State of Minnesota, Respondent, vs. Edward James Caliph, Appellant.

State of Minnesota, Respondent, vs. Edward James Caliph, Appellant. A06-1714, Court of Appeals Unpublished Decision, October 30, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2007).

 

STATE OF MINNESOTA

IN COURT OF APPEALS
A06-1714
 
State of Minnesota,
Respondent,

vs.

Edward James Caliph,
Appellant.

 

Filed on October 30, 2007

Reversed
Ross, Judge

 

Hennepin County District Court

File No. 05080537

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414-3097 (for appellant)

 

Considered and decided by Worke, Presiding Judge; Kalitowski, Judge; and Ross, Judge.

 

U N P U B L I S H E D   O P I N I O N

ROSS, Judge

Edward Caliph appeals his conviction of fifth-degree controlled substance crime for possession of crack cocaine.  He argues that police lacked reasonable articulable suspicion to stop him, pat-search him, and seize contraband from his pockets.  Because we have found the record to be devoid of any evidence that the frisk was motivated by articulated, reasoned concerns for officer safety, we reverse.

FACTS

In December 2005 Minneapolis police received a mid-morning 911-call from a person in North Minneapolis who reported that approximately five men were harassing others in a Metro Transit bus shelter, stating that they were "being really mean," that they were "asking [a family] for money," and that "there's like some kind of drug trafficking going on in there."  The caller provided his name and phone number and informed the dispatcher that he worked at a nearby homeless shelter.  He described the alleged harassers as black males, one wearing a light blue jacket and another wearing a dark blue parka.

A police officer arrived within three minutes of the call.  He saw an African-American male, later identified as Edward Caliph, wearing a blue coat and walking away from the bus shelter.  The officer ordered him to stop.  He told Caliph why he stopped him and immediately directed him to place his hands on the squad car.  The officer conducted a pat-down search, or "frisk" of Caliph.  He felt a long, hard, slender object in Caliph's coat pocket.  The officer removed the object and recognized it to be the type of pipe commonly used to smoke "crack" cocaine.  The officer also discovered three cellophane wrappers containing crack cocaine in the same coat pocket, another wrapped piece of crack cocaine in Caliph's pants pocket, and $133 in cash.  The officer arrested Caliph, and the state charged him with fifth-degree controlled substance crime.

Caliph moved the district court to suppress the seized evidence.  He argued that the police violated the constitutional prohibition against unreasonable searches and seizures, maintaining that the officer lacked reasonable suspicion to stop him or frisk him.  The state and Caliph agreed to argue the motion without an evidentiary hearing, based only on the complaint, police reports, dispatch transcript, 911-call transcript, and legal memoranda.  The district court denied the motion, holding that the officer had reasonable suspicion to justify Caliph's stop and frisk.  Caliph moved for reconsideration, adding that the police also lacked a constitutional basis to seize the pipe because its incriminating nature was not immediately apparent under the plain-feel doctrine.  The district court denied the motion to reconsider.  Following a jury-waived, fact-stipulated trial based again on the written documents without testimony, the district court found Caliph guilty.  This appeal follows.

D E C I S I O N

Caliph challenges the district court's conclusions that the stop, the frisk, and the seizure of the pipe and crack cocaine were constitutionally permissible.  The federal and state constitutions prohibit unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10.  Caliph argues that the stop, search, and seizure were unreasonable because the police lacked reasonable, articulable suspicion to justify the stop or the pat-search and because seizure of the pipe exceeded the lawful scope of the frisk.

Ordinarily, we review a district court's ruling on the legality of an investigatory stop and frisk de novo, State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999), while deferring to the district court's findings of fact unless they are clearly erroneous, State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).  But because the parties stipulated to the facts, our review of the stop, frisk, and seizure is entirely de novo.  See Berge v. Comm'r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985) (stating that whether an investigatory stop is valid is a legal determination subject to de novo review when the facts are undisputed).  We apply this standard first to Caliph's challenge to the stop.

I

Caliph argues that the stop was unjustified because the officer lacked reasonable suspicion that Caliph was involved in criminal activity.  He asserts that the caller's tip and immediate police observations were not sufficient bases to detain him.  We hold that the stop was justified.

A police officer may initiate an investigative stop if the officer has reasonable, articulable suspicion of criminal activity.  Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968); State v. Waddell, 655 N.W.2d 803, 809 (Minn. 2003).  Whether police have reasonable suspicion to conduct an investigatory stop depends on the totality of the circumstances, and the stop is not justified if it was "the product of mere whim, caprice, or idle curiosity."  In re Welfare of M.D.R., 693 N.W.2d 444, 448 (Minn. App. 2005) (quotation omitted).  The officer may make an investigative stop based on his own observations or on an informant's tip if the information is reliable.  In re Welfare of G.M., 560 N.W.2d 687, 691 (Minn. 1997).  Citizen informants are presumed reliable.  Jobe v. Comm'r of Pub. Safety, 609 N.W.2d 919, 921 (Minn. App. 2000).

Caliph concedes that the credibility of the caller in this case can be presumed, but he argues that the tip provided no basis to suspect him of the reported drug dealing.  Courts assess an informant's basis of knowledge on the quantity and quality of details provided and officer corroboration of information given.  State v. Cook, 610 N.W.2d 664, 667-68 (Minn. App. 2000), review denied (Minn. July 25, 2002).  The level of detail provided by the caller here permits a reasonable inference that his knowledge was based on reliable observation.  The caller gave his name and phone number and informed the dispatcher that he provided security and maintenance at the shelter.  He gave the number of suspects, their gender, their race, their location near the place of his call, and a basic clothing description of two of them.  He described that the suspects were "being really mean" while they harassed a family staying in the homeless shelter.  He explained that they were asking for money and that they refused to move away from the bus stop.  The caller stated that as part of his employment, he sometimes makes reports to police on behalf of the homeless shelter regarding activity at the bus shelter.

The officer arrived within three minutes of the call and saw a person matching the general description leaving the location of the reported crime.  See State v. Ritchie, 379 N.W.2d 550, 553 (Minn. App. 1985) (holding investigatory stop justified when officers arrived within four minutes at scene of reported crime and stopped a vehicle matching description of reported suspect vehicle), review denied (Feb. 15, 1986).  The behavior reportedhanging out at a bus shelter with no apparent interest in public transportation and harassing strangers for moneywould also tend to support the suspicion of potential street-level drug selling.

Considering the relevant circumstances, we hold that the police officer had a reasoned basis to investigate Caliph regarding the report that "there's like some kind of drug trafficking going on in there."  We therefore reject Caliph's constitutional challenge to the stop.  But we reach a different conclusion concerning the pat-down search.

II

Caliph contends that the police did not have a reasonable basis to conduct a pat-down search.  Because nothing in the record indicates any reason that the police officer believed that Caliph was armed and dangerous or that the circumstances posed a risk to the officer or others, we agree.

The paramount justification for conducting a pat-search is officer safety.  Terry v. Ohio, 392 U.S. 1, 25-27, 88 S. Ct. 1868, 1882-83 (1968).  "An officer may conduct a limited protective weapons frisk of a lawfully stopped person if the officer has an objective articulable basis for thinking that the person may be armed and dangerous."  In re Welfare of M.D.B., 601 N.W.2d 214, 216 (Minn. App. 1999), review denied (Minn. Jan. 18, 2000).  The personal frisk is limited to a protective search of a suspect's outer clothing to discover weapons that might be used by the suspect to harm the officer or others nearby.  G.M., 560 N.W.2d at 692.  The facts and circumstances that justify an investigatory stop will not necessarily provide a sufficient reasonable basis for a frisk.  Wold v. State, 430 N.W.2d 171, 175 (Minn. 1988).  A reasonable basis involves either reasonable suspicion that the suspect is armed and dangerous or the existence of other circumstances that pose a threat to the officer.  M.D.B., 601 N.W.2d at 217.  The officer need not be absolutely certain that the individual is armed; rather, the issue is whether a reasonably prudent officer in the circumstances would be justified in believing that his safety or that of others was in jeopardy.  Terry, 392 U.S. at 27, 88 S. Ct. at 1883; see also Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 1923 (1972) ("The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.").  In this framework, we address whether the state pointed to specific, articulable facts to warrant the frisk.

The state argues that the frisk was justified based on a report of drug-dealing in an allegedly high-crime area, involving five men.  Violent offenses, such as robbery, burglary, rape, assault with weapons, and homicide, and those that might carry a propensity for violence, like "dealing in large quantities of narcotics," impliedly afford police an automatic right to frisk suspects.  State v. Payne, 406 N.W.2d 511, 513 (Minn. 1987) (quotation omitted).  But a suspect's mere presence in a high-crime area is insufficient to justify a frisk for weapons.  State v. Varnado, 582 N.W.2d 886, 890 (Minn. 1998).  And we have previously rejected the argument that investigating the crime of drug-dealing, without more, provides reasonable suspicion to frisk.  See State v. Ingram, 570 N.W.2d 173, 178 (Minn. App. 1997), review denied (Minn. Dec. 22, 1997).

The state also asserts that because the police encountered only Caliph in response to a call in which there were five reported suspects, the officer naturally was concerned about being outnumbered by suspects whose whereabouts were mostly unknown.  But this speculation is unsupported by any evidence, and the police officer's report does not suggest any such concern: "I informed him why I was stopping him and asked him to place his hands on my squad."  The criminal complaint, signed by the prosecutor, adds only a conclusory reference to safety.  It declares, "The officers [sic] informed the defendant why they [sic] were stopping him and then pat searched the defendant for officer's safety."

The officer may have had a reasoned basis for suspecting that Caliph was armed and dangerous and simply failed to include that detail in his report.  But he also did not testify at the hearing in which Caliph argued for suppression, or at the trial.  We are therefore left to look for reasonable suspicion only in the scant, written record, which lacks any articulation from the officer of what that basis might have been.  Nor can it be inferred; the record does not indicate that Caliph exhibited any of the behavior that alone or in combination tends to justify a frisk, such as furtive or sudden movements, avoiding eye contact, refusing to answer, not complying with police requests, acting nervously, keeping or reaching hands in pockets, and so forth.  See, e.g., State v. Harris, 590 N.W.2d 90, 104 (Minn. 1999) (unusual nervousness, furtive movements, and attempt to conceal object); State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992) (exiting building in high-drug activity area where officer articulated personal experience seizing guns from that building), aff'd sub nom., Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130 (1993); State v. Cavegn, 294 N.W.2d 717, 721-22 (Minn. 1980) (lateness of hour, suspect's nervousness, and suspect's clutching object close to body); State v. Richmond, 602 N.W.2d 647, 651 (Minn. App. 1999) (nervous and fidgety, furtive movement, unwillingness to answer questions).  "To allow a weapons search in the absence of any threatening circumstances is a dramatic departure from the long-standing holding in Terry."  M.D.B., 601 N.W.2d at 217.  We repeat the oft-stated refrain that an officer need not wait until he knows certainly that his life is in peril, but more than mere contact with a person suspected of harassing passers-by or transacting a bus-stop drug deal is necessary to justify the indignifying intrusion of a frisk by police.  Because the record is devoid of any facts to support the cursory, claimed concern for officer safety, the district court erred by finding the frisk of Caliph to be constitutionally justified.

Given our holding concerning the lack of a sufficient basis for the frisk, we need not reach Caliph's contention that the seizure exceeded the permissible scope of the frisk.

Reversed.