481 N.W.2d 840 (Minn. 1992), C9-90-1780, State v. Dickerson

Docket Nº:C9-90-1780.
Citation:481 N.W.2d 840
Party Name:STATE of Minnesota, Petitioner, Appellant, v. Timothy Eugene DICKERSON, Respondent.
Case Date:March 20, 1992
Court:Supreme Court of Minnesota

Page 840

481 N.W.2d 840 (Minn. 1992)

STATE of Minnesota, Petitioner, Appellant,

v.

Timothy Eugene DICKERSON, Respondent.

No. C9-90-1780.

Supreme Court of Minnesota.

March 20, 1992

Page 841

[Copyrighted Material Omitted]

Page 842

Syllabus by the Court.

(1) There is no "plain feel" exception to the warrant requirement of the fourth amendment.

(2) When a police officer carrying out a Terry-style protective weapons search feels an object in a suspect's clothing that cannot possibly be a weapon, s/he is not privileged to pinch, squeeze, twist or otherwise manipulate the object to determine what it is.

William R. Kennedy, Hennepin County Public Defender, Peter Gorman, Asst. Public Defender, Minneapolis, for petitioner, appellant.

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

TOMLJANOVICH, Justice.

This case presents the question of whether a police officer executing a warrantless protective weapons search may seize an object from a detainee's pocket based on the officer's perception that although the object 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 affirm.

After a trial on essentially stipulated facts from the omnibus hearing, defendant was convicted in Hennepin County District Court of fifth degree possession of a controlled substance, crack cocaine. Police found the cocaine in the defendant's jacket pocket during a pat search for weapons. The trial court denied the defendant's motion to suppress the evidence, ruling that the stop was justified under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and that seizure of the cocaine was justified under a "plain feel" exception to the fourth amendment warrant requirement. A unanimous court of appeals panel found the stop justified but reversed on the "plain feel" issue. The state appeals from that decision and the defendant cross appeals on the validity of the stop.

Shortly after 8 p.m. on November 9, 1989, two Minneapolis police officers were on patrol in a marked squad car in North Minneapolis. At 8:15 p.m., while driving southbound on Morgan Avenue North, the officers saw a man leaving a multi-unit apartment building. The man later was identified as the defendant. The officers were suspicious because one had executed search warrants at the building and had found drugs and weapons. He testified that he also had been called to the building to investigate complaints of drug sales in the hallways. The officer said the apartment building was known as a 24-hour-a-day crack house, and police were monitoring it, especially after receiving a complaint from the local alderman.

The officer testified that the defendant came down the stairs from the building and started to walk toward the street until he saw the squad car and made eye contact with the officer. The defendant then stopped, turned around, walked back three to five feet and took a sidewalk around the side of the house to the alley. The defendant testified that he never saw the police car on Morgan Avenue, never made eye contact with the officers and went directly from the apartment building to the sidewalk that leads to the alley. He said he was on his way to a friend's house and the alley was the fastest route. The trial judge credited the officer's version and found that the defendant had turned abruptly after seeing police.

The officer testified that the defendant's change of direction made him suspicious, and he told his partner to pull the squad car into the alley so he could "check [the defendant] for weapons and contraband." They drove into the alley, where the defendant was walking southbound. The officer, who never had seen the defendant before and knew of no criminal activity by him, confronted the defendant and ordered him to submit to a pat search.

The officer described the search as follows: "As I pat searched the front of his

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body, I felt a lump, a small lump in the front pocket [of the defendant's nylon jacket]. I examined it with my fingers and slid it and felt it to be a lump of crack cocaine in cellophane." The officer then reached into the defendant's jacket pocket and pulled out what proved to be .20 grams of crack cocaine in a knotted sandwich-wrap bag. The confiscated material was described as the size of a pea or a marble.

The Stop

Warrantless searches "are per se unreasonable under the fourth amendment--subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). One such exception is the protective pat search for weapons. Terry holds that police may stop and frisk a person when (1) they have a reasonable, articulable suspicion that a suspect might be engaged in criminal activity and (2) the officer reasonably believes the suspect might be armed and dangerous. 392 U.S. at 30, 88 S.Ct. at 1884. If both of those factors are present, police may "conduct a carefully limited search of the outer clothing of such person[ ] in an attempt to discover weapons which might be used to assault him." Id.

We have held that one circumstance giving rise to reasonable suspicion is evasive conduct. State v. Johnson, 444 N.W.2d 824, 827 (Minn.1989). As the court of appeals and the defendant correctly point out, 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, 61 L.Ed.2d 357 (1979). But defendant's evasive conduct after eye contact with police, combined with his departure from a building with a history of drug activity, justified police in reasonably suspecting criminal activity.

In this case, defendant denied making eye contact with the officer and denied making a sudden change in direction, but the trial court, which had an opportunity to observe both the officer and defendant testify, credited the officer's testimony. We accord great deference to the trial court's determinations in this area. "The credibility of witnesses and the weight to be given their testimony are determinations to be made by the factfinder." DeMars v. State, 352 N.W.2d 13, 16 (Minn.1984). We therefore agree with the trial court and the court of appeals that the stop was valid.

The Search

Because the stop was valid under Terry, police were justified in frisking the defendant if they reasonably suspected he could be armed and dangerous. In this case, the defendant's suspicious behavior, the history of drug activity in the immediate vicinity and Officer Rose's personal experience in seizing guns from the building the defendant left justified a pat search. The remaining issue is whether the search was "carefully limited" as Terry requires. The court of appeals held that police exceeded the scope of a Terry search. We agree and affirm.

While we give great deference to the trial court on factual determinations, that deference is not unlimited. The trial court's findings "will not be reversed upon review unless clearly erroneous or contrary to law." State v. Gilbert, 262 N.W.2d 334, 340 (Minn.1977) (citations omitted). In evaluating the search in this case, the trial court made errors of fact and law, requiring a reversal of the defendant's conviction. When the correct law is applied to all of the facts, it is clear that the defendant's fourth amendment right to be free from unreasonable searches and seizures was violated. The pat search of the defendant went far beyond what is permissible under Terry. To conduct the type of search at issue in this case required a warrant, which police did not have. Therefore, the fruits of that illegal search must be suppressed. Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 415-16, 9 L.Ed.2d 441 (1963).

The trial court and the dissenting justices of this court would allow the seized evidence to be admissible under a "plain feel" exception to the fourth amendment warrant requirement. Neither this court

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nor the United States Supreme Court ever has recognized such an exception and we decline to do so today.

The trial court found that when the officer felt the defendant's jacket pocket, he knew immediately he was feeling a plastic bag containing a lump of crack cocaine. The officer's "immediate" perception is especially remarkable because this lump weighed 0.2 grams and was no bigger than a marble. We are led to surmise that the officer's sense of touch must compare with that of the fabled princess who couldn't sleep when a pea was hidden beneath her pile of mattresses. But a close examination of the record reveals that like the precocious princess, the officer's "immediate" discovery in this case is fiction, not fact.

The officer testified that he was sure he had found crack cocaine only after (1) feeling a lump, (2) manipulating it with his fingers, and (3) sliding it within the defendant's pocket. That testimony belies any notion that he "immediately" knew what he had found. And this was not a case of some clever cross-examiner putting words in the officer's mouth; this was his own testimony on direct examination. Any doubts we might have about the trial court's findings are removed by another piece of information, also provided by the officer on direct examination. He testified that after observing the defendant engage in evasive behavior he directed his partner to stop the car so he could search the defendant for weapons and drugs.

It is true, as the dissent points out, that an improper motive does not invalidate an otherwise lawful search. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 2308-10, 110 L.Ed.2d 112 (1990). But the officer's testimony that he intended to conduct a warrantless search for drugs, combined with his testimony about squeezing, sliding and...

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