause to believe that a car contains contraband is required because of a lower expectation of privacy. State v. Nace, 404 N.W.2d 357, 361 (Minn. App. 1987), review denied (Minn. Jun 25, 1987). Even in a closed repository area of the car, such as a locked trunk or a closed compartment under a dashboard, there is a lower expectation of privacy that allows a warrantless search if there is probable cause. Id. Lyttle had probable cause to believe that Valentine's car contained contraband based on his observations of Valentine, who would return to his car to retrieve something (presumably narcotics) during the observed narcotics transactions.

Valentine's pro se brief argues that if a CRI is used to form the basis for probable cause, evidence must be presented regarding the CRI's credibility and reliability. However, Lyttle testified regarding his previous positive experiences using the relevant CRIs.

Affirmed.

Dated:

_____________________________________

Judge Roland C. Amundson