State of Minnesota, Respondent, vs. David Petelshek, 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This opinion will be unpublished and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

A04-584

 

State of Minnesota,
Respondent,
 
vs.
 
David Petelshek,
Appellant.

 

Filed September 28, 2004 Affirmed

Peterson, Judge

 

Ramsey County District Court

File No. KX032322

 

 

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

 

 

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102 (for respondent)

 

 

John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

 

            Considered and decided by Peterson, Presiding Judge; Stoneburner, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from a conviction of fifth-degree controlled-substance crime, appellant David Petelshek argues that (1) because the police who stopped him did not have a reasonable articulable suspicion of criminal activity, the district court erred when it denied his motion to suppress evidence that the police found when they searched him; and (2) he did not receive effective assistance of counsel.  We affirm.

FACTS

            Around 10:30 p.m. on May 26, 2003, St. Paul Police Officers Patrick Cheshier and Mark Farrington were on routine patrol in a squad car when they stopped at an intersection and saw two men about 20 yards north of the intersection.  Based on previous incidents, including two arrests for controlled-substance crimes, Cheshier recognized one of the men as appellant David Petelshek.  Cheshier testified that the intersection was known for drug activity, and that the police were getting daily calls about drug activity at the intersection.   

Both officers testified that when the two men saw the officers in the squad car, they turned and walked away in opposite directions.  Cheshier testified that when he saw this, he believed that Petelshek was up to something.  The officers turned north at the intersection, pulled the squad car over to the curb, and got out to talk to the men. 

Cheshier spoke with Petelshek first and was joined shortly by Farrington, who had spoken with the other man.  After initial salutations, Cheshier asked Petelshek if he had any needles on him, and Petelshek responded no.  Petelshek told Cheshier that he "just got out and [he has] been clean."  Cheshier responded, "Well, that's great.  Good for you.  You don't have any needle marks or any track marks on your arms or anything like that?"  Petelshek did not respond.  Cheshier asked Petelshek if he could see his arms, and Petelshek showed his arms.  Cheshier immediately saw fresh track marks on Petelshek's arms and said, "Dave, you have fresh track marks . . . .  You have a needle on you, don't you?"  Petelshek admitted that he had a needle.

Farrington searched Petelshek and found a needle, a spoon with etch-marks from a needle, and a film canister that contained methamphetamine.  Petelshek was arrested and charged with fifth-degree controlled-substance crime.

Petelshek moved to suppress the items found during the search and to dismiss the charges on the ground that the officers lacked a reasonable, articulable suspicion to justify the stop.  The district court concluded that Petelshek's furtive movements, in conjunction with Cheshier's knowledge and past encounters with Petelshek, established a reasonable, articulable suspicion of criminal activity.  Based on this conclusion, the district court denied Petelshek's motion.  Petelshek waived his right to a jury trial, and the case was submitted on stipulated facts in accordance with State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  Petelshek was convicted of fifth-degree controlled-substance crime and sentenced to 19 months in prison.

D E C I S I O N

1.         Petelshek argues that the district court erred when it determined that the police had a reasonable articulable suspicion of criminal activity that justified an investigatory stop.  "In reviewing a district court's determinations of the legality of a limited investigatory stop, we review questions of reasonable suspicion de novo."  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000). 

Police may conduct limited stops to investigate suspected criminal activity when the police can "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion."  Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968).  In determining whether the police had a reasonable basis justifying the stop, the reviewing court considers the events surrounding the stop and the totality of the circumstances.  United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981).  "These circumstances include the officer's general knowledge and experience, the officer's personal observations, information the officer has received from other sources, the nature of the offense suspected, the time, the location, and anything else that is relevant."  Appelgate v. Comm'r of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987).  "The police must only show that the stop was not the product of mere whim, caprice or idle curiosity, but was based upon ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.'" State v. Pike, 551 N.W.2d 919, 921-22 (Minn.  1996) (quoting Terry, 392 U.S. at 21, 88 S. Ct. at 1880).

Cheshier testified that he determined that he needed to stop Petelshek after seeing Petelshek and another man turn and walk away from one another immediately after seeing the squad car at the intersection.  At that time, Cheshier knew that the intersection was the site of frequent drug activity and that Petelshek had a history of drug use.

Merely being in a high-crime area will not justify a stop.  See Brown v. Texas, 443 U.S. 47, 52, 99 S. Ct. 2637, 2641 (1979) ("fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct").   But evasive conduct is one circumstance that gives rise to reasonable suspicion.  State v. Johnson, 444 N.W.2d 824, 827 (Minn. 1989).  In State v. Dickerson, 481 N.W.2d 840, 842-43 (Minn. 1992), aff'd, 508 U.S. 366, 113 S. Ct. 2130 (1993), the supreme court held that police reasonably suspected criminal activity when they saw a man leaving an apartment building that was known as a 24-hour-a-day crack house start to walk toward the street but then stop, turn around, and take a sidewalk around the side of the building to the alley after he saw a squad car and made eye contact with the police.  However, in In re Welfare of E.D.J., 502 N.W.2d 779, 780, 783 (Minn. 1993), the supreme court held that police did not articulate a sufficient basis for stopping a juvenile at an intersection known to be an area of heavy trafficking in crack cocaine when the juvenile saw a police car approaching, then turned and walked away, looking back as he did so.  The supreme court distinguished E.D.J. from Dickerson on the basis that the police saw the defendant in Dickerson coming out of a well-known crack house, rather than walking on the street, which provided a stronger basis for suspecting criminal activity.  E.D.J., 502 N.W.2d at 783.

As in E.D.J., police stopped Petelshek at an intersection known for drug activity after Petelshek saw their squad car and then immediately turned and walked away.  But, unlike E.D.J., the police who stopped Petelshek knew who he was and that he had a history of drug use.  This knowledge, like the fact that the defendant in Dickerson was seen coming out of a known crack house,[1] rather than walking on the street, is an additional circumstance that gives rise to reasonable suspicion and makes this case more like Dickerson than E.D.J.  We, therefore, conclude that the police who stopped Petelshek had a reasonable articulable suspicion of criminal activity, and the district court did not err when it denied Petelshek's suppression motion.

2. Ineffective assistance of counsel

To obtain relief on the grounds of ineffective assistance of counsel,

[t]he defendant must affirmatively prove that his counsel's representation "fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome."

 

Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).  The reviewing court assesses counsel's competence using an objective standard of reasonableness.  State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999). 

Petelshek argues that his trial counsel was ineffective because counsel failed to argue that the search incident to arrest was unlawful because possession of a needle is a misdemeanor offense for which an arrest is not authorized, and under State v. Varnado, 582 N.W.2d 886 (Minn. 1998), a search incident to arrest is valid only if the crime initially giving rise to the arrest is a crime for which a custodial arrest is authorized.  But the district court did not conclude that the search was valid as a search incident to arrest; the district court concluded that there was probable cause to search. 

The district court's analysis was that Cheshier asked Petelshek if he had a needle on him, and Petelshek said no; Cheshier asked him again, and Petelshek admitted that he had a needle.  The district court concluded, "I think that that admission then provided the probable cause to search for the needle and I find, therefore, that the search was proper and I am denying the defense's motion to suppress."

Petelshek is correct that under Varnado, a search incident to arrest is valid only if the crime initially giving rise to the arrest is a crime for which a custodial arrest is authorized.  Id. at 892-93.  But, in State v. Hanson, 364 N.W.2d 786, 789 (Minn. 1985), the supreme court explained that not having grounds to custodially arrest a person does not mean that there are not grounds to conduct a search.  In Hanson, police stopped a car after seeing it weaving and crossing over the center line.  Id. at 787.  When the police approached the car, they "saw an open beer can on the floor and a hand-rolled cigarette surrounded by leafy material and placed in an open book that was on the seat between the [driver and a passenger]."  Id. at 788.  An officer opened the passenger door, picked up the can, asked the passenger to get out, and seized the cigarette.  Id.  The can was empty, and the cigarette smelled of marijuana.  Id.  The officer saw a bulge in the passenger's pants and asked the passenger to unsnap his pants.  Id.  The passenger pulled a small bag of marijuana from his pants and handed it to the officer.  Id.  Meanwhile, another officer who was dealing with the driver found additional marijuana in the car and, in a pat search of the driver, found a roach clip and a vial containing marijuana-cigarette butts.  Id.  The officer also obtained the driver's consent to search the trunk.  Id. 

The passenger and the driver argued that there was no justification for frisking them or searching the car.  Id. at 789.  The supreme court held that the frisks and the search of the car were justified and explained:

The frisk of their persons and the further search of the car were both clearly justified.  It is true that possession of a single marijuana cigarette is a petty misdemeanor, which ordinarily does not justify a custodial arrest.  Minn. R. Crim. P.  6.01, subd. 1(1)(a); State v. Martin, 253 N.W.2d 404 (Minn. 1977).  However, the fact that police officers apparently do not have grounds to custodially arrest a defendant does not mean that the officers do not have grounds to conduct a search.  Minn. R. Crim. P. 6.01, subd. 4, provides that "The issuance of a citation does not affect a law enforcement officer's authority to conduct an otherwise lawful search." 

 

Id. (quotation omitted).

            The supreme court then held that the search of the car was justified under the motor-vehicle exception to the warrant requirement, the frisk of the passenger was justified as a protective weapons frisk, and the frisk of the driver was justified by the discovery of additional marijuana under the driver's seat.  Id. 

            It is significant that the supreme court identified the circumstances that justified each of the searches in Hanson, because it illustrates the sometimes overlooked principle that probable cause, by itself, is not sufficient to justify a search.  "Searches conducted without warrants have been held unlawful ‘notwithstanding facts unquestionably showing probable cause.'"  Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967) (quoting Agnello v. United States, 269 U.S. 20, 33, 46 S. Ct. 4, 6 (1925)).  Even where there is probable cause, "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendmentsubject only to a few specifically established and well-delineated exceptions."  Id. (footnote omitted).

            We agree with the district court that Petelshek's admission that he had a needle provided probable cause to search for the needle.  "[P]robable cause means ‘a fair probability that contraband or evidence of a crime will be found.'"  United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585 (1989) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)).  Petelshek's admission that he had a needle made it fairly probable that a needle would be found if Petelshek was searched.  But the district court did not identify any reason why the search of Petelshek, which occurred without prior judicial approval, was not per se unreasonable. 

However, in a case very similar to the present case, the United States Supreme Court found that a search of a suspect who was detained by police, but not arrested, was constitutionally permissible.  Cupp v. Murphy, 412 U.S. 291, 293, 93 S. Ct. 2000, 2002 (1973), involved a victim who died by strangulation, and abrasions and lacerations were found on her throat.  The victim's husband voluntarily went to a police station house for questioning, and police noticed a dark spot on his finger.  Id.  Because police suspected that the spot might be dried blood and knew that evidence of strangulation is often found under the assailant's fingernails, police asked the husband if they could take a sample of scrapings from his fingernails.  Id.  He refused, and, without a warrant, police took the sample, which contained traces of skin and blood cells and fabric from the victim's nightgown.  Id.  This incriminating evidence was admitted at the husband's trial, and he was convicted of second-degree murder.  Id.  In an action for federal habeas corpus relief, the husband challenged his conviction, claiming that the fingernail scrapings were the product of an unconstitutional search under the Fourth and Fourteenth Amendments.  Id. at 292-93, 93 S. Ct. at 2002.

            The Supreme Court noted that although there was probable cause for an arrest, there was no arrest and no search warrant.  Id. at 296, 93 S. Ct. 2004.  The Supreme Court, nevertheless, concluded that the search was reasonable and explained its conclusion as follows:

            At the time [the husband] was being detained at the station house, he was obviously aware of the detectives' suspicions.  Though he did not have the full warning of official suspicion that a formal arrest provides, [the husband] was sufficiently apprised of his suspected role in the crime to motivate him to attempt to destroy what evidence he could without attracting further attention . . . .  The rationale of Chimel [v. California, 395 U.S. 752, 89 S. Ct. 2034 (1969)], in these circumstances, justified the police in subjecting him to the very limited search necessary to preserve the highly evanescent evidence they found under his fingernails.

            On the facts of this case, considering the existence of probable cause, the very limited intrusion undertaken incident to the station house detention, and the ready destructibility of the evidence, we cannot say that this search violated the Fourth and Fourteenth Amendments.

 

Id.  (citation omitted).

We conclude that this reasoning also applies to the search of Petelshek.  Petelshek admitted that he was carrying a needle, which he could have easily disposed of if he were released without being searched, and he was aware of Cheshier's suspicions.  Also, as in Cupp, only a limited search was necessary to preserve this readily destructible evidence.

Because, under Cupp, this limited search did not violate the Fourth or Fourteenth Amendment even though Petelshek was not arrested, Petelshek's counsel's failure to argue that the search was not a lawful search incident to arrest did not fall below an objective standard of reasonable representation, and there is not a reasonable probability that, but for the failure to make this argument, the result of Petelshek's trial would have been different.

Affirmed.

[1] The police did not recognize the man that they saw coming out of the known crack house.