State of Minnesota, Appellant, vs. Kennedy Ray Rahkola, Respondent (A03-1614), Alexander Raymond Nelson, Respondent (A03-1615).

This opinion will be unpublished and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

A03-1614
A03-1615

 

State of Minnesota,

Appellant,

 

vs.

 

Kennedy Ray Rahkola,

Respondent (A03-1614),

 

Alexander Raymond Nelson,

Respondent (A03-1615).

 

Filed June 15, 2004

Affirmed

Halbrooks, Judge

 

 

St. Louis County District Court

File Nos. K6-02-301809, K4-02-301808

 

 

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

 

Alan L. Mitchell, St. Louis County Attorney, Jeffrey M. Vlatkovich, Assistant County Attorney, 1810 12th Avenue East, Hibbing, MN 55746 (for appellant)

 

Mary McMahon, McMahon and Associates, 2499 Rice Street, Suite 140, Roseville, MN 55113-3724 (for respondents)

 

 

 

            Considered and decided by Harten, Presiding Judge, Halbrooks, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            The state challenges the district court's order granting respondents' motion to suppress evidence and dismiss charges of controlled-substance crimes against respondents, arguing that (1) the officer had articulable suspicion to stop the vehicle; (2) respondent Kennedy Rahkola, a passenger, lacks standing to object to the search of the driver, respondent Alexander Nelson; and (3) the police did not impermissibly expand the scope of the traffic stop in asking for consent to search respondent Nelson.  Because we agree that the police impermissibly expanded the scope of the traffic stop, we affirm.

FACTS

            On December 19, 2002, Hibbing Police Officer Ryan Riley conducted surveillance of a Hibbing residence because of complaints the police received of possible drug activity at the residence.  Officer Riley observed a car leave the residence and followed it in his unmarked squad.  Officer Riley later testified that he started to follow the vehicle based on a hunch that he might find drugs and that he decided to stop the vehicle when it was about three or four blocks from the residence based on what he had seen at the residence and the activity he observed while following the vehicle.  Officer Riley observed a crack in the windshield and objects hanging from the rear-view mirror.  Officer Riley requested a marked squad to pull the vehicle over and continued to follow the vehicle in the meantime.  Officer Riley then saw the driver bend over to his right several times and observed the car swerve several times, crossing over the fog line and back into the lane of travel.  After Officer Riley paced the vehicle and estimated its speed to be 65 miles per hour in a 55 mile-per-hour zone, he decided to pull the vehicle over himself because there were no marked squads in his immediate area.

            Officer Riley approached the vehicle and instructed the driver, respondent Alexander Nelson, to get out of the vehicle.  Respondent Kennedy Rahkola was a front-seat passenger.  Officer Riley testified that Nelson appeared very nervous, that he was shaking, and his voice was cracking.  Officer Riley testified that based on his experience as a narcotics officer, people using methamphetamine are easily agitated, appear nervous, and are fidgety.  Officer Riley also testified that he suspected that Nelson might have been under the influence of a drug or involved in drug activity based on Nelson's cracked voice and the prior complaints about drug activity in the home that Nelson had just left.  Officer Riley informed Nelson that he had been stopped because of the equipment and traffic violations.  When Officer Riley asked for Nelson's driver's license, Nelson informed him that he did not have one.  Officer Riley ran a check on the status of Nelson's driving record and confirmed that Nelson's driver's license was revoked.  When asked by the officer where he was going, Nelson replied that he and Rahkola were on their way to Nelson's mother's place north of Chisholm.  At this point, Officer Riley informed Nelson that he would be receiving a citation for driving after revocation. 

Sometime during Officer Riley's questioning, Officer Ryan Nelson arrived at the scene.  Officer Nelson asked Nelson whether illegal drugs or controlled substances were in the vehicle and Nelson stated "that there shouldn't be."  When asked if there were narcotics in the vehicle recently, Nelson stated, "Oh, yes, many times." 

            Officer Nelson also spoke with respondent Rahkola.  Officer Nelson testified that Rahkola also appeared to be very nervous and fidgety and that based on his training and experience, Rahkola "was either using methamphetamines or just recently had used them."  When further questioned, Rahkola admitted to using methamphetamine earlier and stated that he and Nelson were on their way to a friend's house in Virginia.

            The officers discussed Nelson and Rahkola's nervousness, mannerisms, and inconsistent stories regarding their destinations.  Based on these observations, Officer Riley testified that he strongly believed Rahkola to be under the influence of drugs or in possession of drugs.  Officer Riley asked Nelson for his consent to search him for weapons and drugs and testified that Nelson said that he could.  By this time, there were three officers standing in front of Nelson.  Officer Riley discovered a small pocketknife and what he believed to be methamphetamine in a cigarette package in Nelson's pocket.  Nelson disputes that he gave consent to a search and contends that Officer Riley removed the small knife from his pocket before asking whether he could search him.  Nelson was subsequently taken into custody.

            The officers then had Rahkola step out of the vehicle because they intended to tow and impound it for further investigation.  Officer Riley pat searched Rahkola because, according to Officer Riley, it appeared that Rahkola was under the influence of drugs and the pat search was necessary for officer safety.  The pat search revealed $614 in cash.  Rahkola was taken into custody.  An in-take search conducted later at the Virginia jail revealed a small amount of methamphetamine in Rahkola's baseball cap.

            After Rahkola was removed from the vehicle, Officer Nelson observed through the open car door a handgun protruding from under the seat.  Officer Nelson had his certified narcotics dog sniff outside the vehicle and the dog indicated that there was an odor of controlled substance coming from the vehicle, specifically from a backpack that was located in the rear seat.  In the backpack, the officers found a marijuana pipe, a plastic baggie containing methamphetamine, a scale, and a handgun clip.  In addition, a glass pipe with some residue was found underneath the front passenger seat.

            Both respondents were arrested and charged with several controlled-substance possession crimes.  Nelson was also charged with felony driving while impaired in the first degree; driving while impaired in the second degree; and driving after revocation.  Before trial, respondents moved to suppress the evidence obtained from the police stop and search.  The district court granted the motion and dismissed all counts of the complaints.  This appeal follows.  Respondents' cases are consolidated on appeal for purposes of judicial economy.

D E C I S I O N

            "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 or not suppressing the evidence."  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  This court accepts the district court's findings of fact unless they are clearly erroneous.  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).  Whether an investigatory stop is valid is a legal determination subject to de novo review when the facts are undisputed.  Berge v. Comm'r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1995).  The determination of whether a search is constitutional is also a question of law, which we review de novo.  State v. Olson, 634 N.W.2d 224, 228 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).

            On appeal from a pretrial order, a district court's decision will not be reversed unless it has a critical impact on the prosecution and it is "clearly and unequivocally" erroneous.  State v. Miller, 659 N.W.2d 275, 278 (Minn. App. 2003) (quotation omitted), review denied (Minn. July 15, 2003).  The suppression of the evidence here meets the standard of critical impact.  See State v. Holmes, 569 N.W.2d 181, 184 (Minn. 1997) (stating dismissal of charge following suppression of "all the evidence" meets critical impact element).  Therefore, the only question is whether the district court's decision is clearly and unequivocally erroneous.

I.

            The first issue is whether the initial stop of the vehicle was justified.  When a police officer has a reasonable, articulable basis to believe that a violation of law has occurred, an investigatory stop is valid regardless of the officer's motivations.  State v. Battleson, 567 N.W.2d 69, 71 (Minn. App. 1997).  Even a minor traffic violation may serve as a basis for a stop.  State v. Wagner, 637 N.W.2d 330, 335-36 (Minn. App. 2001).  For example, this court has determined that a police officer's observation of an object suspended from a rear-view mirror, in violation of Minnesota law, justified a stop of the vehicle.  Gerding v. Comm'r of Pub. Safety, 628 N.W.2d 197, 200 (Minn. App. 2001), review denied (Minn. Aug. 15, 2001).

            Respondents argue that because Officer Riley's basis for following the vehicle was solely because he had a hunch that there was drug use or sales occurring at the residence under surveillance, the vehicle stop was pretextual.  But Officer Riley testified that he observed that the vehicle had a cracked windshield and objects hanging from the rear-view mirror before he made the determination to have the vehicle pulled over.  After he made his decision, Officer Riley observed the vehicle speeding and swerving across the fog line.  The fact that Officer Riley had additional motives to see if reasonable suspicion of other criminal activity would develop during the course of the stop is irrelevant, as long as there was a sufficient objective reason for the stop.  Battleson, 567 N.W.2d at 71.  Because Officer Riley observed equipment and traffic violations, the vehicle stop was justified.

II.

            The next issue is whether Rahkola has standing to object to the search of Nelson.  A defendant who seeks the suppression of evidence may not assert a violation of the Fourth Amendment rights of a third party but must allege some violation of his own rights.  State v. Reynolds, 578 N.W.2d 762, 764 (Minn. App. 1998).  In order to have Fourth Amendment standing, a defendant must show that the search or seizure infringed upon the defendant's own legitimate expectation of privacy.  Id.

            We recently addressed the issue of whether a passenger had standing to object to a vehicle search after a valid stop.  Miller, 659 N.W.2d at 282.  We stated the following:

We have held that a passenger in the car had standing to contest the constitutionality of the stop.  State v. Ritchie, 379 N.W.2d 550, 553 (Minn. App. 1985), review denied (Minn. Feb. 14, 1998).  Further we stated, "[the passenger] had a protectible Fourth Amendment interest in not being stopped unless the police officers were able to justify the stop based on the standards."  Id. at 552.  In Ritchie, we concluded that the search was lawful because it was based on a reasonable, articulable suspicion of criminal activity.  Id. at 553.

 

As the Ritchie court noted, "[A] brief stop is considered a seizure and an individual who is stopped is entitled to Fourth Amendment protection, even though the standards justifying a stop are lower than for arrest."  Respondent does not challenge the constitutionality of the stop of the vehicle; instead, he challenges the search with the drug-detection dog and his continued detention as unrelated to the initial stop.  On these facts, because respondent was stopped and detained, he has standing to question the constitutionality of the search.

 

Id.  In the present case, Rahkola challenged the continued detention as unrelated to the initial stop.  Following Miller, because Rahkola was stopped and detained as a part of the traffic stop, he is entitled to Fourth Amendment protection and has standing to question the constitutionality of the resulting searches.

III.

            The last issue is whether the officers were justified in expanding the scope of the stop.  Detention of a person during an automobile stop, even for a brief period, constitutes a seizure protected by the Fourth Amendment.  Whren v. United States, 517 U.S. 806, 809-10, 116 S. Ct. 1769, 1772 (1996).  Expansion of the scope of the stop to include investigation of other suspected illegal activity is permissible under the Fourth Amendment only if the officer has reasonable, articulable suspicion of that activity.  Terry v. Ohio, 392 U.S. 1, 20-21, 88 S. Ct. 1868, 1878-79 (1968).  The Minnesota Supreme Court has similarly construed Minn. Const. art. I, § 10, to limit the scope of a Terry stop to an investigation of the suspected offense that prompted the stop, the limited search for weapons, and the "investigation of only those additional offenses for which the officer develops a reasonable, articulable suspicion within the time necessary to resolve the originally-suspected offense."  State v. Wiegand, 645 N.W.2d 125, 136 (Minn. 2002).

            The Minnesota Supreme Court recently reaffirmed that a police officer must have a reasonable, articulable suspicion of criminal activity in order to expand the scope of a routine traffic stop beyond the underlying justification for the stop.  State v. Fort, 660 N.W.2d 415, 419 (Minn. 2003).  Specifically, the supreme court concluded that the suspect's consent, taken alone, is insufficient to permit expansion of a routine traffic stop; the police officer must have a reasonable, articulable suspicion of further criminal activity in order to request consent to expand the stop.  Id. at 418.  The supreme court concluded that testimony that the suspect seemed nervous, avoided eye contact, and was stopped in a "high drug area" was insufficient to justify expansion of the scope of the stop.  Id. at 419.  The question here is whether the officers articulated a particularized basis for suspecting criminal activity that would permit expansion of the scope of the stop.

            Initially, an officer's questions should be limited to the purpose of the traffic stop.  Florida v. Royer, 460 U.S. 491, 498-500, 103 S. Ct. 1319, 1324-25 (1983).  An officer investigating a traffic violation may be justified in asking the driver to get out of the car, see Ohio v. Robinette, 519 U.S. 33, 38-39, 117 S. Ct. 417, 420-21 (1996); asking for a driver's license and proof of insurance, see Delaware v. Prouse, 440 U.S. 648, 658-59, 99 S. Ct. 1391, 1398-99 (1979); asking to examine the vehicle identification number, see New York v. Class, 475 U.S. 106, 116, 106 S. Ct. 960, 967 (1986); and asking about the intended destination of the driver and about the reason for speeding, see United States v. Bloomfield, 40 F.3d 910, 915 (8th Cir. 1994).  If the detainee's responses or other circumstances give rise to a reasonable, articulable suspicion of additional criminal activity within the time necessary to resolve the original purpose of the stop, an officer may broaden his inquiries and satisfy those suspicions.  Wiegand, 645 N.W.2d at 136.

            Reasonable suspicion is determined from the totality of the circumstances.  State v. Lande, 350 N.W.2d 355, 357-58 (Minn. 1984).  Reasonable suspicion requires that the officer "be able to articulate something more than an ‘inchoate and unparticularized suspicion or hunch.'"  United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585 (1989) (quoting Terry, 392 U.S. at 27, 88 S. Ct. at 1883).  "[A]n officer may make inferences and deductions that might elude an untrained person" when arriving at a determination of a reasonable suspicion of criminal activity.  State v. Tomaino, 627 N.W.2d 338, 341 (Minn. App. 2001).

            In the present case, the state did not establish a reasonable relationship between the purpose of the stop equipment and traffic violations and Officer Nelson's drug-related questions.  While Officer Riley testified that he had a hunch that the vehicle's occupants were involved with drugs because of the fact that they left the residence that he had under surveillance, Officer Nelson did not testify that he had any information about Nelson indicating that Nelson had illegal drugs in the vehicle or that he saw anything that caused him to suspect that Nelson had anything illegal or dangerous in his pockets.  The officers did observe that Nelson was extremely nervous and shaking and testified that Nelson's voice cracked when he spoke.  But Minnesota courts have not supported nervousness as a basis for expanding the scope of an unrelated traffic stop, no matter how extreme the nervousness is perceived to be.  In State v. Syhavong, we stated the following:

In arriving at a reasonable suspicion of criminal activity, an officer may make inferences and deductions that might elude an untrained person.  But the officer must demonstrate objective facts to justify that suspicion and may not base it upon a mere hunch.  Nervousness alone is not an objective fact, but a subjective assessment derived from the officer's perceptions.

           

                        While an officer's perception of an individual's nervousness may contribute to an officer's reasonable suspicion, nervousness is not sufficient by itself and must be coupled with other particularized and objective facts.

 

661 N.W.2d 278, 282 (Minn. App. 2003) (citations omitted).

            Investigative questioning for purposes unrelated to the stop should not be used for intimidation.  Pretextual traffic stops are evaluated on objective criteria, and they may not be transformed into impermissible questioning that is not tailored to the purpose of the stop or the protection of the officer.  See, e.g., State v. Bell, 557 N.W.2d 603, 606 (Minn. App. 1996) (holding that officer exceeded scope of traffic stop for speeding when officer issued warning ticket, then requested and obtained consent to search defendant's car with no particularized or objective basis for requesting the search), review denied (Minn. Mar. 18, 1997).

            Viewing the totality of the circumstances, the officers here did not have a reasonable, articulable suspicion of criminal activity at the time that the officers inquired about drugs.  The questions were beyond the scope of the stop and constitutionally impermissible.  The consent thereafter given was the product of an illegal detention, and all evidence subsequently discovered as a result of the questioning and the search must be suppressed.  See Fort, 660 N.W.2d at 419 (holding evidence must be suppressed where "investigative questioning, consent inquiry, and subsequent search went beyond the scope of the traffic stop and was unsupported by any reasonable articulable suspicion").  Therefore, we conclude that the district court did not err.

            Affirmed.