State of Minnesota, Appellant, vs. Scott Allen Johnson, Respondent.

State of Minnesota, Appellant, vs. Scott Allen Johnson, Respondent. A07-1172, Court of Appeals Unpublished Decision, December 31, 2007.

This opinion will be unpublished and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
A07-1172

 

State of Minnesota,
Appellant,
 
vs.
 
Scott Allen Johnson,
Respondent.

Filed December 31, 2007

Reversed and remanded

Toussaint, Chief Judge

 

Mower County District Court

File No. CR-06-4014

 

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

 

Kristen M. Nelsen, Mower County Attorney, Jeremy L. Clinefelter, Assistant County Attorney, 201 First Street Northeast, Austin, MN 55912 (for appellant)

 

Brandon V. Lawhead, Lawhead Law Offices, 506 West Oakland Avenue, Austin, MN 55912; and

 

Evan H. Larson, Larson Law Offices, 201 South Main Street, Austin, MN 55912 (for respondent)

 

            Considered and decided by Halbrooks, Presiding Judge; Toussaint, Chief Judge; and Harten, Judge.*

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

The state challenges the district court's pretrial ruling suppressing the cocaine discovered through the expansion of a routine traffic stop of respondent Scott Allen Johnson.  Because the expansion of the traffic stop was supported by reasonable and articulable suspicion of drug-related criminal activity, we reverse and remand.

FACTS

An Austin police officer on routine patrol observed a known drug dealer speaking with an individual in a silver truck.  The officer observed the drug dealer drop something into the window of the truck.  The individual in the truck then pulled away.  The officer followed the truck and conducted a traffic stop after observing the truck run a red light. 

Upon approaching the truck, the officer recognized the driver as respondent Scott Alan Johnson.  The officer knew respondent personally and knew respondent to be a drug user.  The officer observed that respondent seemed nervous and "out of it" and he had shaky hands, a twitchy face, and glossy eyes.  Based on his training and experience, the officer suspected that these traits indicated respondent was under the influence.  The officer asked for respondent's license and returned to his squad car to run a license check.  While running the license check, the officer observed respondent making furtive movements, shifting from side to side in his seat.  

The officer called for backup.  He told the backup officer that he had just observed a drug deal and he thought drugs were in the vehicle.  The officers asked respondent to step out of the vehicle; they also contacted a canine unit.  When the officers asked respondent if the canine unit would find anything in the vehicle, respondent told them there was marijuana in the vehicle.  One officer looked in the vehicle and saw marijuana in plain view on the center console.  When respondent was asked if he had any drugs on his person, he raised his arms in the air.  The officers interpreted this action as consent to a search.  While conducting a pat search of respondent, the officer felt a bulge in respondent's wallet, removed the wallet, checked the contents, and discovered cocaine.  The officers subsequently arrested respondent.

Respondent was charged with second-degree controlled-substance crime, open bottle in a motor vehicle, and possession of marijuana in a motor vehicle.  He moved to dismiss the complaint and suppress the evidence seized as a result of the search and seizure.  After an omnibus hearing, the district court granted respondent's motions, finding that, while the initial stop of respondent was valid, the officers impermissibly expanded the stop by detaining and searching respondent.  The district court found that respondent's "association" with the drug dealer and his nervous behavior did not justify any suspicion of illegal activity.

D E C I S I O N

On appeal from a pretrial ruling the state must "clearly and unequivocally" show that the district court's order will have a "critical impact" on the state's ability to prosecute the defendant successfully and that the order constituted error.  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (quotation omitted).  The critical impact of the suppression order must be determined before deciding whether the order was made in error.  Id.  It is undisputed that a critical impact was shown by the district court's dismissal of all charges against respondent.  Therefore, the remaining question is whether the district court's pretrial order constitutes error.  "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 . . . the evidence." State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  We review de novo whether a search or seizure is justified by reasonable suspicion or probable cause.  State v. Burbach, 706 N.W.2d 484, 487 (Minn. 2005).  We review the district court's findings of fact for clear error.  Id.

            Both the Fourth Amendment to the United States Constitution and Article I, Section 10 of the Minnesota Constitution prohibit unreasonable searches and seizures.  Burbach at 487-88.  To expand the scope of a traffic stop, a law enforcement officer must have reasonable, articulable suspicion of other criminal activity.  State v. Fort, 660 N.W.2d 415, 419 (Minn. 2003).  An officer, in arriving at a reasonable, articulable suspicion of criminal activity, may make inferences and deductions that might elude an untrained person.  State v. Syhavong, 661 N.W.2d 278, 282 (Minn. App. 2003).  Although other valid explanations may exist for an individual's condition and behavior, the test is whether there is reasonable, articulable suspicion under the totality of the circumstances. Id. at 281. 

The totality of the circumstances shows that the officer expanded the scope of the traffic stop based on (1) the observation of the alleged drug deal between Johnson and the drug dealer; (2) Johnson's appearance, including that he appeared "out of it," his eyes were glossy, and his face was twitchy; (3) the officer's personal knowledge that Johnson was a drug user; and (4) Johnson's furtive movements when the officer returned to his squad car.

Admittedly, mere association with a known drug dealer, without more, cannot support a finding of reasonable articulable suspicion.  State v. Ingram, 570 N.W.2d 173, 177 (Minn. App. 1997), review denied (Minn. Dec. 22, 1997).  But here the officer's suspicion was based on more than just mere association.  The officer observed a known drug dealer drop something into the vehicle, then walk away.  In addition, the officer's personal knowledge of respondent as a known drug user is relevant to the determination of reasonable articulable suspicion.  See State v. Munoz, 385 N.W.2d 373, 376 (Minn. App. 1986) (holding that police officer's personal knowledge of appellant is relevant to finding of probable cause).

Because the officer observed an encounter that he believed to be a drug deal, observed that respondent appeared nervous and his appearance was consistent with that of someone under the influence of drugs, and then observed respondent making furtive movements, it was not unreasonable for him to conclude that respondent was hiding contraband.  All of these facts, when taken together, provided the officer with a reasonable suspicion of drug-related criminal activity to expand the scope of the original traffic stop.

The state also argues that the officer had independent probable cause to arrest; therefore, the search of appellant and the automobile was justified as a search incident to probable cause to arrest.  Because the evidence to support the state's theory of probable cause is the same evidence that supports a reasonable suspicion of drug-related criminal activity and the reasonable suspicion standard is no higher than the probable cause standard, we need only address whether the officers had reasonable suspicion of drug-related criminal activity.  See Burbach, 706 N.W.2d at 490 n.2.

The discovery of the marijuana in the vehicle properly arose from the officers' reasonable articulable suspicion.  Investigative questioning must be limited to the scope of the stop, but the questioning may be expanded if circumstances give rise to reasonable articulable suspicion of drug-related criminal activity.  Syhavong, 661 N.W.2d at 281-82.  Because the officers had reasonable articulable suspicion of drug-related criminal activity and the questioning of respondent about what the canine might find in the vehicle was reasonably related to that suspicion, we conclude that the continuation of the stop for questioning and the discovery of the marijuana in plain view during that questioning were proper. 

Because the discovery of the marijuana in the car was lawful, the officers had probable cause to arrest respondent and to conduct a lawful search incident to arrest.  Probable cause to arrest requires that police officers reasonably believe that a certain person has committed a crime.  In re Welfare of G.M., 560 N.W.2d 687, 695 (Minn. 1995).  Police officers who have probable cause to arrest a suspect can conduct a search incident to an arrest even if the search precedes the arrest.  Id.  A search incident to arrest may extend to small containers located on the person searched, and the search may be followed by a warrantless seizure of discovered contraband. Id. (citing United States v. Robinson, 414 U.S. 218, 236, 94 S. Ct. 467, 477 (1973)).  The officer's observations and the discovery of the marijuana in the vehicle provided probable cause to arrest respondent.  See State v. Hanson, 488 N.W.2d 511, 512 (Minn. App. 1992) (holding that custodial arrest is proper, even if amount of marijuana only results in misdemeanor charge, when the amount could not reasonably be ascertained prior to arrest).  Therefore, the pat search of respondent, resulting in the discovery of cocaine in his wallet, was lawful as a valid search incident to arrest.

Because the officers had reasonable articulable suspicion to expand the scope of the stop to investigate possible drug-related criminal activity, and the officers discovered the cocaine during a lawful search incident to arrest, we reverse the suppression of the evidence and the dismissal of the complaint and remand for further proceedings.

Reversed and remanded.

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