State of Minnesota, Appellant, vs. Ramon (NMN) Ruiz, III, Respondent (CX-99-908), George Michael Cruickshank, Respondent (C1-99-909).

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1998).

State of Minnesota,
Appellant,

vs.

Ramon (NMN) Ruiz, III,
Respondent (CX-99-908),

George Michael Cruickshank,
Respondent (C1-99-909).

Dakota County District Court
File Nos. K198002951, K898002946

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for appellant)

Barry V. Voss, Voss & Hickman, P.A., 527 Marquette Avenue South, Suite 2355, Minneapolis, MN 55402 (for respondents)

Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Harten, Judge.

Appellant State of Minnesota challenges the district court's suppression of evidence of a post-arrest statement by the driver and controlled substances seized from the passenger, claiming: (1) because evidence of drugs unlawfully seized from the driver was admissible as to the passenger, the officer had sufficient basis to perform a Terry frisk of the passenger; (2) drugs seized from the passenger provided probable cause for search of vehicle; and (3) the district court erred in suppressing post-arrest statement of the driver. We affirm.

The parties do not dispute the district court's factual findings. After observing respondents' vehicle commit a minor traffic violation, the police officer pulled up behind the stopped vehicle and activated his lights just as the driver (respondent Ruiz) exited the vehicle. The officer observed a passenger (respondent Cruickshank) in the front seat and a pit bull in the back seat. Ruiz appeared very nervous and agitated, which prompted the officer to conduct a protective Terry frisk upon the arrival of backup officers. During the frisk, the officer felt a baggie in Ruiz's pocket. He pinched and grasped at the baggie before pulling it out and discovering that it contained a misdemeanor amount of marijuana.

After the arresting officer placed Ruiz in the squad car, he and a fellow officer approached the passenger side of the vehicle. They asked Cruickshank to roll up the window to prevent the dog from escaping and then asked him to exit the vehicle. The arresting officer conducted a Terry frisk and discovered a felony amount of marijuana in Cruickshank's shirt. A subsequent search of the vehicle led to the discovery of two one-pound packages of methamphetamines in Cruickshank's jacket.

Respondents were each charged with two first-degree and one fifth-degree controlled-substance violations. The cases were consolidated for purposes of a contested omnibus hearing, at which both respondents moved for suppression of the evidence against them on the basis that each had been subject to an unlawful search and seizure. Subsequently, the district court granted both respondents' motions to suppress. The state does not challenge the district court's determination that the search of Ruiz was unlawful but contends the district court erred in suppressing evidence against Cruickshank. The state also challenges the suppression of Ruiz's post-Miranda recorded statement.

To prevail on a pretrial appeal from an order suppressing evidence in a criminal prosecution, the state must establish

"clearly and unequivocally that the trial court has erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial."

State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992) (quoting State v. Webber, 262 N.W.2d 157, 159 (Minn. 1977)). In reviewing a district court's pretrial suppression ruling on undisputed facts, this court determines independently as a matter of law whether the evidence must be suppressed. Othoudt, 482 N.W.2d at 221.

The parties do not dispute that critical impact exists, since the suppression of Ruiz's statement and all the evidence of controlled substances seized from both respondents forecloses prosecution in either case. Thus, we must determine whether the state has clearly and unequivocally established that the district court erred as a matter of law in entering the suppression order.

Having agreed that the initial seizure of marijuana from Ruiz was properly suppressed in the case against Ruiz, the state contends the district court erred in concluding that under Wong Sun v. United States, the officer could not consider the marijuana illegally seized from Ruiz in determining whether to conduct a Terry frisk of Cruickshank because it was "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S. Ct. 407, 416 (1963) (citing Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182 (1920)). We agree.

The exclusionary rule prevents the admission at trial of any evidence obtained by the police in derogation of an accused's constitutional rights. Wong Sun, 371 U.S. at 484, 83 S. Ct. at 416. The exclusionary rule also applies to any evidence obtained as the fruit of any improper police conduct. Id. at 485, 83 S. Ct. at 416. But Fourth Amendment rights are personal rights that may not be vicariously asserted, so that only a defendant whose rights have been violated may seek protection under the exclusionary rule. Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S. Ct. 421, 425-26 (1978). See also State v. Robinson, 458 N.W.2d 421, 423 (Minn. App. 1990), review denied (Minn. Sept. 4, 1990). A defendant has no standing to raise constitutional objections to the search of another person. State v. Bruno, 293 Minn. 84, 93, 196 N.W.2d 459, 465 (1972); State v. McConoughey, 282 Minn. 161, 166, 163 N.W.2d 568, 572 (1968).

Under Rakas, Cruickshank has no standing to object to the seizure of marijuana from Ruiz because Cruickshank had no personal, reasonable expectation of privacy in the person of Ruiz. The district court erred in concluding that the marijuana unlawfully seized from Ruiz was inadmissible as to Cruickshank. The officers could therefore properly consider the marijuana seized from Ruiz in determining whether to conduct a Terry frisk of Cruickshank.

Although the district court erred in suppressing evidence of the marijuana unlawfully seized from Ruiz in the case against Cruickshank, we need not reverse the suppression order if our review of the record reveals independent grounds to affirm the district court's decision. See Othoudt, 482 N.W.2d at 221. Because we conclude that even considering the small amount of marijuana seized from Ruiz the officer did not have a sufficient basis to conduct a Terry frisk of Cruickshank, the district court did not clearly err in suppressing evidence of the controlled substances seized from Cruickshank.

Upon making a valid stop, an officer may conduct a reasonable patdown for weapons if he has reason to believe he is dealing with an armed and presently dangerous individual, even if there is otherwise no probable cause for arrest. Terry v. Ohio, 392 U.S. 1, 24, 88 S. Ct. 1868, 1881 (1968). To justify the weapons patdown, the officer must be able to point to objective specific and articulable facts that, in combination with rational inferences taken from those facts, reasonably warrant the intrusion. Id. at 21, 88 S. Ct. at 1880; see also State v. Pleas, 329 N.W.2d 329, 332 (Minn. 1983) (applying objective test). The right to frisk does not automatically arise as part of a valid stop. State v. Payne, 406 N.W.2d 511, 513 (Minn. 1987). Mere proximity to someone suspected of criminal activity is not enough to "reach the threshold of reasonable articulable suspicion required to conduct a protective pat search under Terry." State v. Ingram, 570 N.W.2d 173, 177 (Minn. App. 1997), review denied (Minn. Dec. 22, 1997). Additional circumstances must be present to justify a Terry frisk, such as the observation of a bulge in the companion's clothing, threats to the officer, the observation of a weapon, or a sudden or furtive movement toward a place where a weapon could be concealed. State v. Eggersgluess, 483 N.W.2d 94, 97 (Minn. App. 1992).

The district court found that the officer's stated justification for the frisk of Cruickshank consisted of: (1) the seizure of a misdemeanor amount of marijuana from Ruiz; (2) the fact that the officer did not know Cruickshank; and (3) his statement that he thought Cruickshank might be potentially armed. The district court concluded that, disregarding the marijuana seized from Ruiz, the offered justification was insufficient. The officer did not articulate any specific, objective reasons for his belief that Cruickshank might be armed. A Terry frisk is not warranted based solely on "[a]n assumption that weapons might always be present when a law enforcement officer confronts a citizen." Eggersgluess, 483 N.W.2d at 97.

The state argues that the additional factor of marijuana seized from Ruiz justifies a Terry frisk of Cruickshank under the totality of the circumstances. We disagree. The arresting officer did not see any drugs in the vehicle or on either defendant prior to frisking Ruiz. He testified that at the moment he approached the vehicle, he had no reason to suspect that Cruickshank might be armed and dangerous. He did not see anything that suggested Cruickshank had consumed drugs or was aware that Ruiz possessed marijuana, and he did not discern any bulges in Cruickshank's clothing prior to frisking him. Cruickshank made no furtive or suspicious movements and there was no suspicious odor emanating from the vehicle when the officers approached to speak with Cruickshank. Although there was a pit bull in the back seat, the dog had been clearly visible during the entire encounter and had not acted aggressively. Cruickshank rolled up the window when asked to do so and stepped out of the vehicle when requested by the officer without exhibiting any behavior that would suggest he might be armed or dangerous.

Thus, even considering the marijuana seized from Ruiz, there is no evidence that the confrontation with Cruickshank presented a situation that a reasonable person would have considered to be threatening to the officer. See Terry, 392 U.S. at 21-22, 88 S. Ct. at 1880 (facts must be judged by objective standard of whether available facts at the time of the search would warrant a reasonably cautious person in believing that the action taken was proper). Because the frisk was not justified even considering the small amount of marijuana seized from Ruiz, the court properly suppressed all evidence of the controlled substances seized during the frisk of Cruickshank.

Because the frisk of Cruickshank was unlawful, any subsequent search of the vehicle and Cruickshank's jacket was "fruit of the poisonous tree" under Wong Sun. 371 U.S. at 485, 83 S. Ct. at 416. The state does not argue that probable cause existed for a search of the vehicle or the jacket absent finding the marijuana on Cruickshank. Thus, the district court properly suppressed evidence of the controlled substances seized during the search of the vehicle.

Finally, the state argues that the district court erred in suppressing the statement respondent Ruiz gave following his arrest and after waiving his Miranda rights. We disagree. A statement or other evidence gained as the result of illegal police action must be suppressed unless there is an intervening act of free will between the time of the illegal act and the inculpatory statement. Wong Sun, 371 U.S. at 486-87, 83 S. Ct. at 416-17. The state bears the burden of proving that a defendant's admission is sufficiently an act of free will to purge the primary taint of the unlawful invasion. Brown v. Illinois, 422 U.S. 590, 604, 95 S. Ct. 2254, 2262 (1975).

Here, other than Ruiz's waiver of his Miranda rights, the state presented no evidence that Ruiz made his statement following the occurrence of any intervening factors that would operate to remove the taint of his unlawful arrest. A Miranda warning is not necessarily sufficient to overcome an illegal arrest, because voluntariness is not enough to purge the taint of a Fourth Amendment violation. Brown, 422 U.S. at 603, 95 S. Ct. at 2261; State v. Weekes, 268 N.W.2d 705, 709 (Minn. 1978). We conclude the district court did not clearly err in suppressing the statement.