469 N.W.2d 462 (Minn.App. 1991), C9-90-1780, State v. Dickerson

Docket Nº:C9-90-1780.
Citation:469 N.W.2d 462
Opinion Judge:The opinion of the court was delivered by: Amundson
Party Name:STATE of Minnesota, Respondent, v. Timothy E. DICKERSON, Appellant.
Attorney:Hubert H. Humphrey, III, Attorney General, St. Paul, Minnesota, Michael Freeman, Hennepin County Attorney, Beverly J. Wolfe, Assistant County Attorney, Minneapolis, Minnesota, for Respondent.
Case Date:April 30, 1991
Court:Court of Appeals of Minnesota

Page 462

469 N.W.2d 462 (Minn.App. 1991)

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.

Page 463

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

Page 464

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

Page 465

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...

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8 practice notes
  • Fourth Amendment - the plain touch exception to the warrant requirement.
    • United States
    • Journal of Criminal Law and Criminology Vol. 84 Nbr. 4, January 1994
    • January 1, 1994
    ...96 (Wash. 1982). (60) Transcript of Proceedings at 6, State v. Dickerson, No. 89067687 (Hennepin County, Minn. Feb. 20, 1990), rev'd, 469 N.W.2d 462 (Minn. Ct. App. 1991), aff'd, 481 N.W.2d 840 (Minn. 1991), aff'd, 113 S. Ct. 2130 (1993) [hereinafter Record]. The author is grateful to Assis......
  • State v. Vandevender, 071707 MNCA, A06-2411
    • United States
    • Minnesota Court of Appeals of Minnesota
    • July 17, 2007
    ...consider matters unless argued and considered in the court below. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996); State v. Dickerson, 469 N.W.2d 462, 467 (Minn. App. 1991), aff’d, 481 N.W.2d 840 (Minn. 1992), aff’d, 508 U.S. 366, 113 S.Ct. 2130 (1993). But we may consider an argument that ......
  • 508 U.S. 366 (1993), 91-2019, Minnesota v. Dickerson
    • United States
    • Federal Cases United States Supreme Court
    • June 7, 1993
    ...the cocaine. In doing so, the Court of Appeals "decline[d] to adopt the plain feel exception" to the warrant requirement. 469 N.W.2d 462, 466 The Minnesota Supreme Court affirmed. Like the Court of Appeals, the State Supreme Court held that both the stop and the frisk of responden......
  • 481 N.W.2d 840 (Minn. 1992), C9-90-1780, State v. Dickerson
    • United States
    • Minnesota Supreme Court of Minnesota
    • March 20, 1992
    ...is not a weapon, it feels like contraband. The trial court held in the affirmative and the court of appeals reversed. State v. Dickerson, 469 N.W.2d 462 (Minn.1991). We After a trial on essentially stipulated facts from the omnibus hearing, defendant was convicted in Hennepin County Distric......
  • Free signup to view additional results
7 cases
  • State v. Vandevender, 071707 MNCA, A06-2411
    • United States
    • Minnesota Court of Appeals of Minnesota
    • July 17, 2007
    ...consider matters unless argued and considered in the court below. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996); State v. Dickerson, 469 N.W.2d 462, 467 (Minn. App. 1991), aff’d, 481 N.W.2d 840 (Minn. 1992), aff’d, 508 U.S. 366, 113 S.Ct. 2130 (1993). But we may consider an argument that ......
  • 508 U.S. 366 (1993), 91-2019, Minnesota v. Dickerson
    • United States
    • Federal Cases United States Supreme Court
    • June 7, 1993
    ...the cocaine. In doing so, the Court of Appeals "decline[d] to adopt the plain feel exception" to the warrant requirement. 469 N.W.2d 462, 466 The Minnesota Supreme Court affirmed. Like the Court of Appeals, the State Supreme Court held that both the stop and the frisk of responden......
  • 481 N.W.2d 840 (Minn. 1992), C9-90-1780, State v. Dickerson
    • United States
    • Minnesota Supreme Court of Minnesota
    • March 20, 1992
    ...is not a weapon, it feels like contraband. The trial court held in the affirmative and the court of appeals reversed. State v. Dickerson, 469 N.W.2d 462 (Minn.1991). We After a trial on essentially stipulated facts from the omnibus hearing, defendant was convicted in Hennepin County Distric......
  • 485 N.W.2d 726 (Minn.App. 1992), C6-91-2217, State v. Crook
    • United States
    • Minnesota Court of Appeals of Minnesota
    • May 26, 1992
    ...reaches into the suspect's clothing to recover that object. See State v. Alesso, 328 N.W.2d 685, 688 (Minn.1982); State v. Dickerson, 469 N.W.2d 462, 466 (Minn.App.1991), aff'd, 481 N.W.2d 840 (Minn.1992). The Minnesota Supreme Court has held that requiring a defendant to unzip his jacket a......
  • Free signup to view additional results
1 books & journal articles
  • Fourth Amendment - the plain touch exception to the warrant requirement.
    • United States
    • Journal of Criminal Law and Criminology Vol. 84 Nbr. 4, January 1994
    • January 1, 1994
    ...96 (Wash. 1982). (60) Transcript of Proceedings at 6, State v. Dickerson, No. 89067687 (Hennepin County, Minn. Feb. 20, 1990), rev'd, 469 N.W.2d 462 (Minn. Ct. App. 1991), aff'd, 481 N.W.2d 840 (Minn. 1991), aff'd, 113 S. Ct. 2130 (1993) [hereinafter Record]. The author is grateful to Assis......