Opinion
No. A04-698.
Filed June 7, 2005.
Appeal from the District Court, Ramsey County, File No. K3-03-217.
Mike Hatch, Attorney General, and Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, (for respondent).
John M. Stuart, State Public Defender, Bridget Kearns Sabo, Assistant Public Defender, (for appellant).
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
Appellant Laine Antoine Jenkins challenges his conviction of fifth-degree possession of a controlled substance. Appellant argues police conducting surveillance at a bar for an unrelated controlled buy who saw appellant meet a man outside the bar and give him a package did not have articulable suspicion to seize appellant by asking him to leave the bar and answer their questions. Appellant argues that the fact the bar is known for drug dealing and is located in a high-crime area did not justify the stop. Finally, appellant argues that these facts did not create a reasonable suspicion that appellant might be armed so as to justify a pat search. We affirm.
FACTS
Appellant was arrested on November 5, 2002, after police found him in possession of more than 42.5 grams of marijuana. Appellant moved to suppress the marijuana on grounds that the search and seizure was unconstitutional. The district court denied appellant's motion to suppress. Appellant then waived his right to a jury trial, agreed to submit stipulated facts to the district court for a Lothenbach proceeding, and was found guilty of possession of marijuana in violation of Minn. Stat. § 152.025, subd. 2(1) and 3(a) (2002). The district court sentenced appellant to a 13-month stayed sentence and 5 years' probation. On appeal, appellant challenges the district court's denial of his motion to suppress.
1. The Rasmussen hearing
On September 18, 2003, the district court conducted a Rasmussen hearing to determine the constitutionality of the search and seizure of appellant and the marijuana. The only witness was Officer Perkins (Perkins) of the St. Paul Police Department. Perkins was the arresting officer, and his signature appears on the investigative report detailing the circumstances surrounding appellant's arrest.
Perkins testified that on November 5, 2002, he was — in conjunction with the Ramsey County Sheriff's narcotics unit and the Minneapolis Police Department — conducting surveillance at Arnellia's bar in St. Paul. The officers were watching Arnellia's because the Minneapolis police had "scheduled or arranged to make a drug buy" at the bar. Arnellia's "has a long history of drug traffic; there's been some shootings there, both inside and out. . . . [A] high number of police calls are serviced there."
Perkins stated that there were six or eight officers involved, but, at approximately 5 p.m., "the actual transaction Minneapolis had arranged got moved to a different location," so the Minneapolis officers left. Four officers remained at Arnellia's. A short time later, Perkins observed a black male with braided hair (identified in court as appellant) "standing in front of the bar [talking] on his cell phone." Five or ten minutes later, another man arrived at Arnellia's and parked in front of the bar. Appellant and the other man spoke for a short time; they walked around the side of the bar to a car parked in the lot; appellant retrieved a package and gave it to the man; and the other man returned to his car and drove away. Perkins testified that, at this point, the officers agreed that they "had just observed a drug transaction."
Perkins and two other officers then decided to go into the bar and question appellant. Perkins testified that one of the other officers asked appellant, in a "conversational tone," to "please come outside and talk with us." Appellant agreed, and Perkins stated that, once he was "five to ten feet" outside of the bar, he "could smell a strong smell of marijuana" on appellant's person. Perkins also testified that he was concerned about the possibility of weapons because Arnellia's is "well known for gunfire" and stated, "I began to pat [appellant] down for my own safety." At this point in the hearing, the following exchange took place between Perkins and the prosecutor:
Q: Now, as you started the pat-down search, did you make any visual observations of anything unusual in or about [appellant's] person?
A: I could see that there was a large bulge in the right front pocket of [appellant's] jacket.
. . . .
Q: Okay. Now, what did you do upon visually observing this large bulge in his left coat pocket?
A: I patted it down, along with the rest of his clothing, I just patted it.
. . . .
Q: And in the course of pressing or patting there on that bulging object, what did you discern? What did your senses discern?
A: Well, when I actually patted it, it caused some air to escape from the pocket and a pungent odor of marijuana came out of his pocket, and that led me to believe that that was probably what I was feeling, a bag of marijuana in his pocket.
Q: Did the patting or pressing tell you anything about the texture of the object?
A: Well, it had the crunchy texture that bulk marijuana has. If you pick up a large bag of marijuana in its bulk form, it has a crunchy texture.
Q: Did you end up taking out this object?
A: Yes, I did.
Perkins stated that, at this point, he determined that the package contained marijuana and he placed appellant under arrest for possession of marijuana.
On cross-examination, Perkins stated that he had not received any specific complaints about Arnellia's Bar or appellant on the day of the investigation, nor had Perkins ever heard of appellant prior to that day. Perkins testified that, when they entered Arnellia's, the three officers identified themselves to appellant with their "police ID cards and badges"; that none of the officers told appellant he was free to leave; that appellant was cooperative; that Perkins wrote his investigative report on the evening of appellant's arrest; and that it was "fair to say" that his memory was "more refreshed" when he wrote the report than on the day of the hearing. Appellant's counsel and Perkins also had the following exchange:
Q: So, is it fair to say that your police report you wrote later that evening on November 5 is more accurate than your testimony today?
A: Yes, it is.
Q: And you wouldn't dispute what you wrote in the police report, saying "I squeezed on the bulge."?
A: I'm sorry, I — I'm not sure I understand your question.
Q: Would it help you, Officer, if you took a look at your police report to refresh your memory? Towards the bottom of your report, on the first page.
A: Okay.
Q: In the report, Officer, you wrote that you "squeezed the bulge," correct?
A: I don't know if that's the best characterization, it was a pat. I mean, I didn't squeeze it, it wasn't a firm squeeze, I patted it.
On re-direct, Perkins agreed with the prosecutor that "another type of `squeeze' would be to squeeze something up against something" and stated that when he wrote "squeeze" in his report, "[w]hat I was saying is that I pressed it firmly against his leg and squeezed it, I guess, is what I mean." And by "squeeze" he did not mean "probing or prodding."
2. The district court's oral opinion
On October 31, 2003, the district court denied appellant's motion to suppress. The court found that, after Perkins "was informed by the other officers that they believed a drug purchase had just taken place," he and several officers "went into the bar . . . and confronted or approached [appellant] and asked him — indicated they wanted to talk with him and asked him if he would come outside with them." The court also noted that "as soon as they got outside the building, Officer Perkins noted a smell of marijuana, which he hadn't noticed before, and he also noticed a large bulge in [appellant's] pocket of his jacket or coat or whatever he was wearing." The court then stated that
because of the smell of marijuana and — but primarily because of the bulge that he saw in the pocket, Officer Perkins indicated that he was concerned for his safety and told [appellant] he was going to do a pat-down search. And, in the process of doing this pat-down search, while patting down the outer garments of [appellant], he noted an increased smell and odor of marijuana and felt the crunchy texture of leaves of marijuana, which he indicated that he had had experience in dealing with.
The court also held that "the police officer did not manipulate the package in an unconstitutionally improper way and that he was fully aware of his responsibility to not manipulate the package, but to simply pat down the area to determine whether there was any kind of threat to his safety or contraband present."
As noted above, after the district court denied his motion to suppress, appellant waived his right to a jury trial and agreed to submit his case in a Lothenbach proceeding. The district court subsequently found appellant guilty and sentenced him in accordance with the guidelines. This appeal follows.
DECISION
On review of a pretrial suppression order, a district court's factual determinations are given great, but not unlimited, deference. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992) ( Dickerson I), aff'd, 508 U.S. 366, 113 S. Ct. 2130 (1993). And this court may independently examine the facts and determine as a matter of law whether the district court erred in its decision. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).
1. Reasonable, articulable suspicion for seizure
At issue here is whether appellant's Fourth Amendment rights were violated when police frisked him outside of Arnellia's bar, found him in possession of marijuana, and then arrested him. It is axiomatic that the Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S. Ct. 2130, 2135 (1993) (quotation omitted) ( Dickerson II). In addition, searches and seizures "conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well delineated exceptions." Id. (quotation omitted).
One exception to the strictures of the Fourth Amendment was articulated by the U.S. Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968). The Court held that "where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot," the officer may briefly stop the suspicious person and make "reasonable inquiries" aimed at confirming or dispelling his suspicions. Id. at 30, 88 S. Ct. at 1884. But "in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21, 88 S. Ct. at 1880.
Appellant first argues that he was unconstitutionally seized because the police did not have the necessary reasonable, articulable suspicion to stop him. But the record indicates that a number of officers witnessed appellant deliver a package to another man outside of Arnellia's immediately after appellant was seen talking on his cell phone. When combined with Perkins's statement that Arnellia's "has a long history of drug traffic" and his experience with the Ramsey County narcotics unit, this factual situation satisfies the test for reasonable, articulable suspicion in Minnesota. See Dickerson I, 481 N.W.2d at 843 (holding that evasive conduct, later described as "suspicious behavior," combined with "departure from a building with a history of drug activity," justified a stop).
2. Justifying the pat-down
Appellant next argues that even if Perkins had reasonable, articulable suspicion to stop appellant and question him, there was no justification for the pat-down search. But it is well settled that "[a]n officer may conduct a limited protective weapons frisk of a lawfully stopped person if the officer reasonably believes that the suspect might be armed and dangerous and capable of immediately causing permanent harm." State v. Varnado, 582 N.W.2d 886, 889 (Minn. 1998) (citing Terry, 392 U.S. at 27, 88 S. Ct at 1883). In addition, the Minnesota Supreme Court has held that suspicious behavior, when coupled with a notorious location and the observations of an experienced officer, may give rise to reasonable suspicion justifying a pat-down search. See Dickerson I, 481 N.W.2d at 843 (holding that police were justified in frisking the suspect because (1) he exhibited "suspicious behavior," (2) in an area with a history of drug activity, and (3) the officer had personal experience in seizing guns from the building that the suspect exited).
Here, as noted above, a number of officers witnessed appellant give a package to another man outside of Arnellia's bar immediately after appellant was talking on his cell phone. This behavior could be deemed "suspicious" considering the circumstances. See id. Perkins also testified that he knew a number of shootings had taken place at Arnellia's "both inside and out. . . . [A] high number of police calls are serviced there." Accordingly, we find that a pat-search of appellant was justified. See Varnado, 582 N.W.2d at 891 (noting that officer safety is a paramount interest for the courts in analyzing such claims).
3. The "plain feel" exception
Relying on Dickerson II, appellant next argues that even if it was proper to frisk him for weapons, the scope of Perkins's pat search exceeded the permissible boundaries of a Terry stop. Appellant's reliance on Dickerson II is misplaced. In Dickerson II, the U.S. Supreme Court affirmed the Minnesota Supreme Court's finding that an officer exceeded the scope of the "plain feel" doctrine because he determined that the lump in the suspect's pocket was contraband only after "squeezing, sliding and otherwise manipulating the contents of the . . . pocket — a pocket which the officer already knew contained no weapon." 508 U.S. at 378, 113 S. Ct. at 2138 (quotation marks omitted). But the Dickerson II court also held that
[i]f a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.
Dickerson II, 508 U.S. at 375-76, 113 S. Ct. at 2137; see also Harris, 590 N.W.2d at 104 ("[I]f, during the course of [a] protective pat-down search, an officer locates what he immediately and without further manipulation has probable cause to believe is evidence of a crime, then the officer may legally seize that evidence."); State v. Burton, 556 N.W.2d 600, 603 (Minn.App. 1996) (holding that there is "no compelling reason why Minnesota should not adopt the `plain feel' exception to the Minnesota Constitution"), review denied (Minn. Feb. 26, 1997).
Here, the district court was faced with conflicting evidence regarding Officer Perkins' treatment of the bulge in appellant's jacket. Perkins testified on direct examination that he "patted" the bulge. His original report, on the other hand, indicates that he "squeezed on the bulge and noted it had a crunchy texture." And, on cross-examination, Perkins agreed that his initial, contemporaneous report was more accurate than his trial testimony and that he did not dispute that the report says he "squeezed" the bulge. But Perkins also testified on cross-examination that "it was a pat. I mean, I didn't squeeze it, it wasn't a firm squeeze, I patted it." Further, on re-direct examination, Perkins agreed with the prosecutor that "another type of `squeeze' would be to squeeze something up against something" and stated that, when he wrote "squeeze" in his report he meant "that [he] pressed it firmly against [appellant's] leg and squeezed it."
After hearing all of the testimony, the district court found that "the police officer did not manipulate the package in an unconstitutionally improper way and that he was fully aware of his responsibility to not manipulate the package, but to simply pat down the area to determine whether there was any kind of threat to his safety or contraband present."
Clearly, the district court's ultimate conclusion — that Perkins "did not manipulate the package in an unconstitutionally improper way" — indicates that the court credited Perkins's statements that he merely "patted" the bulge and determined it to be contraband, rather than focusing on the language of his initial report, which used the term "squeezed." It is well settled that issues of credibility and the weight of evidence are appropriately decided by the factfinder. See Dickerson I, 481 N.W.2d at 843 ("The credibility of witnesses and the weight to be given their testimony are determinations to be made by the factfinder." (quoting DeMars v. State, 352 N.W.2d 13, 16 (Minn. 1984))). Accordingly, we affirm.