Opinion
No. C7-96-530.
Filed September 3, 1996.
Appeal from the District Court, Hennepin County, File No. 95-085477.
Hubert H. Humphrey, III, Attorney General, Michael O. Freeman, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, (for Respondent)
Richard M. Meshbesher, Daniel J. Smith, Meshbesher Law Office, (for Appellant)
Considered and decided by Crippen, Presiding Judge, Huspeni, Judge, and Holtan, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994).
UNPUBLISHED OPINION
Appellant Lorenzo Cosey was convicted of one count of first-degree possession of a controlled substance under Minn. Stat. §§ subd. 2(1), subd. 3(a), 609.01, subd. 3 (1994 Supp. 1995). His postconviction appeal challenges the basis for the pat search and the seizure of narcotics discovered during that search. Because the officer had specific and articulable facts to support the pat search and seizure, we affirm.
FACTS
On September 26, 1995, at about 9:35 p.m., police officer Mark Kaspszak stopped a car with its right front headlight out. After he moved in behind the car, the driver pulled over and parked.
As Kaspszak and his partner approached the car, they noticed movement among the three people in the car. Appellant, seated in the front passenger seat, was moving his hands near his waist and looking down, as was the rear passenger. All three looked back toward the officers, and then the two passengers again looked down into their laps.
While his partner questioned the driver, Kaspszak approached appellant. Appellant was looking down, covering his crotch with his hands. The back seat passenger, similarly, was looking down and covering his crotch with a cap. Kaspszak asked appellant for identification. When he said he had none, Kaspszak asked him to get out of the car. The officer then told appellant that he was going to pat him down for weapons before getting into the squad car to check further on appellant's identification. During the pat search, Kaspszak felt "something large in [appellant's] crotch area and it felt kind of hard." The officer was surprised and did not know what it was, but felt it could have been the butt of a handgun. With his partner's assistance, Kaspszak handcuffed appellant and pulled a large bag from appellant's pants. It was a large outer bag filled with coffee grounds, with three smaller bags inside among the coffee grounds, each containing substances that subsequently tested positive for crack cocaine. Kaspszak placed appellant under arrest for possession of a controlled substance.
DECISION
Appellant stipulated to the basic facts of the narcotics offense: the date, the amount, and the location. On appeal, he challenges only the legality of the warrantless search and seizure. This court may independently review the facts to determine as a matter of law whether the evidence should have been suppressed. State v. Othoudt , 482 N.W.2d 218, 221 (Minn. 1992).
As part of a lawful investigative stop of a vehicle, police officers may ask a suspicious individual for identification. Adams v. Williams , 407 U.S. 143, 146, 92 S.Ct. 1921, 1923 (1972). It is also proper for the officer, for his safety, to require occupants of the automobile to get out. State v. Gilchrist , 299 N.W.2d 913, 916 (Minn. 1980); see also Pennsylvania v. Mimms , 434 U.S. 106, 111, 98 S.Ct. 330, 333 (1977) (driver may be ordered out of car). If the officer reasonably believes that his safety or the safety of others requires it, the officer may conduct a pat search narrowly confined to a frisk for weapons. Gilchrist , 299 N.W.2d at 917 (citing Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868 (1968)). The intrusion is warranted if the officer is able to point to specific and articulable facts and rational inferences to support his belief. Terry , 392 U.S. at 21, 88 S.Ct. at 1880.
Here, the officers conducted a routine traffic stop when they observed the burned out headlight. As the officers approached the car, they further observed the driver and the two passengers looking back at them and then looking down into the passengers' laps. As he approached appellant's side of the car, Officer Kaspszak noticed appellant's quick hand movements near his waist while appellant was looking down. When the officer reached the door of the car, appellant had his hands over his crotch as if he were concealing something. The back seat passenger had made similar furtive movements and was covering his crotch with a cap. Appellant then was asked to produce identification, but had none.
Officer Kaspszak could reasonably infer from appellant's furtive movements that he was trying to conceal something. See, e.g., State v. Alesso , 328 N.W.2d 685, 688 (Minn. 1982) (furtive movement caused officer to suspect weapon and justified grabbing object); State v. Lamar , 382 N.W.2d 226, 230 (Minn.App. 1986), review denied (Minn. Mar. 27, 1986) (check for weapons justified by circumstances). Certainty that the concealed item was a weapon was unnecessary to justify the frisk. Terry , 392 U.S. at 27, 88 S.Ct. at 1883. Certainty that the "hard" object revealed by the frisk was a weapon also was unnecessary to justify the seizure. As in State v. Bitterman , 304 Minn. 481, 486, 232 N.W.2d 91, 95 (1975), the pat search did not rule out the possibility that concealed object was a weapon. See also State v. Dickerson , 481 N.W.2d 840, 845 (Minn. 1992). Therefore, on these facts, Officer Kaspszak's pat search of appellant and seizure of crack cocaine from his person was lawful.