State of Minnesota, Respondent, vs. Anthony James Neumann, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1941

 

State of Minnesota,
Respondent,
 
vs.
 
Anthony James Neumann,
Appellant.

 

Filed November 9, 2004

Affirmed

Huspeni, Judge*

 

Houston County District Court

File No. K6-02-299

 

 

Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Richard W. Jackson, Jr., Houston County Attorney, Houston County Courthouse, 304 South Marshall Street, Caledonia, MN 55921 (for respondent)

 

Mark D. Nyvold, 332 Minnesota Street, Suite W-1610, St. Paul, MN 55101 (for appellant)

 

 

            Considered and decided by Randall, Presiding Judge; Stoneburner, Judge; and Huspeni, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

HUSPENI, Judge

 

In this appeal from a conviction of two counts of unlawful possession of a controlled substance and failure to affix tax stamps, appellant challenges the district court's refusal to suppress all evidence and dismiss the charges.  Appellant argues that the traffic stop, request to see the concealed object in the back seat, pat-down search, and search of appellant's car were in violation of his constitutional rights and, thus, the evidence obtained should be suppressed.  Because we conclude that the district court did not err in denying appellant's request to suppress the evidence and dismiss the charges, we affirm.

FACTS

 

Minnesota State Patrol Officer Kelley McGraw, while traveling on a two-lane gravel road, observed a passenger car, which was driving behind a pickup truck, pull into the opposing lane to pass the pickup truck.  The pickup truck driver then turned on his left turn signal.  Trooper McGraw testified that there was sufficient time for the passenger car to pull behind the pickup truck and wait for it to complete its turn.  But, instead, the car accelerated and passed the pickup truck.

Trooper McGraw turned on the emergency lights and activated an in-car camera, which is located along the top of the windshield and to the right of the rearview mirror.  Before the car pulled over, Trooper McGraw observed the "driver nearly climb out of the driver's seat placing something or retrieving something from the back seat and then leaning back in."  This furtive movement made Trooper McGraw concerned for his safety.  When the car stopped, Trooper McGraw approached and noticed there was a distorted shape under a sweater in the back seat located in the same area as the driver made the furtive movement.

Trooper McGraw also noticed that the driver's window was rolled down only three inches, enough for the driver, appellant Anthony James Neumann, to hold out his license and insurance card.  Appellant was avoiding eye contact, but the trooper observed that appellant had reddened eyes and dilated pupils.  In addition, appellant was taking heavy drags off a freshly lit cigarette and in between drags was breathing heavy.  The passenger in the car had a cigarette in her hand, another partially smoked cigarette was still burning in the ashtray, and the ashtray was full of cigarettes butts.  Based on his training, Trooper McGraw was aware that cigarette smoke is used to mask the odor of alcohol and narcotics.

Trooper McGraw asked appellant what he had hidden in the back seat.  Appellant denied having hidden anything.  After several such exchanges, Trooper McGraw said he would give appellant one more opportunity to show him what was under the sweater before the drug detection canine was called to the scene.  Appellant, after responding "if I show you what it [is] will you be happy?" reached back and produced a pickle jar from under the sweater.  The jar contained a small amount of marijuana.  Trooper McGraw then wrote tickets for possession of a small amount of marijuana and drug paraphernalia.  He then had appellant exit the car and performed a pat-down search.  Following the search, appellant was placed under arrest and Trooper McGraw searched the trunk of appellant's car.  Ten one-gallon zip-locked bags of marijuana were inside a green bag in the trunk. 

At a contested omnibus hearing, appellant's motion to suppress all evidence seized from the car was denied.  The parties agreed to a Lothenbach trial, and appellant was found guilty of possession of marijuana with intent to sell in violation of Minn. Stat. § 152.025, subd. 1(1) (2000); possession of marijuana in violation of Minn. Stat. § 152.025, subd. 2(1) (2000); and failure to affix tax stamps in violation of Minn. Stat. § 297D.09, subd. 1 (2000).  This appeal followed.

D E C I S I O N

 

When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing or not suppressing the evidence.  State v. Askerooth, 681 N.W.2d 353, 359 (Minn. 2004); State v. Harris, 590 N.W.2d. 90, 98 (Minn. 1999).  This court accepts the district court's findings of fact unless they are clearly erroneous, giving due weight to the inferences drawn from those facts by the district court.  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000); State v. Lee, 585 N.W.2d 378, 383 (Minn. 1998).  The legality of a limited investigative stop and questions of reasonable suspicion are reviewed de novo.  State v. Syhavong, 661 N.W.2d 278, 281 (Minn. App. 2003) (citing State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999)).

Appellant first challenges the traffic stop of his car, arguing that Trooper McGraw acted on a mere whim.  We find this argument to be without merit.  A police officer may make an investigative stop of a motor vehicle if the officer has a specific and articulable basis to suspect that the driver has violated a traffic law.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).  An actual violation of the vehicle and traffic laws is not required.  Marben v. Dep't of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980).  "The police must only show that the stop was not the product of mere whim, caprice or idle curiosity, but was based upon ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.'"  State v. Pike, 551 N.W.2d 919, 921-22 (Minn. 1996) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)).  Unsafe passing is a violation of Minn. Stat. §§ 169.13, subd. 2, and .18, subd. 3(1) (2000).  Minn. Stat. § 169.13, subd. 2, states "[a]ny person who operates or halts any vehicle upon any street or highway carelessly . . . or in a manner that endangers or is likely to endanger any property or any person . . . is guilty of a misdemeanor."  Similarly, a hazardous pass violates Minn. Stat. § 169.18, subd. 3(1), because "the driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance."

Here, the trial court credited Trooper McGraw's testimony that he observed appellant pull into the opposing lane of a two-lane gravel road preparing to pass the pickup truck, that after the pickup truck turned on its left turn signal appellant had sufficient time to yield to the pickup truck by pulling behind the pickup truck and waiting for the pickup truck to complete its turn, and that, instead, appellant accelerated and passed the signaling pickup truck, which turned left immediately after appellant overtook it.  Thus, there was sufficient evidence to support the determination of the trial court that the pass of the pickup truck was hazardous and the stop of appellant's car was justified.

Appellant next argues that because the videotape taken by the dash-mounted camera in the trooper's vehicle did not clearly show appellant move his arm back and to the right, the trial court erred in finding that appellant made a furtive movement.  We find no error.  This court accepts the district court's findings of fact unless they are clearly erroneous.  Britton, 604 N.W.2d at 87.  Furthermore, this court defers to the fact-finder ondeterminations of credibility.  Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).  The trial court, in determining that appellant made a furtive movement, assessed the credibility of Trooper McGraw's testimony.  The overall quality of the videotape is poor, but nonetheless it supports the court's finding, because it shows appellant make some movements.  As respondent notes, it is possible that Trooper McGraw observed appellant's furtive movement before the in-car camera was activated and could detect and record the movement.  Therefore, the trial court's finding that appellant made a furtive movement is supported by the record and is not clearly erroneous.

Appellant further argues that Trooper McGraw lacked reasonable, articulable suspicion to expand the scope of the initial traffic stop and request that appellant produce the item in the back seat.  We disagree.  Police officers may conduct a limited protective weapons search of a lawfully stopped person if they have reasonable suspicion to believe the person may be armed and dangerous.  State v. Varnado, 582 N.W.2d 886, 889 (Minn. 1998) (citing Terry, 392 U.S. at 21, 88 S. Ct. at 1880).  The same authority extends to a protective search of an automobile for weapons.  State v. Waddell, 655 N.W.2d 803, 810 (Minn. 2003).  In Waddell, the Minnesota Supreme Court applied Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469 (1983), holding that 

[a] protective search of the passenger compartment of the vehicle, limited to those areas in which a weapon may be placed or hidden, is permissible if the officer possesses a reasonable belief, based on specific and articulable facts, that the suspect is dangerous and may gain immediate control of a weapon.

 

Id.

"[P]olice officers may not ordinarily make searches upon apprehending motorists for simple traffic violations or upon the slightest hint of illegality."  Varnado, 582 N.W.2d at 889 (quotation omitted).  The court considers the totality of the circumstances to determine whether a protective weapons search is reasonable.  Appelgate v. Comm'r of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987).  In arriving at a reasonable suspicion of dangerous activity, an officer may make inferences and deductions that might elude an untrained person.  Id.  But the officer must demonstrate objective facts to justify that suspicion; the officer may not base the suspicion on a mere hunch.  State v. Cripps, 533 N.W.2d 388, 391-92 (Minn. 1995).

The trial court found reasonable, articulable suspicion to justify a protective weapons search based on the appellant's furtive movement, the bulge under a sweater in the area of appellant's furtive movement, and the trooper's actual concern for his safety.  Although it may reasonably be argued that the trooper placed himself in greater danger by requesting that appellant retrieve the item, a possible weapon, from the back seat, we conclude nonetheless that the trial court acted within its broad discretion in determining that the trooper was justified in acting as he did prior to retrieval of the pickle jar.  

An officer can expand the scope of a routine traffic stop if the officer has reasonable, articulable suspicion of criminal activity.  Askerooth, 681 N.W.2d at 363; State v. Fort, 660 N.W.2d 415, 419 (Minn. 2003).  Here, the trooper asked appellant to retrieve the item in the back seat based on (1) appellant's furtive movement to hide something; (2) a strong odor of cigarette smoke emanating from the vehicle and an attempt to mask an odor by smoking rapidly while a partially lit cigarette was in the ashtray; (3) reddened and dilated eyes; (4) avoiding eye contact; and (5) avoiding communicating with the trooper by rolling his window down three inches, only enough to hand the trooper his license and insurance.  Based on the totality of the circumstances, the officer had reasonable suspicion to expand the scope of the search and seek consent to see what was under the sweater. 

The trial court also appears to have upheld the retrieval of the pickle jar from the back seat on the basis of appellant's consent.  The court stated that appellant's response to the request of the trooper was "not necessarily indicated by a person who felt coerced or threatened."  Appellant argues that there was no consent because the trooper threatened to summon a canine unit, and asked appellant three times to retrieve the item from the back seat. 

The voluntary nature of consent is a question of fact to be determined from the totality of the circumstances.  State v. Alayon, 459 N.W.2d 325, 330 (Minn. 1990) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 2047 (1973)).  "Mere acquiescence on a claim of police authority or submission in the face of a show of force is . . . not enough."  State v. Howard, 373 N.W.2d 596, 599 (Minn. 1985).  But involuntariness of consent to a police request is not to be inferred simply because the circumstances of the encounter are uncomfortable for the person.  State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994).  A district court's finding of consent will only be reversed if it is clearly erroneous.  State v. Hummel, 483 N.W.2d 68, 73 (Minn. 1992).

A threat to obtain a warrant supported by probable cause does not necessarily vitiate an otherwise voluntary consent.  United States v. Larson, 978 F.2d 1021, 1024 (8th Cir. 1992); see also State v. Hanley, 363 N.W.2d 735, 739 (Minn. 1985) (finding statement that a warrant would or could be obtained not coercive).  Trooper McGraw's statement that he could call a canine unit was supported by reasonable, articulable suspicion because of appellant's furtive movement, attempt to mask an odor with cigarette smoke, reddened and dilated eyes, avoidance of eye contact, and heavy breathing.  The statement merely informed appellant of what the trooper had a legal right to do and made him aware of his precise legal situation.

We recognize that the Minnesota Supreme Court in Dezso, 512 N.W.2d at 880-81, and State v. George, 557 N.W.2d 575, 581-82 (Minn. 1997), found that the officer's persistent questioning of the suspect resulted in involuntary consent.  But, both Dezso and George are distinguishable on their facts.  In Dezso, the officer stopped a driver for speeding and without any indication of criminal activity requested to search the driver's vehicle for weapons and controlled substances.  512 N.W.2d at 878-881.  The officer repeatedly requested to see the driver's wallet because the officer felt that the driver was trying to hide something in the wallet based on how the driver tilted the wallet away from the officer.  Id. at 879.

Here, however, Trooper McGraw had reasonable, articulable suspicion that narcotics were in the car based on appellant's furtive movement, attempt to mask odor, reddened and dilated eyes, and avoiding eye contact.  Unlike in Dezso, appellant's movement to hide something in the back seat was observed prior to the stop.  Similarly, in George, the officers requested to search the motorcycle following a routine traffic stop and absent any additional suspicions.  557 N.W.2d at 576.  As the concurring opinion in George notes, these cases involved the supreme court's attempt to address subtle police tactics to search motorists involved in routine traffic stops.  Id. at 581-82 (Tomljanovich, J., concurring).  The Minnesota Supreme Court has given further direction on this issue in Fort and Askerooth. An officer is now required to have reasonable, articulable suspicion prior to seeking consent.  Here, an examination of the totality of the circumstances, including the nature of the encounter and the statements during the stop, supports the trial court's determination that appellant was not coerced.  Therefore, there is no clear error in the conclusion that the search was consensual. 

Finally, appellant argues that the trooper was not justified in searching the trunk of the car after appellant handed the trooper a jar containing marijuana.  Even if we were to question or find impermissible the conduct of the trooper who, after writing two tickets, declined to send appellant on his way and instead ordered him out of the car, and pat-searched and arrested him, the discovery and seizure of the trunk contents may still be upheld pursuant to the decision in State v. Bigelow, 451 N.W.2d 311, 312-13 (Minn. 1990). 

In Bigelow, the supreme court determined that the police had probable cause to search several bags in a vehicle's rear seat after lawfully discovering a bong and other contraband, which gave rise to the probable cause to search the car and bags.  Id.  According to Bigelow, "the lawful discovery of drugs or other contraband in a motor vehicle gives the police probable cause to believe that a further search of the vehicle might result in the discovery of more drugs or other contraband."  Id.  Furthermore, "if probable cause justifies the search of a vehicle for more drugs or other contraband, it justifies a search of every part of the vehicle and its contents that may conceal the object of the search."  Id. at 313; see State v. Darnall, 498 N.W.2d 295, 297-98 (Minn. App. 1993) (holding contraband found in consensual search of passenger compartment of vehicle gave officer probable cause to search trunk and passenger's knapsack in trunk).  Even though appellant argues that police need a larger amount of marijuana to justify a search of the entire vehicle, we do not read Bigelow so narrowly as to require a larger amount of marijuana than that found in appellant's car.[1]  

The trooper was justified in stopping appellant's vehicle for a hazardous pass, and had reasonable, articulable suspicion to inquire about and seize the object of appellant's furtive movements observed prior to the stop.  Further, the trial court could reasonably conclude that appellant consented to the inquiry by handing over to the trooper the pickle jar containing marijuana.  After the trooper lawfully discovered marijuana, he had probable cause to search the entire vehicle.

Affirmed.

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. 

[1] We base our affirmance of the validity of the search of the trunk and seizure of marijuana from that location on the ground that marijuana found in the pickle jar gave rise to sufficient probable cause to search the entire vehicle, not on the ground that the trooper smelled unburnt marijuana from the trunk of the car.  The unburnt marijuana was sealed in one-gallon zip-locked bags, inside a zipped duffel bag, and was located inside the trunk of the car.  It strains credulity somewhat to conclude that the odor of unburnt marijuana would be detectable under such circumstances.