State of Minnesota, Respondent, vs. Lawrence Hunter Peck, 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This opinion will be unpublished and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

C2-02-1949

 

State of Minnesota,

Respondent,

 

vs.

 

Lawrence Hunter Peck,

Appellant.

 

Filed September 16, 2003

Affirmed

Gordon W. Shumaker, Judge

 

Stearns County District Court

File No. K9015040

 

 

 

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

 

Janelle Kendall, Stearns County Attorney, Administration Center, 705 Courthouse Square, Room 448, St. Cloud, MN 56303-4781 (for respondent)

 

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414-3097 (for appellant)

 

 

            Considered and decided by Willis, Presiding Judge; Shumaker, Judge; and Stoneburner, Judge.        

 

 

 

U N P U B L I S H E D   O P I N I O N

 

GORDON W. SHUMAKER,Judge

 

Appellant contends that the district court erred in denying his suppression motion, arguing that the police sergeant did not have an articulable basis for conducting a lawful search when he was investigating a report of thefts from parking meters, stopped appellant because he was acting suspiciously by the meters, saw a bulge in appellant's front pants pocket, and then conducted a search.  Because the sergeant conducted the search incident to a lawful arrest, we affirm.

FACTS

 

On November 8, 2001, at approximately 9:10 p.m., undercover St. Cloud Police Sergeant Steve Paschke was investigating thefts from parking meters in downtown St. Cloud when he observed appellant Lawrence Hunter Peck walking along a downtown sidewalk, stopping at parking meters, and doing something with his hands to the back of each meter. 

Because Paschke suspected Peck was responsible for the meter thefts, he approached him.  Peck stood near some bushes as if attempting to hide.  After identifying himself as a police officer, Paschke ordered Peck to put his hands on top of his head.  When Peck did so, Pashcke saw a large bulge in the front pocket of Peck's pants.  With Peck's hands on his head, Paschke conducted a pat-down search "for officer safety reasons."   Paschke felt what seemed to be coins in Peck's pants and a large bulge of what felt like more coins in Peck's left jacket pocket.  Paschke transported Peck to the Stearns County Law Enforcement Center where officers removed $34.35 in coins from Peck's left-front pants pocket and $32.50 in coins from his left-front jacket pocket.

            After the district court denied Peck's motion to suppress the coins, Peck waived his right to a jury trial and was found guilty of theft on stipulated facts.  On appeal, Peck challenges the lawfulness of the search and the admission of evidence obtained as a result of that search.

D E C I S I O N

 

When reviewing pretrial orders on motions to suppress evidence, this court may independently review the facts and determine, as a matter of law, whether the district court erred in refusing to suppress the evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  The underlying factual findings are subject to a clearly erroneous standard of review.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).  Here, the facts regarding the frisk are not in dispute nor is the seizure of Peck being challenged.  Rather, Peck argues that because Paschke did not articulate a sufficient basis for believing that he may be armed and dangerous, the frisk was illegal. 

Police may stop and frisk a person when (1) they have a reasonable, articulable suspicion that the suspect might be engaged in criminal activity; and (2) they reasonably believe the suspect might be armed and dangerous.  State v. Dickerson,  481 N.W.2d 840, 843 (Minn. 1992), aff'd, 508 U.S. 366, 113 S. Ct. 2130 (1993).  Police may also lawfully search an individual incident to an arrest.  State v. White, 489 N.W.2d 792, 795 (Minn. 1992).  A police officer has probable cause to arrest a suspect if he "reasonably could have believed that a crime had been committed by the person to be arrested."  State v. Olson, 436 N.W.2d 92, 94 (Minn. 1989), aff'd, 495 U.S. 91, 110 S. Ct. 1684 (1990).

The record indicates that before frisking Peck, Paschke (1) was aware that money was being stolen from parking meters in that location, (2) observed Peck stopping at each parking meter in the evening hours, (3) observed Peck doing something with his hands at each meter, (4) observed Peck who was "standing near some bushes" and "trying to blend in or conceal himself," and (5) approached Peck and "saw in [Peck's] left front pants pocket a large bulge."  These facts provided Paschke with probable cause to arrest Peck.  Because Paschke had probable cause to arrest Peck, the search was justified incident to that arrest.

The district court correctly determined that the search was legal and, thus, that the evidence obtained from the search was admissible.  Because the district court did not err, we affirm.

Affirmed.