In the Matter of the Welfare of:  R.M., Child.

In the Matter of the Welfare of:  R.M., Child. A06-1729, Court of Appeals Unpublished, September 4, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1729

 

In the Matter of the Welfare of:  R.M., Child.

 

Filed September 4, 2007

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File Nos. 27-JV-06-4403, 27-JV-05-5878

 

Leonardo Castro, Hennepin County Public Defender,  Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant R.M.)

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant R.M. challenges his adjudication of delinquency for one count of felony possession of pistol in violation of Minn. Stat. § 624.713, subd.1(a) (2004), arguing that (1) his initial stop, subsequent frisk, and vehicle search were unlawful; (2) there is insufficient evidence to support the adjudication; and (3) the district court erred by staying appellant's out-of-home placement.  We affirm.

D E CI S I O N

I.

            On the day of appellant's arrest, an anonymous 911 caller reported seeing two individuals with ski masks pulled over their faces get out of and then return to a brown minivan in the area of 30th Avenue North and Fremont Avenue North.  The caller reported that the minivan left driving eastbound on 30th.

            An officer in the area responded to the call within a few minutes and saw a brown minivan turning westbound on 30th Avenue from Dupont.  The officer began to follow the minivan and, shortly thereafter, the van turned into an alley, pulled over, and its driver, subsequently identified as appellant, exited the minivan.

            The officer ordered appellant back into the minivan, which contained two other occupants.  After another squad car arrived, the officer removed appellant from the minivan.  Upon removal from the vehicle, the officer stated that appellant immediately told the officer that he had crack cocaine on his person.  The officer recovered the crack cocaine, secured appellant in the squad car, and searched the area of the minivan near the driver's seat where appellant had been sitting.  In the center console between the driver's and passenger's seats, the officer found a handgun.

Appellant argues that the initial stop or seizure was not supported by reasonable suspicion, and because appellant was not legitimately seized, the subsequent frisk of his person and search of the minivan were unlawful.  Appellant also argues that the frisk was improper because a reasonably prudent officer would not have been warranted in believing that the officer's safety was in danger.

When reviewing pretrial orders on motions to suppress evidence, we "independently review the facts and determine, as a matter of law, whether the district court erred in suppressingor not suppressingthe evidence."  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  Appellate courts "review de novo a [district] court's determination of reasonable suspicion as it relates to Terry stops and probable cause as it relates to warrantless searches."  In re Welfare of G.M., 560 N.W.2d 687, 690 (Minn. 1997) (footnote omitted).  When reviewing a district court's determination of the legality of a limited investigatory stop, this court reviews findings of fact for clear error.  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000). 

The test for determining whether a seizure has occurred in Minnesota is "whether a reasonable person in the defendant's shoes would have concluded that he or she was not free to leave."  In re Welfare of E.D.J., 502 N.W.2d 779, 780 (Minn. 1993).

Appellant argues that he was seized when the officer pulled into the alley behind him because the officer's squad car may have blocked the minivan's exit from the alley. But appellant has failed to substantiate this claim because neither appellant nor the officer testified regarding the nature of the alley or the vehicle's position in the alley.  Appellant's assertion that his vehicle was blocked in by the squad car is not supported by any evidence in the record.

Moreover, the record indicates that the officer did not activate the squad car lights or try to stop the minivan, prior to appellant stopping and getting out of the vehicle.  And appellant testified that he decided to stop the vehicle on his own.  Based on these facts, we conclude that appellant was not seized until he was ordered back to his vehicle.  Absent evidence that his exit was blocked or that he was ordered to pull over, a reasonable person would not conclude that they were not free to leave merely because a police car was following their vehicle.  Therefore, the district court correctly determined that appellant was not seized until he was ordered back to his vehicle.

 Appellant argues that his seizure was not supported by reasonable suspicion.  We disagree.

The United States and Minnesota Constitutions protect against unreasonable searches and seizures.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  "The brief seizure of a person for investigatory purposes is not unreasonable if an officer has a particular and objective basis for suspecting the particular person [seized] of criminal activity."  Harris, 590 N.W.2d at 99 (quotation marks omitted) (alteration in original).  "The officer may justify his decision to seize a person based on the totality of the circumstances and may draw inferences and deductions that might elude an untrained person."  Id. (quotation marks omitted).  But "a mere hunch, absent other objectively reasonable articulable facts, will not justify a seizure."  Id.  "A brief investigatory stop requires only reasonable suspicion of criminal activity."  State v. Waddell, 655 N.W.2d 803, 809 (Minn. 2003).  Minnesota cases require very little justification for an investigatory stop.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).

We must first determine "whether the stop was justified at its inception" and then determine "whether the actions of the police during the stop were reasonably related to and justified by the circumstances that gave rise to the stop."  State v. Askerooth, 681 N.W.2d 353, 364 (Minn. 2004).

Here, the officer's reasonable suspicion of criminal activity is supported by (1) the 911 call reporting that two individuals wearing ski masks exited and reentered a brown minivan in the area of 30th Avenue and Fremont Avenue; (2) the officer's stated awareness that there had been so many robberies in the area that a robbery task force had been established; (3) the geographic and temporal proximity of the minivan driven by appellant to the minivan described in the 911 call; and (4) appellant's actions in pulling into an alley as soon as the squad car pulled behind the minivan and exiting the minivan quickly thereafter.  We conclude that the totality of these circumstances gave the officer a reasonable, articulable suspicion of criminal activity. 

Appellant argues that even if the initial seizure was lawful, the subsequent frisk and removal from the minivan were unlawful because a reasonably prudent officer would not be warranted in believing that the officer's safety was in danger.  We disagree.

"An officer may conduct a limited protective weapons frisk of a lawfully stopped person if the officer has an objective articulable basis for thinking that the person may be armed and dangerous."  In re Welfare of M.D.B., 601 N.W.2d 214, 216 (Minn. App. 1999), review denied (Minn. Jan. 18, 2000). Here, the officer had an objective basis for believing that appellant may be armed. Appellant was driving a brown minivan in an area where two men wearing ski masks were recently seen driving a minivan and appellant acted in an evasive manner by immediately pulling the minivan into the alley and exiting the vehicle.  We conclude that these facts establish a reasonable articulable basis for the officer's belief that appellant may have been armed.

In addition, even if the frisk of appellant was not supported by an objective basis that he may be armed, the search is valid because appellant's statement that he had crack cocaine provided probable cause to arrest appellant.  Thus, the subsequent search of appellant was valid as a search incident to arrest.

Appellant argues that the district court's finding of fact that appellant's admission of possessing crack cocaine was unsolicited is clearly erroneous.  We disagree.  The court heard conflicting testimony from appellant and the officer and stated on the record that it found the officer's testimony credible.  Because it is the exclusive function of the fact-finder to weigh credibility, State v. Heinzer, 347 N.W.2d 535, 538 (Minn. App. 1984), review denied (Minn. July 26, 1984), and the only evidence presented regarding this issue was conflicting witness testimony, we affirm the court's finding that appellant's admission to possessing crack cocaine was unsolicited by the officer.

            A warrantless search incident to a lawful arrest is reasonable and no justification other than that required for the arrest itself is necessary to conduct such a search.  United States v. Robinson, 414 U.S. 218, 235-36, 94 S. Ct. 467, 477 (1973).  A search incident to arrest need not occur after the defendant is arrested, so long as probable cause to arrest existed prior to the search. State v. Cornell, 491 N.W.2d 668, 670 (Minn. App. 1992) ("Even if a search is conducted before the actual arrest, it is valid if (1) the arrest and the search are substantially contemporaneous, and (2) probable cause to arrest existed before the search.") (quotation marks omitted).  Probable cause to arrest exists where "the facts would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person under consideration is guilty of a crime."  State v. Carlson, 267 N.W.2d 170, 173 (Minn. 1978).

Here, appellant's statement to the officer that he had crack cocaine in his possession would lead a person of ordinary care to strongly suspect that appellant was guilty of the crime of possession of a controlled substance.  We conclude that the search of appellant that led to the discovery of the crack cocaine in his pocket was a valid search incident to arrest because it was substantially contemporaneous to his arrest and his statement provided the officer with probable cause to arrest.

Finally, appellant argues that the search of the minivan leading to the discovery of the handgun was unlawful.  We disagree.

"[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." New York v. Belton,453 U.S. 454, 460, 101 S. Ct. 2860, 2864 (1981).  As part of a search incident to arrest, an officer may search "any object capable of holding another object. . . . [including] closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like."  Id. at 460 n.4, 101 S. Ct. at 2864 n.4.  "A search incident to arrest is valid by itself and does not require any additional justification."  State v. Varnado,582 N.W.2d 886, 892 (Minn. 1998).

Here, appellant's minivan was searched only after the officer had recovered the crack cocaine, thus giving the officer probable cause to arrest appellant.  We conclude that the officer's search of the vehicle was supported by probable cause and was lawful as a valid search incident to arrest.

In conclusion, appellant's initial seizure and search were supported by reasonable suspicion and the search of the minivan was lawful as a search incident to arrest.  Therefore, the district court did not err by denying appellant's suppression motion.

II.

Appellant argues that the state did not present sufficient evidence to prove beyond a reasonable doubt that he possessed the gun found in the center console of the minivan. We disagree.

            In considering a claim of insufficiency of the evidence, our review is "limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction," was sufficient to allow the fact-finder to reach the verdict that it reached.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the fact-finder believed the state's witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  This court will not disturb the verdict if the fact-finder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

            Here, the state did not need to prove that appellant physically possessed the gun found in the center console, only that he was in constructive possession of it.  See State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975).  To prove constructive possession of contraband, the state must show "(a) that the police found the substance in a place under defendant's exclusive control to which other people did not normally have access, or (b) that, if police found it in a place to which others had access, there is a strong probability (inferable from other evidence) that defendant was at the time consciously exercising dominion and control over it."  Id. at 105, 226 N.W.2d at 611.  We look at the totality of the circumstances in assessing whether appellant had constructive possession of the gun.  State v. Munoz, 385 N.W.2d 373, 377 (Minn. App. 1986). 

            Here, the gun was found in the center console of the minivan in close proximity to appellant and "[p]roximity is an important consideration in assessing constructive possession."  State v. Smith, 619 N.W.2d 766, 770 (Minn. App. 2000), review denied (Minn. Jan. 16, 2001).  Based on the facts of this case and appellant's close proximity to the gun as the driver of the vehicle, we conclude that appellant's adjudication of delinquency was supported by sufficient evidence.

III.

            The district court ordered and stayed an out-of-home placement for appellant "on the condition that [appellant] complies with the terms of this order and probation." Appellant now argues that stayed juvenile dispositions are unlawful "[s]ince the juvenile court cannot possibly know at the time of the disposition what will satisfy the statute and the rule if and when the child next appears before it."

            Trial courts have broad discretion to order dispositions authorized by statute in delinquency cases and on appeal such dispositions will be affirmed so long as the trial court's determination is not arbitrary.  In re Welfare of J.S.S., 610 N.W.2d 364, 366 (Minn. App. 2000).  Any disposition ordered must serve the best interests of the child, Minn. Stat. § 260B.198, subd. 1(m)(1) (2006), and the best interests of the child are usually served by parental custody.  J.S.S., 610 N.W.2d at 367.

A district court disposition for out-of-home placement must be supported by findings that address five subjects:  (1) why public safety is served by the disposition; (2) why the best interests of the child are served by the disposition; (3) what alternative dispositions were proposed to the court and why such recommendations were not ordered; (4) why the child's present custody is unacceptable; and (5) how the correctional placement meets the child's needs.  Id. at 366-67 (quoting In re Welfare of C.A.W. & L.R.M.B., 579 N.W.2d 494, 497-98 (Minn. App. 1998)). 

We reject appellant's argument.  Prior to a revocation of appellant's probation, appellant would be entitled to a revocation hearing where he can present "reasons why the violation, if proved, should not result in revocation."  Minn. R. Juv. Delinq. P. 15.07, subd. 3(B)(4).  Further, if the court determines that the juvenile violated his probation, the court must order a disposition pursuant to Minn. Stat. § 260B.198, subd. 1 (2004), which requires that the disposition be in the child's best interests, Minn. Stat. § 260B.198, subd. 1(m)(1).

Therefore, in order to execute the stayed out-of-home placement, the district court would necessarily need to make a finding that such a disposition was in the best interests of appellant at the time the out-of-home placement would be executed.  We affirm the district court's order staying out-of-home placement for appellant.

Affirmed.