State of Minnesota, Respondent, vs. Ricky Jay Torres, 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This opinion will be unpublished and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

C4-02-1595

 

State of Minnesota,

Respondent,

 

vs.

 

Ricky Jay Torres,

Appellant.

 

Filed July 8, 2003

Reversed
Klaphake, Judge

 

Nicollet County District Court

File No. K701331

 

Mike Hatch, Attorney General, Kristen Marie Olsen, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101 (for respondent)

 

Rita Coyle-Demeules, Robins Kaplan Miller & Ciresi, 800 LaSalle Avenue, Suite 2800, Minneapolis, MN 55402 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Ricky Jay Torres challenges the district court's finding of probable cause for the warrantless search of his vehicle.  Because the search occurred as part of an impermissibly expanded investigative stop, the evidence seized must be suppressed and the conviction must be reversed.  

D E C I S I O N

Appellant was charged with two counts of fifth-degree possession of controlled substance and one count of possession of burglary tools.  The district court denied his motion to suppress the drugs and tools seized during the search of his automobile.  After a court trial on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), and dismissal of the charge for possession of burglary tools, appellant was found guilty and convicted of both counts of controlled-substance crime.  This appeal challenges the district court's ruling on his motion to suppress evidence.

An appellate court independently reviews the facts of a case and determines, as a matter of law, whether a district court erred by denying a motion to suppress.  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).  We review de novo the district court's determinations of reasonable suspicion as it relates to limited investigatory stops conducted under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), and probable cause as it relates to warrantless searches.  State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999).  If police conduct a warrantless search, "[t]he state bears the burden of showing that at least one exception [to the warrant requirement] applies, or evidence seized without a warrant will be suppressed."  State v. Metz, 422 N.W.2d 754, 756 (Minn. App. 1988).

For an investigatory stop to be lawful, a police officer must have a "particularized and objective basis for suspecting the particular person stopped of criminal activity."  State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981)).  Warrantless searches are per se unreasonable under the Fourth Amendment unless the search falls within one of several specific exceptions.  U.S. Const. amend. IV; Minn. Const. art. I, § 10; California v. Acevedo, 500 U.S. 565, 593, 111 S. Ct. 1982, 1998 (1991); State v. Search, 472 N.W.2d 850, 852 (Minn. 1991).  Under the automobile exception, the police may conduct a warrantless search of an automobile when they have probable cause to believe that the car contains evidence of a crime or contraband.  Search, 472 N.W.2d at 852 (citing United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157 (1971)). 

            Appellant does not challenge the legality of the initial stop, which occurred in the early morning hours in an area of recent criminal activity.  The issue raised in this appeal is whether the expanded investigation leading to the search of his car was justified.  The legal test for continuing a detention is the same as that for the initial stop.  "A brief investigatory stop requires only reasonable suspicion of criminal activity, rather than probable cause."  Pike, 551 N.W.2d at 921 (citing Terry, 391 U.S. at 21-22, 88 S. Ct. at 1880). 

            Here, the officer pulled his squad car up behind appellant's vehicle at 5:00 a.m. on June 7, 2001.  The evening before, police had received reports of recent criminal activity in the area.  Within one week, there had been two thefts of compact-disc players from parked vehicles.  The previous day, the owner of storage units in the vicinity had reported that locks on seven units had been cut.

The officer approached appellant's vehicle.  His investigation first revealed that appellant, the driver, and the two occupants were in a vehicle registered to appellant, the men were who they purported to be, all were underage, none had outstanding warrants, and their explanation for their presence in the area was reasonable.  Detecting a fruity odor, possibly alcohol, coming from the car, the officer asked whether the men had been drinking, and they responded they had not.  The officer then proceeded to pat frisk and administer breath tests to each.  The frisk revealed no weapons and the breath tests indicated no one had been drinking.  The officer observed that all of the men were initially cooperative with the investigation. 

At this point, the officer had no reasonable suspicion of criminal activity.  In the 15 minutes or so of investigation, he had not obtained any incriminating evidence or observed any suspicious behavior.  Nevertheless, the officer proceeded to question appellant as to whether any weapons or contraband were in the vehicle and whether he could search the vehicle.  To both questions, appellant answered, "No."  It was at this point that the officer observed that the occupants appeared nervous.  He then asked appellant what was in the black shaving-kit-sized bag lying on the floor of the car behind the driver's seat.  Appellant responded, "Tools."

The purpose of the initial investigatory stop was to inquire into the reason the vehicle's occupants were in the location of recent criminal activity at 5:00 a.m.  The answers to the officer's questions regarding the reason for their presence, the vehicle ownership, occupant identification, alcohol, and weapons provided no reason to continue the investigation.  The officer had no specific evidence linking the occupants and the black bag in any way to the recent criminal activity, except location.  Nor did the officer have a description of a vehicle, suspects, or tools used in the reported crimes.  See State v. Fort, 660 N.W.2d 415, 418 (Minn. 2003) (concluding that investigation of presence of narcotics and weapons had no connection to traffic stop for speeding and cracked windshield).  Only after the permissible investigatory stop ended did the officer inquire if appellant had weapons and contraband and if he would consent to a search of the vehicle.  Appellant denied having any weapons and contraband and, after declining to have his vehicle searched, he responded to the third question, stating that the black bag contained tools.  Whether the reference to "tools" provided probable cause for the search or not, evidence obtained subsequent to the termination of a permissible stop must be suppressed.  See State v. Bell, 557 N.W.2d 603, 608 (Minn. App. 1996), review denied (Minn. Mar. 18, 1997).

            We therefore conclude that the officer did not have the reasonable suspicion of criminal activity required to continue the initial detention, and reverse the conviction.  

            Reversed.