State v. Dickerson

• Decision Date: 30 April 1991
• Docket Number: No. C9-90-1780,C9-90-1780
• Citation: 469 N.W.2d 462
• Parties: STATE of Minnesota, Respondent, v. Timothy E. DICKERSON, Appellant.
• Court: Minnesota Court of Appeals

Page 462

469 N.W.2d 462

STATE of Minnesota, Respondent, v. Timothy E. DICKERSON, Appellant.

No. C9-90-1780.

Court of Appeals of Minnesota.

April 30, 1991.

Review Granted July 24, 1991.

Syllabus by the Court

1. An investigatory stop and pat search require specific articulable facts which reasonably warrant an officer's belief a crime is being or has been committed.

2. Absent probable cause to arrest, an officer may exceed the scope of a limited pat search only for the purpose of recovering an object thought to be a weapon.

Hubert H. Humphrey, III, Atty. Gen., St. Paul, Michael Freeman, Hennepin County Atty., Beverly J. Wolfe, Asst. County Atty., Minneapolis, for respondent.

William Kennedy, Hennepin Cty. Public Defender, Peter W. Gorman, Asst. Public Defender, Minneapolis, for appellant.

Considered and decided by SCHUMACHER, P.J., and AMUNDSON and MULALLY, ^* JJ.

OPINION

AMUNDSON, Judge.

Appellant Timothy Dickerson was charged with possession of a controlled substance in the fifth degree. He challenged the admission of the crack cocaine seized by a police officer. After an evidentiary hearing, the trial court held the stop and search of appellant was justified. The trial court also held seizure of the crack was valid based on the plain feel exception to the warrant requirement. We reverse.

FACTS

On November 9, 1989, at approximately 8:15 p.m., Minneapolis police officers Vernon D. Rose and Bruce S. Johnson were patrolling the 1000 block of Morgan Avenue North in a marked patrol car. Rose is a 14-year police veteran and has participated in approximately 75 drug search warrant executions and 50-75 drug-related arrests. Rose described the 12-unit apartment building at 1030 Morgan Avenue North as a "known crack house." He previously executed several drug-related search warrants at the address. Drugs, guns, and knives were seized during the searches.

Rose saw appellant Timothy Dickerson leaving the Morgan Avenue apartment building. Rose neither recognized Dickerson nor identified which apartment Dickerson left. According to Rose, Dickerson walked down the stairs and continued toward the sidewalk. Dickerson then made eye contact with Rose, immediately turned around, and began walking toward a side alley. Rose described Dickerson's movement as "abrupt".

Rose decided to stop Dickerson based upon his knowledge of past activities at the Morgan Avenue apartments and Dickerson's abrupt direction change. Rose admitted he did not suspect Dickerson of criminal activity before Dickerson's direction change.

The officers pulled into the alley and stopped Dickerson. Dickerson made no evasive movements and did not attempt to conceal anything. Rose did not notice any suspicious bulges in Dickerson's clothing. Dickerson, in contrast, testified he left the building and turned immediately toward the sidewalk leading to an alley. He denied making eye contact with Rose or making an abrupt direction change. Dickerson indicated he did not see the squad car until it drove toward him in the alley.

After stopping Dickerson, Rose performed a pat search. He testified he searched Dickerson because other weapons had been seized from people at the Morgan Avenue apartments. He also indicated that in his experience, drug traffickers often possess weapons.

During the pat search, Rose felt a small lump in the front pocket of Dickerson's nylon jacket. He examined the lump through the nylon with his fingers. Later he claimed that based upon his experience he knew immediately the lump was crack cocaine tied in cellophane wrap. He seized the crack cocaine and arrested Dickerson. Rose never thought the lump was a weapon.

The trial court concluded Dickerson's departure from a "known crack house" and his evasive conduct provided reasonable suspicion he was engaged in criminal activity. The trial court also found the police officer's pat search was justified based upon prior seizure of weapons in the area and Dickerson's conduct. Finally, the trial court held the crack seizure valid based upon a "plain feel" exception to the warrant requirement.

ISSUES

1. Was the stop justified?

2. Did the police have an articulable factual basis to believe Dickerson may have been armed and dangerous?

3. May the state justify the seizure under a "plain feel" exception to the warrant requirement?

4. May the state justify the seizure based upon a search incident to arrest theory not presented to the trial court?

ANALYSIS

I.

Whether the stop in this case was valid is purely a legal determination on given facts. Hence we analyze the testimony of the officer and determine whether his observations provided an adequate basis for the stop. Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn.1985).

Dickerson contends the police performed an unconstitutional investigative stop. The state argues the police properly stopped Dickerson pursuant to Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). The trial court upheld the stop's validity.

The fourth amendment protects the peoples' right against unreasonable searches and seizures. U.S. Const. amend. IV. Seizures conducted without a warrant are per se unreasonable unless one of the exceptions to the warrant requirement is applicable. See United States v. Place, 462 U.S. 696, 701, 103 S.Ct. 2637, 2641, 77 L.Ed.2d 110 (1983).

One exception to the general warrant rule permits officers to stop and frisk an individual "for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest." Terry, 392 U.S. at 22, 88 S.Ct. at 1880. Both parties agree a fourth amendment seizure occurred, but dispute the stop's validity under Terry.

An investigatory stop and frisk may be performed when law enforcement officers have a reasonable suspicion criminal activity "may be afoot." Id. at 30, 88 S.Ct. at 1884. Reasonable suspicion requires "specific articulable facts which, taken with rational inference from those facts, reasonably warrant" the belief a crime is being or has been committed. Id. at 21, 88 S.Ct. at 1879-80. An officer's suspicion must be evaluated "not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement." United States v. Cortez, 449 U.S. 411, 419, 101 S.Ct. 690, 696, 66 L.Ed.2d 621 (1981). A trained police officer is entitled to draw inferences on the basis of "all of the circumstances * * * inferences and deductions that might well elude an untrained person." State v. Johnson, 444 N.W.2d 824, 826 (Minn.1989) (quoting Cortez, 449 U.S. at 418, 101 S.Ct. at 695).

We conclude Dickerson's stop was justified. First, evasive conduct alone has been held to justify an investigative stop. Johnson, 444 N.W.2d at 826-27. Dickerson's abrupt turn around after making eye contact with Rose plainly indicates evasive behavior. Further, Rose had personal knowledge of significant drug activity in the hallways of the Morgan Avenue apartment complex. Moreover, the stop was not based solely on Dickerson's presence in a high crime area. See Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979). Under these circumstances, the trial court did not err in concluding the stop was constitutionally justified.

II.

An officer may conduct a pat search of a lawfully stopped person if the officer has an objective, articulable basis for thinking the person may be armed and dangerous. Wold v. State, 430 N.W.2d 171, 175 (Minn.1988). However, if the true goal of the search is discovery or preservation of contraband rather than weapons, the intrusion is not authorized. See United States v. Gonzalez, 763 F.2d 1127, 1130 n. 1 (10th Cir.1985). Our inquiry therefore is whether Rose possessed a reasonable belief based on specific and articulable facts that Dickerson was dangerous and might gain immediate control of a weapon.

We conclude Rose had an articulable objective basis to perform a limited pat search. Rose previously seized drugs and weapons from the Morgan Avenue apartments. Rose also testified from experience that drug possessors often carry weapons. Dickerson's departure from a "known crack house," his evasive conduct, and Rose's experience with weapon-carrying drug traffickers provided specific and articulable facts to justify the pat search.

We conclude, however, the scope of the pat search exceeded constitutional parameters. The Terry analysis includes the principle that "a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope." Terry, 392 U.S. at 17-18, 88 S.Ct. at 1878. A search's scope must be strictly tied to and justified by the circumstances which rendered its initiation permissible. Id. at 19, 88 S.Ct. at 1878.

Terry described the rationale and scope of a pat search:

The sole justification of the search * * * is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.

Id. at 29, 88 S.Ct. at 1884. Terry upheld the search before it, but carefully noted that the officer:

confined his search strictly to what was minimally necessary to learn whether the men were armed and to disarm them once he discovered the weapons. He did not conduct a general exploratory search for whatever evidence of criminal activity he might find.

Id. at 30, 88 S.Ct. at 1884.

In a companion case to Terry, the Supreme Court reversed a heroin possession conviction and emphasized the limited scope of a pat search. The Court noted:

The search was not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception--the protection of the officer by disarming a potentially dangerous man. Such a search violates the guaranty of the Fourth Amendment, which protects the sanctity of the person against unreasonable...