State of Minnesota v. Kevin Earl Westergaard

• Court: Court of Appeals of Minnesota
• Decided: February 29, 2016
• Docket: A15-582
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA IN COURT OF APPEALS A15-0582

State of Minnesota, Respondent,

vs.

Kevin Earl Westergaard, Appellant.

Filed February 29, 2016 Affirmed Rodenberg, Judge

Hennepin County District Court File No. 27-CR-14-20817

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Rodenberg, Judge; and

Hooten, Judge.

UNPUBLISHED OPINION

RODENBERG, Judge

On appeal from his conviction of being a prohibited person in possession of a

firearm, appellant Kevin Earl Westergaard argues that district court erred in denying his motion to suppress evidence because police officers unlawfully seized and subsequently

pat searched him. We affirm.

FACTS

On July 18, 2014, at approximately 10:00 p.m., Minneapolis police officers

Andrew Carigiet and Justin Young were on patrol when they were dispatched to assist in

locating one or two unknown males suspected to have been tampering with motor

vehicles. The suspect(s) had fled from a truck which had its “VIN plate” (vehicle

identification number) altered, indicating that the truck or its parts had likely been stolen.

Officers Carigiet and Young joined other officers searching a “broad area” for the

suspect(s).

One male believed to be involved in the vehicle tampering was apprehended by

other officers. As the search continued, Officers Carigiet and Young were dispatched to

a residence near the vehicle tampering to recover possible videotape evidence from a

home security system. En route, and within blocks of where the vehicle tampering had

been reported, the officers observed a Cadillac legally parked, with its lights off, under a

tree and away from any streetlights on a quiet residential street that “has very few calls

for service.” The Cadillac was the only vehicle parked on the street. The officers took

notice because the Cadillac was not parked near any driveway or sidewalk, which they

thought was unusual at that hour. The officers shone their squad car’s spotlight on the

Cadillac as they pulled up to it. They observed a person in the driver’s seat and two

people in the back seat, which “raised concerns” because “usually . . . one person [is

2 sitting] in the back and two people [are sitting] in the front.” The officers also observed

that the Cadillac’s rear passenger door was open.

Believing that the Cadillac might be related to the tampering case, the officers

pulled their marked squad car alongside and to the front of the Cadillac, parking near the

Cadillac’s front left bumper. The officers did not activate their squad car’s emergency

lights.1 Uniformed and armed, the officers approached the Cadillac. Officer Carigiet

observed a person later identified as appellant “slumping” or “sinking” down into the

back seat. Based on his training and experience as a police officer, Officer Carigiet

thought such behavior was indicative of a person attempting to avoid or evade police

contact.

Officer Carigiet asked the female driver to roll down her window. He informed

the Cadillac’s occupants that the officers were investigating recent vehicle tampering in

the area. Speaking in what he described as a normal tone, Officer Carigiet asked the

occupants what they were doing in that location, and requested identification. The two

female occupants stated that they were just parked there and handed the officer their

identification. Appellant stated that he did not have identification with him. He

“muttered something” to the female in the back seat. Appellant appeared to be

1 Officer Carigiet testified that he did not recall whether the emergency lights were on, but stated that the squad video would have automatically started if they had been activated, and the squad video did not activate. Officer Young testified that the emergency lights were not on. Based on Officer Young’s testimony and the lack of a squad video in this case, the district court found as a fact that the emergency lights were not activated.

3 intoxicated. The driver told the officers that appellant had just been picked up and that he

was “wasted.”

After indicating that he did not have identification, appellant shifted his weight to

his right side and began rummaging through his pockets. Concerned that appellant might

be armed, Officer Carigiet went around to the passenger’s side of the Cadillac and asked

appellant to exit the vehicle. Officer Young continued to talk with the driver, who asked

if she could exit the Cadillac and nodded towards the back seat several times. Officer

Young believed the driver to be communicating nonverbally that she did not want the

back-seat occupants to hear what she planned to tell him. Concerned for his and his

partner’s safety because of appellant’s suspicious actions and apparent intoxication,

Officer Carigiet performed a protective frisk of appellant. Officer Carigiet discovered a

loaded handgun in appellant’s right-back pocket. Officer Carigiet handcuffed appellant

and placed him in the squad car. It was later determined that appellant was prohibited

from possessing firearms, and he was therefore charged under Minn. Stat. § 624.713,

subd. 1(2) (2012).

Before trial, appellant moved to suppress the firearm as the fruit of an

unconstitutional search and seizure and, derivatively, to dismiss the complaint for want of

probable cause. At the Rasmussen hearing, State ex rel. Rasmussen v. Tahash, 272 Minn.

539, 141 N.W.2d 3 (1965), the district court heard testimony from Officers Carigiet and

Young and another officer investigating the vehicle tampering. It denied appellant’s

suppression motion. Appellant waived his trial rights, and the parties submitted the case

4 to the district court on stipulated facts.2 The district court found appellant guilty and

sentenced him to 60 months in prison. This appeal followed.

DECISION

Appellant argues that the district court erred in denying his motion to suppress the

firearm seized from him. “When reviewing a district court’s pretrial order on a motion to

suppress evidence, [an appellate court] review[s] the district court’s factual findings

under a clearly erroneous standard and the district court’s legal determinations de novo.”

State v. Gauster, 752 N.W.2d 496, 502 (Minn. 2008) (quotation omitted). If the relevant

facts are undisputed, we apply a de novo standard of review to a district court’s

conclusion that a seizure is justified by a reasonable, articulable suspicion. State v.

Diede, 795 N.W.2d 836, 843-44 (Minn. 2011).

Moment of seizure

Appellant argues that he was seized when the officers shone their spotlight on, and

parked their marked squad car near the front bumper of, the vehicle he was occupying,

and approached that vehicle while armed and in uniform. He maintains that the officers

did not have a reasonable, articulable suspicion of criminal activity justifying the

investigatory detention of the vehicle.

Both the Minnesota and United States Constitutions protect individuals from

unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A

2 The parties identified the proceedings as a “Lothenbach trial” on the record, but appellant’s signed waiver of his trial rights made reference to a stipulated-facts trial under Minn. R. Crim. P. 26.01, subd. 3. No argument is made in the briefing that this apparent incongruity has any effect on the merits of this appeal.

5 seizure occurs “‘when the officer, by means of physical force or show of authority, has in

some way restrained the liberty of a citizen.’” In re Welfare of E.D.J., 502 N.W.2d 779,

781 (Minn. 1993) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16,

(1968)). When analyzing whether a seizure has occurred, we determine whether a police

officer’s actions would lead a reasonable person under the same circumstances to believe

that he was not free to leave. State v. Hanson, 504 N.W.2d 219, 220 (Minn. 1993).

Whether a seizure has occurred depends on the totality of the circumstances using a

reasonable-person standard. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

Circumstances that may indicate a seizure took place include “the threatening presence of

several officers,” an officer’s display of a weapon, physical touching of the person, or

“language or tone of voice indicating that compliance with an officer’s request might be

compelled.” E.D.J., 502 N.W.2d at 781-83 (first quoting and citing United States v.

Mendenhall, 446 U.S. 544, 554-55, 100 S. Ct. 1870, 1877 (1980); and then citing Florida

v. Royer, 460 U.S. 491, 501, 103 S. Ct. 1319, 1326 (1983)).

There is no seizure for constitutional purposes when an officer walks up to an

already stopped car and converses with the driver. State v. Vohnoutka, 292 N.W.2d 756,

757 (Minn. 1980); Crawford v. Comm’r of Pub. Safety, 441 N.W.2d 837, 839 (Minn.

App. 1989). “Nor does a seizure occur simply because a person feels some ‘moral or

instinctive pressure to cooperate’ with the officer.” Illi v. Comm’r of Pub. Safety, ___

N.W.2d ___, ___, No. A15-0359, 2015 WL 9264036 at *2 (Minn. App. Dec. 21, 2015)

(quoting Harris, 590 N.W.2d at 99). Because the Cadillac was already stopped before

any police involvement, and because the officers’ approach was not itself a seizure, “we

6 must consider whether the officer’s pre-approach conduct constituted a seizure.” Illi,

2015 WL 9264036 at *2.

Appellant argues that he was seized when the officers “parked their marked squad

car in a manner indicating that the [Cadillac] was not free to leave.” An officer’s

blocking of a vehicle may constitute a seizure, because such police action might indicate

to a reasonable person that the person is not free to leave. But here, the district court did

not find, nor do the facts suggest, that the Cadillac was blocked in by the squad car so as

to prevent it from being able to leave. See Illi, 2015 WL 9264036 at *2 (citing State v.

Sanger, 420 N.W.2d 241, 243 (Minn. App. 1988)). The officers parked the squad car

near the left-front bumper of the Cadillac because they were driving past the vehicle with

no intention of seizing it or stopping near it until they observed it to be occupied. The

district court did not find, nor does the record support, that the squad car was parked so as

to prevent the Cadillac from moving. See State v. Lopez, 698 N.W.2d 18, 22 (Minn. App.

2005) (the use of a squad car to block a parked vehicle generally constitutes a seizure);

Sanger, 420 N.W.2d at 242 (stating that the officer, “by his own admission, parked his

squad car in such a position that [the defendant] could not exit”). The officers’ parking

their squad car as they did alongside and near the front-left bumper of the Cadillac did

not constitute a seizure.

Appellant also argues that the officers’ use of the squad car’s spotlight to

illuminate the Cadillac, together with other factors, amounted to a seizure. This argument

fails. As we recently held in Illi, an officer shining a squad car’s spotlight on an already

stopped car before approaching it on foot does not constitute a seizure. Illi, 2015 WL

7 9264036 at *4. Further, as Illi recognizes, an officer’s actions in parking his marked

squad car within feet of the individual’s vehicle, shining a spotlight on it, and

approaching the driver does not constitute a seizure. Illi, 2015 WL 9264036 at *2-4.

Appellant argues that the officers’ approaching the Cadillac “in full uniform with

their semi-automatic handguns visible, in a show of authority” constituted a seizure. In

State v. Day, we held that “the summoning by the police officer, who was in uniform and

armed, requiring appellant to approach the officer’s squad car to provide identification

and to respond to questioning, constitutes a restraint and seizure under the fourth

amendment.” 461 N.W.2d 404, 407 (Minn. App. 1990), review denied (Minn. Dec. 20,

1990). Day is distinguishable. There, the police officer required the driver to approach

the squad car and respond to questioning. Id. Here, the officers approached the vehicle.

They did not command the Cadillac’s occupants to do anything at that point. Instead,

they walked up to a parked vehicle. While the officers were visibly armed, there is no

evidence that they actively displayed their service revolvers. See E.D.J., 502 N.W.2d at

781 (stating that one factor indicating a seizure has occurred is “the display of a weapon

by an officer”).

An officer does not seize every person whom the officer approaches simply by

wearing a uniform and carrying a service revolver. Appellant would seemingly advocate

adoption of a rule of law requiring officers to change out of their uniform and discard

their service weapons before approaching stopped vehicles or people they might pass on

the street. There is no such rule of law and we decline to adopt one. See State v.

8 Patterson, 796 N.W.2d 516, 533 (Minn. App. 2011) (stating that this court is an “error

correcting court”) (quotation omitted), aff’d, 812 N.W.2d 106 (Minn. 2012)

Appellant was not seized when the officers shone their squad-car light on, and

then parked their marked squad car near the front bumper of, the vehicle appellant was

occupying. Nor was appellant seized when the officers approached the Cadillac while

armed and in uniform.

Reasonable suspicion to frisk

Appellant argues that Officer Carigiet lacked reasonable, articulable suspicion

sufficient to justify a pat search, and that he was “obviously intoxicated” and could have

been searching for identification in response to the officers’ request.

The Fourth Amendment to the United States Constitution and article I, section 10

of the Minnesota Constitution guarantee an individual’s right to be free from

unreasonable searches and seizures. State v. Jackson, 742 N.W.2d 163, 174-75 (Minn.

2007). Evidence seized in violation of the constitution must generally be suppressed. Id.

at 177-78. “Warrantless searches are generally unreasonable unless they fall within a

recognized warrant exception.” State v. Ortega, 770 N.W.2d 145, 149 (Minn. 2009).

One of the exceptions to the warrant requirement is for protective pat-down searches on

the outside of a suspect’s clothing to find weapons. Terry v. Ohio, 392 U.S. 1, 29-31, 88

S. Ct. 1868, 1883-85 (1968). Under Terry, police officers “may stop and frisk a person

when (1) there is a reasonable, articulable suspicion that a suspect might be engaged in

criminal activity and (2) the officer reasonably believes the suspect might be armed and

dangerous.” State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff’d, 508 U.S. 366,

9 113 S. Ct. 2130 (1993). “The purpose of this limited search is not to discover evidence of

crime, but to allow the officer to pursue his investigation without fear of violence . . . .”

Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 1923 (1972).

Having lawfully approached the Cadillac in which appellant was seated, the

officers observed several things about appellant that reasonably concerned them.

Appellant was slumping down as if to avoid the police, he was intoxicated, and he

seemed to be fidgeting with something in his pocket despite having said that he had no

identification with him. The Cadillac was the only vehicle parked on a street located

within blocks of the vehicle-tampering report, and one or two male suspects had fled

approximately 40 minutes earlier. Only one person had been apprehended, and police

were still looking for another possible suspect. There was a person in the Cadillac’s

driver’s seat and two people in the back seat. The Cadillac, parked away from any

sidewalks or driveways, had its rear passenger door open. The woman in the driver’s seat

seemed to be signaling to Officer Young that she wished to talk with the officer away

from her passengers. The totality of the circumstances was sufficient to support Officer

Carigiet’s enunciated suspicion of criminal activity.

Appellant’s rummaging in his pockets after having disclaimed possession of any

form of identification also reasonably alerted Officer Carigiet that appellant might be

armed. The furtive movements that an officer observes provide a reasonable basis for

conducting such a protective pat search. See State v. Flowers, 734 N.W.2d 239, 252

(Minn. 2007) (concluding that “suspicious movements” in the vehicle gave officers

reasonable suspicion that defendant might have been armed and dangerous); Dickerson,

10 481 N.W.2d at 843 (stating that evasive conduct may give rise to reasonable suspicion).

Officer Carigiet was reasonably concerned for his and his partner’s safety because the

two officers were encountering three people, one of whom was apparently intoxicated

and remained unidentified. Other officers in the area were still occupied with the search

for a suspect in the vehicle tampering. We conclude that Officer Carigiet had ample

cause to pat search appellant in these circumstances.

Appellant argues that his fidgeting with his pockets might have been in response

to the officer’s request for identification, and that Officer Carigiet was not truly

concerned because he did not alert Officer Young or call for back-up. These arguments

are unavailing. “A determination that reasonable suspicion exists . . . need not rule out

the possibility of innocent conduct.” United States v. Arvizu, 534 U.S. 266, 277, 122 S.

Ct. 744, 753 (2002). The district court did not err in determining that Officer Carigiet

had reasonable, articulable suspicion under Terry supporting the pat search of appellant.

We therefore affirm its denial of appellant’s motion to suppress.

Affirmed.