State v. Lemert

829 N.W.2d 421, 2013 WL 1187954, 2013 Minn. App. LEXIS 18
Court of Appeals of Minnesota·Decided March 25, 2013·No. No. A12-0050·Published·Cited by 3 cases

Opinion

OPINION

HUDSON, Judge.

Appellant challenges the denial of his motion to suppress evidence resulting from a pat search after police stopped a truck in which he was a passenger, based on reasonable suspicion that the driver was involved in selling large amounts of methamphetamine. Based on appellant’s presence in a vehicle stopped on suspicion that its driver had recently engaged in large-scale drug activity, police had an objectively reasonable basis to pat search appellant. Accordingly, we affirm appellant’s conviction.

FACTS

Following a stop of a truck based on reasonable suspicion that the driver was involved in large-scale drug activity, police pat searched appellant Charles Lemert, who was a passenger in the vehicle, and recovered methamphetamine. The state charged appellant with one count of fifth-degree controlled-substance possession in violation of Minn.Stat. § 152.025, subd. 2(a)(1) (2010). Agents with Minnesota River Valley Drug Task Force had received information that the truck’s driver, T.A., had been dealing large amounts of methamphetamine and that on the day of the stop, T.A.’s truck had been used in a controlled buy of methamphetamine. TA’s residence was placed under surveillance, and when agents observed T.A. leave the residence in the truck, they followed him and performed the stop.

The agents ordered T.A. from the truck and placed him in a squad car. One agent also ordered appellant out of the truck and asked him to stand facing the truck. The other agent, who testified at the evidentia-ry hearing on appellant’s motion to suppress evidence, approached appellant. That agent testified that, prior to the stop, [423] he had received information from a different officer that appellant had received methamphetamine from T.A. The agent asked appellant his name; appellant replied, “Chuck.” About the same time, the agent pat searched appellant. While doing so, he felt an object in appellant’s pocket that he recognized as a pipe generally used for smoking controlled substances. The agent removed all items from appellant’s pocket, which included a glass vial containing a substance later identified as methamphetamine.

The agent testified that he did not rely on the prior information about appellant’s drug-related activity with T.A. in performing the pat search because the agents who performed the stop were unaware of appellant’s identity at the time of the stop. He testified that there was no direct evidence that appellant had been involved in the controlled buy earlier that day; he had no specific awareness that appellant possessed a weapon; and the agents had not observed appellant make any unusual or furtive movements or gestures. The agent testified that he observed a pouch on appellant’s belt, which he believed could have contained a knife or weapon, but the record is not clear that the agent saw this pouch before the pat search. He testified that he conducted the search based on officer-safety considerations, relying on a department felony-stop protocol, which directed that persons removed from a vehicle when drug transactions are involved should be pat searched because of the potential for the presence of weapons, as people involved in drug transactions often possess weapons, and the use of drugs, including methamphetamine, may cause unpredictable and erratic behavior.

The district court denied the motion to suppress, concluding that the pat search was not an unreasonable search and seizure. The district court concluded that, even though caselaw indicates that police may not conduct a frisk during every stop, the Minnesota Supreme Court has recognized that in certain circumstances, the right to frisk follows directly from the right to stop, such as when a stop involves suspected dealing in large amounts of narcotics. See State v. Payne, 406 N.W.2d 511, 513 (Minn.1987). The district court found that the following objective facts existed to justify the pat search: that T.A. sold about one-fourth of an ounce of methamphetamine earlier that day, using the truck, with the assistance of a third party named “Curt”; that T.A. sold additional methamphetamine a few days earlier; that the use of drugs, including methamphetamine, may cause unpredictable or erratic behavior; that persons in drug sales often possess weapons, including firearms; that the truck containing T.A. and appellant left T.A.’s residence, where a drug sale had occurred two days earlier; and that appellant was the sole passenger in the truck, when the purpose of the stop was to arrest T.A. for the recent drug sale. The district court conducted a stipulated-facts trial and found appellant guilty. This appeal follows.

ISSUE

Did the police have an objective basis for believing that appellant may have been armed and dangerous, justifying a pat search?

ANALYSIS

This court reviews de novo the district court’s pretrial order regarding suppression of evidence to determine whether the district court erred as a matter of law in making its decision. State v. Askerooth, 681 N.W.2d 353, 359 (Minn.2004). The United States and Minnesota Constitutions guarantee an individual the right to be secure from unreasonable [424] searches and seizures. U.S. Const, amend. IV; Minn. Const, art. I, § 10. Subject to a few exceptions, warrantless searches are per se unreasonable, Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967), but police may conduct a limited investigatory stop if an officer has a reasonable, articulable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968). Courts must “balance the government’s need to search or seize a vehicle’s occupants against the individual’s right to personal security free from arbitrary interference by law officers.” State v. Ortega, 770 N.W.2d 145, 152 (Minn.2009) (quotation omitted). The state has the burden to prove that an exception to the warrant requirement applies. State v. Ture, 632 N.W.2d 621, 627 (Minn.2001).

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State v. Lemert, 829 N.W.2d 421, 2013 WL 1187954, 2013 Minn. App. LEXIS 18 (Mich. Ct. App. 2013).

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