State of Minnesota, Respondent, vs. Akhenaten Goane Gayetay, 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This opinion will be unpublished and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

A03-470

 

 

State of Minnesota,

Respondent,

 

vs.

 

Akhenaten Goane Gayetay,

Appellant.

 

 

Filed April 27, 2004

Reversed

Anderson, Judge

 

Ramsey County District Court

File No. K2-02-2398

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN  55102 (for respondent)

 

Keesha M. Gaskins, Special Assistant Public Defender, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., 500 Young Quinlan Building, 81 South Ninth Street, Minneapolis, MN  55402; and

 

John Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Anderson, Judge; and Huspeni, Judge.*

 

U N P U B L I S H E D  O P I N I O N

 

G. BARRY ANDERSON, Judge

 

            Akhenaten Goanue Gayetay was arrested for possession of cocaine.  Gayetay moved to suppress the seizure of cocaine from his person; the district court denied the motion.  Gayetay was tried before the district court on stipulated facts, and the court found Gayetay guilty of fifth-degree possession of a controlled substance, a violation of Minn. Stat. § 152.025, subds. 2(1), 3(a) (2000).  The district court sentenced Gayetay to a 15-month stayed sentence and 45 days in jail.  Gayetay now appeals.  We reverse.

FACTS

 

            In July 2002, Officer Michael Conroy stopped Gayetay for traffic violations.  While Conroy was approaching Gayetay's vehicle, Gayetay, the driver and sole occupant of the car, made two distinct movements.  First, Gayetay leaned back and lifted himself off of the seat of the car, reaching between the left side of his person and the driver's door.  Second, Gayetay reached forward toward the dashboard or glove compartment of the car.  Gayetay's actions concerned Conroy because the movements were consistent with a person either trying to hide something or reaching for a weapon.

            Conroy, through Gayetay's open driver's side window, asked Gayetay for identification.  When Gayetay produced his driver's license, Conroy recognized Gayetay's name from a police list of gang members.  Conroy asked Gayetay to step out of the car so that the officer could pat-search Gayetay.  Conroy pat-searched Gayetay for weapons; in Gayetay's left pocket, Conroy felt "several hard objects."  Conroy thought that one of the objects, later identified as a two-inch square pager, could have been a weapon.  Conroy removed the pager from Gayetay's pocket.  While removing the pager, Conroy emptied out the entire contents of Gayetay's pocket.  One of the objects Conroy pulled out of Gayetay's pocket was a clear, plastic sandwich baggie containing crack cocaine.  Conroy arrested Gayetay for possession of the cocaine.

 

D E C I S I O N

 

            Gayetay argues that the pat-search that Conroy conducted exceeded the limits established by Terry.  We agree.  On appeal, we will review the findings of historical fact of the district court under the clearly erroneous standard.  Lake Minnetonka Conservation Dist. v. Horner, 617 N.W.2d 789, 795 (Minn. 2000).  We duly weigh any inferences the district court draws from those facts, but we review de novo the court's legal conclusion that probable cause existed.  Id.

            Both the Fourth Amendment to the United States Constitution and Article I of the Minnesota Constitution prohibit unreasonable searches and seizures.  See U.S. Const. amend. IV; Minn. Const. art. I., § 10.  Searches conducted without a warrant are per se unreasonable, subject to limited exceptions.  State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff'd, 508 U.S. 366, 113 S. Ct. 2130 (1993).  One of these exceptions is when a police officer has a reasonable, articulable suspicion that a suspect might be engaged in criminal activity and reasonably believes that the suspect might be armed and dangerous.  Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884-85 (1968).  In this circumstance, the police officer is allowed to conduct a protective pat-search of the suspect.  Wold v. State, 430 N.W.2d 171, 175 (Minn. 1988).

            This protective pat-search "must be strictly limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby."  Dickerson, 508 U.S. at 373, 113 S. Ct. at 2136 (quotation omitted).  If, during the search, the officer feels an object that he knows is not a weapon, further search is generally not authorized.  Id. at 378, 113 S. Ct. at 2138-39.  If, however, the officer feels an object that gives him immediate probable cause to believe it is evidence of a crime, the officer may seize that object as evidence.  Id.at 375-76, 113 S. Ct. at 2137.  This "plain feel" exception only applies if the object is immediately apparent to the officer as contraband.  Id. at 379, 113 S. Ct. at 2139. 

            Conroy testified that he "reached in and pulled [the items in Gayetay's pocket] out to look at them, to examine them, see what they [were] exactly."  But in its memorandum of law incorporated into its order, the district court concluded "[w]hile pulling out a suspected weapon, a clear baggie of contraband came out as the officer withdrew the hard object he thought was possibly a weapon."  This conclusion, which implies that the contraband simply fell out of Gayetay's pocket while Conroy pulled out the suspected weapon, is not supported in the record.  After a careful review of the record, we conclude that the determination of the district court that the plastic baggie merely "came out" as Conroy removed the pager is clearly erroneous.  

             Further, the district court's legal conclusion that probable cause existed, based on the evidence in this record, was error.  We decline to hold that an officer may empty the contents of a suspect's pocket to "examine [the contents and to] see what they are exactly."  To so hold would obliterate the deliberately limited scope of a Terry search.  Although Conroy may reasonably have believed the pager was a weapon, he then removed the plastic baggie, which was neither a weapon nor immediately identifiable as probable contraband.  The search that Conroy conducted here, under the facts in this record, exceeded the limits of a valid Terry search.  See Dickerson, 508 U.S. at 378, 113 S. Ct. at 2138-39.  Because the search exceeded the scope of a valid Terry search, the evidence obtained from that search must be suppressed; Gayetay's conviction is reversed.

            Reversed.

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