State of Minnesota, Appellant, vs. Kevin Ross Barrett, Respondent.

This opinion will be unpublished and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

A04-29

 

State of Minnesota,

Appellant,

 

vs.

 

Kevin Ross Barrett,

Respondent.

 

Filed June 29, 2004

Reversed Toussaint, Chief Judge

 

Isanti County District Court

File No. K1-03-778

 

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

 

Jeffrey Edblad, Isanti County Attorney, Thad N. Tudor, Assistant Isanti County Attorney, 555 18th Avenue S.W., Cambridge, MN  55008 (for appellant);

 

Jodi L. Proulx, Assistant Public Defender, 1001 East Highway 95, Cambridge, MN  55008 (for respondent)

 

            Considered and decided by Toussaint, Chief Judge; Anderson, Judge; and Minge, Judge.

 

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            This appeal is from a pretrial order suppressing evidence and dismissing the charge of felony fifth-degree controlled substance offense.  Because we conclude police had reasonable suspicion warranting a protective weapons search, we reverse.

FACTS

 

            Respondent Kevin Barrett was charged with fifth-degree controlled substance crime for possessing methamphetamine found under his car seat.  Cambridge police officer Jenni Caulk testified that she approached Barrett's vehicle after she saw two cars parked alongside each other in a Wal-Mart parking lot at 2:30 a.m.

            Officer Caulk testified that Barrett immediately "started acting nervous and jittery."  She noticed that he was fidgeting with a cup in his hands, and saw him bend down.

            Officer Caulk testified that at this point she told Barrett to "get his hands up where I could see them."  Officer Caulk testified she did this "[b]ecause I was concerned for my safety."  She testified that she was then the only officer on the scene, with five people to keep track of, and that she was concerned that Barrett might have a weapon under the seat.

            Officer Caulk testified that after a couple of seconds of compliance with her order, Barrett again reached under his seat.  At this point, she ordered Barrett to get out of the car, and went to Barrett's side of the car to secure him with handcuffs for her own safety.  At that point, another officer arrived.  While the other officer took custody of Barrett, Officer Caulk entered the car and looked under the passenger seat where Barrett had been sitting.  There she saw a baggie containing a powdery substance that later tested positive for methamphetamine and some drug paraphernalia.

            The district court issued an order granting Barrett's motion to suppress and dismissing the complaint.  The court concluded that, in the absence of probable cause and exigent circumstances, Officer Caulk's search under the car seat was unlawful.

D E C I S I O N

            In a prosecution pretrial appeal, the state must show clearly and unequivocally both that the district court erred in its ruling and that the court's order will have a critical impact on the outcome of the prosecution.  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998).  The district court's order here, because it dismissed the complaint, has critical impact.

            In reviewing a determination on the legality of an investigatory stop, this court reviews the findings of fact for clear error.  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).  The ultimate question of the legality of the stop, and the existence of reasonable suspicion, however, is reviewed de novo.  See id.

            Police may conduct a limited protective weapons search of a lawfully stopped person if they have reasonable suspicion to believe the person may be armed and dangerous.  See in re Welfare of M.D.B., 601 N.W.2d 214, 216 (Minn. App. 1999), review denied (Minn. Jan. 18, 2000).  The same authority extends to a protective search of an automobile for weapons.  Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469 (1983).  The court in Long concluded

that the search of the passenger compartment of an automobile, limited to those areas in which the weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant' the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.

 

Id. at 1049, 103 S. Ct. at 3481 (citation omitted) (footnote omitted).  Our supreme court applied Michigan v. Long in State v. Waddell, 655 N.W.2d 803, 810 (Minn. 2003), holding that officers who had reasonable grounds to believe that the occupants of a vehicle were the robbers who had just shot a cashier had an "objectively reasonable basis" for believing they were armed or had access to a weapon, and therefore could search the car for a weapon.

            The district court erred in applying a probable cause standard to Officer Caulk's protective weapons search.  All that was required was reasonable suspicion.  Officer Caulk's suspicion that Barrett might be armed was based on his "nervous and fidgety" manner and his twice reaching under the seat in which he was sitting, once after she had ordered him to keep his hands visible.  She also feared for her safety because she was a lone officer confronting five people in the early morning hours.  Officer Caulk clearly testified that she was "concerned for [her] safety" when she ordered Barrett to keep his hands visible, and that she was concerned that he might have a weapon under the seat.  Officer Caulk's testimony that she considered Barrett's argumentative manner earlier in the encounter "typical behavior" for him does not support the district court's finding that Officer Caulk testified she was unconcerned for her safety.

            In general, nervous behavior by itself does not provide reasonable suspicion supporting the continuation of a Terry stop.  State v. Syhavong, 661 N.W.2d 278, 282 (Minn. App. 2003);  State v. Tomaino, 627 N.W.2d 338 (Minn. App. 2001).  But in this case there was more than Barrett's "nervous and fidgety" behavior.  Barrett also twice reached under his seat, doing so the second time despite Officer Caulk's warning to keep his hands in the open.  This court has held that a defendant's furtive movement in reaching toward the passenger side of his car, combined with his "nervous and fidgety" behavior and his inability or unwillingness to answer routine questions, provided reasonable suspicion justifying a pat-down search.  State v. Richmond, 602 N.W.2d 647, 651 (Minn. App. 1999), review denied (Minn. Jan. 18, 2000).  Barrett's argumentative behavior is equivalent to the suspect's failure to answer routine questions in Richmond.  And Barrett's "furtive" movements in twice reaching under his seat, once in violation of a police order, are more suspicious than the single movement in Richmond, which the officer observed before making the stop.  See id.

            We conclude that the district court's ruling that the protective weapons search inside Barrett's car was unlawful was clearly erroneous.  The court failed to apply the reasonable suspicion standard, and erroneously discounted evidence that the officer did feel threatened by Barrett's "nervous and fidgety" behavior and his twice making furtive movements under his seat, behavior which provided a reasonable suspicion to support the search. 

            Reversed.