State of Minnesota, Respondent, vs. Barry John Petersen, 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This opinion will be unpublished and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

A03-2024

 

State of Minnesota,

Respondent,

 

vs.

 

Barry John Petersen,

Appellant.

 

Filed September 21, 2004

Reversed

Randall, Judge

 

Dakota County District Court

File No. K5-02-979

 

Steven J. Meshbesher, Meshbesher & Associates, P.A., 225 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN  55402  (for appellant)

 

Michael Hatch, Minnesota Attorney General, 445 Minnesota Street, Suite 1400, St. Paul, MN  55101, and

 

James C. Backstrom, Dakota County Attorney, Scott Hersey, Assistant County Attorney, 1560 Highway 55, Hastings, MN  55033  (for respondent)

 

 

            Considered and decided by Wright, Presiding Judge, Randall, Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            On appeal from a conviction of aiding and abetting first-degree controlled-substance crime, appellant argues that police, who had provided marked drug-buy-fund money to a confidential informant for a third party's drug buy, did not have articulable suspicion to stop appellant's taxi after police observed a meeting involving the third party's car and appellant's taxi.  Appellant argues that even if the stop was permissible, the suspected cocaine deal by itself gave police no grounds to conduct a pat-down search of appellant's person.  Finally, appellant argues that police exceeded the scope of the pat-down search by seizing a wad of money whose incriminating nature was not immediately apparent.  Because the pat-down search of appellant's person was unlawful, we reverse.    

FACTS

On March 20, 2002, Agent Michael Parks of the Dakota County Drug Task Force received information from a confidential informant ("CI") that a delivery of cocaine was going to take place at a known location in the City of Lakeville.  The CI informed Agent Parks that Allen Lee Whitehouse would be receiving money from the CI to purchase cocaine from an unknown individual at the McDonalds in the City of Eagan.  The CI also told Agent Parks that Whitehouse would possibly be driving a small maroon vehicle.  Based upon this information, Agent Parks provided the CI with $750 of government buy-fund money to give to Mr. Whitehouse to be used in a controlled buy.   

            Agents from the Dakota County Drug Task Force conducted surveillance near an address on Howland Avenue.  During their surveillance, the agents observed a small maroon Ford Escort traveling northbound on Howland Avenue.  The vehicle stopped at a residence, and the driver, Whitehouse, exited the car.  Approximately 10 minutes later, Whitehouse left the house and returned to the vehicle and drove southbound on Howland Avenue. 

Shortly thereafter, Agent Parks received a telephone call from the CI advising him that the exchange of money had taken place and that Whitehouse would be traveling to a McDonald's Restaurant in the City of Eagan.  Agents from the Dakota County Drug Task Force then followed Whitehouse to the McDonald's where they observed the maroon Ford Escort parked next to a blue taxicab.  Agent Dretzke observed Whitehouse exit the driver's side of the Ford Escort, approach the taxicab, and lean into the front passenger window.  From Agent Dretske's vantage point, it appeared that the driver was the only person in the taxicab.  

After the brief meeting at the McDonald's, the two vehicles pulled out of the parking lot.  Agent Parks continued surveillance of Whitehouse in the Ford Escort and Sgt. Grant, Agent Dretzke, and Investigator Jones followed the taxicab.  The agents followed the taxicab for approximately one and a half miles to a house in the City of Eagan, where the agents observed two males exit the taxicab and enter the residence.  Approximately 10-15 minutes later, the agents observed one male leave the residence and get back into the taxicab.  While the agents continued surveillance of the taxicab, Sgt. Grant received confirmation that a traffic stop had been initiated on Whitehouse and that a quantity of cocaine had been seized from Whitehouse.  Sgt. Grant was also informed that no government buy money was found on Whitehouse.  Sgt. Grant then made the decision that an investigative stop of appellant should be conducted. 

Agents Grant, Jones, and Dretzke initiated the traffic stop.  Sgt. Grant approached the taxicab and identified himself as an agent with the Dakota County Drug Task Force.  Sgt. Grant asked the driver where he was coming from and requested identification.  The driver produced a Minnesota Driver's License identifying himself as appellant John Petersen, and appellant told Sgt. Grant that he had just dropped off a fare at an Eagan residence.  Sgt. Grant informed appellant that the agents believed he was involved with a narcotics transaction.  Sgt. Grant then requested that appellant exit his vehicle and advised appellant that he would be patted down for weapons for officer safety purposes.  During the pat down, Investigator Jones located a wad of cash in appellant's front pants pocket.  The money removed from appellant's pants pocket included $200 with serial numbers that matched the photocopy of the government buy-fund money that was provided by the Dakota County Drug Task Force.  The remaining $550 was later found in a dresser drawer at the Eagan residence. 

            On March 22, 2002, appellant was charged by complaint in Dakota County District Court with one count of aiding and abetting a first-degree controlled-substance crime.  Appellant moved to suppress the evidence obtained during the stop, and an omnibus hearing was held on April 11 and April 18, 2003.  At the omnibus hearing, Agent Grant testified that appellant's behavior of stopping briefly at a residence was consistent with that of a "drug runner" or "mule."  Agent Jones also testified that he had been involved in "thousands of drug investigations" and that based on his experiences the prevalence of weapons in drug transactions is high.  Agent Jones further testified that parties to drug transactions "often carry" guns, knives, and razorblades.  Finally, Agent Jones testified that in his experience with drug transactions, he has often removed money from the suspects in the form of rolls or wads.

On June 23, 2003, the district court denied appellant's motion to suppress the evidence obtained by the stop.  The district court held that appellant's conduct of stopping briefly at the Eagan residence served to heighten the officers' suspicions with respect to appellant because his actions of stopping at a residence, exiting the vehicle, entering a residence, and returning to the taxi-cab several minutes later were consistent with the conduct of a "drug runner." 

On October 7, 2003, appellant entered into an agreement with the state under to State v. Lothenbach, 296 N.W.2d 854 (1980), and the case was tried on stipulated facts.  The district court found appellant guilty, but stayed the imposition of sentence and placed appellant on probation for three years conditioned on him serving 180 days in the Dakota County Jail and paying a $750 fine.  This appeal followed.

D E C I S I O N

            This court reviews de novo a lower court's ruling on constitutional questions.  State v. Wiegand, 645 N.W.2d 125, 129 (Minn. 2002).  This court also reviews de novo a district court's determination of probable cause as it relates to warrantless searches.  Id.  When reviewing the legality of a search or seizure, this court will not reverse the district court's factual findings unless clearly erroneous or contrary to law.  Id.

            Appellant argues that the evidence obtained as a result of the stop, search, and seizure should have been suppressed by the district court on the basis that appellant's Fourth Amendment rights were violated.  For the evidence to be admitted the state must prove (1) reasonable articulable suspicion for the stop, (2) reasonable articulable suspicion that the appellant could be armed and dangerous to justify a Terry search, and (3) that the incriminating character of the evidence seized was immediately apparent to the officers, or in the alternative, the state must prove probable cause for arrest.

I.

A.         Terry stop

      An investigatory stop requires only a reasonable suspicion of criminal activity, a lesser quantum of proof than probable cause.  Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880 (1968).  A reasonable suspicion exists when, under the totality of the circumstances, the officers can articulate particular and objective facts for suspecting the person of criminal activity.  Wiegand, 645 N.W.2d at 135.  To establish reasonable, articulable suspicion, the police need only show that the stop was not the product of mere whim, caprice, or idle curiosity.  State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999).  The information that will support an investigative stop need not be obtained from an officer's personal observations, but rather may be obtained from an informant's tip.  State v. Gilchrist, 299 N.W.2d 913, 916 (Minn. 1980). 

            Appellant argues that when the investigatory stop was conducted, the officers had no basis to reasonably suspect appellant, and not the passenger, as the participant in a narcotics transaction.  Appellant asserts that the permissibility of the investigative stop hinges on the timing of the stop.  Appellant admits that before he entered the Eagan residence, the investigating agents most likely had the requisite reasonable, articulable suspicion that a person in the taxicab was involved in a narcotics transaction.  But appellant argues that once appellant and the other person exited the taxicab and only appellant returned to the taxicab, the reasonable articulable suspicion disappeared.

We disagree.  Agent Grant learned that Whitehouse had been arrested and that cocaine had been found on his person without government buy-fund money after appellant stopped at the Eagan residence.  This newly acquired information allowed for the agents' reasonable suspicion to continue beyond the stop at the Eagan residence.

Appellant also contends that the investigating officers impermissibly relied on a drug-courier profile in deciding to stop him.  In support of his argument, appellant cites State v. Martinson for the proposition that a profile cannot provide the officers with a reasonable, articulable suspicion of illegal activity.  581 N.W.2d 846, 851 (Minn. 1998).  In Martinson, the Minnesota Supreme Court stated that it is extremely reluctant to rely solely upon a drug-courier profile for purposes of asserting a reasonable, articulable suspicion of criminal activity.  Id.  But Martinson also states that the factors that comprise a profile must still be considered under the totality of the circumstances.  See id. (stating that even if many of the characteristics relied on by the officers can be labeled as factors found in a drug-courier profile, these factors must still be considered in their totality when determining reasonable suspicion). 

            Here, the totality of the circumstances shows that:  (1) law enforcement received reliable information from a CI that Whitehouse would be purchasing narcotics at the McDonald's in Eagan; (2) law enforcement observed Whitehouse approach the front passenger window of appellant's taxicab, which is consistent with talking to a person in the front seat as opposed to the back seat; (3) appellant drove to a residence where he exited the front seat and another person exited the back seat; (4) appellant returned to the taxicab several minutes later and drove off, which officers testified is consistent with a drug-runner profile; and (5) agents then learned that Whitehouse had been arrested and that cocaine had been found on him with no government buy-fund money.   We conclude that the totality of the circumstances easily provided the agents with the requisite suspicion to at least conduct a limited initial Terry stop.

B.         Terry search

Appellant argues that even if investigating agents had a reasonable, articulable suspicion of criminal conduct to justify the stop of appellant's taxi, the agents did not have any justification to conduct a protective, pat-down search of appellant's person.  On this issue, we agree with appellant.

Police officers can lawfully make an investigative stop of an individual and frisk him for weapons on less than traditional probable cause if the officer is able to point to specific and articulable facts which, taken together with rational inferences from those facts reasonably warrant the intrusion.  Terry, 392 U.S. at 21, 88 S. Ct. at 1880.  The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man under the circumstances would be warranted in the belief that his safety or the safety of others was in danger.  Id. at 27, 88 S. Ct. at 1883.  In determining whether the officer acted reasonably, due weight must be given not to the officer's hunch, but to the specific reasonable inferences, which the officer is entitled to draw from the facts in light of his experience.  Id.

            Appellant argues that the investigating officers did not have a reasonable suspicion that appellant was armed and dangerous because the alleged crime of which appellant was suspected was not a crime "where [appellant] would likely be armed and dangerous; it was not a crime such as robbery, assault with weapons or homicide."  See State v. Eggersgluess, 483 N.W.2d 94, 97 (Minn. App. 1992) (concluding that there was no cause to conduct a pat down weapons search during the investigation of an open bottle violation).  Appellant contends that there were no additional facts or circumstances that would suggest he was armed and dangerous.  There were no reported bulges in appellant's clothing, appellant made no threats, the agents did not observe any weapons, and appellant did not make any sudden or furtive movements toward a place where weapons could be concealed.

Here, the officers conducted a pat-down search based solely on a "boilerplate" claims that persons in drug transactions "frequently carry weapons."  While officers are permitted to draw on their experiences in determining whether a pat-down search is necessary to ensure officer safety, Terry, 392 U.S. at 27, 88 S. Ct. 1883, a link to drug activity alone has repeatedly been found by the courts of this state to be not enough to justify a Terry weapons search.  See State v. Varnado, 582 N.W.2d 886, 890 (Minn. 1998) (holding that without more, mere presence in a high crime area or association with a suspected drug dealer does not provide a reasonable basis to suspect that a person may be armed and dangerous); see also State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff'd, 508 U.S. 366 (1993) (concluding that drug activity, when combined with other objective criteria, provides a basis for a lawful pat-down search).

            The state failed to point to any specific and articulable facts demonstrating that appellant was armed and dangerous or that they had reasonable grounds to believe that (specifically) this alleged drug runner was armed and dangerous.  Appellant stopped his taxicab in a non-evasive manner; appellant properly identified himself; appellant did not appear to be "any more nervous than most people getting stopped by the police"; appellant was not known to the officers as a person involved with narcotics; and the Eagan residence was not known to be a residence where narcotics activity routinely occurred.  The record is clear the agents relied on nothing more than the "generic statement" that weapons are "routinely present in narcotics transactions.

If a law enforcement officer (as an individual) thinks it is reasonable to always conduct a weapons pat down search when he is on the trail of a drug bust or when he is acting alone, the courts cannot rewrite a law officer's training manual.  But we can say that simply because an individual officer thinks it is "good business" to routinely make a weapons pat down search, that does not make a routine pat down search "constitutional."  Put another way, what the officer on the street thinks is reasonable is not necessarily constitutional.  Based on precedent, we conclude that a protective pat down search of a suspect, based solely on the fact that the suspect may be involved in a drug transaction, and with no more supporting facts than that, falls widely outside the confines of Terry and its progeny.  Appellant's constitutional right to be free from an unreasonable search and seizure was violated in this instance.  See U.S. Const. amend. IV; Minn. Const. art. I, § 10. 

Because of our conclusion that the officers did not have grounds to conduct a Terry search, we do not need to address appellant's contention that the seizure of the wad of bills in his pants pocket was unlawful under Dickerson.

II.

            Respondent contends that reasonable suspicion for the Terry stop and search can be bypassed because the officers had probable cause to arrest appellant.  Probable cause for an arrest exists when the objective facts are such that under the circumstances, "a person of ordinary care and prudence would entertain an honest and strong suspicion that a crime has been committed."  State v. Wynne, 552 N.W.2d 218, 221 (Minn. 1996). 

Here the state falls short of demonstrating probable cause.  Agent Jones testified that at the time of the stop he was not sure whether appellant was involved in a drug transaction.  It is evident by Agent Jones' own testimony that the officers did not have a "strong suspicion that a crime had been committed."  See id.

Reversed.